Wouldn't work in the US. What we care about is not so much the content as it is where you are getting it from. If you had a random number generator that surprisingly output 'It was the best of times, it was the blurst of times,' then that's fine. But if you get it from a copyrighted work, even though it is identical, and even though it is not the whole thing, then you're in trouble.
Given that there've been cases where using even a handful of notes in a certain sequence was found infringing of a whole song, I think your argument is not going to go anywhere.
There are already lower yet substantial fees for small inventors. I do agree that examination should be more thorough, but this sounds to me as though it still could be subsidized by higher fees for large inventors. Lowering the bar for challenges wouldn't be a bad idea either.
But for small inventors, we're not talking about vast sums. The PTO fees are in the thousands of dollars. If your invention is likely to rake in more than that, it's not an insurmountable investment. There are costs to doing business.
For a product with an obsolescence cycle of about 4 years (maybe 5 at the outside), a patent length of 25 years is simply ludicrous.
I agree. Of course, I now kind of wonder at your familiarity with the system, since patent terms are 20 years from filing, not 25.
Putting patents into this environment will only feed the lawyers, and stifle real innovation.
Nothing wrong with lawyers. But I don't see how dropping application fees will possibly help. I think it'll make things much worse. There are reforms that are probably useful, but that's just not one of them, IMO.
Patent application fees serve some critical purposes:
1. They weed out non-serious applicants.
If anyone can apply for a patent for free, the PTO will be flooded in a wave of applications that have no real basis. They'll be time consuming and costly to dispose of. By requiring fees, only serious applicants will pursue the process of applying, and they will likely have made sure that they have a decent chance of getting their patent since they will not want to waste money in futile attempts.
Additionally, even where an applicant has a good invention that is patentable, a patent is a significant burden on the public and should not be granted lightly. Applicants should be thinking seriously about using their patent commercially rather than just sitting on it. If it is an investment to them, then they'll be thinking of it in a business mindset, and will likely try to use it or license it to others for use. If they can get it for free, there's less likelihood that the patent will be used productively. It's better for inventions to enter the public domain than to be patented in such situations.
2. They can fund the PTO
Patent examination -- when it's done right -- is fairly time consuming and somewhat expensive. This doesn't just include prior art searches, but making sure that the government can hire examiners that are familiar with their fields, and competent in the law so that applications can be checked for legal requirements as to structure, contents, etc. Plus of course there are numerous administrative costs to just keep the PTO running; applications will likely get copied, marked on, published, etc. and these things aren't free.
You're being a troll, as usual. Purposely playing ignorant to justify your casual insults.
No, I don't troll. It's just that only now can I figure out what your complaint is, because you're being more explicit.
The Constitution calls for securing rights to authors and inventors. This allowance was made to defend individuals from the overwhelming force of the Crown which could use any number of methods (buyouts, forceful coercion, slash and burn, whathaveyou) to wrest the legal rights from the originator and into the holdings of the Crown.
Actually, this is incorrect. The reason that the Constitution empowers Congress to enact copyright and patent laws is because the states had been doing it previously, and they turned out to be pretty bad at it. A lot of federal powers are federal for precisely this reason: the states don't often act in a consistent manner, and sometimes it's important that there be a nationwide policy for certain things.
It's pretty similar to why the post office is federal, the federal government has the last say in interstate commerce, bankruptcy law is federal, etc.
Of course, there was no applicable crown at the time that the Constitution was written, or even that the states adopted their copyright and patent laws.
But prior to all that, England did have its own copyright and patent laws, from which the US cribbed. Copyright vested in authors to combat publishing monopolies, in whom copyright had previously vested. Patent laws did something similar, in that monarchs, who had limited abilities to raise money outside of Parliment, had been granting patents for common things (e.g. playing cards) in exchange for money.
In any event AFAIK there really were no incidents of inventors or authors getting unusually cheated by the crown. It was the public that was upset with how things had been going, since they were sick of abusive monopolies. I'd be interested in examples to the contrary.
Of course, your criticism of the current system seems rather silly to me. If you sign a contract to sell your car for $1, that's going to be upheld, unless there's something unusual going on. Courts will virtually never second guess the contracting parties as to valuation. If they agreed to a deal, that's their business.
