On the internet, things are less clear, because if I download from Joe's FTP, it is not exactly clear who has made the copy. Sure, I requested it, but it was Joe who sent the bits my way. Joe could have sent me the bits even if I hadn't requested them. I don't know of any relevant case law, but a case exists to be made that the downloader of a file is in the same position as the purchaser of a book.
The one thing the **AA's don't want is for such a case to actually make it to court and risk setting a precedent that the downloader is legally in the clear, and only the party that offers the file for download infringes.
Too late.
The Napster case, Marobie-FL case, Intellectual Reserve case... they all say that the downloader infringes by reproducing the work in the course of a download. And the opinions are sensibly written and prone to be followed.
You'd have no real chance of getting off the hook by claiming that a machine you explicitly instructed to send information to you was responsible for your machine writing information to your hard disk and that you weren't.
In fact, I don't think you ever could make that argument with a straight face.
Who in the MPAA actually verifys the files are illegal and not just some homemade porn or some songs from your friends band that he gave you?
Ultimately the lawyer that represents the plaintiff will have to verify this, lest he be subject to sanctions for violating Rule 11.
And how do they justify the number ($150,000) per digital file? What if it's an analog file like a printout of the digital file? Is that still $150,000 or maybe just $50,000?
17 USC 504 allows for the plaintiff to seek statutory damages for willful infringement of up to $150,000 per work infringed upon. The nature and number of infringements is irrelevant.
It has nothing to do with the courts -- Congress set the statutory damages at up to $150,000 per work infringed upon.
And anyway, while we've been forgetting the public interest here, I wouldn't praise Europe. You guys have traditionally far worse copyright laws than us, and have been pressuring the US to make ours worse.
If we had any sense we never would've joined the Berne Convention, and would've kept copyrights sharply limited in term, scope, with strict formalities required for them to come into existence.
One point to note is that a broadcast is not a reproduction, but rather a transmission, which falls within the realm of public performance. Public performance is yet another 106 right, along with reproduction, distribution, etc.
Public performance with regards to TV is one of the most complicated portions of copyright law, as it was basically the result of terrestrial broadcasters, cable networks, satellite broadcasters, tv networks, and the movie and tv industry all working out a compromise they could agree on.
Basically, the broadcaster et al has to get rights to send out each program they air, and this is typically done by the network, which clears all the programs and then can license the whole deal for broadcast. Sometimes this breaks down, as can be seen when channels go off the air with regards to a particular provider (IIRC a lot of Disney's networks went off Time Warner cable in NYC some years ago, until things got worked out). However, some rebroadcasting (generally of local channels) by cable or satellite providers may be allowed by law.
At any rate, the copyright for a particular program is typically held not by the broadcaster, but by either the network or a production company that licenses the show to the network. So Viacom owns Paramount, which produces Star Trek, and UPN, which airs it. But Buffy was made by 20th Century Fox (which is owned by News Corp. IIRC), yet was aired on WB (owned by Time Warner), and later moved to UPN (Viacom again). It's also in syndication on a variety of channels, which can either pay individually to air it, or are just another division of News Corp., such as FX.
The relevant point, in the end, is that someone has the copyright to the program; probably not the mere broadcaster that owns the antenna in your vicinity, but someone.
The exception for your viewing is the 'transitory' nature of the copy.
No. Let's hit the structure of copyright.
First, given freedom of speech, everything is allowed unless specifically prohibited. This includes reproducing other people's work.
Then, narrow limits may be imposed. For example, we might prohibit reproduction of certain works, but not others. And we don't prohibit reading or watching at all. Some prohibitions may impair unprohibited things, but that's how that works. For example, reading never infringes on copyright by itself. But if you reproduce a work so that you have a copy to read, that would. One series of actions may involve numerous specific infringements as well as non-infringing acts.
Then, as to those narrow prohibitions, even narrower exceptions may be established, which in effect reduce the size of the prohibitons. These include fair use, first sale, etc.
So here's an analogy: We have a roller coaster. We could let anyone ride it. But then we exclude people who are below a particular height. They don't get to ride it. But of those excluded people, anyone that is over 18 and signs a waiver is allowed on despite being too short. They got excluded initially, but are not in the end.
When you put that EM wave you took out of the air and put it on tape (harddrive, etc) you are reproducing (fixing the work to a tangible medium).
Correct.
This is a right you don't have.
