It's not good enough to read the statute. Read the caselaw. As I've mentioned, my favorite case on the issue is Intellectual Reserve v. Utah Lighthouse Ministry. It's easy to google up, and you can look through the cites in the case if you want to research the issue more.
At any rate, courts are all in agreement that downloading is infringing, all else being equal.
The RIAA is not going after someone that only downloads and does not upload. If they lose the case the precedent is devastating for them. If they win, they get no money, more bad press, and possibly get a charge of barratry.
They wouldn't lose, it's just not practical. RIAA has always had a 'head of the snake' approach. That's why they went after the networks before going after any users at all.
downloading is not copying; it is receiving an already copied work
No, it's reproduction alright. All the courts agree on that too. Here's why:
The law prohibits reproduction at 17 USC 106(1). (Distribution is also prohibited at 106(3); some other things are as well; copyright is really about a lot of different things)
Specifically, it prohibits reproducing the work in copies. A copy is defined at 17 USC 101 as basically being a material object in which a work is fixed.
So if we have a conversation IRL, nothing is fixed. If we mail one another tape recordings of our halves of the conversation (latency will be high, but this is akin to letters) then they are fixed.
The issue then is whether computers constitute a material object as to the data that goes through them. The courts say that they do. When you download, data is stored on a server. A second instance of that data is sent down the wire to you. Your computer reads what comes off the wire and makes further instances in RAM (which is a tangible medium in which the work is stored, and is therefore a copy), the hard drive, etc.
The seminal case for this is MAI v. Peak, which held that running a program was infringing because a copy was made in RAM. It's been applied to other situations, such as Intellectual Reserve v. Utah Lighthouse Ministry, where merely looking at a web page was found to be illegal (given the peculiar circumstances in the case) since a copy was made in the RAM of the users doing the looking.
In fact, since it is impossible to download a tangible object, and since a copy is defined in the law as being a tangible object, it ought to be very clear that no copies are being sent to you when you download. Rather, the intangible work is, and you are fixing it into a copy, which is the act of reproduction.
Remember, copies are not the same as the creative works embodied in those copies.
Copyright is about distribution, not about reception. All a copyright holder can do to a person who illegally receives a copy of their work is inform them that the person they received it from did not have the right to distribute, and ask them to return/destroy it.
Well, it's about a lot of things. Receiving copies isn't one of them, but making them is. Computers make copies constantly; it's how they work. This produces odd results, but it's what we've got at the moment.
You're generally right otherwise on this specific point, but you never know how far injunctive relief will go.
At any rate, it's moot with regards to computer file sharing.
Let's use yet one more illustration. Company X makes a certain brand of carbonated sugar water. Company Y sneaks in and copies their recipe, and then distributes it to anyone who asks for a copy. Who is in breach of copyright law?
No one. Recipes are not copyrightable (they're methods under 17 USC 102(b)) and tend to merge anyway.
What you're discussing is misappropriation of a trade secret.
Where it gets sticky is this next step. What happens when the those who received illegal copies of the recipe decide to "perform" it? The common way to do this would be by producing an identical drink, and serving it to the public. Copyright law states that this is also a violation.
Congratulations. You have won the award for the stupidest thing I've seen all day. Also, copyright law says no such thing. In fact it's probably constitutionally unable to do so, as a Coke is not a writing.
without the permission of the creator or current copyright holder*
The creator can, as a rule, go fuck himself. Only the copyright holder matters.
other than prescribed by Fair Use rights, which allow for parodies, personal (family) use (no external distribution), educational research and a few other exceptions (such as specific types of archiving), which are generally on a situation-by-situation basis.
You've managed to fail to describe fair use at all
downloading is theft because you are receiving a perfect copy of a thing without paying for it.
So if the Mona Lisa hangs in the Louvre, and I become a master painter and paint myself a perfect copy of one, have I stolen the Mona Lisa from the Louvre? If so, I'd better go on the lam. That's probably the most famous painting in the world and I'll have a difficult time fencing it.
Of course, wouldn't it be surprising if tourists were still able to go to the Louvre and see the one painted by DaVinci, despite my having stolen it by the means of painting a perfect copy?
Copyright may not seem that important to you, but perhaps you have never created anything you thought worthy of calling your own.
Oh, copyright is important to me personally. I'm a copyright lawyer. I love copyright. But in the grand scheme of things, it's not that big a deal is all. Fighting social norms with respect to racial discrimination is acceptable IMO. Fighting them for copyright is not. The one is more important than the other.
