I thought the USA government couldn't hold copyright?
Not quite. Works created by officers and employees of the federal government in their official capacities are not copyrightable. But these subway authorities are not parts of the federal government; they're in state government.
Also, the federal government is not precluded from obtaining and having copyrights, it just can't have them on its own works. If you write a book and sell or give the copyright to the United States, that's fine.
What would be nice, however, is to expand the no-copyright for government principle to include states and foreign governments and IGOs and works wholly or partially funded by any of them.
I believe that I said that the modified source would be downloadable. Again the scenarios are either a) unmodified source which permits download (and this isn't disabled since it's left unmodified) or b) modified source, where GPL3 requires that the modified source be downloadable.
B has made a copy of the program, and has made a derivative of the program. Both of these acts are infringing, unless permission has been granted by the copyright holder or there is an applicable exception to copyright (e.g. 17 USC 117 covers some copies or derivative works, but not all copies or derivative works; and there are certain conditions that have to be met for it to apply).
Bear in mind that Fair Use is not infringement, and that the primary metric by which the courts determine whether or not fair use is applicable to copying a copyrighted work without permission is whether or not the person making the copies either intended to distribute them, or simply whether or not he actually _DID_ distribute them.
Got a cite for that? The four factors that are used by the courts are listed at section 107. Of those, the fourth is generally considered to be the most significant. Distribution qua distribution is not a factor, however.
It also closely resembles the "right of first sale", which allows someone who legally acquired a copyrighted copy to modify that one copy.
That's wrong. First sale is an exception to the distribution right, not the derivative right. Some modifications may not rise to the level of being derivatives, or might be fair use if they are; but first sale has nothing to do with them.
Getting back to GPL3 itself, the two scenarios I described control. Either the software in question has a download feature and is left alone, or else it is modified, in which case GPL3 limits the modifications permissible so that that feature remains. Since the modifications are infringing of the derivative right if the GPL is not agreed to, it's relying on copyright law.
Now, you could always try to rely on fair use and other exceptions instead of accepting the GPL. That's true even today. But this can result in litigation to settle the issue, and introduces an element of risk. Most people would rather avoid the risk by agreeing to the GPL, and putting up with its relatively minor requirements in this situation, or canceling the whole project.
Without the copyright holder causing a distribution, there could be zero uploads, zero distributions, zero infringements.
And? Distributing to the copyright holder, at the copyright holder's request, is still distribution, and therefore infringement. Why should it matter who's on the receiving end? That's not part of what constitutes the offense.
It's similar to drug busts. It's illegal to sell drug A. If you sell it to an undercover policeman, you're likely to get arrested, prosecuted, and convicted for it. The police did not force you to break the law. They merely provided an opportunity for you to do so of your own free will.
Basically all that's happening is that the copyright holders are asking the uploaders, 'will you break the law by sending this file to me?' and getting a positive response, with the file to prove it. The copyright holder is hardly cashing in on anything; they're identifying infringers in a very direct manner.
I really don't think you'll get far with an argument that boils down to 'It's not fair to catch me breaking the law when I did so right in front of you at your request.'
Really, why should illegal activity be tolerated when it's blatantly obvious to investigators and not coerced in any way? People that are actually law-abiding wouldn't do this no matter who asked.
From 6 of GPL2: You may not impose any further restrictions on the recipients' exercise of the rights granted herein.
From 9 of GPL2: The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time.... Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
Both of these clauses have to be read together, in a mutually compatable way. What it amounts to is that licenses cannot impose their own further restrictions on sublicensees, but that licensees may have some choice as to which version of the GPL they themselves are bound by. (Of course the sublicensees get the same choice, since 6 prohibits restricting it down the road!)
So basically it's because the GPL makes an exception for itself.
no "copyright license" can tell you how to use your software
Oh yes they can. The trick is that use isn't an exclusive right, and so you can't hang a license on the use of the software. But if you're licensing things that do fall within the exclusive rights, such as reproducing the work in copies, preparing derivatives, distributing copies, etc. then you can throw in conditions. But this doesn't appear to be a use license anyway.
