The problem here is that up till the dawn of the Internet, A never had to worry about B since B can only sell to the country it has the copyright in and vice versa.
Except of course that you assume import restrictions. If person B can sell to people in A, then the undercutting is possible. If person B can sell to person D, who sells to people in A, it's still a problem and now can't really be solved by any means other than import controls.
In the past, this actually has been known to be a problem.
True, but the thing is we've always had this problem, just on a vastly smaller scale. If I take a trip to Japan and buy up a bunch of DVDs/CDs and bring them home, the USA company with the rights to those DVDs/CDs can't do a thing. I have to declare them, pay customs fees on them if necessary, but I own them and the US company is just SOL.
No, depending on the precise circumstances, the US rightsholder may be able to have the customs service confiscate them when you attempt to enter the country.
Sadly given their past and current actions what will really happen is they'll get laws passed making the importation of media illegal
Which they did, a long long time ago. It allows for importation where you're just buying the copies they sold elsewhere, and it's not as strictly enforced as it could be, but they have closed off a lot of importation.
The law currently allows me to import "A", but if Sony sells US rights to Bob's CDs, then what happens to my copy? It was legal when I imported it, so it's protected, but the next time I copy it to my MP3 player?
Who the rightsholder is is irrelevant for ripping purposes. Reproduction is illegal in either event unless there's authorization or an applicable exception. It might fall under 107, but it might not. 107's a case by case thing; it always is.
Also, does the law give any leniency to unpublished works? I.E., two years later, Bob's CDs has no production runs of "A" planned, but is the sole holder of the rights for the US. Does that mean that Bob's basically has the rights to say that US citizens can't own it, import or otherwise?
Remember, copies aren't illegal. The law deals with actions by people. Importing is an action. Reproduction is an action. Just owning a copy doesn't infringe on anything.
If Bob owns the US rights, then yes, he can generally preclude imports, even if he just sits on his rights. Copyright holders have no obligation to publish, unfortunately. This should probably be fixed in some way.
So when the hell is the Doctor going to get with the times and replace the police box with a cellphone? Everyone else has one, they're very convenient.
Yeah, 602(b) could be more clear. But it requires the copies to have been made lawfully according to US laws, not whatever the laws of the place actually are. This avoids allowing imports where, e.g. the work is not copyrighted in some foreign country at all.
Wish I had mod points for you. As much as we want to believe that legal at the source = legal at the destination, the law was written by and for the recording industry. No other works, save computer programs, have such strong protections.
The law was written by the various industry groups hashing it out, true. (Read Prof. Litman's book for more on that)
But I'm surprised at the odd statement re: computer programs. Are you thinking of 109? Because the stuff I cited applies to basically everything, and really music and computer software both have their significant exceptions.
Copyright law applies to people -- it tells people what actions they are not allowed to perform, with regards to intangible creative works.
It's just that one of those prohibited actions is the fixation of intangible creative works (such as musical works or sound recordings, in mp3 format) into material objects.
So while an mp3 is not a material object, the RAM, or hard drive, or CD, etc. in which it is fixed is a material object. Putting it into such an object is typically illegal.
I don't mean to solicit further advice, but where does that leave those of us who enjoy foreign music that doesn't have a US distributor?
Just to make something clear, I'm not providing advice to you, and we're not in an attorney client relationship.
This said, US copyrights vest in the US copyright holder -- who can easily be a foreigner. (Or the band Foreigner) So if a Japanese musician who writes and records a performance of a song, holding the US copyright all the while, authorizes a Japanese company to make a CD of it, then that CD satisfies the requirements of 602(b), and 602(a) is up to you.
It's just safer to try to get copies released lawfully in your own country due to the possibility that the rights might have been assigned to another, as opposed to merely licensed.
What if person A owns the copyright in country A, and person B owns the copyright in country B? Still okay for B to undercut A?
What if the copyright expires or otherwise doesn't apply for our purposes in country C, and ordinary person C starts making copies there, lawfully. Okay for him to undercut A and B?
If you're treating them differently, why? Remember that in each case, only person A can lawfully make copies in A, only person B can lawfully make copies in B, and anyone can make copies in C.
It's certainly an issue worth considering carefully, but I don't think the answer is necessarily as clear cut as you'd like.
What gets me about this copying by installing is that I am NOT the one copying. The writer of the program is doing the copy. How do I work that out?