Also, I'm an artist, and in fact I supported myself as one before going to law school. But again copyright wasn't very relevant to me. I would've done the same thing even if copyright didn't exist, and would've gotten paid for it. There are ways for artists to make money that don't involve copyrights, you know. (Which explains how there were artists prior to the first copyright law, in England, in 1710)
For accurate clarification, downloading is reproduction. Uploading is distribution. Both are infringing. You may wish to read cases such as A&M v. Napster, 239 F.3d 1004 (9th Cir. 2001), or my personal favorite, Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) (in which the court says that merely looking at material put up on the web in an infringing manner is itself an infringement).
Also copyright law covers a lot of different acts. Reproduction is but one of them. You might want to read 17 USC 106 for the main rights involved. Performance is not reproduction, btw.
copyright allows for quoting from works
No, it bans it, and then allows quoting in limited, nebulously defined circumstances.
Using a modified BitTorrent client/server, shouldn't it be possible quote only up to the legal portion of a piece of property to any given IP address?
Nope. There is no 'legal portion.' A quote is prima facie illegal, and is only legal to the degree that it's fair, under the circumstances. How much is fair will vary. In your scenario, which I strongly suspect involves accumulating 'quotes' until you have the whole thing, I doubt anyone would ever be so stupid as to not find it grossly illegal.
If the RIAA can sue someone for downloading a song, then they can also sue everyone who listens to an unauthorized live performance of that song.
No. Again, you might want to read the actual law someday.
For copyright infringement, you can sue infringers for either:
1) Actual damages to you, and their profits. This involves both sides fighting over the accounting.
2) Statutory damages, which, depending on the circumstances, can be as low as $200 per work infringed, and as high as $150,000 per work infringed. This is available due to the difficulty of proving the other, a lot of the time.
This is all set forth in 17 USC 504. You may enjoy reading it.
While I agree there is most likely a great need for tort reform in the United States
Yes you can. It might be less likely, but it's entirely possible.
17 USC 501 and 106 prohibit downloading (a form of reproduction) and uploading (a form of distribution) equally. 504 sets forth the civil damages available against infringers. 506 and 18 USC 2319 set forth the requirements for infringement to be criminal, and the penalties associated with it.
Download enough, and it's a felony with hefty fines involved, and a civil suit for damages and injunctive releif.
At any rate, the danger with laws that conflict with social norms is that not only do people break such laws, but in doing so, they become disrespectful of laws that are actually valuable.
Unless it is really worth it to fight these norms, the law generally should avoid conflicting with them. Copyright IMO is not that important.
For resale, lending, and rental, 17 USC 109 is your friend.
To sum up at the expense of accuracy, anyone can rent a legally made copy of a video, but only libraries can freely lend out CDs.
There's no truth to the belief that video stores pay extra to rent copies. They do OTOH sometimes pay extra to get copies before they're available for sale in the retail market. But they could just as easily wait until they can buy DVDs at Best Buy, and start renting 'em out.
That's the sound recording. You're forgetting about the musical composition (i.e. notes and lyrics) that the CD is a recording _of_.
Publicly performing the CD infringes on the copyright of the composer.
But I'm very happy to see someone actually looking at the statute for once! (Though you also could've gotten the same from implication out of section 106)
Well, no. The labels front those costs, then bill them to the artists, recovering payment for those costs before letting the artists take a share of profits.
If there never are profits, the artists never have to pay back the label, but they'll never make any money from that album (or record deal) either.
Given that the label is risking a lot of money, and the artists are really just risking their time, it's not outrageous for things to work out this way. Besides -- if the artists don't like it, they don't have to deal with the label. It was their choice.
Business works a lot like this too. If you have a start up that hits it big, it's the investors that get really rich, because they gambled vast sums. The employees don't see anything like that kind of money, and they had a salary anyway.
It sounds nice to talk about how artists ought to get more money, but they really aren't doing enough to deserve it, IMO.
No, 17 USC 106(1) prohibits reproduction, period. Making a copy, then erasing the original doesn't alter the fact that you made a copy. So even the kind of P2P you mention wouldn't change things.
But uploading a song is not a crime in any real sense of the word.
Except that it may be a crime in that it's a misdemeanor or a felony, depending on the circumstances. You might like reading 17 USC 506 and 18 USC 2319.
