The sculpture itself is copyrighted, which means its three dimensional shape and form are owned by the artist. The authors can't realistically claim copyright ownership on a Photograph of it.
Yes they can. The mere shift between 2d and 3d media is irrelevant; at most it just puts them into the realm of derivatives. But copyright holders have the exclusive right to reproduce the work per 17 USC 106(1) as well as to prepare derivatives per 106(2). One way or the other, taking the photo is likely prima face infringement.
There is no possible way this can stand up in court.
It has an excellent chance of standing up in court, actually, with the only realistic defense being fair use -- and that is highly unlikely to apply to some infringers, such as commercial photographers who are trying to take pictures of the sculpture.
If it does, then there is no way you can take a photograph of anything man-made. Pretty much anything not utilitarian or standardized is sculpture in some form, and therefore copyrighted.
Yes -- any three dimensional object which satisfies the requirements for copyrightability may be copyrightable. In practical terms, the utility doctrine knocks a lot of those out.
By taking a photograph of a typical home, you would be creating a derivative work of dozens of copyrighted sculptures.
No. There is a special exception for architectural works, such as houses. If they can be seen from a public area, it is not infringing to photograph them, per 17 USC 120. OTOH, if you made a model of the house, you'd be infringing.
No, copyright stands even where works are publicly viewable. You may be thinking of the seperate issue of privacy rights.
There is of course, 17 USC 120 (allowing copyrighted buildings that are viewable from public areas to be photographed without it infringing), but that wouldn't apply to mere sculpture all by itself.
No, that's 17 USC 106A. The appropriate section of the law is 106(1), which states that the copyright holder has the exclusive right to reproduce the work. 106 applies to all copyrighted works. 106A merely adds some additional rights with regards to works of visual art; it doesn't supplant 106.
So yeah, if you take a photo of a copyrighted work, it will typically be infringing. There are some exceptions e.g. 107, 120, but no blanket exceptions that seem useful here.
Am I the only one noticing that the loudest, whiniest people addressing this topic are those that seem to have some personal, vested interest in preserving their ability to avoid paying for their entertainment?
Well, I sometimes make the same point, but that's because I'm kind of pedantic and it's my specialty.
More importantly though, I think that there's nothing bad about using the correct terminology, especially when the alternatives all seem to be invective.
When people call infringement theft, yet it's not theft, and the only real reason that word is bandied about is to cast aspersions, then I can't help but think that the people using the word aren't discussing the issue in good faith. The mere fact that there is a proper word for the matter doesn't serve to promote it.
I don't think anyone is arguing that infringement is legal, but I do think that the constant -- incorrect -- references to theft don't help us have any kind of productive discussion about whether it should or shouldn't be illegal, or what the actual nature of the offense is.
anyone consuming that work without paying what the artists ask is making slaves of those artists
That's pretty asinine, I'm sorry. No one is forcing artists to labor. In fact, infringement cannot possibly even occur until after the artists' labors are over. And you totally fail to take into account the many exceptions to copyright, the fact that copyright is not premised on a sweat of the brow theory, and that copyright necessarily expires, opening up a work to complete public exploitation.
Basically, you aren't recognizing that there is a huge difference between labor and the fruits of labor.
Actually, in a civil case for copyright infringement, all you need is 51%. Burdens of proof are only as high as you are talking about in criminal cases.
Lokitorrent know where movies can be found. They tell you, but only if you ask. I'll bet that not a byte, not one single bit, of copyright infringing material ever passed through Lokitorrents server.
Which ends up sounding a lot like contributory infringement, and possibly vicarious infringement to me. It's not 'guilt by association.' It's more like being found liable, along with other wrongdoers, because you helped them do wrong.
A case against Google would be far weaker for various reasons, and irrelevant anyway as Google has taken advantage of the safe harbor provisions in 17 USC 512 just in case.
The problem is that when you download it to your US machine, you make yet another new copy, and break US law.
OTOH, if you have the actual disk mailed to you, no new copy is created to get it into the US, but importation is also prohibited in most cases by copyright law in order to avoid this sort of method of getting around it. The relevant statutes are in 602(a) AND (b), each of which stands alone. And n.b. that the copies you make wouldn't be lawfully made had US law applied to the place they were made.
Actually, the law doesn't see infringement as theft. It sees it as infringement, which is a different animal. Still illegal, of course. But there are lots of things that are illegal, and they're mostly different from one another. These differences can be very important, especially if you're on the business end of the law.
The torrent file itself is not the copyrighted material, therefore, is possessing a torrent file in itself illegal? I can see if you were in the process of sharing BITS of a copyrighted material, and one of the other participants was legal representation of the MPAA, But possesion of a file that is NOT the work in question, simply a pointer to that file and a checksum for the copywritten work...that's a long jump.
Two things here:
First, in civil copyright suits, the burden of proof is one of a preponderance of the evidence. That is to say, more likely than not.
So I ask you: if you have a log indicating that someone downloaded a torrent called, e.g. "Debbie Does Quantity Surveying.avi.torrent" what are the odds that that person downloaded the movie? 90-10? 60-40? So long as you think that there is a 51% or greater probability, then it's treated as a fact.
Frankly, I think that none of us here could honestly say that people downloading torrents are likely to not download the work the torrents refer to. Hell, I don't think we could even say so with a straight face. So this doesn't bode well for people in the BT scene.
This is not a criminal case where the burden is way higher.
Second, in copyright suits, there are several kinds of infringements. If you, yourself, download a movie, then that's a direct infringement of the copyright holder's exclusive right of reproduction. But if your friend helped you, knowing what you were doing, then he has contributorially infringed and is also responsible. And if you did it at work, and you're using what you download for work purposes (it's an instructional video) then your workplace is also liable as a vicarious infringer even if they didn't know.
So merely providing a torrent tracker and such can be sufficient to be found liable for the direct infringement of other people. This is basically how they killed Napster -- it was helping the users, who were the direct infringers.
Why doesn't he move his website to some other country (except Christmas Island of course, although lokitorrent.cx would be a good url;) where nobody gives a crap about MPAA? Then he can accept donations to keep the website running and have extra to buy candy and ice-cream instead of paying for legal fees, which is a lot more expensive.
I don't think that would help. As long as he's still in a jurisdiction where he can get sued, it doesn't matter so much where the website is. Better for him to move to.cx (or someplace).
And I like MPAA's little adds in the movie theatres how they show this poor set designer who claims the pimply-faced hackers stole his money. Why don't they show the billionaire owners and executives of the studios? I can almost see the add:
Have you seen the 'Who Steals Movies' ads at Pro-Piracy?
I have a question concerning copyright, though. When you purchase (or shoplift.. let's say acquire) a physical media device - in this case an audio CD, you are reciving a tangible item.
Let's stick to legal forms of acquisition. Also, the word you're looking for is 'copy.' A tangible medium in which works are fixed is called a copy. The act of fixing a work into another copy is reproduction. Reproduction is one of the exclusive rights of the copyright holder.
You can also use it as a means of enjoying the intellectual property it contains, which, if I'm understanding things correctly, is what the purchase price of the CD was all about.