Why should this be any different with patents or copyrights? Inventors and authors are adults. They can choose not to sign contracts, and to not be employed in situations where rights might not vest in them, or might not remain vested in them. If they choose to be, it was their decision.
So it sounds to me like you're upset that you did something stupid. I don't see a problem with the Constitution just because you're not treated like a baby and not allowed to make mistakes that you later regret.
If you don't want to sell inventions to your company, I suggest you stop working there. Otherwise you knew what the situation was when you started, and you have only yourself to blame if you don't like it. No one is forcing you.
I have, I just can't figure out what you are complaining about. You're not being clear, and I can't understand you.
Try this: imagine you were explaining whatever it is you're talking about to a man from Mars who has no prior knowledge of our laws, society, etc. This should result in your point being clear enough that I will figure out what you are talking about, and then we can have a productive discussion if that's at all possible.
But right now I can't even disagree with you because I don't know what you're trying to tell me.
Could you perhaps restate that in a way that gets your point across without all the frothing at the mouth. I really have no idea what you're talking about.
Just wondering exactly which people don't like copyright law? I would imagine that the class of people that creates stuff - music, art and books, for example - have a kindlier view of it than those who want to download the stuff for free.
Well, I used to be an artist, and I supported myself entirely as an artist. Eventually I went to law school, and now I'm a lawyer, and my main practice area is copyright.
I think copyright is a good idea, but I don't like how it's implemented. I don't have a problem with people wanting to download stuff for free. The whole point of copyright is to help people download stuff for free, basically.
I'd like to dump the copyright law we have now and reform it significantly. I think that the downloaders would be fond of the reforms, though it might not perfectly satisfy them. And it would probably satisfy artists significantly less than they are now, but copyright law is not intended to make artists happy, so who cares.
We want to copy music for free, so we should be allowed to?
Seems reasonable.
I'm not sure if you noticed, but when you don't reward people for their efforts, they stop trying (see U.S.S.R.)
That's just a practical concern. You're saying that if people can copy music for free that there will not be any new music created.
So it sounds to me like a compromise is in order: don't copy music for free just long enough to provide enough of a motivation to get it created, then copy it for free.
And as it happens, that is precisely what copyright is intended to do -- to let people copy works for free, and also to ensure that a lot of works are created so that there's more to copy for free than there otherwise would be.
I wouldn't be so quick to judge the expense of the policies just because the insurer wants people to request quotes. It may just be part of their business practice to only provide quotes based on significant amounts of information, or it might be required by the laws of the state they're in.
I suggest you actually talk to them. You might be surprised, though of course I don't know what they charge.
You can get insured for a great many things. The trick is finding someone to insure you, and providing them with enough information and money so that they will.
In copyright licensing, indemnifications between licensee and licensor are common, but only deal with the works licensed. For something more general, you'd need to find a real insurance provider.
I can't think of anyone that does this. Perhaps it could be done via Lloyd's?
Well, some opinions are just interpretations of laws. But in the US, we have a common law system, so yes, at times the courts do create laws. Since this dates back to the courts set up in England after the Norman Conquest, no one's really bothered complaining about it for a few centuries. It all works okay.
I would expect them to be computer programs, though wierdly enough they've been known to be classified as other things before (possibly for reasons relating to CO registration).
But that helps with making your own archives; it might not help for getting rom files from others.
Anyway, re: 1008, just remember that 101 and 1001 are important for that; it's more limited than people seem to believe when they don't read all the relevant parts of the law.
Well, an award of damages is just a piece of paper. It takes a little work to enforce if the defendant won't pay up willingly, but not much. At worst the plaintiff ends up having to have US Marshals take the defendant's car, personal property, etc. and auction it off until it fetches enough. Surplus money from the auction goes back to the defendant (who is often the one bidding to get his stuff back).
That opinion was actually for a preliminary injunction so that the infringement would stop during the course of the case. Not a permanent injunction afterwards. And injunctive relief is a popular remedy in infringement suits along with damages.
Also, does U.S. law actually allow CD owners to transfer their music to hard drives and other media?
Not really. 17 USC 1008 works for some music to some media (e.g. DAT, minidisc, audio CDR, casette) but not all media (e.g. hard drives). Generally it's hoped that such reproduction, or space shifting, is a fair use, but that's actually not the sturdiest thing around. It's only been considered by the courts in dicta a couple of times, IIRC. At any rate, each time would have to be a fair use anew, since there are no blanket fair uses.