If I lend you a book, and you make illegal photocopies from that book, I'm not a criminal for allowing you to borrow it.
No, probably not, but that's irrelevant with regards to computer file sharing.
Your defense would be "what's your proof?". All they'd have is an IP address that your provider says was in lease to you at the time. That doesn't prove you were doing something illegal.
Well, it's a civil suit for copyright infringement. This means there is a preponderance of the evidence standard. So long as, based on the evidence involving the IP address, it is more likely that it was you, than that it wasn't you, that's proof that it was you.
100% proof isn't required. In fact, only 51% is.
While you might have something to rebut it with, given that discovery will likely support the plaintiff's claims (unless you _really_ didn't do it, and aren't just grasping for any kind of way out, as it sounds like you are), you probably won't win this part of the case. In fact, it's fairly unusual for copyright suits to hinge on factual matters.
Well, really it doesn't matter. Copyright is strict liability. If you infringe, it doesn't matter whether you knew it, or reasonably should've known it, or intended it, or anything. Just doing it is the offense, period. What was going through your mind might affect damages, but that's it.
Either direct infringement (it's often infringement even when you copy just a very small part of a work), or contributory infringement, since you're working with a lot of other people to, in sum, infringe.
That you'd consider this kind of indicates that you're treating the law as a machine, which can be spoofed. This is a mistake; there are human beings involved, and they're often fairly smart, too. Your scheme is so very simple that it is no work at all to see through. I'd watch it with the whole pride thing.
Some parts of it may also count as making an infringing derivative work (e.g. the encrypted movie probably is, the key probably isn't)
No, neither is a derivative. There is a definition in 17 USC 101 of what is a derivative work:
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
What's meant is when you take one work and transform it into another. Such as a movie based on a book. Merely changing the medium the book is in, including encrypting it, doesn't create a new work based on the old. It's just a variant of the same thing.
If it was issued on June 7, 1978 or earlier, it's 17 years from issuance.
If it was filed on June 7, 1995 or earlier, but did not issue until June 8, 1978 or later, it's the longer of 17 years from issuance or 20 years from filing.
If it was filed on June 8, 1995 or later, it's 20 years from filing.
Call me on this, but I think it's illegal to abuse a network like this. Patenting something does not make it legal. These applications had better not be accepted.
Why shouldn't they be accepted?
You're right, a patent doesn't make use of the invention at issue legal. Which just means that the patent isn't very useful while that's so.
But mere illegality is no reason to deny a patent; you can't go around selling drugs without FDA approval, but you get patents first. Worst thing that happens is that it's patented but denied for use on patients.
No, patents filed these days have a term of 20 years from filing, not the old term of 17 years from issuance.
And while you need to reduce the invention to practice, in order to get a patent, that doesn't mean that you need to actually implement it. Implementation is merely a good way of demonstrating reduction to practice.
But nearly all of the art that survives from the pre-copyright era was commissioned by wealthy individuals (the patrons) and wasn't made available to the general public, in some cases for centuries.
Well, that's true for high art. For popular art, I dunno. There's a decent number of surviving plays, stories, songs, etc. I think a bigger factor would've been affording copies of anything, and literacy rates.
there is no technology that has supplanted the need for human talent, imagination and effort in the creation of art.
Give it time.;)
More seriously, the overall point is that less copyright can result in a better deal overall. It frees up originals so that people can make derivatives, may not significantly impair creation of original works, and makes the public more free to do as they like. It depends where on the curve we are.
a system where exclusive distribution contracts are prohibited, and anyone can make commercial copies as long they pay the correct royalties to the artists and a fixed percentage of the sales price to any party that provided investment capital to produce a work.
Getting the numbers right is a pain, though. And honestly, I think more attention needs to be paid to noncommercial parties. Some fan might write a brilliant set of prequels for Star Wars instead of what we've been getting, but the mere fact that they send 'em out for free shouldn't be used against them, IMO.
I am not at all convinced that we need to encourage creativity these days.
Well, there is a baseline of creation, it's true. Some people make art for art's sake, or for glory, or because they're given money for their services, or whatnot.
Still, if we can pay very little for a whole lot of creation, then that's a good deal. The issue is just how little, for how much. We don't want to get too far into diminishing returns territory, and we sure as hell don't want to pay more than it's worth.
Payment, here, is copyright. The more copyright there is, the costlier it is to the public.