No, it's you. The program didn't jump up, pop itself into your CD drive and start itself up. You set it in motion.
For programs, you might want to check out 17 USC 117. Then you might want to think about "the owner of a copy" means in light of EULAs.
And this covers copies into RAM for the sake of running it, so yeah, many console games require 117 or else some manner of licensing, implicit or explicit.
Per 17 USC 504, infringers may be sued for -- among other things -- the plaintiff's choice of either actual damages and profits or statutory damages.
Statutory damages are in the range of $750 - $30,000 per work. The ceiling can rise to $150,000 per work if the plaintiff can prove that the infringement was willful. The floor can drop to $200 per work if the defendant can prove that he was unaware of the infringement and had no reason to believe his acts were infringing.
Also federal courts have exclusive jurisdiction over copyright suits, so infringement actions can never take place in small claims court. The US District Court for the District of Wyoming sits in Cheyenne and Casper.
Given that 505 permits for the recovery of attorney's fees and costs by the prevailing party should the court allow it, it's not outside the realm of imagination for RIAA to hire some lawyers conveniently already located in Wyoming to sue the shit out of you. (If you're in Wyoming, natch)
You definitely can record songs off the radio or TV (whether to a cassette or any other medium) for your personal use. This was settled aages ago by a legal case that defined such personal use of broadcast material as being ok under (U.S.) copyright law.
No, not definitely. Just sometimes definitely, and sometimes maybe. Some recording of radio to some media or via certain devices (n.b. that computers are not included) may be okay per 17 USC 1008. Anything else has to fall within a different exception, such as fair use. But not everything is a fair use; you have to check on a case-by-case basis.
Also not all activities on the net would be broadcasts even if any are.
Finally, there is a big issue with people in the US downloading from allofmp3: it's illegal here, even if they're following their law there.
First, importation is a red herring. Importation refers to the moving across national boundaries of copies, where copies are defined as tangible objects.
If allofmp3 sent you a CD via FedEx, that would fall under the import regulations. But downloading would not. And downloading absolutely touches upon reproduction, which 602 has no bearing on (since importation is a subset of distribution, not reproduction).
Second, even if it did apply, you have -- like so many others that fail to read the whole law they cite -- found an exception to the prohibition on imports in 17 USC 602(a). The prohibition in 602(b) still applies, and you haven't cited an exception for it!
But that's all academic. Like I said, there is no importing when you download.
Sure, the RIAA can sue. But that does not mean they would win.
I think they would win. Copyright cases are generally very clear cut in favor of the plaintiff. Certainly there's nothing about the typical downloader that's going to help him. The Napster cases are good to look at for this. Napster was sued basically for having helped its users infringe. Thus one of its defenses was to claim that the users didn't infringe. Napster tried every argument they could think of, and lost every time. Individual users are not going to have much of a chance, given that they'd just be retreading the same ground.
If a Russian person bought songs at AllOfMp3 and carried them into this country on a laptop - the next time they played those songs (thereby making a copy in RAM) they would be violating US copyright law.
Actually, just bringing them into the US would infringe copyright law. The customs service would be able to lawfully seize the laptop at the border and it might ultimately be destroyed.
So does that mean no one can bring any copyrighted works into the US unless they pay the US copyright holders?
There's a bit more detail to it than that, but basically, yes. The US does not want copyright holders to get undercut by foreign competitors that make copies of the same thing. Of course, where US and international rights are divvied up, it may be under an agreement whereby the requirements of 602(b) are satisfied, and therefore the 602(a) exception might be useful. Plus there's the 109 exception for reimports.
It's very difficult to say precisely which copies of which works can be imported and which can't, without being privy to a lot of details about them and the agreements under which they were made. It would be nice to have a simpler system.
Could you show me the exact text of US law that says it's illegal to download a Britney Spears MP3?
Odd request, but okay.
17 USC 501(a):
Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
17 USC 106:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize [the reproduction of] the copyrighted work in copies or phonorecords....
17 USC 101:
"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
"Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Distribution is another one of the rights in 106, but reproducing a work into a copy is infringing regardless of whether or not you distribute it later.
You're right that it is not infringement to buy a copy (though some forms of obtaining a copy may be infringing), but that only covers buying. Reproduction that occurs in the process is still potentially infringing.
No, the law defines a copy as a tangible object. A hard drive is a copy. RAM is a copy. A CD is a copy. Files all by themselves are not. Check out 17 USC 101.