It'd be more accurate to invert this; he has the right, he just can't legally exercise it. Under the right circumstances, he can exercise it. Free speech is what is limited by copyright, but it's inherent.
That's why programmes have 'fine print' at the end of the credits that say things like "Copyright [Someone]. All rights reserved".
Actually, that's for notice requirements under various laws. These days, not having a notice would not affect the copyright. Remedies maybe, but not copyright.
Time-shifting is an established fair use.
No such thing. Each time anyone claims some otherwise infringing act is a fair use, it must be analyzed according to the circumstances involved under the fair use test. The mere fact that Alice did something that was a fair use doesn't mean that Bob will inevitably fall within fair use if he does something, even the same thing. It always depends.
You're reading too much into this. The only thing that counts is the court's opinion, which won't be issued for months, most likely.
The comments of the individual judges don't mean anything; it's commonplace for judges to be hardasses, challenging each side that comes before them, so as to get good answers to hard questions. It tells us little or nothing as to how they'll decide. In fact it's typically done to both sides, with the judge flipping as needed in order to elicit answers.
Can you give a single example of when this was the case?
The Napster case, the Intellectual Reserve case, the Marobie-FL case, all said this.
Even the RIAA is suing "distributors" not downloaders.
And I remember when they only sued P2P networks, not users of any kind. What they do today doesn't limit what they might do tomorrow. Basically this is done for tactical reasons: it's more effective to go after larger infringers first. Networks are bigger than uploaders who are bigger than downloaders. Taking out a bigger target makes life hard for the smaller ones. Since there are fewer bigger targets than smaller ones, it's also cheaper and easier. Basically a head of the snake kind of attack.
The downloader is not making unauthorized copies of anyones work.
It seems to me the distribution/importation issue is irrelevant, all you need to talk about is 602(b) regardless of any other status.
No, it still has to be a situation where we care.
At this point 602(b) is relevant because of an unusual hypothetical involving going to Russia, downloading music, and coming back with a copy of it.
Downloading, as discussed earlier, is not importation at all, and so none of 602 is relevant. Rather, the key offense is that the downloaders in the US are reproducing the work illegally.
In that case, you could argue the copies aren't being made with the copyright holder's consent, and thus the Russian license is in violation of U.S. law.
No, it just is not legal outside of Russia. Since many downloaders are in the US, which is not part of Russia (except for that 'Red Dawn' part) they're left in a bad position.
The whole idea of personal baggage import is based on the assumption that people don't smuggle single copies.
Personal baggage allows for multiple copies; importation aside from that (i.e. ordering things) is single copies only.
Overseas trips aren't free, you know. That seems to be an appeal to ethics, not law.
No, remember that the US has borders with Canada and Mexico. Historically there have been interesting situations with people crossing these borders and pirating when our laws were less similar. Now you might need to go further, but transportation isn't that hard either.
I say that the exception in 17 USC 1008 is certainly very interesting, but it is very limited.
101 and 1001 define some crucial terms used in 1008. The gist of it is that the 1008 exception is only available where:
* You're copying sound recordings that aren't spoken-word * You're a natural person * You're acting noncommercially (which potentially could be read to require that you own a lawfully made copy as well, and are not using 1008 as a substitute to buying any copies) * You're using the required devices or media to make the recording, which basically does not include computers, mp3s, etc. Rather, DAT, Minidisc, Audio CDR, etc. This probably precludes downloading.
So for the rare times that 1008 is applicable, great. But people rarely ever act in a way that it's useful, and rarer still actually do use it. And when you do, it's not that useful.
Since it's basically irrelevant to this discussion, I'm wondering why you're bringing it up.
Yes, but your earlier point was that importation where you didn't sell it, etc. didn't fall under distribution at all.
If you're saying that it's exempted by 602(a)(2), then this means it must fall under 106(3), or else the exemption would not be needed. And we never read the law to not be needed. The fact that 602(a)(2) exists means that it has to, or else it would be banned by 106(3).
So for 602(a)(2), yes, your example satisfies that, but we weren't discussing that before.
This leaves 602(b), which also needs to be satisfied, since 602(a)(2) doesn't touch it.
The key of 602(b) is this:
In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
'This title' is Title 17 of the United States Code. I.e. US law.
So 602(b) says that if it would have been illegal to make the copy in the US, under US law, then it is illegal to import them.
Now, why are you going to the bother of going to Russia to begin with, but to exploit a law they have that we don't! That is, you're going there to do things that are illegal here. That being the case, it's illegal to import those copies into the US, since you could not have legally made them here to begin with.