So long as we get the mostest for the leastest, as it were, then I think that's okay. Of course, that doesn't invalidate opting for less creation and having less copyright, either.
Yeah, most of it would be pretty amateurish, but most of everything is under the 80:20 rule.
I think the 80:20 rule is probably hopelessly optimistic with regards to creative works. Sturgeon set it at 90:10. It might be higher.
I frankly think we would not (and should not) miss such commercial "creative" endeavors as Desperate Housewives.
Meh. I'm happy with quantity. Something will always turn out to be good, but people will differ on what it is.
Modern technology is making creative resources more accessible to average people, so the argument about "needing lots of money to do creative work" is also increasingly specious.
True. Of course, the tricky part, as always, isn't the medium, it's the message. Even a high budget movie can be ruined by crappy writing; good writing, OTOH, can work even with a low budget affair. You see the same sort of thing in all kinds of art.
Btw, have you looked at chanel101.com ? If those guys have a budget, you could've fooled me. House of Cosbys is pretty funny, though.
Ah, but you see that's a different issue altogether. If I could solve world hunger, I could put farmers out of business and guarantee they'd always have enough to eat, and never worry again. The only way this connects to freely copying art is if any artist is able to walk into a restaurant, perform or deliver some kind of art, and freely take food without paying actual money.
I think that's a bit bizarre.
If the marginal cost for everyone to create copies of material things is at or is very near zero, and there are no monopolies on things, then everyone will be able to have all the things they want at minimal cost, but there will be little economic incentive to create new things. That is to say, the person who invents a new kind of apple will have little economic incentive to do so.
Similarly, if the marginal cost for everyone to create copies of creative works is at or is very near zero, and there are no monopolies on things, then everyone will be able to have all the works they want at minimal cost, but there will be little economic incentive to create new works. That is to say, the person who writes a new novel will have little economic incentive to do so.
Still, these scenarios aren't terribly bad. In the first, no one wants for food, clothing, or shelter. Space exploration would become very affordable, and you could probably start building terraformed planets easily. (Of course, I'd be worried that we'd kill each other with the things, but that's not a problem with regards to works) However, no one would create new kinds of things, at least not expecting to sell them or the plans for them later. So on the one hand, some invention might stagnate. OTOH, if anyone can experiment cheaply, and needn't worry much about food or shelter, we might see a wealth of amateur things get made. As well as professional things, where you simply paid for people's labor.
In the second, no one wants for creative works by and large (some things are easier to make copies of than others -- it's hard to print out life size marble sculptures right now). This reduces creation of original works for economic reward, though you'd still see people doing it for fun, or for art's sake, or to gain critical acclaim, or whatever. And people can make derivatives, so there's a wealth of amateur works too -- sampling and covering music, making sequels to movies or books, etc. Again, professionals would have to charge for their labor, rather than expecting to be able to sell copies at a significant profit.
In both cases, if you sold someone an apple, or a book, then you'd be able to count on never selling another of the same to that person again. And that that person would spread copies near and far. But you'd at least be able to use copies of other people's stuff.
It's possible that neither scenario is ideal, but they're both livable and extremely similar.
Anyway, I think we're getting off track.
If you don't help artists turn their work into money (if only briefly) then you reduce the number of artists dramatically.
Well, remember that the help we provide is merely an opportunity. Most artists don't money out of their copyrights. And fewer still turn a profit. Even fewer really gain wealth. Artists are notorious for ignoring opportunity costs. This is convenient for everyone else, though.
The majority of "great" art created over the years was done by those who were either paid to produce or were using their art to make a living. If you completely gutted their ability to monetize their work, none of them would have kept at it.
Oh, I don't know. The first kind -- the ones paid to produce -- are simply providing a service. Hiring an artist to paint your portrait is not materially different than hiring a plumber to unclog the drains. They're being paid to do a job, and that's the end of it. The plumber doesn't get a royalty every time you flush the john.
In fact, such an idea is especially ludicrous when you bear in mind that eac
Grokster is interesting in that they have carefully followed the law, and are still in jeopardy since the law might change out from under them.
Google is not in that situation, not because they have political influence, but more because they aren't seen as having as dirty hands as the P2P networks.
Slashdot Mirror
Making a backup copy is fair use.
Not necessarily; just maybe.
Making a copy for a friend isn't.
Not necessarily; just maybe.
