Publicly Available Videos (e.g. Star Trek fan videos, Presidential Debates, funny commercials)
None of the videos you mention as examples can be legally downloaded without the permission of all the copyright holders.
For example, in the case of Star Trek fan videos, you'd also probably need permission from the holders of the copyright for Star Trek itself (Paramount, IIRC). This is because the fan video is probably illegal, having infringed on the derivative right of the Star Trek copyright holders.
You should probably review your list. It's not legal to torrent things unless: 1) All pertinent copyright holders have granted sufficient permission to do so; 2) The work is entirely in the public domain and there are no copyrights encumbering the work at all; or 3) You hold the copyright on the work yourself, and no one else holds copyrights or any other rights that could encumber the work, or your release of it.
Only if the legal aid group is willing to take the case. If it's a tax problem, or you're a tenant having problems with a landlord, or something to that effect, then you likely can get help.
If you're just being sued for fairly clear wrongdoing, you're probably on your own. Legal aid, like many charities, goes to people who are felt appropriately deserving of it.
See, courts and judges are not extraordinarily stupid, as a rule. They will see right through such feeble facades as that and still be able to throw the book at you.
It's a bit like what went on during the 50's-70's with segregation. When obvious discrimination was overturned, subtle methods were tried. The courts overturned them just as easily, because what's illegal is the underlying behavior, whether accomplished through blatant or clever means.
The way I understand it is that when a book is copied, the person who produced the copy is the one who infringed, not the person who merely received the copy. Similarly, in a digital situation the uploader is at fault, because they're the ones providing the copy. The downloader doesn't actually reproduce anything; they just receive it.
You don't understand it.
It's not a matter of sender/recipient. It's who caused the download to occur. And that is generally the downloader, since no one made him initiate the download. The Marobie-FL case discusses this a bit.
Now, if your computer had been taken over by malware and was d/l'ing things without you causing it to, THEN, you might get off the hook.
I suggest taking a look at the Napster decision. It flatly says that downloaders are infringing on the reproduction right. And it's by no means the only such case. It's a pretty uniform holding.
Besides being more in accordance with traditional copyright law (for books and such), it also makes more technical sense: the uploader's computer is the one that actually copies the bits, puts them into packets and sends them. After all, how could the receiver make a copy if he didn't have one in the first place?
You didn't read 17 USC 101, which defines a LOT of terms in the law; common definitions often do not apply.
A copy is a tangible object. Bits are not a copy. The hard drive or RAM in question is. When you download, you are causing a copy to be made by reproducing the intangible work into a tangible medium within your control. All that is needed to reproduce is to have access to the work. Not access to a copy embodying the work. It's no different than if someone were to read a book aloud and you wrote down what they said; that's illegal.
N.b. that a single act of downloading may result in numerous instances of infringement, by various parties. But if you caused the download to occur, at least some of that is going to be your problem.
Actually, I doubt that the firm just decided to buy the patent. It seems more likely to me that someone had it, couldn't pay their lawyers in cash, and instead got them to accept the patent as payment for their services.
My uncle is a partner in a small firm, and he's notorious in the family for accepting payment in unusual forms, e.g. food, sports equipment, etc.
The default rule in the US is that activities are lawful unless actively made unlawful.
So if there was no law that talked about abortion at all, neither saying it was legal nor illegal, then it would by default be legal.
In order to make it illegal, a government has to pass a law saying that it is illegal.
The power of a government to make a law is limited by higher laws. For example, cities cannot make laws that their state legislatures tell them they cannot make. State legislatures cannot make laws that their state constitutions tell them they cannot make. And so forth. The highest law is the federal Constitution, which among other things, tells all levels of government that some things are not in their power to forbid.
The federal Supreme Court is the ultimate interpreter of the federal Constitution. Where there is a dispute as to whether a certain passage in the Constitution means one thing or another, they ultimately decide. Of course, the members of the Court are only human, and sometimes make mistakes which can be corrected by the Court later, or by amending the Constitution. Also one might ultimately propose that the interpretation is more limited than it initially appears, by trying potentially feasible variations on whatever led to the prior interpretation.
Here, states had laws forbidding abortion. The Supreme Court found that at least to a certain extent, the Constitution forbids governments from doing so.
They didn't say that people can get abortions so much as they said that the government generally cannot stop them from doing so. This is pretty much what they do all the time: the government tries to make people do something or not do something, and the Court either forbids the government from it on the basis that they have no power to do so, or they find that such power does exist.
Now, courts ALSO do create laws in our common law tradition. Most of the law of contracts, torts, property, etc. have been created by the courts for many centuries, all the way back to England. But that isn't what has happened in any of the notable abortion cases.
Seriously: have you actually READ Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood of Southeastern Pennsylvania v. Casey? They're all fairly important, and if you want to intelligently discuss abortion generally, you're not going to be able to do so otherwise.
Of course, if intelligent discourse is not what you're looking for, feel free to remain ignorant.
It's been decided by the US supreme court that me recording someting that comes into my house, for my own personal, permanent use, is considered legal 'fair use'.
Yeah? And where precisely did they say that? Got a quote and a citation that supports your claim that you can keep it permanently?
The key word in Article I Section 8 Clause 8 of the Constitution is 'useful'.
Yes, for patents. In 1789, the useful arts meant the field of technology, of applied science. Vestiges of this can still be seen, e.g. 'state of the art' technology, or a 'person having ordinary skill in the art.' Technology has to have some kind of use, in order to be covered by what's known as a utility patent. Inventions that don't work (e.g. perpetual motion devices) are therefore unpatentable.