Basically, yeah. Copyright does not say that you cannot listen to music. You probably can manage a first amendment right to listen to music generally. Of course, obviously you have no right to listen to music where doing so involves mucking with other people's property, i.e. you can't grab my CDs to listen to them, without my permission, because I own the CDs.
So when you buy a CD, what you're doing is acquiring access to them so that you can fully exercise your rights. If I lent you a CD, you'd be okay too. And to demonstrate that there is no licensure by a copyright holder going on here -- as people often incorrectly believe for some reason -- if I buy a CD with a public domain song and sound recording, the copyright holder is not involved in any way at all, but I can still listen to it, etc.
Thus, copyright deals SOLELY with the exclusive rights enumerated in the law. Most of these are at 17 USC 106. Listening -- where nothing else is going on behind the scenes -- is not one of them.
But access to personal property is at the core of the law of property, and is no different for a CD than it is for power tools, or a car, or anything else.
If I choose to convert the media on that CD into another format, is that allowed under fair use (say I don't like using CD's because they are easily scratched, but I've got a kickin' 8-track player in my car, and a way to transfer these songs to THAT media [because the iPod analogue is overused]) - is it infringement to make a 'copy' of the media for personal use in this instance?
'Maybe' is the best I can say. Fair use permits uses that are fair. There is no bright line dividing what is fair from what is not. It depends on the precise circumstances, and we must check anew in every case. Under some circumstances, space shifting as you describe, is probably fair. Under others, it is probably not. The same is true of any kind of fair use -- it always depends, and nothing's for sure.
This is actually a strength of fair use, since it allows for new fair uses to be found. Remember, fair use is about 150 years old. If it were not highly flexible, it wouldn't be useful.
Where you have a specific need, however, a statutory exception is a better choice. This can permit for some activities to be noninfringing, regardless of whether or not it's fair, and with a bright line rule (or at least a better one).
I was also under the impression, however, that archival backups were also covered under fair use (I own windows98, but my original CD is scratched all to hell - luckily I burned a backup of the CD for just that reason before the original became a coaster)
Regarding fair use, see above. As for backups, there are a few highly limited exceptions that are also useful, but only in VERY NARROW CIRCUMSTANCES. The ones that are most likely of interest to you are at 17 USC 117 and 1008. However, I strongly caution you against just reading them lightly. They have important limits that might not stand out, and in fact might be contained in other portions of the law (e.g. how the definitions in 1001 apply to the terms used in 1008, which don't mean what you'd normally think they do). As an everyday matter, they're not all that useful, despite how broad they might seem at first glance. So be careful with those.
Let's not overdramatize here. If you steal my DVD, I don't have it anymore. If you copy it, I still do. Please don't keep trying to twist words and logic to say that the second is worse then the first.
I know the difference, and I didn't say that one was worse than the other.
I've read the section on fair use, and it is still not clear to me how they "add up".
It is a non-commercial use (good) but it's also non-transformative (bad). If the work is more factual than creative, that's better than the other way around. Backups involve the entire work, that's bad. But there's no particular negative effect on the market, and that's significantly good.
And of course, fair use is fuzzy, it's not math. The factors don't just get added together to produce an answer, they're supposed to instead be indicative of what's fair or not. Looking at these, it still seems as though backups are generally going to be fair. Of course, YMMV -- which is why the other exceptions are more reliable, if more narrow.
1201 has made access one of the exclusive rights of the copyright holder
Actually, that's the interesting thing. Access circumvention has been held apart from copyright infringement, meaning that it is not in fact part of the copyright, it's just a related right (to borrow some Berne parlance). This is the only way, really, that they can avoid having fair use be a defense to circumvention.
But this has raised the issue of whether 1201 is even constitutional. A similar issue has arisen in the context of 1101 and its counterpart criminal provision, in the Martignon case, and in the trial level the argument worked; we're all eagerly waiting to see what happens next.
Actually, 'computer programs' are the only IP explicitly granted archival rights.
Well, there is also 1008, but it's really pretty limited -- more than most people think at first glance.
Plus there's some other provisions -- portions of 108 -- but they're just not useful for ordinary people.
Also, there is a provision under fair use for reproducing for educational or critical purposes so long as there is no commercial aspects (profit or loss of) to the reproduction,
You're reading 107 incorrectly. There are no categorical fair uses -- the enumerated ones are just examples of the sorts of things Congress would anticipate would be fair uses. There can be unfair educational or critical uses, however. The key is the four part test. And even there, the fair use can be commercial (as is often the case with parodies) provided that the use is fair as a whole. All commercialism does is make it trickier.
I do wonder, after speed-reading the law, about the explicit legalities of ripping a music CD that you own legally to a MP3 file to load into your own personal/portable MP3 player... does this not also constitute a reproduction, since in most cases most copyrighted music is available for sale in digital file format designed for that device?
That is an infringing reproduction -- that it's available in mp3 format or whatever is irrelevant -- but it is likely saved by fair use under the space shifting doctrine that appeared in the Diamond case, and seems to have been accepted by copyright holders, even if it hasn't shown up much in the courts.
I believe the fair-use provision needs revisiting... it should allow for format portability by the owner of the 'copy' into whatever format he/she requires in order for them to use the work that they legally purchased... so long as they retain exclusive access to their reproduction (ie, not available for download, or to their friends, etc.)
Better to create an exception that does that explicitly; fair use is better off if it's vague, since that way it can adapt to new things.
I think the issue is whether they can be enforced or not. And it varies, depending on what court you're in. The trend is probably in favor of EULAs, but it's by no means certain, and details as to the specific EULA matter.
Can a EULA give you the right to a backup copy of software?
If the copyright holder says that you can do something that's otherwise infringing, the permission they give you makes it not infringing. Think of the GPL: it says that you can do all sorts of things, making those things noninfringing (at least as to the people giving the permission). There are strings attached, but there always are.
if you, as you state, own your copy of a work, why would it be infringement for you to rent out that CD or DVD or book even? Doesn't right of first sale come in here somewhere?
If you rent it, that is a distribution. Distribution is prohibited by 17 USC 106(3). However, there may be an applicable exception. 109 contains many exceptions to this, and basically is the codified form of the first sale doctrine. However, while 109 carves some holes into 106(3), it has some holes itself. It's not an infringement to rent a DVD of a copyrighted movie, but it is an infringement to rent a CD of copyrighted music, because 109 says it doesn't apply to music (17 USC 109(b)(1)(A)).
So yeah, Congress has said that some copies can't be rented out -- basically musical phonorecords (CDs, tapes, vinyl, etc.) and computer software other than, in effect, console games.
It's the kind of law that we can attribute directly to the efforts of the record and software industries, with some counter pressure by the video rental industry and the console sector of the software industry.
I thought the Berne Convention allowed for backups?
No, not really. Art. 9 of the Berne Convention states that copyright holders have the exclusive rights to reproduce. It allows for countries to -- if they see fit -- allow for reproduction of works in certain special cases if it doesn't conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
At any rate, it doesn't matter. The US never should've joined the Berne Convention to begin with, since it is unmitigated crap, but even so, we don't really care about it too much. The law -- 17 USC 104 -- basically states that the US is in perfect compliance with it, according to us, and that it has no force in the US, and only our domestic law applies.