It's not good enough to read the statute. Read the caselaw. As I've mentioned, my favorite case on the issue is Intellectual Reserve v. Utah Lighthouse Ministry. It's easy to google up, and you can look through the cites in the case if you want to research the issue more.
At any rate, courts are all in agreement that downloading is infringing, all else being equal.
The RIAA is not going after someone that only downloads and does not upload. If they lose the case the precedent is devastating for them. If they win, they get no money, more bad press, and possibly get a charge of barratry.
They wouldn't lose, it's just not practical. RIAA has always had a 'head of the snake' approach. That's why they went after the networks before going after any users at all.
wide-scale copying of creative works was non-existent
You're kidding, right? Printers pirated books all the time.
When making a copy was nearly as expensive as making an original, there was little need for copyright law.
Could you rephrase that with regards to sunk and marginal costs. I'm not entirely sure I understand you there.
downloading is not copying; it is receiving an already copied work
No, it's reproduction alright. All the courts agree on that too. Here's why:
The law prohibits reproduction at 17 USC 106(1). (Distribution is also prohibited at 106(3); some other things are as well; copyright is really about a lot of different things)
Specifically, it prohibits reproducing the work in copies. A copy is defined at 17 USC 101 as basically being a material object in which a work is fixed.
So if we have a conversation IRL, nothing is fixed. If we mail one another tape recordings of our halves of the conversation (latency will be high, but this is akin to letters) then they are fixed.
The issue then is whether computers constitute a material object as to the data that goes through them. The courts say that they do. When you download, data is stored on a server. A second instance of that data is sent down the wire to you. Your computer reads what comes off the wire and makes further instances in RAM (which is a tangible medium in which the work is stored, and is therefore a copy), the hard drive, etc.
The seminal case for this is MAI v. Peak, which held that running a program was infringing because a copy was made in RAM. It's been applied to other situations, such as Intellectual Reserve v. Utah Lighthouse Ministry, where merely looking at a web page was found to be illegal (given the peculiar circumstances in the case) since a copy was made in the RAM of the users doing the looking.
In fact, since it is impossible to download a tangible object, and since a copy is defined in the law as being a tangible object, it ought to be very clear that no copies are being sent to you when you download. Rather, the intangible work is, and you are fixing it into a copy, which is the act of reproduction.
Remember, copies are not the same as the creative works embodied in those copies.
Copyright is about distribution, not about reception. All a copyright holder can do to a person who illegally receives a copy of their work is inform them that the person they received it from did not have the right to distribute, and ask them to return/destroy it.
Well, it's about a lot of things. Receiving copies isn't one of them, but making them is. Computers make copies constantly; it's how they work. This produces odd results, but it's what we've got at the moment.
You're generally right otherwise on this specific point, but you never know how far injunctive relief will go.
At any rate, it's moot with regards to computer file sharing.
Let's use yet one more illustration. Company X makes a certain brand of carbonated sugar water. Company Y sneaks in and copies their recipe, and then distributes it to anyone who asks for a copy. Who is in breach of copyright law?
No one. Recipes are not copyrightable (they're methods under 17 USC 102(b)) and tend to merge anyway.
What you're discussing is misappropriation of a trade secret.
Where it gets sticky is this next step. What happens when the those who received illegal copies of the recipe decide to "perform" it? The common way to do this would be by producing an identical drink, and serving it to the public. Copyright law states that this is also a violation.
Congratulations. You have won the award for the stupidest thing I've seen all day. Also, copyright law says no such thing. In fact it's probably constitutionally unable to do so, as a Coke is not a writing.
without the permission of the creator or current copyright holder*
The creator can, as a rule, go fuck himself. Only the copyright holder matters.
other than prescribed by Fair Use rights, which allow for parodies, personal (family) use (no external distribution), educational research and a few other exceptions (such as specific types of archiving), which are generally on a situation-by-situation basis.
You've managed to fail to describe fair use at all
downloading is theft because you are receiving a perfect copy of a thing without paying for it.
So if the Mona Lisa hangs in the Louvre, and I become a master painter and paint myself a perfect copy of one, have I stolen the Mona Lisa from the Louvre? If so, I'd better go on the lam. That's probably the most famous painting in the world and I'll have a difficult time fencing it.
Of course, wouldn't it be surprising if tourists were still able to go to the Louvre and see the one painted by DaVinci, despite my having stolen it by the means of painting a perfect copy?
Copyright may not seem that important to you, but perhaps you have never created anything you thought worthy of calling your own.