Here, I think that what would happen would be one of two scenarios:
A releases under GPL3, server-side software that includes a 'download source' command. B either 1) uses it as-is, in which case the command is present and working because A put it there and B hasn't changed anything, or 2) modifies it, which requires compliance with GPL3, and doesn't let him remove this feature and requires him to allow it to be used to download the modified source.
None the less, I feel you're still "making your own pot of gold".... The fact remains that unless they had actively caused an infringment to happen, it is possible that there would be no infringement at all.
This is not true, due to the nature of the infringement.
The offense here is that the uploader distributed the files. It doesn't actually matter who is on the other end of the distribution. They are not allowed to distribute copies to anyone. Not even the copyright holder.
The infringer can't claim that he was permitted by the copyright holder to do what was otherwise an infringing act, as he (pretty certainly) had no idea as to the identity of the person on the other end. He was content to share the files with anyone, and it's just his bad luck who he turned out to do it with.
Just because an unknown party asked him to infringe (by distributing) doesn't mean that the infringer is not responsible when he does it. No one made him, and it's flat-out illegal. He is expected by the law to refuse to upload. When he uploads, he can get in trouble.
I have plenty of beefs with the current law, as we all do, but this is not one of them. It's fair enough.
Perhaps it's safe to say that the uploader is negligent because of the P2P configuration and deserves to get sued though.
Sigh.
Negligence is irrelevant. For a strict liability offense all that matters is that you did it. No one cares what was going through your head, or whether you breached a duty of care, or anything. If you do it, that's it, end of story.
The only way you can avoid liability for this sort of thing is to show that you didn't do it. For example, if you can prove -- and this would be quite difficult in this context -- that someone else set up your computer to share the files, then you'd be off the hook. But 99.44% you are not going to be able to get away with infringement based on some sort of involuntariness defense, unless you're in unusual circumstances (e.g. you're an ISP that can't rely on the 512 safe harbor).
This just brings us back to your needing to get more familiar with the law. All this stuff is covered in 17 USC 501 et seq.
For copyright infringement, there are a couple of different remedies: injunctive relief, damages, seizure and destruction, and costs and fees.
Injunctive relief (i.e. a court order whereby the infringer is told to stop infringing) has no connection with whether there was one infringement or a thousand. A plaintiff is satisfied with a single injunction.
Damages are calculated one of two ways, at the copyright holder's option. First, either the actual damage caused to the copyright holder, plus the net profits of the infringer. In your typical downloading case, these are too negligable to care about. So the second option is statutory damages. There, the infringer has to pay an amount set by the court, within a range set by the statute, and which goes up or down depending on whether the plaintiff can prove that the infringement was willful or the defendant can prove that the infringement was in good faith. But this amount is determined, not per infringement, but per work infringed! If you upload one copy of an mp3 or a thousand copies of the same mp3, it's all the same. The statutory damages can only increase in you're infringing multiple works.
Seizure and destruction are usually more aimed towards professional infringers. The copies they've made, and the tools they've made them with can be confiscated and destroyed. This is unlikely to be applied to John Filesharer, however.
And finally court costs and reasonable attorney fees can be imposed on the loser, if the court wants.
So there's no way for the RIAA to increase the amount of damages just by downloading more than once. Now, if there are multiple works being shared, then that can increase the damages spectacularly, but it's difficult to see why that's an inherently bad thing. After all, RIAA would _not_ be the party responsible; it's the defendant that put up all those different files for download.
Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine).
Why wouldn't that work? I haven't heard of courts refusing to consider that to be infringing. Got a cite?
The best they can shoot for is intent to violate copyright law.
Which isn't an offense, so they're not shooting for it at all. Probably they can find some evidence of infringement during discovery, or at least think they can.
So basically, you don't really know that much about copyright, do you?