And thus, at a technical level, what happens is that there is a copy on a server hard drive. Even a GET request then results in the information being reproduced to RAM (another copy), then reproduced to the downloader's RAM via the NIC and the wire (another copy), and probably finally the downloader's hard drive (yet another copy).
Even if the server's RAM copy is purged, it was still made, and it's the making that's the problem.
You might want to google for MAI v. Peak, and also for Intellectual Reserve v. Utah Lighthouse Ministry.
As for who's responsible, it's the downloader -- he initiated the process of the download. No one else's initiative was responsible. The Marobie-FL v. NAFED case looks at this.
Mm. Don't get confused -- there's no importing going on with regards to the net -- but yeah, it's certainly illegal for people in the US to download from these guys, and I would be surprised if it's not illegal most places.
No, for civil copyright infringement, it doesn't matter what you know, or reasonably could have known. Doing an infringing act is sufficient for liability to stand. The best you can hope for is minimal damages. Copyright is a strict liability statute. You may want to look at 17 USC 501 and 504, in particular 504(c)(2). However, if willfulness can be shown, there could be higher damages.
17 USC 501 says that infringement is the violation of any of the exclusive rights of the US copyright holder listed in 106. One of the 106 rights is reproduction; another is distribution.
Copies are defined in 101. They are material objects in which the intangible copyrighted works are fixed. For example, a novel is a kind of copyrightable work; each specific hardcover book with the story printed in it is a copy of that work. If you xeroxed the hardcover, you would be reproducing the work, even if the hardcover was destroyed in the process or something, because you are putting the work into a tangible object.
Files are not tangible objects. But RAM is a tangible object. Hard drives are tangible objects. Thus, when you download, you necessarily reproduce works. It's unavoidable, and happens all the time even if it is slightly behind the scenes. In fact, in the course of a download, many many reproductions may occur. Courts have settled this for a long time; I suggest reading MAI v. Peak (for the proposition that RAM can be a copy), Napster (which was found liable for the infringements of its users, including its downloaders), and Intellectual Reserve v. Utah Lighthouse Ministry (finding that people who look at web pages may, in the process, infringe by virtue of the copies that must be made in the course of the viewing process).
And the courts will look to the person who directed the reproduction to occur, regardless of who's computers were involved, when assigning liability. For downloading, this is the downloader; it's not as though the uploader is forcing stuff to come down the pipe. That would require malware or something, and is so unlikely, and the burden of proof is so low (only a 51% likelihood is required in civil copyright cases), that it's trivial to hold the downloader responsible for his own actions. For more on this, google for the Marobie-FL v. NAFED case.
While allofmp3 might have a right to reproduce or distribute in Russia, that does not have any affect on persons in the US. In particular, recall that they don't have a license per se, but a compulsory license. This isn't an agreement or contract; it's the Russian government saying that some actions are simply not infringing in Russia, provided that the persons engaging in them pay an amount set by the Russian government. As would be expected, it has no bearing outside of Russia since it's a law peculiar to them.
What's very important to bear in mind is that this is not a case of importation. Importation is a subset of distribution; therefore any exception in US law (the only law that matters for people in the US) regarding importation does not help in a case of reproduction. Furthermore, reproduction requires the moving across national borders of a tangible object. Mailing a CD from Russia to the US would be importation. Downloads are not importation. Providing them is distribution, and receiving them is reproduction, but importation is a red herring.
Plus, you're wrong in claiming that you can lawfully import anything you obtain legally according to the law of the place it was acquired. Surely you understand that, for example, you can't import marijuana into the US just because you legally bought it in Holland or something.
With copyright law, 602 prohibits importation in both subsections (a) and (b). People frequently look to the exception in 602(a)(2), but they are jumping the gun. That exception only applies to subsection (a). Subsection (b) still bans imports, unless the copies sought to be imported (i.e. tangible objects being brought into the country) were made in a way that was lawful had the laws of the US applied to the place they were made. Since allofmp3 can't operate lawfully under US law, even if they were providing imports, it'd still be illegal. Alternatively, 109 might apply, but then only to copies made in the US, exported, and reimported.
But again, importation is just a total wrong avenue. Nothing of the kind is going on here, and the real legal issues involve reproduction.
Sorry if it's confusing. You're expected to follow it anyway though. And you can be held liable for infringements even if you had no reason to think you were doing anything wrong.