Remember that the purpose of banning imports is to ensure that people cannot circumvent copyright law by relying on the differences in the law of other countries. If people could reliably go abroad to pirate, and could get away with it, copyright in the US would quickly be meaningless. We don't want that, so import restrictions are the answer.
Yes, you can send a petition to Congress. People write or call or fax or email their Congressmen all the time. So what?
You're just talking about bitching about the law. Suing in federal court to prevent a law from becoming effective brings in the requirements of Article III. And Art. III sec. 2 states that the federal courts can only hear cases and contraversies. They cannot constitutionally hear mere bitching about stuff.
As this works out, unless you have been, or certainly will be, harmed by a law in a way that makes you stand out from the rest of the public, you have no standing to challenge it. Instead you should write to your Congressman.
The court hasn't ruled yet. It's not going to rule for months, most likely. So it's very early to be saying that the broadcast flag is in trouble.
Mostly people seem to be looking at what one of the judges said. This is a big mistake.
Judges routinely will adopt a position opposite to that of what the lawyer before them has. By challenging the lawyer, they force him to make good arguments on behalf of his side, and to answer tough questions that he'd otherwise prefer to avoid. It doesn't mean anything as to the judge's opinion, or how he will rule. It's just a technique for getting information.
It's entirely normal to go in front of a judge, arguing on behalf of A. The judge will be very harsh, point out the flaws of A, and ask why B isn't better. When the other side has their turn, the judge immediately starts praising A and making the other side defend B. The constant is that he's putting whoever is in front of him on the defensive, making him explain his argument and admit to its weaknesses as well as the strengths that would be extolled anyway.
This sort of questioning doesn't mean anything about the eventual outcome.
The problem is that a canon of statutory interpretation is that it is never correct to read a law such that it would have no effect; if Congress wrote it, it must mean something.
Congress specifically said, in section 602, that importation falls under distribution. And furthermore, they created an exception that applies to a person importing one copy, but not multiple copies. Therefore, importing multiple copies must not be within the exception, and since the exception is meaningless if conduct outside of it is noninfringing, it must be infringing too.
Nice try though.
(note in reading 602 that you need to satisfy 602(a) AND (b), and that some of their exceptions might only be applicable only to the one subsection, and not the other)
What if I downloaded it in Russia or Canada, and then brought my laptop home?
Then that's an import. Imports are a form of distribution, and are prohibited under 17 USC 106(3). Exceptions might be available in 109 (but not in this example), if both 602(a) AND (b) are satisfied, which is unlikely, or under 107, which would be your best bet, and not a great one.
What if I downloaded it in Russia, and then e-mailed it to myself?
Reproduction when you download your email.
My having paid for it with a U.S. PayPal account doesn't make it a download in the U.S.
Why not? Remember, the burden of proof in a copyright infringement suit is a preponderance of the evidence. That is to say, if it is more likely that you did something than that you didn't, then it's considered proof that you did it. Absolute certainty is not required. Plus of course, in discovery they can require you to turn over anything you downloaded, and probably make you to testify.
Really all I'd be wondering about in that scenario is which work is involved, since the appropriate person has to sue you.
But basically, a license to distribute in Russia doesn't permit downloading in the US. Particularly when it's a compulsory license, not a real agreement.
Plus I have little faith that there even is a legal compuslory licensing system of this kind in Russia, much less that they pay out as they'd be required to. It all sounds very shady to me, much like all those untold millions in Nigeria.
A compulsory license is not a license in the sense of an agreed-upon contract. It's a law that says that other people can do things as if there were a contract for a specified amount, whether you like it or not. It's no different from a law that simply establishes an exception, but it involves pay at government-set rates instead of being for free.
While Russia can of course enact whatever copyright laws, or none at all, that it likes within its own borders, those laws have no bearing on the US. Our law says that if you download a copyrighted work in the US, you must either have an exception or permission, or else you're breaking the law. The Russians cannot step in and pass laws that modify American laws.
Since the US rights holders never gave permission in a way that US law considers to be valid (or in fact, at all) and no exceptions seem to apply, downloading from allofmp3 is illegal in the US, regardless of whether they're acting legally in Russia.
While RIAA surely feels it is important to shut them down (since that will make life difficult for many users in one blow -- it's more efficient than going after users one by one), it can also gather information necessary to find US users so that it can sue them if it wishes.