Of course, minor infringements like this generally don't get noticed anyway. The cases where I recall seeing it were Diamond (where RIAA was suing mp3 player manufacturers) and Napster.
The defendants in the suit were people who were encouraging people browsing on the web to go to a third party site to view web pages that had been posted illegally.
The defendants were therefore sued on a theory of contributory liability, and this requires that they have knowingly contributed to someone else's direct infringement. The direct infringement was committed by the people browsing on the web who viewed the web pages on the third party site and in so doing reproduced the works.
The mere fact that the defendants weren't the direct infringers doesn't mean that the court didn't look at the direct infringement closely.
Granted, the law can be an ass, but it seems a bit dodgy if I can be held liable for copyright infringement even if I had no reason to believe the materials I was copying were not being provided legitimately.
And the court noted that, if you read the opinion, but since the law holds people liable for infringement even if they do not believe and have no reason to believe they're infringing, the best that the people browsing the site could hope for would be minimal damages, e.g. $200 per work infringed.
Copyright is a strict liability statute; it absolutely does not matter what you intend, or know, or should've known. Just doing it, regardless of your state of mind, is enough.
I'm afraid that the above post is almost completely misinformative.
Copyright is exactly what it sounds like.. The right to copy something.
Actually, copyright is not a right to do anything. It is a right to prohibit other people from doing things. There's no guarantee provided by copyright that one will be able to do anything with one's own works.
Furthermore, it is not limited to the right to prohibit others from mere reproduction. It also encompasses preparation of derivative works, distribution, some public displays and performances, etc. The main exclusive rights of copyright in the US are listed at 17 USC 106. There are some others, scattered about in the law.
If you download a file, you are not making a copy of it. The uploader is. It's a fine line of course, but essentially they have the object in question and their software is reading the contents of that object and sending copies to you.
This is wrong.
The law defines a copy as being a material object in which a work is fixed. Thus, a file is not a copy. The medium on which the file resides, be it RAM, a hard drive, a CD, etc. is the copy.
Fixing an intangible work into a material object constitutes reproduction, which is infringing.
Obviously, it's impossible to send a material object through the net. I cannot download a glass of water. Rather, when one downloads, information comes down the wire and is fixed into one, perhaps many, material objects within the receiving computer. Yet more reproduction may have occurred on the server as a part of the download process as well. Computers as we know them necessarily reproduce information in order to function.
So having established that it is possible for downloading to be infringing, the question remains who to hold liable for it. The answer is that the person who factually and proximately causes the download to occur is to blame. Typically, this will be the downloader. It's not as though information is being forced into his computer against his will, or without his direction. The downloader started the process by hitting the appropriate button. All the wheels were set in motion by him. The courts don't have a problem holding downloaders responsible for downloading, and uploaders responsible for uploading. Google for Marobie-FL v. NAFED, or the Napster case, to see examples of this.
Nobody has ever been prosecuted, sued, or legally harrassed in any way, in any of the countries that most english-speakers would consider worth mentioning, for only downloading copyrighted material.
This too, is untrue. Napster was destroyed because it helped its users infringe with every upload and every download. Had the users not infringed, Napster could not have been liable for anything. The Intellectual Reserve v. Utah Lighthouse Ministry case discusses how people looking at web pages can be held liable for infringement since computers, as a necessary step in the process of displaying the page, download it and reproduce it.
Since the law permits, in general terms, people who help others infringe to be held liable for it in addition to the actual infringer, the issue of downloading as infringement has been explored and settled. Just because there may not have been suits against downloaders, it doesn't mean that there is a question of their liability. It's settled.
You haven't run through the four factor analysis in 17 USC 107. Do it, rather than just deciding arbitrarily, and then we'll talk about fair use.
If you should claim that the violation occurs when importing rather than copying
I don't. Importation in this scenario is a myth. It doesn't actually happen, and I've been trying to get people to realize that it is impossible for a download to be an importation.
Also, you are proving yourself to be just as dumb as every other person I have ever seen that had the temerity to cite to 602. Every time, people cite to 602(a)(2), don't actually read it carefully, and forget that 602(a)(2) has no affect on the still-standing prohibition on importation in 602(b). You cannot pretend that 602(b) does not exist. It applies, and you're stuck with it, not that any part of 602 is relevant at all anyway.