Spam is only ever sent by deliberate action to begin with. How might we distinguish these actions? More importantly, how can we possibly read into the filterer's refusal to send any kind of communication to the spammer, a communication to the effect of 'don't spam me?'
A filter is a very simplistic sort of thing. There's a list of conditions, and it mechanistically looks to see if any of them are met. If none of them are met, that doesn't mean that there has been fraud, it only means that the conditions you're looking for are too narrow.
If your filter were for the word 'spam' and a message arrived that contained that word, it would be blocked. If another message arrived that did not contain that word, it would not be blocked. The mere fact that the second message didn't contain a word you wish it did doesn't rise to the level of fraud. Rather, it indicates that your filters need work.
Good filters will have long lists of conditions to be met, not merely based on individual words, but perhaps even other information, the structure of messages, senders, roots to permit for matching words with varying suffices, etc.
None of this involves judgment by the filtering machine, however. Computers are stupid, and do not understand meaning, forcing filter developers to be thorough, even though there can never be a perfect filter.
It's vastly inappropriate to analogize to a person, therefore, since if you had a secretary screen your email in advance, you could avoid having any spam get through to you. No filter is that good.
So your doorman analogy is lacking. Rather, it's more like you've noticed that door to door salesmen always weigh over 200 pounds, since they carry a suitcase full of the things they're selling. To keep them from approaching, you have set up a pressure sensitive mat that won't admit people over 200 pounds.
If a thin salesman who travels lightly should get in however, merely by the virtue of not weighing as much as you had expected, it's hardly fraud on his part. It's your own error.
For this reason I believe that there are specific exceptions in the law to allow for computers to make copies if it is necessary to run the program, 117 I believe. Two questions that occur to me here are, 1) are digital files considered to be "computer programs," and 2) do these exceptions apply if the source of the file was not authorized to distribute in the first place?
Well, in 101 we have the relevant definition of what a computer program is: A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
While this could be broad enough to extend to data, I don't think that it's likely to in practice. It depends on the nature of the file; there have been complex Excel worksheets that were considered programs, but a mere mp3 is probably not going to be. It's a fuzzy line, though.
That'll prevent the 117 analysis from even starting.
However, assuming that we can even get to 117, recall that it only applies in pertinent part to the owner of a copy. If the copy was not lawfully made due to someone in the chain of distribution and reproduction between the copyright holder and the person claiming the applicability of 117 having infringed, then I suspect that courts would consider a defendant to have obtained possession of his copy wrongfully, and thus wouldn't be the owner. This could be argued, but courts aren't usually fond of people perceived to be wrongdoers, so I think it's what would happen.
My point was that from the perspective of who makes the copy when a file is downloaded, the uploader must make the copy and then he distributes it down the wire. The downloader does not copy the file, he just receives the copy down the wire from the uploader. However, I acknowledge that you are correct that the downloader must make several transitory copies during the process of downloading, and he is also the one who fixes the copy to a tangible media.
As I recall from the Marobie-FL case, creating copies on a server would fall to the uploader, distribution would fall to the uploader, but copies made in the server's RAM, if automatically done in response to the download request, would fall to the downloader, and of course copies with regards to the downloader's RAM, hard drive, etc. would fall to the downloader.
This is really a lot easier when we're talking about printing paperbacks and moving them around.
The problem is that evading a filter doesn't prevent people from filtering.
For example, if my filter looks for the word 'time share,' and you send me a spam that doesn't include that word, but still expresses the idea, my filter has had no practical effect, but it still functions exactly as I designed it. I am in no way impaired from filtering for the word 'time share.' Should the sender be blamed for not using different words?
It's silly. You're basically trying to say that advertising must be boring and predictable and fall within narrow channels, merely because it's what you predict. But so long as the advertising falls within free speech, why should you get to decide what it consists of?
I think that what you want is to be able to just tell the computer to filter out spam, and the computer figures out by itself what the spam is, based on meaning, etc., rather than by stupidly looking for regular expressions and such. Well, that would be nice, but computers just can't do that yet. The shortcomings of computers means that if you want effective filters, you're going to have to substitute broad matching rules in place of actual judgment. Sorry if you're not very good at it and spam isn't caught by them.
Slashdot Mirror
The problem here is that up till the dawn of the Internet, A never had to worry about B since B can only sell to the country it has the copyright in and vice versa.