If such a suit is brought in the US, we'll see some good examination of the issues. But my prediction is that it'll play out as I've said, if it gets that far.
Yes. The earlier poster seemed to think that if he didn't know, and didn't have reason to know, that his conduct was infringing, that he was off the hook. The reality is that he is still potentially in trouble, as are most of us, if all the infringements we engage in all the time ever came to light and were followed up on.
Perhaps it doesn't mean much since most infringements are never pursued, but that doesn't mean that they can't be.
There's something similar with torts, as anyone who's ever had to deal with an issue-spotting question knows.
With regards to your question, let's rephrase it for copyright law.
If you do something that would be illegal (such as downloading a copyrighted work without an applicable exception) but for permission granted by the copyright holder, then that's fine.
But if that permission isn't really valid, then it is infringing. It doesn't matter whether you had any reason to think it might be illegal, or whether you actually did. Just doing it, no matter what you knew or what your state of mind was, is illegal. This is because civil copyright infringement is a strict liability offense.
It may have an affect on the damages you have to pay, but that's the best you can hope for.
Read 17 USC 501 and 504. When Congress says something needs to be willful, they mean it, and when they don't, they mean not to.
A computer file is clearly not tangible. Only the medium on which it resides is tangible. Thus an mp3 is not tangible. Only RAM, or a hard drive, or CD, or other such things are tangible.
Basically, it's tangible if you can hold it in your hand, all by itself. Let me know when you can hold an mp3, without any other medium, in your hand.
Plus, 17 USC 109 -- the first sale doctrine as codified -- applies only to copies (copies are defined in 101 as being tangible objects, as above) that are lawfully made under US law. The Quality King case already noted is basically the only case that explored this issue as related to imports.
Remember that I'm not your lawyer, and this isn't legal advice. If you want legal advice, consult a lawyer licensed to practice in your jurisdiction who is willing to give it.
Personally, I think that it's illegal for people in the US to download music from allofmp3. It's absolutely a prima face infringement, and I see no applicable exceptions for what people are doing.
So what you are saying is that it is impossible for me to LOOK at websites containing copyrighted material since it is first downloaded to my computer and second saved in my cache... doh!
It's funny you should bring that up. There actually has been some litigation along those lines in Intellectual Reserve v. Utah Lighthouse Ministry, 75 F.Supp. 2d 1290 (D. Utah 1999):
The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement). See 17 U.S.C. 106.
"Copy" is defined in the Copyright Act as: "material objects . . . 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." 17 U.S.C. 101. "A work is fixed' . . . when its . . . sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.
When a person browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. n5 See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by licence, such an act constitutes copyright infringement); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. Distrib., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer); see also Nimmer on Copyright 8.08(A)(1) (stating that the infringing act of copying may occur from "loading the copyrighted material . . . into the computer's random access memory (RAM)"). Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.
n5 Although this seems harsh, the Copyright Act has provided a safeguard for innocent infringers. Where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages. . .." 17 U.S.C. 504(c)(2).
Depends. In the US, both reproduction and distribution and some other things are all infringing. The cite is at 17 USC 106.
Reproducing things just for yourself is illegal unless you have permission, the works aren't copyrighted, or there's an applicable exception. There won't always be an applicable exception.
Of course, YMMV in other countries... but remember that Article 9bis of the Berne Convention also requires that copyright holders have the exclusive right to reproduce their works, so different countries' exceptions to that might not always be within their treaty obligations. (e.g. the US had some trouble with our 110(5) exceptions a while back -- not that we really care all that much)
No, the infringing party is the party that engages in infringing conduct.
Reproduction -- such as to RAM or a hard drive -- is a form of infringing conduct, where the work reproduced is copyrighted and no applicable exception or authorization exists. Downloaders engage in such conduct all the time, and when they do, are infringers.
The Napster case discussed how both uploaders and downloaders infringed, and how Napster was also liable for having helped them do it, given the circumstances. It's not unique in this regard.
Really, the only way a downloader would not be an infringer is if he didn't download. But viruses that take over your computer and force it to download music are rather rare. (and even then, it might not mean much)
Generally, the people that get to claim that they weren't sufficiently involved are ISPs -- other people upload works to their machines, and other people download works from them. Even they had trouble always avoiding liability, so now we have special provisions just to protect them!
That's still reproduction. Even if you only reproduce a very small part, it still likely counts.