If you want to back up copyrighted works without authorization, you need to be within an applicable exception (e.g. 1008, 117), which may be trickier than it seems at first glance, or you need a successful claim of fair use (see 107) which will not always work.
Of course, Congress could always create a general purpose backup exception, but I'm not holding my breath.
Well, I work with copyrights, but I can think of a few useful reforms for patents:
I think we can safely ditch business method and software method patents since those fields have done, and likely will do great without them. They're just drags on the public interest.
Examiners need to do a better job; this could be a money issue or a time issue, but whatever the problem these days, they need to do more work.
Damages could probably stand to be reduced a bit -- not to how low they used to be, but we've overcorrected in the past couple of decades from the time when the only patents not invalid were the ones that hadn't been litigated yet.
Already examinable prior art ought to be useable by third parties that are trying to demonstrate invalidity; the PTO won't necessarily do a good enough job IMO. But there would have to be a colorable argument; I'm not suggesting repeatedly wasting the patent holder's time.
Best mode disclosures ought to extend to multiple best modes, known throughout the life of the patent, including by licensees, employers, etc. Right now people put any old crap in there, and it's decades old by the time anyone else can really use it.
I don't know if the PTO gives patent holders reminders for maintenance fees and such -- they don't in trademarks -- but would it be so goddamn hard?
Patents really ought to be published immediately upon filing, and updated as the file is updated. Let applicants decide whether they want to go for trade secrets or patents before filing, not later on.
People who specialize in the field could probably think of some other useful reforms -- perhaps some more important ones. I try to avoid patents if possible since I can't practice there, but these are things that seemed to be good ideas.
I just looked at the statutes myself. You are correct, 106.1 says that I do not have the right to reproduce a copyrighted work. Fair use (107) does not give it to me.
Without getting into some fine, but important distinctions there, I'd just point out that any otherwise infringing conduct can be a fair use, but is merely not necessarily a fair use. It depends.
So if you rent a movie and reproduce it, that's probably not a fair use. If the movie is on TV, and you videotape it, it probably is a fair use. They're both reproductions, but the circumstances are different. And in both cases, the right set of circumstances could result in the former being fair and the latter not. It always depends -- that's the thing to remember with fair use.
Other exceptions are usually much more clear, but also quite narrow.
That said, I am baffled and amazed by the attitudes that yourself and so many others demonstrate - seemingly that laws exist for the private benefit of large corporate interests, and the general public should just roll over. You are taking the easy way out, siding with the "big boys", and by association you trample on my inherent and reasonable freedoms sir and I do not like it.
I don't think you've quite grasped my position.
When there is a discussion about what the law currently is, then I won't lie about it. I'll look at the law and take it as I find it.
This doesn't mean that I like it, it just means that I am not going to lie to you about what the law is right this second, just because we'd all prefer it to be something else.
I think copyright law should absolutely serve the public interest, and that it is currently almost entirely garbage. I think that we seriously need to reform copyright law, starting with first principles, and that substantial public-minded reforms are needed (probably to lesser extents, mind) in other areas such as patent, trademark, and trade secret.
Still, those sorts of reforms haven't happened now, and it would be improper to pretend that they have. Plus, I feel that if people are fully informed as to just how awful the law is right now, and how much it fails to accord itself with ordinary expectations, there will be a better chance of fixing it.
A nice, big, fat "this applies to commercial purposes only" sticker is what copyright law needs.
Yeah, actually one of my proposed reforms -- though I admit it feels dangerously overpowered, not that I can think of a good middle ground -- is to make nonactionable or noninfringing any otherwise infringing activity by natural persons, if not for commercial purposes.
But since things are very dismal right now, and the law is so in the hands of the various copyright industries, I don't expect to see this anytime soon, if at all.
I would challenge anyone to tell me that my actions are unreasonable or morally wrong
Generally, I probably wouldn't condemn you. We seem to be on the same page. Of course, I think that lawlessness is a bad thing, even where justified, because it can result in people ignoring laws that are proper and just. Reform is a better solution in this respect than ignoring the law. C.f. prohibition and how comparatively harmless drinking also lent great power to organized crime.
By law, anything we do with anything copyrighted is "infringement", and can be taken to court.
That's a bit of an overstatement. Only a few things are infringing, but they're the things that are usually most interesting or desirable to do with them. Still, many important things are not infringing.
Yes, you too can be sued for buying a copy of Brittney Spears' latest album, dropping it in your cd player and having yourself a listen!
Like that. It's very difficult to set up a scenario where you could be successfully sued for doing that.
Copyright law is about protecting the economic interests of the copyright owner
Naw. Copyright law is about protecting the public interest in the promotion of the progress of science. It just does that by the means of, among other things, promoting the economic interests of copyright holders, and then not to excess.
Of course, nowadays, copyright law is about appeasing the various industry groups, but that's not the real objective.
no matter how many times you tell lawyers -- who know what the law actually is -- that they are "bent over" for the machine...
Mm. Plus of course, I'm very much in favor of changing the laws. Copyright law as implemented sucks ass. But were the implementation to be significantly changed, I think it would be really beneficial to everyone.
What I've put out there was from reading opinions on the topic, not the law itself.
Sure, but the basic provisions of the law -- 106, 501, 504, the ever-crucial definitions in 101 -- are not that difficult. I don't think you'd find them difficult, and they are the primary sources here, along with the caselaw, which is also not that difficult.
To me, this states that "copying" isn't a violation of the copyright when the copying of work may be fair use under appropriate circumstances.
Basically. Again, you'd've found this easier with the statutes. The way it works is like this:
Everything is legal Except what's exclusive to the copyright holder per 106. Except there are limits to what is exclusive, such as fair use, which is in 107.
So, two examples of this at work:
First, reading. Reading -- provided it's just reading and there's nothing else at all going on -- is legal under our first precept. We then check to see if it is specifically made illegal under 106. Since it's not one of the enumerated exclusive rights of the copyright holder, we know that it is not illegal. Our analysis can end there -- reading is not a copyright infringement.
Second, reproduction. Reproduction, again, is legal under our first precept. But is it specifically made illegal by 106? It is. One of the exclusive rights is the right to reproduce the work in copies. So reproduction is illegal. But is there an exception to that, which removes some or all reproduction back out of 106? There are many exceptions, but they are not always applicable; various conditions have to be met for various exceptions to apply. One exception is fair use, at 107. When it applies, it takes conduct that 106 made illegal, and makes it legal. When it doesn't apply, it has no effect, and 106 continues to control.
A lot of the law is like this. There are broad pronouncements, dotted with exceptions, which themselves may be subject to exceptions at times. I'd expect that the programmers here could probably deal with it as a set of nested if then statements, except for that fact that a lot of the time things can be fuzzy because the world isn't as quantifiable as what goes on inside a computer.
One other thing:
"Copying" is used in this context as a short-hand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act.
To me, this states that "copying" isn't a violation of the copyright when the copying of work may be fair use under appropriate circumstances.
See, that's why precise terminology is important. When they said 'copying' there, they mean reproduction, the preparation of derivatives, distribution, and certain public performances and displays, since those are the exclusive rights in 106. You basically just mean reproduction, and you're distinguishing it from distribution later on.