As for your citation to 601, now you really take the cake. 601(a) clearly states that it expired in 1986. It hasn't had legal weight for nearly 20 years. Why the fuck are you citing to it?
I remain convinced that it is perfectly legal to purchase a song, album, CD or plaster cast of Britney Spears' tits in Russia and import it for personal use into the United States.
This places you in good company. There are people like you who remain convinced that the Earth is flat.
If allofmp3.com does not in fact have a license to sell these items, it's their problem, not their patron's.
Actually, it is a problem for both. In fact, for patrons in the US, it's a problem even if allofmp3 is complying with Russian law. Russian law is obviously not the same as American law, and people in the US must comply with American law, no matter what Russian law says.
The analogy could be made that if you purchase a CD in a Moscow department store, would it be illegal to bring it back with you to the US?
Yes, there is a very real possibility that it would be illegal to bring it back into the US. We generally prohibit imports of copyrighted works into the US (bringing a CD in is an import; downloading a file is not) and the exceptions to the ban on imports are quite narrow and you have failed -- like everyone else -- to find a workable exception. All you've got is half of one.
I'm not sure if that was ever decided by a court - rather it appears that scare tactics caused them to be shut down. For that reason, I personally don't feel comfortable declaring linking to content hosted on other systems illegal.
It can be illegal. A significant part of what Napster did was to provide links for downloaders to information that was hosted by uploaders. They didn't host mp3s themselves, but could still be held responsible for their users.
First, there must be a direct infringement. For example, uploading or downloading a video in an infringing manner.
Then there can either be contributory or vicarious infringement by a different party. Contributory infringement is where a party materially contributes to the direct infringement of another, while knowing of the infringing activity. Vicarious infringement is having the right and ability to control the direct infringements of others, and receives a sufficiently direct financial benefit from the infringement. Where a party is either a contributory or vicarious infringer, they can be held liable for the direct infringements that underlie their liability.
It's entirely possible for the providers of a torrent file, or even for people providing an index or search of torrent files, to be infringers. There are some steps that can be taken to protect oneself to a degree (see 17 USC 512, or Sony v Universal, for example) but there's a very real risk.
You might want to read the Napster case to see how it can shake out.
Not if I reproduce, for my own personal use, a copyrighted item that I have purchased. Doctrine of fair use, and all that.
Fair use does not necessarily protect reproduction for personal use even if you own a copy of the work. You'd need to go through a fair use analysis (see 17 USC 107 for the four factor test) and I find it unlikely that courts would find that downloading from allofmp3 qualifies.
You sure you're a lawyer? Let's test this: list a few hearsay exceptions.
Dying declarations and spontaneous statements, assuming of course that they're being offered as hearsay, which isn't inevitable. You should probably know that probably most lawyers never give a rat's ass about this stuff after they pass the bar. Ask about Hadley v. Baxendale next, why don't you?
Multiple groups can't "own" the same copyright.
Sure they can. Joint authors are probably the best example since the copyright vests in all of them initially, each having an equal and undivided interest. Something similar happens with renewals and terminations.
17 USC 201(d), however, allows copyrights to be transferred, in whole or in part, by any means of conveyance. It's treated just like any other property, and we all know that A can convey Blackacre to B and C as joint tenants or tenants in common. The same holds true for copyright.
However, what I'm talking about is the fact that copyrights are national. If I write a book, then I don't technically hold a copyright on it. I hold copyrights on it in virtually every nation. I can sell off the rights in each country to different people as I see fit, as a rule. (YMMV in different countries)
Also note that the first sale doctrine in the US applies only to copies lawfully made in the US. If the copies are made abroad, it may not apply.
Well, hearsay is good too. I will leave it to others to explain what hearsay actually is, when you can and can't use it, etc. I don't want to get into it.
Lax enforcement, mostly. Plus, 602(b) doesn't kick in unless the person who made the copy sought to be imported was not the same person, or authorized by the same person, who can do so in the US. This makes it a pain in the ass to know what can and can't be imported. Customs is known to seize stuff from time to time, but I think they mostly concentrate on things like drugs.
Slashdot Mirror
Wouldn't work in the US. What we care about is not so much the content as it is where you are getting it from. If you had a random number generator that surprisingly output 'It was the best of times, it was the blurst of times,' then that's fine. But if you get it from a copyrighted work, even though it is identical, and even though it is not the whole thing, then you're in trouble.