Seriously: when you're thinking of ways to game the system like this, ask yourself whether any idiot can see through it. Judges aren't all that stupid, and you won't do well if you act as if they are.
Slashdot Mirror
On the internet, things are less clear, because if I download from Joe's FTP, it is not exactly clear who has made the copy. Sure, I requested it, but it was Joe who sent the bits my way. Joe could have sent me the bits even if I hadn't requested them. I don't know of any relevant case law, but a case exists to be made that the downloader of a file is in the same position as the purchaser of a book.
... they all say that the downloader infringes by reproducing the work in the course of a download. And the opinions are sensibly written and prone to be followed.
The one thing the **AA's don't want is for such a case to actually make it to court and risk setting a precedent that the downloader is legally in the clear, and only the party that offers the file for download infringes.
Too late.
The Napster case, Marobie-FL case, Intellectual Reserve case
You'd have no real chance of getting off the hook by claiming that a machine you explicitly instructed to send information to you was responsible for your machine writing information to your hard disk and that you weren't.
In fact, I don't think you ever could make that argument with a straight face.
Who in the MPAA actually verifys the files are illegal and not just some homemade porn or some songs from your friends band that he gave you?
Ultimately the lawyer that represents the plaintiff will have to verify this, lest he be subject to sanctions for violating Rule 11.
And how do they justify the number ($150,000) per digital file? What if it's an analog file like a printout of the digital file? Is that still $150,000 or maybe just $50,000?
17 USC 504 allows for the plaintiff to seek statutory damages for willful infringement of up to $150,000 per work infringed upon. The nature and number of infringements is irrelevant.
It has nothing to do with the courts -- Congress set the statutory damages at up to $150,000 per work infringed upon.
And anyway, while we've been forgetting the public interest here, I wouldn't praise Europe. You guys have traditionally far worse copyright laws than us, and have been pressuring the US to make ours worse.
If we had any sense we never would've joined the Berne Convention, and would've kept copyrights sharply limited in term, scope, with strict formalities required for them to come into existence.
Sort of.
One point to note is that a broadcast is not a reproduction, but rather a transmission, which falls within the realm of public performance. Public performance is yet another 106 right, along with reproduction, distribution, etc.
Public performance with regards to TV is one of the most complicated portions of copyright law, as it was basically the result of terrestrial broadcasters, cable networks, satellite broadcasters, tv networks, and the movie and tv industry all working out a compromise they could agree on.
Basically, the broadcaster et al has to get rights to send out each program they air, and this is typically done by the network, which clears all the programs and then can license the whole deal for broadcast. Sometimes this breaks down, as can be seen when channels go off the air with regards to a particular provider (IIRC a lot of Disney's networks went off Time Warner cable in NYC some years ago, until things got worked out). However, some rebroadcasting (generally of local channels) by cable or satellite providers may be allowed by law.
At any rate, the copyright for a particular program is typically held not by the broadcaster, but by either the network or a production company that licenses the show to the network. So Viacom owns Paramount, which produces Star Trek, and UPN, which airs it. But Buffy was made by 20th Century Fox (which is owned by News Corp. IIRC), yet was aired on WB (owned by Time Warner), and later moved to UPN (Viacom again). It's also in syndication on a variety of channels, which can either pay individually to air it, or are just another division of News Corp., such as FX.
The relevant point, in the end, is that someone has the copyright to the program; probably not the mere broadcaster that owns the antenna in your vicinity, but someone.
The exception for your viewing is the 'transitory' nature of the copy.
No. Let's hit the structure of copyright.
First, given freedom of speech, everything is allowed unless specifically prohibited. This includes reproducing other people's work.
Then, narrow limits may be imposed. For example, we might prohibit reproduction of certain works, but not others. And we don't prohibit reading or watching at all. Some prohibitions may impair unprohibited things, but that's how that works. For example, reading never infringes on copyright by itself. But if you reproduce a work so that you have a copy to read, that would. One series of actions may involve numerous specific infringements as well as non-infringing acts.
Then, as to those narrow prohibitions, even narrower exceptions may be established, which in effect reduce the size of the prohibitons. These include fair use, first sale, etc.
So here's an analogy: We have a roller coaster. We could let anyone ride it. But then we exclude people who are below a particular height. They don't get to ride it. But of those excluded people, anyone that is over 18 and signs a waiver is allowed on despite being too short. They got excluded initially, but are not in the end.