Except of course that you assume import restrictions. If person B can sell to people in A, then the undercutting is possible. If person B can sell to person D, who sells to people in A, it's still a problem and now can't really be solved by any means other than import controls.
In the past, this actually has been known to be a problem.
True, but the thing is we've always had this problem, just on a vastly smaller scale. If I take a trip to Japan and buy up a bunch of DVDs/CDs and bring them home, the USA company with the rights to those DVDs/CDs can't do a thing. I have to declare them, pay customs fees on them if necessary, but I own them and the US company is just SOL.
No, depending on the precise circumstances, the US rightsholder may be able to have the customs service confiscate them when you attempt to enter the country.
Sadly given their past and current actions what will really happen is they'll get laws passed making the importation of media illegal
Which they did, a long long time ago. It allows for importation where you're just buying the copies they sold elsewhere, and it's not as strictly enforced as it could be, but they have closed off a lot of importation.
The law currently allows me to import "A", but if Sony sells US rights to Bob's CDs, then what happens to my copy? It was legal when I imported it, so it's protected, but the next time I copy it to my MP3 player?
Who the rightsholder is is irrelevant for ripping purposes. Reproduction is illegal in either event unless there's authorization or an applicable exception. It might fall under 107, but it might not. 107's a case by case thing; it always is.
Also, does the law give any leniency to unpublished works? I.E., two years later, Bob's CDs has no production runs of "A" planned, but is the sole holder of the rights for the US. Does that mean that Bob's basically has the rights to say that US citizens can't own it, import or otherwise?
Remember, copies aren't illegal. The law deals with actions by people. Importing is an action. Reproduction is an action. Just owning a copy doesn't infringe on anything.
If Bob owns the US rights, then yes, he can generally preclude imports, even if he just sits on his rights. Copyright holders have no obligation to publish, unfortunately. This should probably be fixed in some way.
So when the hell is the Doctor going to get with the times and replace the police box with a cellphone? Everyone else has one, they're very convenient.
Yeah, 602(b) could be more clear. But it requires the copies to have been made lawfully according to US laws, not whatever the laws of the place actually are. This avoids allowing imports where, e.g. the work is not copyrighted in some foreign country at all.
Wish I had mod points for you. As much as we want to believe that legal at the source = legal at the destination, the law was written by and for the recording industry. No other works, save computer programs, have such strong protections.
The law was written by the various industry groups hashing it out, true. (Read Prof. Litman's book for more on that)
But I'm surprised at the odd statement re: computer programs. Are you thinking of 109? Because the stuff I cited applies to basically everything, and really music and computer software both have their significant exceptions.
Copyright law applies to people -- it tells people what actions they are not allowed to perform, with regards to intangible creative works.
It's just that one of those prohibited actions is the fixation of intangible creative works (such as musical works or sound recordings, in mp3 format) into material objects.
So while an mp3 is not a material object, the RAM, or hard drive, or CD, etc. in which it is fixed is a material object. Putting it into such an object is typically illegal.
I don't mean to solicit further advice, but where does that leave those of us who enjoy foreign music that doesn't have a US distributor?
Just to make something clear, I'm not providing advice to you, and we're not in an attorney client relationship.
This said, US copyrights vest in the US copyright holder -- who can easily be a foreigner. (Or the band Foreigner) So if a Japanese musician who writes and records a performance of a song, holding the US copyright all the while, authorizes a Japanese company to make a CD of it, then that CD satisfies the requirements of 602(b), and 602(a) is up to you.
It's just safer to try to get copies released lawfully in your own country due to the possibility that the rights might have been assigned to another, as opposed to merely licensed.
Does that help you?
What if person A owns the copyright in country A, and person B owns the copyright in country B? Still okay for B to undercut A?
What if the copyright expires or otherwise doesn't apply for our purposes in country C, and ordinary person C starts making copies there, lawfully. Okay for him to undercut A and B?
If you're treating them differently, why? Remember that in each case, only person A can lawfully make copies in A, only person B can lawfully make copies in B, and anyone can make copies in C.
It's certainly an issue worth considering carefully, but I don't think the answer is necessarily as clear cut as you'd like.
What gets me about this copying by installing is that I am NOT the one copying. The writer of the program is doing the copy. How do I work that out?
No, it's you. The program didn't jump up, pop itself into your CD drive and start itself up. You set it in motion.