First, civil actions for copyright infringement use a preponderance of the evidence standard, not beyond a reasonable doubt. Second, an uploader not only engages in reproduction (because copies are made within their computer) but also in distribution, which does occur if someone downloads the file. Third, copyright infringement is a strict liability offense; intent is irrelevant. It might play a factor in the amount of damages, but you can infringe a copyright accidentally and still be sued and found liable. Fourth, what the hell do you mean, 'conspiracy'? Again, it's a civil action. Fifth, going back to intent, it doesn't matter if the downloader doesn't know for sure what he's getting; if he makes a copy (as he must when he downloads) then he's liable.
whether it is legal to download music when you have a legitimate license to use that music (i.e., you already bought the CD), and whether in such cases it is legal for the uploader to upload it to you, since no new access to the music is created in the process
When you buy a CD in the store, you do not get a license. You just own a copy. Since copyright does not prohibit listening to music (as opposed to making copies, publicly performing the music, etc.) listening to the CD is one of the many things that you can do with it because you own it. You could also use it as a frisbee for the same reason.
This being the case, it is infringing to download it, and to upload it.
You need to consider the fair use as a whole. It's not just whether one of the elements is not satisfied, or even whether most of them aren't. It's about whether the use is fair, not just the arithmetic of the four factors.
Commercial parodies are dirt-common, and the Pretty Woman case is probably the most appropriate. The Betamax case, meanwhile, indicated that under the right circumstances, copying an entire work by means of a VCR could be a fair use.
OK, so if you read the US law on copyright/fair use, you realize that for fair use to apply, only an unspecified subset of the work can be copied, scanned, etc, and it must be for research/study/personal use, etc, but certainly not commercial.
I think that what he means is that party A wanted to sue party B in a specific jurisdiction, but since party B avoided the area, there was a lack of personal jxn. At least, until party B flew into the jxn on an airplane. I've heard about this sort of thing happening from time to time as well.
No, broadcasting is a transmission of a performance or display. Distribution can't be done by broadcast alone.
The industry does not have a right to stop my recording (they are not law enforcement, much as they'd like to be).
First, what's law enforcement got to do with anything? Copyright is more a civil matter than a criminal one. Second, they do have that right; the question is whether you have a defense that allows you to do so anyway.
And if it's hard for them to "demonstrate instances where it's not ok" then why should we put them in charge of making that decision?
They aren't; the courts make the decision.
Personally, I oppose this, but it does no good to misunderstand just how bad the law is right now.
The reason is that they don't actually have a "right to control the distribution of their works". Please site the part of copyright law that says so if that's what you think.
You mean 17 USC 106(3)?
They also don't have a legal right to stop me from recording broadcasts.
You mean 17 USC 106(1)?
The Sony case confirms my right to record shows for later viewing.
No it doesn't. It basically says that it's ok sometimes, and it indicates that it's difficult for copyright holders to demonstrate instances where it's not ok.
A 60GB iPod is advertised as being able to store 15,000 tracks. If you bought those from the iTMS, it'd cost nearly $15,000. Even if you ripped them from CDs, and even if you're getting the CDs cheaply at about $10 each with 15 tracks, that's still $10,000.
People do not fill up their iPods with legally acquired music.
As a rule, parents are not liable for the torts of their children. Once you have the judgment against them, you can wait for them to be able to afford to pay.
Bankruptcy is an option, but not all debts can be discharged from bankruptcy, including some torts. It largely depends on the situation, however. Plus, you can only get debts discharged in bankruptcy so often. Been a while since I've looked at bankruptcy law, however.
Is it possible to have any type of civil suit against a minor?
Yes.
Since a minor can not enter in to a contract then can minor violate a contract?
Minors can enter into contracts. It's just that since they can often void the contracts at will, other people don't usually like contracting with minors.
Slashdot Mirror
I just discussed this here.
I thought the USA government couldn't hold copyright?
Not quite. Works created by officers and employees of the federal government in their official capacities are not copyrightable. But these subway authorities are not parts of the federal government; they're in state government.