Also, any otherwise infringing conduct -- reproduction, distribution, whatever -- can be a fair use. It depends on the specific circumstances involved, but fair use doesn't apply only to one sort of conduct under 106, and it says so explicitly.
Where I'd need your guidance in getting the correct answer is in asking: is making an archival backup of material you've licensed a violation of the copyright?
Depends on the nature of the material. However, do note that licenses with regards to copyrighted works, in the consumer setting, are extremely rare. When you buy a book, or a CD, or a DVD, you are not licensing anything. There is a good argument that even when you buy software, despite the claimed EULA (which some courts may uphold, and others won't) you're not licensing it either.
So I assume you mean, is it infringing to reproduce a work, where you own a lawfully made copy of the work, and the reproduction is intended for backup purposes.
I'd say that it is illegal, except under a few narrow circumstances. It might be a fair use -- but this
I personally don't know of any cases where someone has been sued for themselves downloading.
However, it is illegal to help (in certain ways) someone else download, if that downloading is illegal, and there have been a lot of cases like this. Since it is necessary in such a case to show that downloading is illegal, the same exploration of the law has occurred. If it were legal to download, there could be no liability for helping someone download.
Napster is such a case -- their network and software was only illegal if using it to download and upload was illegal, and if they had a sufficiently close involvement in that illegal downloading and uploading. Napster lost.
So it's basically, 'Billy downloaded the latest album, Napster helped, so Napster owes $1.5 M.'
a) show me where in the Law it says that I can not do as I please with copyrighted material in my possession *for my own private use*.
17 USC 106(1)-(3), 106A, 602, 1201, and 1202 immediately spring to mind. If I took a minute to think about it, I could probably come up with some others.
In some cases there are exceptions, and in some cases those exceptions may hinge on whether or not the otherwise infringing activity remains wholly private, but they don't always. Some infringements, even if done in conjunction with copies in your possession and for your own private use are still infringing. At that point we aren't talking about whether it's illegal or not, because it is; rather, we're only talking about whether or not you'll get caught.
once obtained posession alone is proof of the right to use the work
That's really an overbroad statement. If you obtain possession of child porn, do you have a right to use it? You're probably going to find that you don't.
Copyright Law is about Distribution rights, and Copyright Infringements are about violations of the right to distribute
That's dead wrong. 17 USC 106 is the heart of the copyright law, and it sets forth six equal exclusive rights. ONE of those rights is distribution. But another is reproduction. Copyright law is about both, and more besides. Copyright infringements are defined at 17 USC 501 as being infringements as to ANY of those rights.
I strongly encourage you to read the sections I'm citing you, to check for yourself so that you don't make such foolish statements in the future. I love policy arguments, and discussions about where we should go with copyright, but the law now is what it is now, and there's really not anywhere near enough wiggle room for statements such as yours.
So go check. It's easy to do.
Acquisition of the works is not covered by copyright infringement
True, but reproduction is. If your acquisition involved reproduction, then that's infringing, all else being equal. With regards to downloading, it necessarily involves reproduction.
Your argument doesn't work with regards to computers, because computers reproduce stuff constantly, at a very low level, just to function. If you were talking about picking up a copy of something on the street, and holding it in your hand, then you'd have a more valid point.
Actually, like my.sig says, I am a lawyer. I'm licensed to practice in Massachusetts, and copyright is my specialty. But as the.sig also says, I'm not your lawyer, and I do not provide legal advice or enter into attorney-client relationships on/. -- if you want legal advice, go to a lawyer licensed in your jurisdiction who is willing to provide it.
With that clarified and out of the way...
I thought the RIAA/MPAA was going after people who distribute materials, not downloaders
Yes, but only for practical reasons. There is no legal difficulty in going after downloaders. They're just not perceived as being as big of a problem, basically.
The DMCA (http://www.copyright.gov/legislation/dmca.pdf), makes the point that copying isn't necessarily a violation of fair use.
I don't recall that it says that, but then, that's honestly a nonsensical statement right there.
DMCA is really just a bunch of amendments to copyright law as a whole, virtually all of which is in Title 17 of the US Code. Google for 17 USC and you'll find the entire thing, and can read through it all, with the sections added or changed by the DMCA inserted as appropriate.
But basically, 17 USC 106 sets forth the exclusive rights that compromise copyright, and reproduction is one of them, at 106(1). Distribution is another one, of equal importance, at 106(3).
downloading is really just another form of copying
I would use the term 'reproduction' instead of 'copying' for preference, but yeah, that's basically right. That's why it's typically illegal to reproduce copyrighted works without authorization.
which, since you have the rights to make archival backups, is acceptable!
Sorry, but that's wrong. There is no general purpose exception for backups. But please feel free to find a section of the law that supports your claim. Don't feel bad though -- a lot of people make this mistake. Just be sure to not keep on making it.
This is why there different definitions of the criminal act in file sharing: there's a distinction between someone obtaining the content illegally and someone providing it illegally.
Criminal copyright infringement doesn't make a distinction between reproduction and distribution, actually. You can see the relevant section 17 USC 506.
Plus, we're mostly talking about civil actions, not criminal prosecutions.
Eventually they may go after the downloaders as well, but I would assume that the penalties would be similar to shoplifting.
Nope. Read 17 USC 106(1),(3), then 501, then 504(a),(c). The penalties are exactly the same for uploading and downloading, and are pretty high, really.
Honestly guy -- if you're gonna talk about the law, you'd do better if you actually read it. If there's one thing that bugs the hell out of me, it's people that just make up what they think the law is, or accept that because some guy said the law was such a thing, that it must be so, and who don't check for themselves. I've provided you with citations -- go check up and correct your position accordingly.
WHat happens if you download a copy of something you already own for purposes of backing up the material?
Downloading material is a grey area for exactly that reason. They can't know if I actually have a license for the material or not.
No, that's incorrect. Downloading a work, even if you own a copy of that work, is typically going to be a copyright infringement. There is no general purpose exception for 'backups' despite what some people might think. Reproducing a copyrighted work without permission, in an infringing manner, is categorically illegal. There are a few exceptions, but nothing that seems helpful to you.
The most you could argue would be fair use, but I think you would have a difficult time of it. As you do correctly note, the person distributing the work to you is going to probably have an impossible time of it -- though there is no difference in how harshly the two infringements are treated generally. Reproduction is just as bad as distribution, and they have the exact same penalties.
Since it is quite rare for works to be licensed -- books, movies, sound recordings, etc. are NOT licensed to ordinary consumers -- there's no real concern over that.
Rather, the reason for going after uploaders more than downloaders is purely practical. If you take down an uploader, then all the people downloading from him either a) stop downloading, b) find a new source, which will be more crowded now and thus less useful, or c) assume the risk of uploading. Basically it's a 'attack the head of the snake' approach. That's why they went after P2P networks before bothering with users -- if Napster had gone down and had not been replaced, uploaders and downloaders alike would find it difficult to do what they want, reducing the number of infringements. To put it another way, think of killing off pests -- it's laborious to kill each individually, but if you get rid of the food supply, they'll all starve in the end. Also it's easier to find uploaders than downloaders.
There is no legal reason for the different treatment, however, and someday they'll be pursuing downloaders just as vigorously as they do uploaders now.