When you put that EM wave you took out of the air and put it on tape (harddrive, etc) you are reproducing (fixing the work to a tangible medium).
Correct.
This is a right you don't have.
It'd be more accurate to invert this; he has the right, he just can't legally exercise it. Under the right circumstances, he can exercise it. Free speech is what is limited by copyright, but it's inherent.
That's why programmes have 'fine print' at the end of the credits that say things like "Copyright [Someone]. All rights reserved".
Actually, that's for notice requirements under various laws. These days, not having a notice would not affect the copyright. Remedies maybe, but not copyright.
Time-shifting is an established fair use.
No such thing. Each time anyone claims some otherwise infringing act is a fair use, it must be analyzed according to the circumstances involved under the fair use test. The mere fact that Alice did something that was a fair use doesn't mean that Bob will inevitably fall within fair use if he does something, even the same thing. It always depends.
Pretty good though.
You're reading too much into this. The only thing that counts is the court's opinion, which won't be issued for months, most likely.
The comments of the individual judges don't mean anything; it's commonplace for judges to be hardasses, challenging each side that comes before them, so as to get good answers to hard questions. It tells us little or nothing as to how they'll decide. In fact it's typically done to both sides, with the judge flipping as needed in order to elicit answers.
No, I haven't been to Jacksonville very frequently. I grew up in Tallahasse, but I've since moved up to New England.
Well, a good rule of thumb is that if a deal seems too good to be true, it probably is.
Whereabouts in FL are you?
Can you give a single example of when this was the case?
The Napster case, the Intellectual Reserve case, the Marobie-FL case, all said this.
Even the RIAA is suing "distributors" not downloaders.
And I remember when they only sued P2P networks, not users of any kind. What they do today doesn't limit what they might do tomorrow. Basically this is done for tactical reasons: it's more effective to go after larger infringers first. Networks are bigger than uploaders who are bigger than downloaders. Taking out a bigger target makes life hard for the smaller ones. Since there are fewer bigger targets than smaller ones, it's also cheaper and easier. Basically a head of the snake kind of attack.
The downloader is not making unauthorized copies of anyones work.
That is exactly what he is doing.
It seems to me the distribution/importation issue is irrelevant, all you need to talk about is 602(b) regardless of any other status.
No, it still has to be a situation where we care.
At this point 602(b) is relevant because of an unusual hypothetical involving going to Russia, downloading music, and coming back with a copy of it.
Downloading, as discussed earlier, is not importation at all, and so none of 602 is relevant. Rather, the key offense is that the downloaders in the US are reproducing the work illegally.
In that case, you could argue the copies aren't being made with the copyright holder's consent, and thus the Russian license is in violation of U.S. law.
No, it just is not legal outside of Russia. Since many downloaders are in the US, which is not part of Russia (except for that 'Red Dawn' part) they're left in a bad position.
The whole idea of personal baggage import is based on the assumption that people don't smuggle single copies.
Personal baggage allows for multiple copies; importation aside from that (i.e. ordering things) is single copies only.
Overseas trips aren't free, you know. That seems to be an appeal to ethics, not law.
No, remember that the US has borders with Canada and Mexico. Historically there have been interesting situations with people crossing these borders and pirating when our laws were less similar. Now you might need to go further, but transportation isn't that hard either.
At any rate, the law is concerned with it.
I say that the exception in 17 USC 1008 is certainly very interesting, but it is very limited.
101 and 1001 define some crucial terms used in 1008. The gist of it is that the 1008 exception is only available where:
* You're copying sound recordings that aren't spoken-word
* You're a natural person
* You're acting noncommercially (which potentially could be read to require that you own a lawfully made copy as well, and are not using 1008 as a substitute to buying any copies)
* You're using the required devices or media to make the recording, which basically does not include computers, mp3s, etc. Rather, DAT, Minidisc, Audio CDR, etc. This probably precludes downloading.
So for the rare times that 1008 is applicable, great. But people rarely ever act in a way that it's useful, and rarer still actually do use it. And when you do, it's not that useful.
Since it's basically irrelevant to this discussion, I'm wondering why you're bringing it up.
Yes, but your earlier point was that importation where you didn't sell it, etc. didn't fall under distribution at all.
If you're saying that it's exempted by 602(a)(2), then this means it must fall under 106(3), or else the exemption would not be needed. And we never read the law to not be needed. The fact that 602(a)(2) exists means that it has to, or else it would be banned by 106(3).