Also, the federal government is not precluded from obtaining and having copyrights, it just can't have them on its own works. If you write a book and sell or give the copyright to the United States, that's fine.
What would be nice, however, is to expand the no-copyright for government principle to include states and foreign governments and IGOs and works wholly or partially funded by any of them.
The 23d century is all about retro.
I believe that I said that the modified source would be downloadable. Again the scenarios are either a) unmodified source which permits download (and this isn't disabled since it's left unmodified) or b) modified source, where GPL3 requires that the modified source be downloadable.
I still don't see a use restriction.
B has made a copy of the program, and has made a derivative of the program. Both of these acts are infringing, unless permission has been granted by the copyright holder or there is an applicable exception to copyright (e.g. 17 USC 117 covers some copies or derivative works, but not all copies or derivative works; and there are certain conditions that have to be met for it to apply).
Bear in mind that Fair Use is not infringement, and that the primary metric by which the courts determine whether or not fair use is applicable to copying a copyrighted work without permission is whether or not the person making the copies either intended to distribute them, or simply whether or not he actually _DID_ distribute them.
Got a cite for that? The four factors that are used by the courts are listed at section 107. Of those, the fourth is generally considered to be the most significant. Distribution qua distribution is not a factor, however.
It also closely resembles the "right of first sale", which allows someone who legally acquired a copyrighted copy to modify that one copy.
That's wrong. First sale is an exception to the distribution right, not the derivative right. Some modifications may not rise to the level of being derivatives, or might be fair use if they are; but first sale has nothing to do with them.
Getting back to GPL3 itself, the two scenarios I described control. Either the software in question has a download feature and is left alone, or else it is modified, in which case GPL3 limits the modifications permissible so that that feature remains. Since the modifications are infringing of the derivative right if the GPL is not agreed to, it's relying on copyright law.
Now, you could always try to rely on fair use and other exceptions instead of accepting the GPL. That's true even today. But this can result in litigation to settle the issue, and introduces an element of risk. Most people would rather avoid the risk by agreeing to the GPL, and putting up with its relatively minor requirements in this situation, or canceling the whole project.
Without the copyright holder causing a distribution, there could be zero uploads, zero distributions, zero infringements.
And? Distributing to the copyright holder, at the copyright holder's request, is still distribution, and therefore infringement. Why should it matter who's on the receiving end? That's not part of what constitutes the offense.
It's similar to drug busts. It's illegal to sell drug A. If you sell it to an undercover policeman, you're likely to get arrested, prosecuted, and convicted for it. The police did not force you to break the law. They merely provided an opportunity for you to do so of your own free will.
Basically all that's happening is that the copyright holders are asking the uploaders, 'will you break the law by sending this file to me?' and getting a positive response, with the file to prove it. The copyright holder is hardly cashing in on anything; they're identifying infringers in a very direct manner.
I really don't think you'll get far with an argument that boils down to 'It's not fair to catch me breaking the law when I did so right in front of you at your request.'
Really, why should illegal activity be tolerated when it's blatantly obvious to investigators and not coerced in any way? People that are actually law-abiding wouldn't do this no matter who asked.
From 6 of GPL2: You may not impose any further restrictions on the recipients' exercise of the rights granted herein.
... Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
From 9 of GPL2: The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time.
Both of these clauses have to be read together, in a mutually compatable way. What it amounts to is that licenses cannot impose their own further restrictions on sublicensees, but that licensees may have some choice as to which version of the GPL they themselves are bound by. (Of course the sublicensees get the same choice, since 6 prohibits restricting it down the road!)
So basically it's because the GPL makes an exception for itself.
no "copyright license" can tell you how to use your software
Oh yes they can. The trick is that use isn't an exclusive right, and so you can't hang a license on the use of the software. But if you're licensing things that do fall within the exclusive rights, such as reproducing the work in copies, preparing derivatives, distributing copies, etc. then you can throw in conditions. But this doesn't appear to be a use license anyway.