Slashdot Mirror
The sculpture itself is copyrighted, which means its three dimensional shape and form are owned by the artist. The authors can't realistically claim copyright ownership on a Photograph of it.
Yes they can. The mere shift between 2d and 3d media is irrelevant; at most it just puts them into the realm of derivatives. But copyright holders have the exclusive right to reproduce the work per 17 USC 106(1) as well as to prepare derivatives per 106(2). One way or the other, taking the photo is likely prima face infringement.
There is no possible way this can stand up in court.
It has an excellent chance of standing up in court, actually, with the only realistic defense being fair use -- and that is highly unlikely to apply to some infringers, such as commercial photographers who are trying to take pictures of the sculpture.
If it does, then there is no way you can take a photograph of anything man-made. Pretty much anything not utilitarian or standardized is sculpture in some form, and therefore copyrighted.
Yes -- any three dimensional object which satisfies the requirements for copyrightability may be copyrightable. In practical terms, the utility doctrine knocks a lot of those out.
By taking a photograph of a typical home, you would be creating a derivative work of dozens of copyrighted sculptures.
No. There is a special exception for architectural works, such as houses. If they can be seen from a public area, it is not infringing to photograph them, per 17 USC 120. OTOH, if you made a model of the house, you'd be infringing.
No, copyright stands even where works are publicly viewable. You may be thinking of the seperate issue of privacy rights.
There is of course, 17 USC 120 (allowing copyrighted buildings that are viewable from public areas to be photographed without it infringing), but that wouldn't apply to mere sculpture all by itself.
No, that's 17 USC 106A. The appropriate section of the law is 106(1), which states that the copyright holder has the exclusive right to reproduce the work. 106 applies to all copyrighted works. 106A merely adds some additional rights with regards to works of visual art; it doesn't supplant 106.
So yeah, if you take a photo of a copyrighted work, it will typically be infringing. There are some exceptions e.g. 107, 120, but no blanket exceptions that seem useful here.
Am I the only one noticing that the loudest, whiniest people addressing this topic are those that seem to have some personal, vested interest in preserving their ability to avoid paying for their entertainment?
Well, I sometimes make the same point, but that's because I'm kind of pedantic and it's my specialty.
More importantly though, I think that there's nothing bad about using the correct terminology, especially when the alternatives all seem to be invective.
When people call infringement theft, yet it's not theft, and the only real reason that word is bandied about is to cast aspersions, then I can't help but think that the people using the word aren't discussing the issue in good faith. The mere fact that there is a proper word for the matter doesn't serve to promote it.
I don't think anyone is arguing that infringement is legal, but I do think that the constant -- incorrect -- references to theft don't help us have any kind of productive discussion about whether it should or shouldn't be illegal, or what the actual nature of the offense is.
anyone consuming that work without paying what the artists ask is making slaves of those artists
That's pretty asinine, I'm sorry. No one is forcing artists to labor. In fact, infringement cannot possibly even occur until after the artists' labors are over. And you totally fail to take into account the many exceptions to copyright, the fact that copyright is not premised on a sweat of the brow theory, and that copyright necessarily expires, opening up a work to complete public exploitation.
Basically, you aren't recognizing that there is a huge difference between labor and the fruits of labor.
Actually, in a civil case for copyright infringement, all you need is 51%. Burdens of proof are only as high as you are talking about in criminal cases.
Lokitorrent know where movies can be found. They tell you, but only if you ask. I'll bet that not a byte, not one single bit, of copyright infringing material ever passed through Lokitorrents server.
Which ends up sounding a lot like contributory infringement, and possibly vicarious infringement to me. It's not 'guilt by association.' It's more like being found liable, along with other wrongdoers, because you helped them do wrong.
A case against Google would be far weaker for various reasons, and irrelevant anyway as Google has taken advantage of the safe harbor provisions in 17 USC 512 just in case.
The problem is that when you download it to your US machine, you make yet another new copy, and break US law.
OTOH, if you have the actual disk mailed to you, no new copy is created to get it into the US, but importation is also prohibited in most cases by copyright law in order to avoid this sort of method of getting around it. The relevant statutes are in 602(a) AND (b), each of which stands alone. And n.b. that the copies you make wouldn't be lawfully made had US law applied to the place they were made.
So it's a nice try, but no dice.
Actually, the law doesn't see infringement as theft. It sees it as infringement, which is a different animal. Still illegal, of course. But there are lots of things that are illegal, and they're mostly different from one another. These differences can be very important, especially if you're on the business end of the law.
The torrent file itself is not the copyrighted material, therefore, is possessing a torrent file in itself illegal? I can see if you were in the process of sharing BITS of a copyrighted material, and one of the other participants was legal representation of the MPAA, But possesion of a file that is NOT the work in question, simply a pointer to that file and a checksum for the copywritten work...that's a long jump.
Two things here:
First, in civil copyright suits, the burden of proof is one of a preponderance of the evidence. That is to say, more likely than not.
So I ask you: if you have a log indicating that someone downloaded a torrent called, e.g. "Debbie Does Quantity Surveying.avi.torrent" what are the odds that that person downloaded the movie? 90-10? 60-40? So long as you think that there is a 51% or greater probability, then it's treated as a fact.
Frankly, I think that none of us here could honestly say that people downloading torrents are likely to not download the work the torrents refer to. Hell, I don't think we could even say so with a straight face. So this doesn't bode well for people in the BT scene.
This is not a criminal case where the burden is way higher.
Second, in copyright suits, there are several kinds of infringements. If you, yourself, download a movie, then that's a direct infringement of the copyright holder's exclusive right of reproduction. But if your friend helped you, knowing what you were doing, then he has contributorially infringed and is also responsible. And if you did it at work, and you're using what you download for work purposes (it's an instructional video) then your workplace is also liable as a vicarious infringer even if they didn't know.
So merely providing a torrent tracker and such can be sufficient to be found liable for the direct infringement of other people. This is basically how they killed Napster -- it was helping the users, who were the direct infringers.
Why doesn't he move his website to some other country (except Christmas Island of course, although lokitorrent.cx would be a good url ;) where nobody gives a crap about MPAA? Then he can accept donations to keep the website running and have extra to buy candy and ice-cream instead of paying for legal fees, which is a lot more expensive.
.cx (or someplace).
I don't think that would help. As long as he's still in a jurisdiction where he can get sued, it doesn't matter so much where the website is. Better for him to move to
And I like MPAA's little adds in the movie theatres how they show this poor set designer who claims the pimply-faced hackers stole his money. Why don't they show the billionaire owners and executives of the studios? I can almost see the add:
Have you seen the 'Who Steals Movies' ads at Pro-Piracy?
I have a question concerning copyright, though. When you purchase (or shoplift.. let's say acquire) a physical media device - in this case an audio CD, you are reciving a tangible item.
Let's stick to legal forms of acquisition. Also, the word you're looking for is 'copy.' A tangible medium in which works are fixed is called a copy. The act of fixing a work into another copy is reproduction. Reproduction is one of the exclusive rights of the copyright holder.
You can also use it as a means of enjoying the intellectual property it contains, which, if I'm understanding things correctly, is what the purchase price of the CD was all about.