So for 602(a)(2), yes, your example satisfies that, but we weren't discussing that before.
This leaves 602(b), which also needs to be satisfied, since 602(a)(2) doesn't touch it.
The key of 602(b) is this:
In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
'This title' is Title 17 of the United States Code. I.e. US law.
So 602(b) says that if it would have been illegal to make the copy in the US, under US law, then it is illegal to import them.
Now, why are you going to the bother of going to Russia to begin with, but to exploit a law they have that we don't! That is, you're going there to do things that are illegal here. That being the case, it's illegal to import those copies into the US, since you could not have legally made them here to begin with.
Remember that the purpose of banning imports is to ensure that people cannot circumvent copyright law by relying on the differences in the law of other countries. If people could reliably go abroad to pirate, and could get away with it, copyright in the US would quickly be meaningless. We don't want that, so import restrictions are the answer.
No, your argument is idiotic.
Yes, you can send a petition to Congress. People write or call or fax or email their Congressmen all the time. So what?
You're just talking about bitching about the law. Suing in federal court to prevent a law from becoming effective brings in the requirements of Article III. And Art. III sec. 2 states that the federal courts can only hear cases and contraversies. They cannot constitutionally hear mere bitching about stuff.
As this works out, unless you have been, or certainly will be, harmed by a law in a way that makes you stand out from the rest of the public, you have no standing to challenge it. Instead you should write to your Congressman.
The court hasn't ruled yet. It's not going to rule for months, most likely. So it's very early to be saying that the broadcast flag is in trouble.
Mostly people seem to be looking at what one of the judges said. This is a big mistake.
Judges routinely will adopt a position opposite to that of what the lawyer before them has. By challenging the lawyer, they force him to make good arguments on behalf of his side, and to answer tough questions that he'd otherwise prefer to avoid. It doesn't mean anything as to the judge's opinion, or how he will rule. It's just a technique for getting information.
It's entirely normal to go in front of a judge, arguing on behalf of A. The judge will be very harsh, point out the flaws of A, and ask why B isn't better. When the other side has their turn, the judge immediately starts praising A and making the other side defend B. The constant is that he's putting whoever is in front of him on the defensive, making him explain his argument and admit to its weaknesses as well as the strengths that would be extolled anyway.
This sort of questioning doesn't mean anything about the eventual outcome.
You'd think so.
The problem is that a canon of statutory interpretation is that it is never correct to read a law such that it would have no effect; if Congress wrote it, it must mean something.
Congress specifically said, in section 602, that importation falls under distribution. And furthermore, they created an exception that applies to a person importing one copy, but not multiple copies. Therefore, importing multiple copies must not be within the exception, and since the exception is meaningless if conduct outside of it is noninfringing, it must be infringing too.
Nice try though.
(note in reading 602 that you need to satisfy 602(a) AND (b), and that some of their exceptions might only be applicable only to the one subsection, and not the other)
What if I downloaded it in Russia or Canada, and then brought my laptop home?
Then that's an import. Imports are a form of distribution, and are prohibited under 17 USC 106(3). Exceptions might be available in 109 (but not in this example), if both 602(a) AND (b) are satisfied, which is unlikely, or under 107, which would be your best bet, and not a great one.
What if I downloaded it in Russia, and then e-mailed it to myself?
Reproduction when you download your email.
My having paid for it with a U.S. PayPal account doesn't make it a download in the U.S.
Why not? Remember, the burden of proof in a copyright infringement suit is a preponderance of the evidence. That is to say, if it is more likely that you did something than that you didn't, then it's considered proof that you did it. Absolute certainty is not required. Plus of course, in discovery they can require you to turn over anything you downloaded, and probably make you to testify.
Really all I'd be wondering about in that scenario is which work is involved, since the appropriate person has to sue you.
See the post here.
But basically, a license to distribute in Russia doesn't permit downloading in the US. Particularly when it's a compulsory license, not a real agreement.
Plus I have little faith that there even is a legal compuslory licensing system of this kind in Russia, much less that they pay out as they'd be required to. It all sounds very shady to me, much like all those untold millions in Nigeria.
Because it doesn't matter.
A compulsory license is not a license in the sense of an agreed-upon contract. It's a law that says that other people can do things as if there were a contract for a specified amount, whether you like it or not. It's no different from a law that simply establishes an exception, but it involves pay at government-set rates instead of being for free.