For programs, you might want to check out 17 USC 117. Then you might want to think about "the owner of a copy" means in light of EULAs.
And this covers copies into RAM for the sake of running it, so yeah, many console games require 117 or else some manner of licensing, implicit or explicit.
This is not how it works in the US.
Per 17 USC 504, infringers may be sued for -- among other things -- the plaintiff's choice of either actual damages and profits or statutory damages.
Statutory damages are in the range of $750 - $30,000 per work. The ceiling can rise to $150,000 per work if the plaintiff can prove that the infringement was willful. The floor can drop to $200 per work if the defendant can prove that he was unaware of the infringement and had no reason to believe his acts were infringing.
Also federal courts have exclusive jurisdiction over copyright suits, so infringement actions can never take place in small claims court. The US District Court for the District of Wyoming sits in Cheyenne and Casper.
Given that 505 permits for the recovery of attorney's fees and costs by the prevailing party should the court allow it, it's not outside the realm of imagination for RIAA to hire some lawyers conveniently already located in Wyoming to sue the shit out of you. (If you're in Wyoming, natch)
You definitely can record songs off the radio or TV (whether to a cassette or any other medium) for your personal use. This was settled aages ago by a legal case that defined such personal use of broadcast material as being ok under (U.S.) copyright law.
No, not definitely. Just sometimes definitely, and sometimes maybe. Some recording of radio to some media or via certain devices (n.b. that computers are not included) may be okay per 17 USC 1008. Anything else has to fall within a different exception, such as fair use. But not everything is a fair use; you have to check on a case-by-case basis.
Also not all activities on the net would be broadcasts even if any are.
Finally, there is a big issue with people in the US downloading from allofmp3: it's illegal here, even if they're following their law there.
You've missed something.
First, importation is a red herring. Importation refers to the moving across national boundaries of copies, where copies are defined as tangible objects.
If allofmp3 sent you a CD via FedEx, that would fall under the import regulations. But downloading would not. And downloading absolutely touches upon reproduction, which 602 has no bearing on (since importation is a subset of distribution, not reproduction).
Second, even if it did apply, you have -- like so many others that fail to read the whole law they cite -- found an exception to the prohibition on imports in 17 USC 602(a). The prohibition in 602(b) still applies, and you haven't cited an exception for it!
But that's all academic. Like I said, there is no importing when you download.
I absolutely agree. However, as a consequence of this position, don't you think that 17 USC 203 et al ought to be repealed?
Sure, the RIAA can sue. But that does not mean they would win.
I think they would win. Copyright cases are generally very clear cut in favor of the plaintiff. Certainly there's nothing about the typical downloader that's going to help him. The Napster cases are good to look at for this. Napster was sued basically for having helped its users infringe. Thus one of its defenses was to claim that the users didn't infringe. Napster tried every argument they could think of, and lost every time. Individual users are not going to have much of a chance, given that they'd just be retreading the same ground.
If a Russian person bought songs at AllOfMp3 and carried them into this country on a laptop - the next time they played those songs (thereby making a copy in RAM) they would be violating US copyright law.
Actually, just bringing them into the US would infringe copyright law. The customs service would be able to lawfully seize the laptop at the border and it might ultimately be destroyed.
So does that mean no one can bring any copyrighted works into the US unless they pay the US copyright holders?
There's a bit more detail to it than that, but basically, yes. The US does not want copyright holders to get undercut by foreign competitors that make copies of the same thing. Of course, where US and international rights are divvied up, it may be under an agreement whereby the requirements of 602(b) are satisfied, and therefore the 602(a) exception might be useful. Plus there's the 109 exception for reimports.
It's very difficult to say precisely which copies of which works can be imported and which can't, without being privy to a lot of details about them and the agreements under which they were made. It would be nice to have a simpler system.
Odd request, but okay.
17 USC 501(a):
17 USC 106:
17 USC 101:
Distribution is another one of the rights in 106, but reproducing a work into a copy is infringing regardless of whether or not you distribute it later.
You're right that it is not infringement to buy a copy (though some forms of obtaining a copy may be infringing), but that only covers buying. Reproduction that occurs in the process is still potentially infringing.
Check out my earlier post on the subject. I don't feel like typing it again so soon, though I'm happy to discuss it further.
No, the law defines a copy as a tangible object. A hard drive is a copy. RAM is a copy. A CD is a copy. Files all by themselves are not. Check out 17 USC 101.