Basically, yeah. Copyright does not say that you cannot listen to music. You probably can manage a first amendment right to listen to music generally. Of course, obviously you have no right to listen to music where doing so involves mucking with other people's property, i.e. you can't grab my CDs to listen to them, without my permission, because I own the CDs.
So when you buy a CD, what you're doing is acquiring access to them so that you can fully exercise your rights. If I lent you a CD, you'd be okay too. And to demonstrate that there is no licensure by a copyright holder going on here -- as people often incorrectly believe for some reason -- if I buy a CD with a public domain song and sound recording, the copyright holder is not involved in any way at all, but I can still listen to it, etc.
Thus, copyright deals SOLELY with the exclusive rights enumerated in the law. Most of these are at 17 USC 106. Listening -- where nothing else is going on behind the scenes -- is not one of them.
But access to personal property is at the core of the law of property, and is no different for a CD than it is for power tools, or a car, or anything else.
If I choose to convert the media on that CD into another format, is that allowed under fair use (say I don't like using CD's because they are easily scratched, but I've got a kickin' 8-track player in my car, and a way to transfer these songs to THAT media [because the iPod analogue is overused]) - is it infringement to make a 'copy' of the media for personal use in this instance?
'Maybe' is the best I can say. Fair use permits uses that are fair. There is no bright line dividing what is fair from what is not. It depends on the precise circumstances, and we must check anew in every case. Under some circumstances, space shifting as you describe, is probably fair. Under others, it is probably not. The same is true of any kind of fair use -- it always depends, and nothing's for sure.
This is actually a strength of fair use, since it allows for new fair uses to be found. Remember, fair use is about 150 years old. If it were not highly flexible, it wouldn't be useful.
Where you have a specific need, however, a statutory exception is a better choice. This can permit for some activities to be noninfringing, regardless of whether or not it's fair, and with a bright line rule (or at least a better one).
I was also under the impression, however, that archival backups were also covered under fair use (I own windows98, but my original CD is scratched all to hell - luckily I burned a backup of the CD for just that reason before the original became a coaster)
Regarding fair use, see above. As for backups, there are a few highly limited exceptions that are also useful, but only in VERY NARROW CIRCUMSTANCES. The ones that are most likely of interest to you are at 17 USC 117 and 1008. However, I strongly caution you against just reading them lightly. They have important limits that might not stand out, and in fact might be contained in other portions of the law (e.g. how the definitions in 1001 apply to the terms used in 1008, which don't mean what you'd normally think they do). As an everyday matter, they're not all that useful, despite how broad they might seem at first glance. So be careful with those.
What exactly am I entitle
Let's not overdramatize here. If you steal my DVD, I don't have it anymore. If you copy it, I still do. Please don't keep trying to twist words and logic to say that the second is worse then the first.
I know the difference, and I didn't say that one was worse than the other.
I've read the section on fair use, and it is still not clear to me how they "add up".
It is a non-commercial use (good) but it's also non-transformative (bad). If the work is more factual than creative, that's better than the other way around. Backups involve the entire work, that's bad. But there's no particular negative effect on the market, and that's significantly good.
And of course, fair use is fuzzy, it's not math. The factors don't just get added together to produce an answer, they're supposed to instead be indicative of what's fair or not. Looking at these, it still seems as though backups are generally going to be fair. Of course, YMMV -- which is why the other exceptions are more reliable, if more narrow.
1201 has made access one of the exclusive rights of the copyright holder
Actually, that's the interesting thing. Access circumvention has been held apart from copyright infringement, meaning that it is not in fact part of the copyright, it's just a related right (to borrow some Berne parlance). This is the only way, really, that they can avoid having fair use be a defense to circumvention.
But this has raised the issue of whether 1201 is even constitutional. A similar issue has arisen in the context of 1101 and its counterpart criminal provision, in the Martignon case, and in the trial level the argument worked; we're all eagerly waiting to see what happens next.
Actually, 'computer programs' are the only IP explicitly granted archival rights.
Well, there is also 1008, but it's really pretty limited -- more than most people think at first glance.
Plus there's some other provisions -- portions of 108 -- but they're just not useful for ordinary people.
Also, there is a provision under fair use for reproducing for educational or critical purposes so long as there is no commercial aspects (profit or loss of) to the reproduction,
You're reading 107 incorrectly. There are no categorical fair uses -- the enumerated ones are just examples of the sorts of things Congress would anticipate would be fair uses. There can be unfair educational or critical uses, however. The key is the four part test. And even there, the fair use can be commercial (as is often the case with parodies) provided that the use is fair as a whole. All commercialism does is make it trickier.
I do wonder, after speed-reading the law, about the explicit legalities of ripping a music CD that you own legally to a MP3 file to load into your own personal/portable MP3 player... does this not also constitute a reproduction, since in most cases most copyrighted music is available for sale in digital file format designed for that device?
That is an infringing reproduction -- that it's available in mp3 format or whatever is irrelevant -- but it is likely saved by fair use under the space shifting doctrine that appeared in the Diamond case, and seems to have been accepted by copyright holders, even if it hasn't shown up much in the courts.
I believe the fair-use provision needs revisiting... it should allow for format portability by the owner of the 'copy' into whatever format he/she requires in order for them to use the work that they legally purchased... so long as they retain exclusive access to their reproduction (ie, not available for download, or to their friends, etc.)
Better to create an exception that does that explicitly; fair use is better off if it's vague, since that way it can adapt to new things.
My biggest question - Are EULAS Licenses or not?
I think the issue is whether they can be enforced or not. And it varies, depending on what court you're in. The trend is probably in favor of EULAs, but it's by no means certain, and details as to the specific EULA matter.
Can a EULA give you the right to a backup copy of software?
If the copyright holder says that you can do something that's otherwise infringing, the permission they give you makes it not infringing. Think of the GPL: it says that you can do all sorts of things, making those things noninfringing (at least as to the people giving the permission). There are strings attached, but there always are.
if you, as you state, own your copy of a work, why would it be infringement for you to rent out that CD or DVD or book even? Doesn't right of first sale come in here somewhere?
If you rent it, that is a distribution. Distribution is prohibited by 17 USC 106(3). However, there may be an applicable exception. 109 contains many exceptions to this, and basically is the codified form of the first sale doctrine. However, while 109 carves some holes into 106(3), it has some holes itself. It's not an infringement to rent a DVD of a copyrighted movie, but it is an infringement to rent a CD of copyrighted music, because 109 says it doesn't apply to music (17 USC 109(b)(1)(A)).
So yeah, Congress has said that some copies can't be rented out -- basically musical phonorecords (CDs, tapes, vinyl, etc.) and computer software other than, in effect, console games.
It's the kind of law that we can attribute directly to the efforts of the record and software industries, with some counter pressure by the video rental industry and the console sector of the software industry.
I thought the Berne Convention allowed for backups?
No, not really. Art. 9 of the Berne Convention states that copyright holders have the exclusive rights to reproduce. It allows for countries to -- if they see fit -- allow for reproduction of works in certain special cases if it doesn't conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
At any rate, it doesn't matter. The US never should've joined the Berne Convention to begin with, since it is unmitigated crap, but even so, we don't really care about it too much. The law -- 17 USC 104 -- basically states that the US is in perfect compliance with it, according to us, and that it has no force in the US, and only our domestic law applies.