While Russia can of course enact whatever copyright laws, or none at all, that it likes within its own borders, those laws have no bearing on the US. Our law says that if you download a copyrighted work in the US, you must either have an exception or permission, or else you're breaking the law. The Russians cannot step in and pass laws that modify American laws.
Since the US rights holders never gave permission in a way that US law considers to be valid (or in fact, at all) and no exceptions seem to apply, downloading from allofmp3 is illegal in the US, regardless of whether they're acting legally in Russia.
While RIAA surely feels it is important to shut them down (since that will make life difficult for many users in one blow -- it's more efficient than going after users one by one), it can also gather information necessary to find US users so that it can sue them if it wishes.
If such a suit is brought in the US, we'll see some good examination of the issues. But my prediction is that it'll play out as I've said, if it gets that far.
Yes. The earlier poster seemed to think that if he didn't know, and didn't have reason to know, that his conduct was infringing, that he was off the hook. The reality is that he is still potentially in trouble, as are most of us, if all the infringements we engage in all the time ever came to light and were followed up on.
Perhaps it doesn't mean much since most infringements are never pursued, but that doesn't mean that they can't be.
There's something similar with torts, as anyone who's ever had to deal with an issue-spotting question knows.
With regards to your question, let's rephrase it for copyright law.
If you do something that would be illegal (such as downloading a copyrighted work without an applicable exception) but for permission granted by the copyright holder, then that's fine.
But if that permission isn't really valid, then it is infringing. It doesn't matter whether you had any reason to think it might be illegal, or whether you actually did. Just doing it, no matter what you knew or what your state of mind was, is illegal. This is because civil copyright infringement is a strict liability offense.
It may have an affect on the damages you have to pay, but that's the best you can hope for.
Read 17 USC 501 and 504. When Congress says something needs to be willful, they mean it, and when they don't, they mean not to.
A computer file is clearly not tangible. Only the medium on which it resides is tangible. Thus an mp3 is not tangible. Only RAM, or a hard drive, or CD, or other such things are tangible.
Basically, it's tangible if you can hold it in your hand, all by itself. Let me know when you can hold an mp3, without any other medium, in your hand.
Plus, 17 USC 109 -- the first sale doctrine as codified -- applies only to copies (copies are defined in 101 as being tangible objects, as above) that are lawfully made under US law. The Quality King case already noted is basically the only case that explored this issue as related to imports.
Incidentally, where are your cites?
Remember that I'm not your lawyer, and this isn't legal advice. If you want legal advice, consult a lawyer licensed to practice in your jurisdiction who is willing to give it.
Personally, I think that it's illegal for people in the US to download music from allofmp3. It's absolutely a prima face infringement, and I see no applicable exceptions for what people are doing.
It's funny you should bring that up. There actually has been some litigation along those lines in Intellectual Reserve v. Utah Lighthouse Ministry, 75 F.Supp. 2d 1290 (D. Utah 1999):
Depends. In the US, both reproduction and distribution and some other things are all infringing. The cite is at 17 USC 106.
... but remember that Article 9bis of the Berne Convention also requires that copyright holders have the exclusive right to reproduce their works, so different countries' exceptions to that might not always be within their treaty obligations. (e.g. the US had some trouble with our 110(5) exceptions a while back -- not that we really care all that much)
Reproducing things just for yourself is illegal unless you have permission, the works aren't copyrighted, or there's an applicable exception. There won't always be an applicable exception.
Of course, YMMV in other countries
No, the infringing party is the party that engages in infringing conduct.
Reproduction -- such as to RAM or a hard drive -- is a form of infringing conduct, where the work reproduced is copyrighted and no applicable exception or authorization exists. Downloaders engage in such conduct all the time, and when they do, are infringers.
The Napster case discussed how both uploaders and downloaders infringed, and how Napster was also liable for having helped them do it, given the circumstances. It's not unique in this regard.
Really, the only way a downloader would not be an infringer is if he didn't download. But viruses that take over your computer and force it to download music are rather rare. (and even then, it might not mean much)
Generally, the people that get to claim that they weren't sufficiently involved are ISPs -- other people upload works to their machines, and other people download works from them. Even they had trouble always avoiding liability, so now we have special provisions just to protect them!
That's still reproduction. Even if you only reproduce a very small part, it still likely counts.
Seriously: when you're thinking of ways to game the system like this, ask yourself whether any idiot can see through it. Judges aren't all that stupid, and you won't do well if you act as if they are.