Oh, copyright is important to me personally. I'm a copyright lawyer. I love copyright. But in the grand scheme of things, it's not that big a deal is all. Fighting social norms with respect to racial discrimination is acceptable IMO. Fighting them for copyright is not. The one is more important than the other.
Also, I'm an artist, and in fact I supported myself as one before going to law school. But again copyright wasn't very relevant to me. I would've done the same thing even if copyright didn't exist, and would've gotten paid for it. There are ways for artists to make money that don't involve copyrights, you know. (Which explains how there were artists prior to the first copyright law, in England, in 1710)
For accurate clarification, downloading is reproduction. Uploading is distribution. Both are infringing. You may wish to read cases such as A&M v. Napster, 239 F.3d 1004 (9th Cir. 2001), or my personal favorite, Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) (in which the court says that merely looking at material put up on the web in an infringing manner is itself an infringement).
Also copyright law covers a lot of different acts. Reproduction is but one of them. You might want to read 17 USC 106 for the main rights involved. Performance is not reproduction, btw.
copyright allows for quoting from works
No, it bans it, and then allows quoting in limited, nebulously defined circumstances.
Using a modified BitTorrent client/server, shouldn't it be possible quote only up to the legal portion of a piece of property to any given IP address?
Nope. There is no 'legal portion.' A quote is prima facie illegal, and is only legal to the degree that it's fair, under the circumstances. How much is fair will vary. In your scenario, which I strongly suspect involves accumulating 'quotes' until you have the whole thing, I doubt anyone would ever be so stupid as to not find it grossly illegal.
If the RIAA can sue someone for downloading a song, then they can also sue everyone who listens to an unauthorized live performance of that song.
No. Again, you might want to read the actual law someday.
For copyright infringement, you can sue infringers for either:
1) Actual damages to you, and their profits. This involves both sides fighting over the accounting.
2) Statutory damages, which, depending on the circumstances, can be as low as $200 per work infringed, and as high as $150,000 per work infringed. This is available due to the difficulty of proving the other, a lot of the time.
This is all set forth in 17 USC 504. You may enjoy reading it.
While I agree there is most likely a great need for tort reform in the United States
Why? I don't see a need for tort reform at all.
Yes you can. It might be less likely, but it's entirely possible.
17 USC 501 and 106 prohibit downloading (a form of reproduction) and uploading (a form of distribution) equally. 504 sets forth the civil damages available against infringers. 506 and 18 USC 2319 set forth the requirements for infringement to be criminal, and the penalties associated with it.
Download enough, and it's a felony with hefty fines involved, and a civil suit for damages and injunctive releif.
How is downloading theft, again?
At any rate, the danger with laws that conflict with social norms is that not only do people break such laws, but in doing so, they become disrespectful of laws that are actually valuable.
Unless it is really worth it to fight these norms, the law generally should avoid conflicting with them. Copyright IMO is not that important.
For resale, lending, and rental, 17 USC 109 is your friend.
To sum up at the expense of accuracy, anyone can rent a legally made copy of a video, but only libraries can freely lend out CDs.
There's no truth to the belief that video stores pay extra to rent copies. They do OTOH sometimes pay extra to get copies before they're available for sale in the retail market. But they could just as easily wait until they can buy DVDs at Best Buy, and start renting 'em out.
That's the sound recording. You're forgetting about the musical composition (i.e. notes and lyrics) that the CD is a recording _of_.
Publicly performing the CD infringes on the copyright of the composer.
But I'm very happy to see someone actually looking at the statute for once! (Though you also could've gotten the same from implication out of section 106)
Well, no. The labels front those costs, then bill them to the artists, recovering payment for those costs before letting the artists take a share of profits.
If there never are profits, the artists never have to pay back the label, but they'll never make any money from that album (or record deal) either.
Given that the label is risking a lot of money, and the artists are really just risking their time, it's not outrageous for things to work out this way. Besides -- if the artists don't like it, they don't have to deal with the label. It was their choice.
Business works a lot like this too. If you have a start up that hits it big, it's the investors that get really rich, because they gambled vast sums. The employees don't see anything like that kind of money, and they had a salary anyway.
It sounds nice to talk about how artists ought to get more money, but they really aren't doing enough to deserve it, IMO.
No, 17 USC 106(1) prohibits reproduction, period. Making a copy, then erasing the original doesn't alter the fact that you made a copy. So even the kind of P2P you mention wouldn't change things.