Here, I think that what would happen would be one of two scenarios:
A releases under GPL3, server-side software that includes a 'download source' command. B either 1) uses it as-is, in which case the command is present and working because A put it there and B hasn't changed anything, or 2) modifies it, which requires compliance with GPL3, and doesn't let him remove this feature and requires him to allow it to be used to download the modified source.
Either way, the command is there.
None the less, I feel you're still "making your own pot of gold". ... The fact remains that unless they had actively caused an infringment to happen, it is possible that there would be no infringement at all.
This is not true, due to the nature of the infringement.
The offense here is that the uploader distributed the files. It doesn't actually matter who is on the other end of the distribution. They are not allowed to distribute copies to anyone. Not even the copyright holder.
The infringer can't claim that he was permitted by the copyright holder to do what was otherwise an infringing act, as he (pretty certainly) had no idea as to the identity of the person on the other end. He was content to share the files with anyone, and it's just his bad luck who he turned out to do it with.
Just because an unknown party asked him to infringe (by distributing) doesn't mean that the infringer is not responsible when he does it. No one made him, and it's flat-out illegal. He is expected by the law to refuse to upload. When he uploads, he can get in trouble.
I have plenty of beefs with the current law, as we all do, but this is not one of them. It's fair enough.
Perhaps it's safe to say that the uploader is negligent because of the P2P configuration and deserves to get sued though.
Sigh.
Negligence is irrelevant. For a strict liability offense all that matters is that you did it. No one cares what was going through your head, or whether you breached a duty of care, or anything. If you do it, that's it, end of story.
The only way you can avoid liability for this sort of thing is to show that you didn't do it. For example, if you can prove -- and this would be quite difficult in this context -- that someone else set up your computer to share the files, then you'd be off the hook. But 99.44% you are not going to be able to get away with infringement based on some sort of involuntariness defense, unless you're in unusual circumstances (e.g. you're an ISP that can't rely on the 512 safe harbor).
This just brings us back to your needing to get more familiar with the law. All this stuff is covered in 17 USC 501 et seq.
For copyright infringement, there are a couple of different remedies: injunctive relief, damages, seizure and destruction, and costs and fees.
Injunctive relief (i.e. a court order whereby the infringer is told to stop infringing) has no connection with whether there was one infringement or a thousand. A plaintiff is satisfied with a single injunction.
Damages are calculated one of two ways, at the copyright holder's option. First, either the actual damage caused to the copyright holder, plus the net profits of the infringer. In your typical downloading case, these are too negligable to care about. So the second option is statutory damages. There, the infringer has to pay an amount set by the court, within a range set by the statute, and which goes up or down depending on whether the plaintiff can prove that the infringement was willful or the defendant can prove that the infringement was in good faith. But this amount is determined, not per infringement, but per work infringed! If you upload one copy of an mp3 or a thousand copies of the same mp3, it's all the same. The statutory damages can only increase in you're infringing multiple works.
Seizure and destruction are usually more aimed towards professional infringers. The copies they've made, and the tools they've made them with can be confiscated and destroyed. This is unlikely to be applied to John Filesharer, however.
And finally court costs and reasonable attorney fees can be imposed on the loser, if the court wants.
So there's no way for the RIAA to increase the amount of damages just by downloading more than once. Now, if there are multiple works being shared, then that can increase the damages spectacularly, but it's difficult to see why that's an inherently bad thing. After all, RIAA would _not_ be the party responsible; it's the defendant that put up all those different files for download.
Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine).
Why wouldn't that work? I haven't heard of courts refusing to consider that to be infringing. Got a cite?
The best they can shoot for is intent to violate copyright law.
Which isn't an offense, so they're not shooting for it at all. Probably they can find some evidence of infringement during discovery, or at least think they can.
So basically, you don't really know that much about copyright, do you?