If you want to back up copyrighted works without authorization, you need to be within an applicable exception (e.g. 1008, 117), which may be trickier than it seems at first glance, or you need a successful claim of fair use (see 107) which will not always work.
Of course, Congress could always create a general purpose backup exception, but I'm not holding my breath.
I make my money in patents
Well, I work with copyrights, but I can think of a few useful reforms for patents:
I think we can safely ditch business method and software method patents since those fields have done, and likely will do great without them. They're just drags on the public interest.
Examiners need to do a better job; this could be a money issue or a time issue, but whatever the problem these days, they need to do more work.
Damages could probably stand to be reduced a bit -- not to how low they used to be, but we've overcorrected in the past couple of decades from the time when the only patents not invalid were the ones that hadn't been litigated yet.
Already examinable prior art ought to be useable by third parties that are trying to demonstrate invalidity; the PTO won't necessarily do a good enough job IMO. But there would have to be a colorable argument; I'm not suggesting repeatedly wasting the patent holder's time.
Best mode disclosures ought to extend to multiple best modes, known throughout the life of the patent, including by licensees, employers, etc. Right now people put any old crap in there, and it's decades old by the time anyone else can really use it.
I don't know if the PTO gives patent holders reminders for maintenance fees and such -- they don't in trademarks -- but would it be so goddamn hard?
Patents really ought to be published immediately upon filing, and updated as the file is updated. Let applicants decide whether they want to go for trade secrets or patents before filing, not later on.
People who specialize in the field could probably think of some other useful reforms -- perhaps some more important ones. I try to avoid patents if possible since I can't practice there, but these are things that seemed to be good ideas.
I just looked at the statutes myself. You are correct, 106.1 says that I do not have the right to reproduce a copyrighted work. Fair use (107) does not give it to me.
Without getting into some fine, but important distinctions there, I'd just point out that any otherwise infringing conduct can be a fair use, but is merely not necessarily a fair use. It depends.
So if you rent a movie and reproduce it, that's probably not a fair use. If the movie is on TV, and you videotape it, it probably is a fair use. They're both reproductions, but the circumstances are different. And in both cases, the right set of circumstances could result in the former being fair and the latter not. It always depends -- that's the thing to remember with fair use.
Other exceptions are usually much more clear, but also quite narrow.
That said, I am baffled and amazed by the attitudes that yourself and so many others demonstrate - seemingly that laws exist for the private benefit of large corporate interests, and the general public should just roll over. You are taking the easy way out, siding with the "big boys", and by association you trample on my inherent and reasonable freedoms sir and I do not like it.
I don't think you've quite grasped my position.
When there is a discussion about what the law currently is, then I won't lie about it. I'll look at the law and take it as I find it.
This doesn't mean that I like it, it just means that I am not going to lie to you about what the law is right this second, just because we'd all prefer it to be something else.
I think copyright law should absolutely serve the public interest, and that it is currently almost entirely garbage. I think that we seriously need to reform copyright law, starting with first principles, and that substantial public-minded reforms are needed (probably to lesser extents, mind) in other areas such as patent, trademark, and trade secret.
Still, those sorts of reforms haven't happened now, and it would be improper to pretend that they have. Plus, I feel that if people are fully informed as to just how awful the law is right now, and how much it fails to accord itself with ordinary expectations, there will be a better chance of fixing it.
A nice, big, fat "this applies to commercial purposes only" sticker is what copyright law needs.
Yeah, actually one of my proposed reforms -- though I admit it feels dangerously overpowered, not that I can think of a good middle ground -- is to make nonactionable or noninfringing any otherwise infringing activity by natural persons, if not for commercial purposes.
But since things are very dismal right now, and the law is so in the hands of the various copyright industries, I don't expect to see this anytime soon, if at all.
I would challenge anyone to tell me that my actions are unreasonable or morally wrong
Generally, I probably wouldn't condemn you. We seem to be on the same page. Of course, I think that lawlessness is a bad thing, even where justified, because it can result in people ignoring laws that are proper and just. Reform is a better solution in this respect than ignoring the law. C.f. prohibition and how comparatively harmless drinking also lent great power to organized crime.
By law, anything we do with anything copyrighted is "infringement", and can be taken to court.
That's a bit of an overstatement. Only a few things are infringing, but they're the things that are usually most interesting or desirable to do with them. Still, many important things are not infringing.
Yes, you too can be sued for buying a copy of Brittney Spears' latest album, dropping it in your cd player and having yourself a listen!
Like that. It's very difficult to set up a scenario where you could be successfully sued for doing that.
Maaaaaaybe. Maaaaaaaaybe not. YOU DON'T KNOW!
Heh.
Copyright law is about protecting the economic interests of the copyright owner
Naw. Copyright law is about protecting the public interest in the promotion of the progress of science. It just does that by the means of, among other things, promoting the economic interests of copyright holders, and then not to excess.
Of course, nowadays, copyright law is about appeasing the various industry groups, but that's not the real objective.
no matter how many times you tell lawyers -- who know what the law actually is -- that they are "bent over" for the machine...
Mm. Plus of course, I'm very much in favor of changing the laws. Copyright law as implemented sucks ass. But were the implementation to be significantly changed, I think it would be really beneficial to everyone.
Sure, but the basic provisions of the law -- 106, 501, 504, the ever-crucial definitions in 101 -- are not that difficult. I don't think you'd find them difficult, and they are the primary sources here, along with the caselaw, which is also not that difficult.
To me, this states that "copying" isn't a violation of the copyright when the copying of work may be fair use under appropriate circumstances.
Basically. Again, you'd've found this easier with the statutes. The way it works is like this:
Everything is legal
Except what's exclusive to the copyright holder per 106.
Except there are limits to what is exclusive, such as fair use, which is in 107.
So, two examples of this at work:
First, reading. Reading -- provided it's just reading and there's nothing else at all going on -- is legal under our first precept. We then check to see if it is specifically made illegal under 106. Since it's not one of the enumerated exclusive rights of the copyright holder, we know that it is not illegal. Our analysis can end there -- reading is not a copyright infringement.
Second, reproduction. Reproduction, again, is legal under our first precept. But is it specifically made illegal by 106? It is. One of the exclusive rights is the right to reproduce the work in copies. So reproduction is illegal. But is there an exception to that, which removes some or all reproduction back out of 106? There are many exceptions, but they are not always applicable; various conditions have to be met for various exceptions to apply. One exception is fair use, at 107. When it applies, it takes conduct that 106 made illegal, and makes it legal. When it doesn't apply, it has no effect, and 106 continues to control.
A lot of the law is like this. There are broad pronouncements, dotted with exceptions, which themselves may be subject to exceptions at times. I'd expect that the programmers here could probably deal with it as a set of nested if then statements, except for that fact that a lot of the time things can be fuzzy because the world isn't as quantifiable as what goes on inside a computer.
One other thing:
To me, this states that "copying" isn't a violation of the copyright when the copying of work may be fair use under appropriate circumstances.
See, that's why precise terminology is important. When they said 'copying' there, they mean reproduction, the preparation of derivatives, distribution, and certain public performances and displays, since those are the exclusive rights in 106. You basically just mean reproduction, and you're distinguishing it from distribution later on.