And thus, at a technical level, what happens is that there is a copy on a server hard drive. Even a GET request then results in the information being reproduced to RAM (another copy), then reproduced to the downloader's RAM via the NIC and the wire (another copy), and probably finally the downloader's hard drive (yet another copy).
Even if the server's RAM copy is purged, it was still made, and it's the making that's the problem.
You might want to google for MAI v. Peak, and also for Intellectual Reserve v. Utah Lighthouse Ministry.
As for who's responsible, it's the downloader -- he initiated the process of the download. No one else's initiative was responsible. The Marobie-FL v. NAFED case looks at this.
Mm. Don't get confused -- there's no importing going on with regards to the net -- but yeah, it's certainly illegal for people in the US to download from these guys, and I would be surprised if it's not illegal most places.
No, for civil copyright infringement, it doesn't matter what you know, or reasonably could have known. Doing an infringing act is sufficient for liability to stand. The best you can hope for is minimal damages. Copyright is a strict liability statute. You may want to look at 17 USC 501 and 504, in particular 504(c)(2). However, if willfulness can be shown, there could be higher damages.
RIAA can sue downloaders in the US.
17 USC 501 says that infringement is the violation of any of the exclusive rights of the US copyright holder listed in 106. One of the 106 rights is reproduction; another is distribution.
Copies are defined in 101. They are material objects in which the intangible copyrighted works are fixed. For example, a novel is a kind of copyrightable work; each specific hardcover book with the story printed in it is a copy of that work. If you xeroxed the hardcover, you would be reproducing the work, even if the hardcover was destroyed in the process or something, because you are putting the work into a tangible object.
Files are not tangible objects. But RAM is a tangible object. Hard drives are tangible objects. Thus, when you download, you necessarily reproduce works. It's unavoidable, and happens all the time even if it is slightly behind the scenes. In fact, in the course of a download, many many reproductions may occur. Courts have settled this for a long time; I suggest reading MAI v. Peak (for the proposition that RAM can be a copy), Napster (which was found liable for the infringements of its users, including its downloaders), and Intellectual Reserve v. Utah Lighthouse Ministry (finding that people who look at web pages may, in the process, infringe by virtue of the copies that must be made in the course of the viewing process).
And the courts will look to the person who directed the reproduction to occur, regardless of who's computers were involved, when assigning liability. For downloading, this is the downloader; it's not as though the uploader is forcing stuff to come down the pipe. That would require malware or something, and is so unlikely, and the burden of proof is so low (only a 51% likelihood is required in civil copyright cases), that it's trivial to hold the downloader responsible for his own actions. For more on this, google for the Marobie-FL v. NAFED case.
While allofmp3 might have a right to reproduce or distribute in Russia, that does not have any affect on persons in the US. In particular, recall that they don't have a license per se, but a compulsory license. This isn't an agreement or contract; it's the Russian government saying that some actions are simply not infringing in Russia, provided that the persons engaging in them pay an amount set by the Russian government. As would be expected, it has no bearing outside of Russia since it's a law peculiar to them.
What's very important to bear in mind is that this is not a case of importation. Importation is a subset of distribution; therefore any exception in US law (the only law that matters for people in the US) regarding importation does not help in a case of reproduction. Furthermore, reproduction requires the moving across national borders of a tangible object. Mailing a CD from Russia to the US would be importation. Downloads are not importation. Providing them is distribution, and receiving them is reproduction, but importation is a red herring.
Plus, you're wrong in claiming that you can lawfully import anything you obtain legally according to the law of the place it was acquired. Surely you understand that, for example, you can't import marijuana into the US just because you legally bought it in Holland or something.
With copyright law, 602 prohibits importation in both subsections (a) and (b). People frequently look to the exception in 602(a)(2), but they are jumping the gun. That exception only applies to subsection (a). Subsection (b) still bans imports, unless the copies sought to be imported (i.e. tangible objects being brought into the country) were made in a way that was lawful had the laws of the US applied to the place they were made. Since allofmp3 can't operate lawfully under US law, even if they were providing imports, it'd still be illegal. Alternatively, 109 might apply, but then only to copies made in the US, exported, and reimported.
But again, importation is just a total wrong avenue. Nothing of the kind is going on here, and the real legal issues involve reproduction.