First, civil actions for copyright infringement use a preponderance of the evidence standard, not beyond a reasonable doubt. Second, an uploader not only engages in reproduction (because copies are made within their computer) but also in distribution, which does occur if someone downloads the file. Third, copyright infringement is a strict liability offense; intent is irrelevant. It might play a factor in the amount of damages, but you can infringe a copyright accidentally and still be sued and found liable. Fourth, what the hell do you mean, 'conspiracy'? Again, it's a civil action. Fifth, going back to intent, it doesn't matter if the downloader doesn't know for sure what he's getting; if he makes a copy (as he must when he downloads) then he's liable.
whether it is legal to download music when you have a legitimate license to use that music (i.e., you already bought the CD), and whether in such cases it is legal for the uploader to upload it to you, since no new access to the music is created in the process
When you buy a CD in the store, you do not get a license. You just own a copy. Since copyright does not prohibit listening to music (as opposed to making copies, publicly performing the music, etc.) listening to the CD is one of the many things that you can do with it because you own it. You could also use it as a frisbee for the same reason.
This being the case, it is infringing to download it, and to upload it.
You need to consider the fair use as a whole. It's not just whether one of the elements is not satisfied, or even whether most of them aren't. It's about whether the use is fair, not just the arithmetic of the four factors.
Commercial parodies are dirt-common, and the Pretty Woman case is probably the most appropriate. The Betamax case, meanwhile, indicated that under the right circumstances, copying an entire work by means of a VCR could be a fair use.
OK, so if you read the US law on copyright/fair use, you realize that for fair use to apply, only an unspecified subset of the work can be copied, scanned, etc, and it must be for research/study/personal use, etc, but certainly not commercial.
Actually, none of that is true.
I think that what he means is that party A wanted to sue party B in a specific jurisdiction, but since party B avoided the area, there was a lack of personal jxn. At least, until party B flew into the jxn on an airplane. I've heard about this sort of thing happening from time to time as well.
Of course, only a dork, geek, or nerd would believe there's a difference, try to correct people, or care.
Bill Gates' family was already pretty wealthy actually. He was never poor.
Sounds good to me.
Broadcasting is like distribution.
No, broadcasting is a transmission of a performance or display. Distribution can't be done by broadcast alone.
The industry does not have a right to stop my recording (they are not law enforcement, much as they'd like to be).
First, what's law enforcement got to do with anything? Copyright is more a civil matter than a criminal one. Second, they do have that right; the question is whether you have a defense that allows you to do so anyway.
And if it's hard for them to "demonstrate instances where it's not ok" then why should we put them in charge of making that decision?
They aren't; the courts make the decision.
Personally, I oppose this, but it does no good to misunderstand just how bad the law is right now.
The reason is that they don't actually have a "right to control the distribution of their works". Please site the part of copyright law that says so if that's what you think.
You mean 17 USC 106(3)?
They also don't have a legal right to stop me from recording broadcasts.
You mean 17 USC 106(1)?
The Sony case confirms my right to record shows for later viewing.
No it doesn't. It basically says that it's ok sometimes, and it indicates that it's difficult for copyright holders to demonstrate instances where it's not ok.
A 60GB iPod is advertised as being able to store 15,000 tracks. If you bought those from the iTMS, it'd cost nearly $15,000. Even if you ripped them from CDs, and even if you're getting the CDs cheaply at about $10 each with 15 tracks, that's still $10,000.
People do not fill up their iPods with legally acquired music.
And 80GB iPods are probably on their way shortly.
As a rule, parents are not liable for the torts of their children. Once you have the judgment against them, you can wait for them to be able to afford to pay.
Bankruptcy is an option, but not all debts can be discharged from bankruptcy, including some torts. It largely depends on the situation, however. Plus, you can only get debts discharged in bankruptcy so often. Been a while since I've looked at bankruptcy law, however.
Is it possible to have any type of civil suit against a minor?
Yes.
Since a minor can not enter in to a contract then can minor violate a contract?
Minors can enter into contracts. It's just that since they can often void the contracts at will, other people don't usually like contracting with minors.