Given that there've been cases where using even a handful of notes in a certain sequence was found infringing of a whole song, I think your argument is not going to go anywhere.
There are already lower yet substantial fees for small inventors. I do agree that examination should be more thorough, but this sounds to me as though it still could be subsidized by higher fees for large inventors. Lowering the bar for challenges wouldn't be a bad idea either.
But for small inventors, we're not talking about vast sums. The PTO fees are in the thousands of dollars. If your invention is likely to rake in more than that, it's not an insurmountable investment. There are costs to doing business.
For a product with an obsolescence cycle of about 4 years (maybe 5 at the outside), a patent length of 25 years is simply ludicrous.
I agree. Of course, I now kind of wonder at your familiarity with the system, since patent terms are 20 years from filing, not 25.
Putting patents into this environment will only feed the lawyers, and stifle real innovation.
Nothing wrong with lawyers. But I don't see how dropping application fees will possibly help. I think it'll make things much worse. There are reforms that are probably useful, but that's just not one of them, IMO.
Patent application fees serve some critical purposes:
1. They weed out non-serious applicants.
If anyone can apply for a patent for free, the PTO will be flooded in a wave of applications that have no real basis. They'll be time consuming and costly to dispose of. By requiring fees, only serious applicants will pursue the process of applying, and they will likely have made sure that they have a decent chance of getting their patent since they will not want to waste money in futile attempts.
Additionally, even where an applicant has a good invention that is patentable, a patent is a significant burden on the public and should not be granted lightly. Applicants should be thinking seriously about using their patent commercially rather than just sitting on it. If it is an investment to them, then they'll be thinking of it in a business mindset, and will likely try to use it or license it to others for use. If they can get it for free, there's less likelihood that the patent will be used productively. It's better for inventions to enter the public domain than to be patented in such situations.
2. They can fund the PTO
Patent examination -- when it's done right -- is fairly time consuming and somewhat expensive. This doesn't just include prior art searches, but making sure that the government can hire examiners that are familiar with their fields, and competent in the law so that applications can be checked for legal requirements as to structure, contents, etc. Plus of course there are numerous administrative costs to just keep the PTO running; applications will likely get copied, marked on, published, etc. and these things aren't free.
You're being a troll, as usual. Purposely playing ignorant to justify your casual insults.
No, I don't troll. It's just that only now can I figure out what your complaint is, because you're being more explicit.
The Constitution calls for securing rights to authors and inventors. This allowance was made to defend individuals from the overwhelming force of the Crown which could use any number of methods (buyouts, forceful coercion, slash and burn, whathaveyou) to wrest the legal rights from the originator and into the holdings of the Crown.
Actually, this is incorrect. The reason that the Constitution empowers Congress to enact copyright and patent laws is because the states had been doing it previously, and they turned out to be pretty bad at it. A lot of federal powers are federal for precisely this reason: the states don't often act in a consistent manner, and sometimes it's important that there be a nationwide policy for certain things.
It's pretty similar to why the post office is federal, the federal government has the last say in interstate commerce, bankruptcy law is federal, etc.
Of course, there was no applicable crown at the time that the Constitution was written, or even that the states adopted their copyright and patent laws.
But prior to all that, England did have its own copyright and patent laws, from which the US cribbed. Copyright vested in authors to combat publishing monopolies, in whom copyright had previously vested. Patent laws did something similar, in that monarchs, who had limited abilities to raise money outside of Parliment, had been granting patents for common things (e.g. playing cards) in exchange for money.
In any event AFAIK there really were no incidents of inventors or authors getting unusually cheated by the crown. It was the public that was upset with how things had been going, since they were sick of abusive monopolies. I'd be interested in examples to the contrary.
Of course, your criticism of the current system seems rather silly to me. If you sign a contract to sell your car for $1, that's going to be upheld, unless there's something unusual going on. Courts will virtually never second guess the contracting parties as to valuation. If they agreed to a deal, that's their business.
Why should this be any different with patents or copyrights? Inventors and authors are adults. They can choose not to sign contracts, and to not be employed in situations where rights might not vest in them, or might not remain vested in them. If they choose to be, it was their decision.