Sorry if it's confusing. You're expected to follow it anyway though. And you can be held liable for infringements even if you had no reason to think you were doing anything wrong.
Spam is only ever sent by deliberate action to begin with. How might we distinguish these actions? More importantly, how can we possibly read into the filterer's refusal to send any kind of communication to the spammer, a communication to the effect of 'don't spam me?'
That's also not what happens.
A filter is a very simplistic sort of thing. There's a list of conditions, and it mechanistically looks to see if any of them are met. If none of them are met, that doesn't mean that there has been fraud, it only means that the conditions you're looking for are too narrow.
If your filter were for the word 'spam' and a message arrived that contained that word, it would be blocked. If another message arrived that did not contain that word, it would not be blocked. The mere fact that the second message didn't contain a word you wish it did doesn't rise to the level of fraud. Rather, it indicates that your filters need work.
Good filters will have long lists of conditions to be met, not merely based on individual words, but perhaps even other information, the structure of messages, senders, roots to permit for matching words with varying suffices, etc.
None of this involves judgment by the filtering machine, however. Computers are stupid, and do not understand meaning, forcing filter developers to be thorough, even though there can never be a perfect filter.
It's vastly inappropriate to analogize to a person, therefore, since if you had a secretary screen your email in advance, you could avoid having any spam get through to you. No filter is that good.
So your doorman analogy is lacking. Rather, it's more like you've noticed that door to door salesmen always weigh over 200 pounds, since they carry a suitcase full of the things they're selling. To keep them from approaching, you have set up a pressure sensitive mat that won't admit people over 200 pounds.
If a thin salesman who travels lightly should get in however, merely by the virtue of not weighing as much as you had expected, it's hardly fraud on his part. It's your own error.
Yeah, that's the Kessler Syndrome.
For this reason I believe that there are specific exceptions in the law to allow for computers to make copies if it is necessary to run the program, 117 I believe. Two questions that occur to me here are, 1) are digital files considered to be "computer programs," and 2) do these exceptions apply if the source of the file was not authorized to distribute in the first place?
Well, in 101 we have the relevant definition of what a computer program is: A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
While this could be broad enough to extend to data, I don't think that it's likely to in practice. It depends on the nature of the file; there have been complex Excel worksheets that were considered programs, but a mere mp3 is probably not going to be. It's a fuzzy line, though.
That'll prevent the 117 analysis from even starting.
However, assuming that we can even get to 117, recall that it only applies in pertinent part to the owner of a copy. If the copy was not lawfully made due to someone in the chain of distribution and reproduction between the copyright holder and the person claiming the applicability of 117 having infringed, then I suspect that courts would consider a defendant to have obtained possession of his copy wrongfully, and thus wouldn't be the owner. This could be argued, but courts aren't usually fond of people perceived to be wrongdoers, so I think it's what would happen.
My point was that from the perspective of who makes the copy when a file is downloaded, the uploader must make the copy and then he distributes it down the wire. The downloader does not copy the file, he just receives the copy down the wire from the uploader. However, I acknowledge that you are correct that the downloader must make several transitory copies during the process of downloading, and he is also the one who fixes the copy to a tangible media.
As I recall from the Marobie-FL case, creating copies on a server would fall to the uploader, distribution would fall to the uploader, but copies made in the server's RAM, if automatically done in response to the download request, would fall to the downloader, and of course copies with regards to the downloader's RAM, hard drive, etc. would fall to the downloader.
This is really a lot easier when we're talking about printing paperbacks and moving them around.
Don't jump the gun.
The problem is that evading a filter doesn't prevent people from filtering.
For example, if my filter looks for the word 'time share,' and you send me a spam that doesn't include that word, but still expresses the idea, my filter has had no practical effect, but it still functions exactly as I designed it. I am in no way impaired from filtering for the word 'time share.' Should the sender be blamed for not using different words?
It's silly. You're basically trying to say that advertising must be boring and predictable and fall within narrow channels, merely because it's what you predict. But so long as the advertising falls within free speech, why should you get to decide what it consists of?
I think that what you want is to be able to just tell the computer to filter out spam, and the computer figures out by itself what the spam is, based on meaning, etc., rather than by stupidly looking for regular expressions and such. Well, that would be nice, but computers just can't do that yet. The shortcomings of computers means that if you want effective filters, you're going to have to substitute broad matching rules in place of actual judgment. Sorry if you're not very good at it and spam isn't caught by them.