Also, any otherwise infringing conduct -- reproduction, distribution, whatever -- can be a fair use. It depends on the specific circumstances involved, but fair use doesn't apply only to one sort of conduct under 106, and it says so explicitly.
Where I'd need your guidance in getting the correct answer is in asking: is making an archival backup of material you've licensed a violation of the copyright?
Depends on the nature of the material. However, do note that licenses with regards to copyrighted works, in the consumer setting, are extremely rare. When you buy a book, or a CD, or a DVD, you are not licensing anything. There is a good argument that even when you buy software, despite the claimed EULA (which some courts may uphold, and others won't) you're not licensing it either.
So I assume you mean, is it infringing to reproduce a work, where you own a lawfully made copy of the work, and the reproduction is intended for backup purposes.
I'd say that it is illegal, except under a few narrow circumstances. It might be a fair use -- but this
Sort of, yes.
I personally don't know of any cases where someone has been sued for themselves downloading.
However, it is illegal to help (in certain ways) someone else download, if that downloading is illegal, and there have been a lot of cases like this. Since it is necessary in such a case to show that downloading is illegal, the same exploration of the law has occurred. If it were legal to download, there could be no liability for helping someone download.
Napster is such a case -- their network and software was only illegal if using it to download and upload was illegal, and if they had a sufficiently close involvement in that illegal downloading and uploading. Napster lost.
So it's basically, 'Billy downloaded the latest album, Napster helped, so Napster owes $1.5 M.'
a) show me where in the Law it says that I can not do as I please with copyrighted material in my possession *for my own private use*.
17 USC 106(1)-(3), 106A, 602, 1201, and 1202 immediately spring to mind. If I took a minute to think about it, I could probably come up with some others.
In some cases there are exceptions, and in some cases those exceptions may hinge on whether or not the otherwise infringing activity remains wholly private, but they don't always. Some infringements, even if done in conjunction with copies in your possession and for your own private use are still infringing. At that point we aren't talking about whether it's illegal or not, because it is; rather, we're only talking about whether or not you'll get caught.
once obtained posession alone is proof of the right to use the work
That's really an overbroad statement. If you obtain possession of child porn, do you have a right to use it? You're probably going to find that you don't.
Copyright Law is about Distribution rights, and Copyright Infringements are about violations of the right to distribute
That's dead wrong. 17 USC 106 is the heart of the copyright law, and it sets forth six equal exclusive rights. ONE of those rights is distribution. But another is reproduction. Copyright law is about both, and more besides. Copyright infringements are defined at 17 USC 501 as being infringements as to ANY of those rights.
I strongly encourage you to read the sections I'm citing you, to check for yourself so that you don't make such foolish statements in the future. I love policy arguments, and discussions about where we should go with copyright, but the law now is what it is now, and there's really not anywhere near enough wiggle room for statements such as yours.
So go check. It's easy to do.
Acquisition of the works is not covered by copyright infringement
True, but reproduction is. If your acquisition involved reproduction, then that's infringing, all else being equal. With regards to downloading, it necessarily involves reproduction.
Your argument doesn't work with regards to computers, because computers reproduce stuff constantly, at a very low level, just to function. If you were talking about picking up a copy of something on the street, and holding it in your hand, then you'd have a more valid point.
Actually, like my .sig says, I am a lawyer. I'm licensed to practice in Massachusetts, and copyright is my specialty. But as the .sig also says, I'm not your lawyer, and I do not provide legal advice or enter into attorney-client relationships on /. -- if you want legal advice, go to a lawyer licensed in your jurisdiction who is willing to provide it.
//www.copyright.gov/legislation/dmca.pdf), makes the point that copying isn't necessarily a violation of fair use.
With that clarified and out of the way...
I thought the RIAA/MPAA was going after people who distribute materials, not downloaders
Yes, but only for practical reasons. There is no legal difficulty in going after downloaders. They're just not perceived as being as big of a problem, basically.
The DMCA (http:
I don't recall that it says that, but then, that's honestly a nonsensical statement right there.
DMCA is really just a bunch of amendments to copyright law as a whole, virtually all of which is in Title 17 of the US Code. Google for 17 USC and you'll find the entire thing, and can read through it all, with the sections added or changed by the DMCA inserted as appropriate.
But basically, 17 USC 106 sets forth the exclusive rights that compromise copyright, and reproduction is one of them, at 106(1). Distribution is another one, of equal importance, at 106(3).
downloading is really just another form of copying
I would use the term 'reproduction' instead of 'copying' for preference, but yeah, that's basically right. That's why it's typically illegal to reproduce copyrighted works without authorization.
which, since you have the rights to make archival backups, is acceptable!
Sorry, but that's wrong. There is no general purpose exception for backups. But please feel free to find a section of the law that supports your claim. Don't feel bad though -- a lot of people make this mistake. Just be sure to not keep on making it.
This is why there different definitions of the criminal act in file sharing: there's a distinction between someone obtaining the content illegally and someone providing it illegally.
Criminal copyright infringement doesn't make a distinction between reproduction and distribution, actually. You can see the relevant section 17 USC 506.
Plus, we're mostly talking about civil actions, not criminal prosecutions.
Eventually they may go after the downloaders as well, but I would assume that the penalties would be similar to shoplifting.
Nope. Read 17 USC 106(1),(3), then 501, then 504(a),(c). The penalties are exactly the same for uploading and downloading, and are pretty high, really.
Honestly guy -- if you're gonna talk about the law, you'd do better if you actually read it. If there's one thing that bugs the hell out of me, it's people that just make up what they think the law is, or accept that because some guy said the law was such a thing, that it must be so, and who don't check for themselves. I've provided you with citations -- go check up and correct your position accordingly.
No, that's incorrect. Downloading a work, even if you own a copy of that work, is typically going to be a copyright infringement. There is no general purpose exception for 'backups' despite what some people might think. Reproducing a copyrighted work without permission, in an infringing manner, is categorically illegal. There are a few exceptions, but nothing that seems helpful to you.
The most you could argue would be fair use, but I think you would have a difficult time of it. As you do correctly note, the person distributing the work to you is going to probably have an impossible time of it -- though there is no difference in how harshly the two infringements are treated generally. Reproduction is just as bad as distribution, and they have the exact same penalties.
Since it is quite rare for works to be licensed -- books, movies, sound recordings, etc. are NOT licensed to ordinary consumers -- there's no real concern over that.
Rather, the reason for going after uploaders more than downloaders is purely practical. If you take down an uploader, then all the people downloading from him either a) stop downloading, b) find a new source, which will be more crowded now and thus less useful, or c) assume the risk of uploading. Basically it's a 'attack the head of the snake' approach. That's why they went after P2P networks before bothering with users -- if Napster had gone down and had not been replaced, uploaders and downloaders alike would find it difficult to do what they want, reducing the number of infringements. To put it another way, think of killing off pests -- it's laborious to kill each individually, but if you get rid of the food supply, they'll all starve in the end. Also it's easier to find uploaders than downloaders.
There is no legal reason for the different treatment, however, and someday they'll be pursuing downloaders just as vigorously as they do uploaders now.