So it sounds to me like you're upset that you did something stupid. I don't see a problem with the Constitution just because you're not treated like a baby and not allowed to make mistakes that you later regret.
If you don't want to sell inventions to your company, I suggest you stop working there. Otherwise you knew what the situation was when you started, and you have only yourself to blame if you don't like it. No one is forcing you.
I have, I just can't figure out what you are complaining about. You're not being clear, and I can't understand you.
Try this: imagine you were explaining whatever it is you're talking about to a man from Mars who has no prior knowledge of our laws, society, etc. This should result in your point being clear enough that I will figure out what you are talking about, and then we can have a productive discussion if that's at all possible.
But right now I can't even disagree with you because I don't know what you're trying to tell me.
Could you perhaps restate that in a way that gets your point across without all the frothing at the mouth. I really have no idea what you're talking about.
Just wondering exactly which people don't like copyright law? I would imagine that the class of people that creates stuff - music, art and books, for example - have a kindlier view of it than those who want to download the stuff for free.
Well, I used to be an artist, and I supported myself entirely as an artist. Eventually I went to law school, and now I'm a lawyer, and my main practice area is copyright.
I think copyright is a good idea, but I don't like how it's implemented. I don't have a problem with people wanting to download stuff for free. The whole point of copyright is to help people download stuff for free, basically.
I'd like to dump the copyright law we have now and reform it significantly. I think that the downloaders would be fond of the reforms, though it might not perfectly satisfy them. And it would probably satisfy artists significantly less than they are now, but copyright law is not intended to make artists happy, so who cares.
We want to copy music for free, so we should be allowed to?
Seems reasonable.
I'm not sure if you noticed, but when you don't reward people for their efforts, they stop trying (see U.S.S.R.)
That's just a practical concern. You're saying that if people can copy music for free that there will not be any new music created.
So it sounds to me like a compromise is in order: don't copy music for free just long enough to provide enough of a motivation to get it created, then copy it for free.
And as it happens, that is precisely what copyright is intended to do -- to let people copy works for free, and also to ensure that a lot of works are created so that there's more to copy for free than there otherwise would be.
I wouldn't be so quick to judge the expense of the policies just because the insurer wants people to request quotes. It may just be part of their business practice to only provide quotes based on significant amounts of information, or it might be required by the laws of the state they're in.
I suggest you actually talk to them. You might be surprised, though of course I don't know what they charge.
You can get insured for a great many things. The trick is finding someone to insure you, and providing them with enough information and money so that they will.
In copyright licensing, indemnifications between licensee and licensor are common, but only deal with the works licensed. For something more general, you'd need to find a real insurance provider.
I can't think of anyone that does this. Perhaps it could be done via Lloyd's?
And what makes the 9th Cir. stand out?
Well, some opinions are just interpretations of laws. But in the US, we have a common law system, so yes, at times the courts do create laws. Since this dates back to the courts set up in England after the Norman Conquest, no one's really bothered complaining about it for a few centuries. It all works okay.
I would expect them to be computer programs, though wierdly enough they've been known to be classified as other things before (possibly for reasons relating to CO registration).
But that helps with making your own archives; it might not help for getting rom files from others.
Anyway, re: 1008, just remember that 101 and 1001 are important for that; it's more limited than people seem to believe when they don't read all the relevant parts of the law.
Well, an award of damages is just a piece of paper. It takes a little work to enforce if the defendant won't pay up willingly, but not much. At worst the plaintiff ends up having to have US Marshals take the defendant's car, personal property, etc. and auction it off until it fetches enough. Surplus money from the auction goes back to the defendant (who is often the one bidding to get his stuff back).
That opinion was actually for a preliminary injunction so that the infringement would stop during the course of the case. Not a permanent injunction afterwards. And injunctive relief is a popular remedy in infringement suits along with damages.
Also, does U.S. law actually allow CD owners to transfer their music to hard drives and other media?
Not really. 17 USC 1008 works for some music to some media (e.g. DAT, minidisc, audio CDR, casette) but not all media (e.g. hard drives). Generally it's hoped that such reproduction, or space shifting, is a fair use, but that's actually not the sturdiest thing around. It's only been considered by the courts in dicta a couple of times, IIRC. At any rate, each time would have to be a fair use anew, since there are no blanket fair uses.