But uploading a song is not a crime in any real sense of the word.
Except that it may be a crime in that it's a misdemeanor or a felony, depending on the circumstances. You might like reading 17 USC 506 and 18 USC 2319.
If I lend you a book, and you make illegal photocopies from that book, I'm not a criminal for allowing you to borrow it.
No, probably not, but that's irrelevant with regards to computer file sharing.
Your defense would be "what's your proof?". All they'd have is an IP address that your provider says was in lease to you at the time. That doesn't prove you were doing something illegal.
Well, it's a civil suit for copyright infringement. This means there is a preponderance of the evidence standard. So long as, based on the evidence involving the IP address, it is more likely that it was you, than that it wasn't you, that's proof that it was you.
100% proof isn't required. In fact, only 51% is.
While you might have something to rebut it with, given that discovery will likely support the plaintiff's claims (unless you _really_ didn't do it, and aren't just grasping for any kind of way out, as it sounds like you are), you probably won't win this part of the case. In fact, it's fairly unusual for copyright suits to hinge on factual matters.
Well, really it doesn't matter. Copyright is strict liability. If you infringe, it doesn't matter whether you knew it, or reasonably should've known it, or intended it, or anything. Just doing it is the offense, period. What was going through your mind might affect damages, but that's it.
Either direct infringement (it's often infringement even when you copy just a very small part of a work), or contributory infringement, since you're working with a lot of other people to, in sum, infringe.
That you'd consider this kind of indicates that you're treating the law as a machine, which can be spoofed. This is a mistake; there are human beings involved, and they're often fairly smart, too. Your scheme is so very simple that it is no work at all to see through. I'd watch it with the whole pride thing.
You may also be interested to read the essay "What Colour Are Your Bits?".
No, neither is a derivative. There is a definition in 17 USC 101 of what is a derivative work:
What's meant is when you take one work and transform it into another. Such as a movie based on a book. Merely changing the medium the book is in, including encrypting it, doesn't create a new work based on the old. It's just a variant of the same thing.
The actual rule is this:
If it was issued on June 7, 1978 or earlier, it's 17 years from issuance.
If it was filed on June 7, 1995 or earlier, but did not issue until June 8, 1978 or later, it's the longer of 17 years from issuance or 20 years from filing.
If it was filed on June 8, 1995 or later, it's 20 years from filing.
Call me on this, but I think it's illegal to abuse a network like this. Patenting something does not make it legal. These applications had better not be accepted.
Why shouldn't they be accepted?
You're right, a patent doesn't make use of the invention at issue legal. Which just means that the patent isn't very useful while that's so.
But mere illegality is no reason to deny a patent; you can't go around selling drugs without FDA approval, but you get patents first. Worst thing that happens is that it's patented but denied for use on patients.
No, patents filed these days have a term of 20 years from filing, not the old term of 17 years from issuance.
And while you need to reduce the invention to practice, in order to get a patent, that doesn't mean that you need to actually implement it. Implementation is merely a good way of demonstrating reduction to practice.
But nearly all of the art that survives from the pre-copyright era was commissioned by wealthy individuals (the patrons) and wasn't made available to the general public, in some cases for centuries.
;)
Well, that's true for high art. For popular art, I dunno. There's a decent number of surviving plays, stories, songs, etc. I think a bigger factor would've been affording copies of anything, and literacy rates.
there is no technology that has supplanted the need for human talent, imagination and effort in the creation of art.
Give it time.
More seriously, the overall point is that less copyright can result in a better deal overall. It frees up originals so that people can make derivatives, may not significantly impair creation of original works, and makes the public more free to do as they like. It depends where on the curve we are.
a system where exclusive distribution contracts are prohibited, and anyone can make commercial copies as long they pay the correct royalties to the artists and a fixed percentage of the sales price to any party that provided investment capital to produce a work.
Getting the numbers right is a pain, though. And honestly, I think more attention needs to be paid to noncommercial parties. Some fan might write a brilliant set of prequels for Star Wars instead of what we've been getting, but the mere fact that they send 'em out for free shouldn't be used against them, IMO.
I am not at all convinced that we need to encourage creativity these days.
Well, there is a baseline of creation, it's true. Some people make art for art's sake, or for glory, or because they're given money for their services, or whatnot.
Still, if we can pay very little for a whole lot of creation, then that's a good deal. The issue is just how little, for how much. We don't want to get too far into diminishing returns territory, and we sure as hell don't want to pay more than it's worth.