Of course, minor infringements like this generally don't get noticed anyway. The cases where I recall seeing it were Diamond (where RIAA was suing mp3 player manufacturers) and Napster.
The defendants in the suit were people who were encouraging people browsing on the web to go to a third party site to view web pages that had been posted illegally.
The defendants were therefore sued on a theory of contributory liability, and this requires that they have knowingly contributed to someone else's direct infringement. The direct infringement was committed by the people browsing on the web who viewed the web pages on the third party site and in so doing reproduced the works.
The mere fact that the defendants weren't the direct infringers doesn't mean that the court didn't look at the direct infringement closely.
Granted, the law can be an ass, but it seems a bit dodgy if I can be held liable for copyright infringement even if I had no reason to believe the materials I was copying were not being provided legitimately.
And the court noted that, if you read the opinion, but since the law holds people liable for infringement even if they do not believe and have no reason to believe they're infringing, the best that the people browsing the site could hope for would be minimal damages, e.g. $200 per work infringed.
Copyright is a strict liability statute; it absolutely does not matter what you intend, or know, or should've known. Just doing it, regardless of your state of mind, is enough.
I'm afraid that the above post is almost completely misinformative.
.. The right to copy something.
Copyright is exactly what it sounds like
Actually, copyright is not a right to do anything. It is a right to prohibit other people from doing things. There's no guarantee provided by copyright that one will be able to do anything with one's own works.
Furthermore, it is not limited to the right to prohibit others from mere reproduction. It also encompasses preparation of derivative works, distribution, some public displays and performances, etc. The main exclusive rights of copyright in the US are listed at 17 USC 106. There are some others, scattered about in the law.
If you download a file, you are not making a copy of it. The uploader is. It's a fine line of course, but essentially they have the object in question and their software is reading the contents of that object and sending copies to you.
This is wrong.
The law defines a copy as being a material object in which a work is fixed. Thus, a file is not a copy. The medium on which the file resides, be it RAM, a hard drive, a CD, etc. is the copy.
Fixing an intangible work into a material object constitutes reproduction, which is infringing.
Obviously, it's impossible to send a material object through the net. I cannot download a glass of water. Rather, when one downloads, information comes down the wire and is fixed into one, perhaps many, material objects within the receiving computer. Yet more reproduction may have occurred on the server as a part of the download process as well. Computers as we know them necessarily reproduce information in order to function.
So having established that it is possible for downloading to be infringing, the question remains who to hold liable for it. The answer is that the person who factually and proximately causes the download to occur is to blame. Typically, this will be the downloader. It's not as though information is being forced into his computer against his will, or without his direction. The downloader started the process by hitting the appropriate button. All the wheels were set in motion by him. The courts don't have a problem holding downloaders responsible for downloading, and uploaders responsible for uploading. Google for Marobie-FL v. NAFED, or the Napster case, to see examples of this.
Nobody has ever been prosecuted, sued, or legally harrassed in any way, in any of the countries that most english-speakers would consider worth mentioning, for only downloading copyrighted material.
This too, is untrue. Napster was destroyed because it helped its users infringe with every upload and every download. Had the users not infringed, Napster could not have been liable for anything. The Intellectual Reserve v. Utah Lighthouse Ministry case discusses how people looking at web pages can be held liable for infringement since computers, as a necessary step in the process of displaying the page, download it and reproduce it.
Since the law permits, in general terms, people who help others infringe to be held liable for it in addition to the actual infringer, the issue of downloading as infringement has been explored and settled. Just because there may not have been suits against downloaders, it doesn't mean that there is a question of their liability. It's settled.
You haven't run through the four factor analysis in 17 USC 107. Do it, rather than just deciding arbitrarily, and then we'll talk about fair use.
If you should claim that the violation occurs when importing rather than copying
I don't. Importation in this scenario is a myth. It doesn't actually happen, and I've been trying to get people to realize that it is impossible for a download to be an importation.
Also, you are proving yourself to be just as dumb as every other person I have ever seen that had the temerity to cite to 602. Every time, people cite to 602(a)(2), don't actually read it carefully, and forget that 602(a)(2) has no affect on the still-standing prohibition on importation in 602(b). You cannot pretend that 602(b) does not exist. It applies, and you're stuck with it, not that any part of 602 is relevant at all anyway.