Payment, here, is copyright. The more copyright there is, the costlier it is to the public.
So long as we get the mostest for the leastest, as it were, then I think that's okay. Of course, that doesn't invalidate opting for less creation and having less copyright, either.
Yeah, most of it would be pretty amateurish, but most of everything is under the 80:20 rule.
I think the 80:20 rule is probably hopelessly optimistic with regards to creative works. Sturgeon set it at 90:10. It might be higher.
I frankly think we would not (and should not) miss such commercial "creative" endeavors as Desperate Housewives.
Meh. I'm happy with quantity. Something will always turn out to be good, but people will differ on what it is.
Modern technology is making creative resources more accessible to average people, so the argument about "needing lots of money to do creative work" is also increasingly specious.
True. Of course, the tricky part, as always, isn't the medium, it's the message. Even a high budget movie can be ruined by crappy writing; good writing, OTOH, can work even with a low budget affair. You see the same sort of thing in all kinds of art.
Btw, have you looked at chanel101.com ? If those guys have a budget, you could've fooled me. House of Cosbys is pretty funny, though.
Ah, but you see that's a different issue altogether. If I could solve world hunger, I could put farmers out of business and guarantee they'd always have enough to eat, and never worry again. The only way this connects to freely copying art is if any artist is able to walk into a restaurant, perform or deliver some kind of art, and freely take food without paying actual money.
I think that's a bit bizarre.
If the marginal cost for everyone to create copies of material things is at or is very near zero, and there are no monopolies on things, then everyone will be able to have all the things they want at minimal cost, but there will be little economic incentive to create new things. That is to say, the person who invents a new kind of apple will have little economic incentive to do so.
Similarly, if the marginal cost for everyone to create copies of creative works is at or is very near zero, and there are no monopolies on things, then everyone will be able to have all the works they want at minimal cost, but there will be little economic incentive to create new works. That is to say, the person who writes a new novel will have little economic incentive to do so.
Still, these scenarios aren't terribly bad. In the first, no one wants for food, clothing, or shelter. Space exploration would become very affordable, and you could probably start building terraformed planets easily. (Of course, I'd be worried that we'd kill each other with the things, but that's not a problem with regards to works) However, no one would create new kinds of things, at least not expecting to sell them or the plans for them later. So on the one hand, some invention might stagnate. OTOH, if anyone can experiment cheaply, and needn't worry much about food or shelter, we might see a wealth of amateur things get made. As well as professional things, where you simply paid for people's labor.
In the second, no one wants for creative works by and large (some things are easier to make copies of than others -- it's hard to print out life size marble sculptures right now). This reduces creation of original works for economic reward, though you'd still see people doing it for fun, or for art's sake, or to gain critical acclaim, or whatever. And people can make derivatives, so there's a wealth of amateur works too -- sampling and covering music, making sequels to movies or books, etc. Again, professionals would have to charge for their labor, rather than expecting to be able to sell copies at a significant profit.
In both cases, if you sold someone an apple, or a book, then you'd be able to count on never selling another of the same to that person again. And that that person would spread copies near and far. But you'd at least be able to use copies of other people's stuff.
It's possible that neither scenario is ideal, but they're both livable and extremely similar.
Anyway, I think we're getting off track.
If you don't help artists turn their work into money (if only briefly) then you reduce the number of artists dramatically.
Well, remember that the help we provide is merely an opportunity. Most artists don't money out of their copyrights. And fewer still turn a profit. Even fewer really gain wealth. Artists are notorious for ignoring opportunity costs. This is convenient for everyone else, though.
The majority of "great" art created over the years was done by those who were either paid to produce or were using their art to make a living. If you completely gutted their ability to monetize their work, none of them would have kept at it.
Oh, I don't know. The first kind -- the ones paid to produce -- are simply providing a service. Hiring an artist to paint your portrait is not materially different than hiring a plumber to unclog the drains. They're being paid to do a job, and that's the end of it. The plumber doesn't get a royalty every time you flush the john.
In fact, such an idea is especially ludicrous when you bear in mind that eac
No. What protects Google is 17 USC 512.
Grokster is interesting in that they have carefully followed the law, and are still in jeopardy since the law might change out from under them.
Google is not in that situation, not because they have political influence, but more because they aren't seen as having as dirty hands as the P2P networks.