As for your citation to 601, now you really take the cake. 601(a) clearly states that it expired in 1986. It hasn't had legal weight for nearly 20 years. Why the fuck are you citing to it?
I remain convinced that it is perfectly legal to purchase a song, album, CD or plaster cast of Britney Spears' tits in Russia and import it for personal use into the United States.
This places you in good company. There are people like you who remain convinced that the Earth is flat.
If allofmp3.com does not in fact have a license to sell these items, it's their problem, not their patron's.
Actually, it is a problem for both. In fact, for patrons in the US, it's a problem even if allofmp3 is complying with Russian law. Russian law is obviously not the same as American law, and people in the US must comply with American law, no matter what Russian law says.
The analogy could be made that if you purchase a CD in a Moscow department store, would it be illegal to bring it back with you to the US?
Yes, there is a very real possibility that it would be illegal to bring it back into the US. We generally prohibit imports of copyrighted works into the US (bringing a CD in is an import; downloading a file is not) and the exceptions to the ban on imports are quite narrow and you have failed -- like everyone else -- to find a workable exception. All you've got is half of one.
I'm not sure if that was ever decided by a court - rather it appears that scare tactics caused them to be shut down. For that reason, I personally don't feel comfortable declaring linking to content hosted on other systems illegal.
It can be illegal. A significant part of what Napster did was to provide links for downloaders to information that was hosted by uploaders. They didn't host mp3s themselves, but could still be held responsible for their users.
First, there must be a direct infringement. For example, uploading or downloading a video in an infringing manner.
Then there can either be contributory or vicarious infringement by a different party. Contributory infringement is where a party materially contributes to the direct infringement of another, while knowing of the infringing activity. Vicarious infringement is having the right and ability to control the direct infringements of others, and receives a sufficiently direct financial benefit from the infringement. Where a party is either a contributory or vicarious infringer, they can be held liable for the direct infringements that underlie their liability.
It's entirely possible for the providers of a torrent file, or even for people providing an index or search of torrent files, to be infringers. There are some steps that can be taken to protect oneself to a degree (see 17 USC 512, or Sony v Universal, for example) but there's a very real risk.
You might want to read the Napster case to see how it can shake out.
Not if I reproduce, for my own personal use, a copyrighted item that I have purchased. Doctrine of fair use, and all that.
Fair use does not necessarily protect reproduction for personal use even if you own a copy of the work. You'd need to go through a fair use analysis (see 17 USC 107 for the four factor test) and I find it unlikely that courts would find that downloading from allofmp3 qualifies.
If you want certainty, you should hire a lawyer for real, instead of just hanging out on /.
(and even then any decent lawyer will provided guarded answers)
No, only that it may be. I'd want to seriously think about it before concluding that it was likely one way or the other.
You sure you're a lawyer? Let's test this: list a few hearsay exceptions.
Dying declarations and spontaneous statements, assuming of course that they're being offered as hearsay, which isn't inevitable. You should probably know that probably most lawyers never give a rat's ass about this stuff after they pass the bar. Ask about Hadley v. Baxendale next, why don't you?
Multiple groups can't "own" the same copyright.
Sure they can. Joint authors are probably the best example since the copyright vests in all of them initially, each having an equal and undivided interest. Something similar happens with renewals and terminations.
17 USC 201(d), however, allows copyrights to be transferred, in whole or in part, by any means of conveyance. It's treated just like any other property, and we all know that A can convey Blackacre to B and C as joint tenants or tenants in common. The same holds true for copyright.
However, what I'm talking about is the fact that copyrights are national. If I write a book, then I don't technically hold a copyright on it. I hold copyrights on it in virtually every nation. I can sell off the rights in each country to different people as I see fit, as a rule. (YMMV in different countries)
Also note that the first sale doctrine in the US applies only to copies lawfully made in the US. If the copies are made abroad, it may not apply.
It may not be a DMCA violation. That doesn't mean it can't be contributory or vicarious copyright infringement.
Well, hearsay is good too. I will leave it to others to explain what hearsay actually is, when you can and can't use it, etc. I don't want to get into it.
Lax enforcement, mostly. Plus, 602(b) doesn't kick in unless the person who made the copy sought to be imported was not the same person, or authorized by the same person, who can do so in the US. This makes it a pain in the ass to know what can and can't be imported. Customs is known to seize stuff from time to time, but I think they mostly concentrate on things like drugs.