Science, which at the time meant something more like general knowledge, is the bit that refers to copyrights.
This is evident in the structure of the clause as well. It always goes in order, copyright, patent: science/useful arts -- authors/inventors -- writings/discoveries.
It does say that you get to use the CD, box and manuals you purchased.
Of course, if you only licensed things, then you didn't really purchase what you would need in order to use those things in the conventional manner.
The EULA may look like a contract, but it isn't worth the paper it's printed on because nobody signed it and you weren't allowed to read it before the transaction closed. So that's not a "license" either.
And yet, they keep on getting enforced. See a couple of choice quotes here.
But whether a particular license is generous or restrictive, a simple two-party contract is not "equivalent to any of the exclusive rights within the general scope of copyright" and therefore may be enforced.
Pro-CD v. Zeidenberg, 86 F.3D 1447 (7th Cir. 1996).
The Court finds that the license agreements are enforceable contracts under both California and Missouri law. California courts have enforced end user license agreements, which are valid under California law. See Adobe Sys. Inc. v. One Stop Micro, Inc., 84 F.Supp.2d 1086, 1089-93 (N.D. Cal. 2000) (end user license agreement valid under California law); Hotmail Corp. v. Van$Money Pie, Inc., No. C-98-20064, 1998 WL 388389, at *6 (N.D. Cal. 1998) (applying California law, plaintiff likely to prevail on breach of contract claim regarding clickwrap agreement). Cf. Softman Prod. Co. v. Adobe Sys. Inc., 171 F.Supp.2d 1075, 1087-88 (C.D. Cal. 2001) (software reseller was not bound by EULA because it had never assented to the terms and court did not rule on validity of shrinkwrap agreements in general).
Even if Missouri law applied, the license agreement would be enforceable. Missouri has implemented the Uniform Commercial Code. The UCC provides that "a contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract."11 MO. REV. STAT. 400.2-204(1) (2000). "An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined." MO. REV. STAT. 400.2-204(2) (2000). The defendants assert that the licenses are not enforceable because they add additional terms under Mo. Rev. Stat. 400.2-207, 19 which are to be construed as proposals for additions to the contract. Defendants state that the EULAs and TOU are additional terms which they rejected. Defendants contend that is unfair for them to pay $49.99 for the games and then be unable to install them or access Battle.net without assenting to the EULA and TOU.
The Court finds the EULAs and TOU are enforceable under the UCC. First, the defendants did not purchase the Blizzard software, rather they purchased a license for the software. A sale consists in the passing of title from the seller to the buyer. Mo. Rev. Stat. 400.2-106(1) (2000). When defendants purchased the games, they bought a license to use the software, but did not buy the software. Defendants' argument parallels the "first sale doctrine," although defendants do not use this term.
Davidson & Associates v. Internet Gateway, 2004 E.D. Mo. LEXIS 20369 (Sept. 30, 2004).
Looks to me like they often are enforced. Sure, there's Klocek, Specht, maybe a few others, but they don't seem to be the dominant trend these days.
I'm not familiar with the definitions of public versus private performances
Well here you go then. Like most definitions of terms in copyright law, they're at 17 USC 101, which is easily googled for.
To perform or display a work "publicly" means--
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
I don't think that a performance for everyone at MIT would be non public, given the definition Congress has placed in the law. The definition can't be argued with. It might be interpreted differently by different persons, but you can't change it per se.
That MIT performances would be public is probably also bolstered by, e.g. 17 USC 110, which specifically exempts certain performances such as some of those by a school to its students. This doesn't mean that such performances are public and have to be exempted, but it does imply this, since otherwise why would Congress have enacted this particular section?
No, but that's where most of the definitions for terms in the copyright statutes are kept, so it's pretty important. Probably the most important sections to keep in mind are:
101 -- Definitions 102, 103 -- Copyrightability 106 -- Exclusive rights 107 -- Fair use 109 -- First sale 411, 412 -- Registration with regards to infringement actions 504 -- Damages 506 -- Criminal infringement penalties
The rest of the stuff doesn't need to be kept closely in mind; you can look it up on an as needed basis.
By and large, when I'm citing statutes in title 17, I'm doing it from memory. Case names worth bringing up here, I usually remember -- the actual cites I have written down since it's not important to know off the top of your head which volume and page of which reporter something is at.
Incidentally, why the apparent complaint? Do you disagree with my post? I try pretty hard to be accurate, even when it means telling people things that they don't want to hear. I welcome corrections.
This is a public performance, and so it infringes the exclusive right of public performance of musical works in 17 USC 106 unless the appropriate licensing takes place.
If it were just a friend, then likely it wouldn't be a public performance, but rather a private one. All the students at MIT, however, are pretty certainly outside of the scope of what a non-public performance, as it's defined in 17 USC 101.
The problem is that your analogy is inappropriate as to jurisdiction. And given that it is settled that there is no importation going on here anyway, your analogy isn't all that good anyway.
Here, the reproduction occurs within the US. Unless US law permits that reproduction to occur legally, it is infringing. What Russian law has to say on the matter is irrelevant; the medium and the infringer are both within our borders, and our courts will determine whether our law grants effect to any purported licenses. It has to, because it's our law alone that applies within our borders (unless our law permits another law to operate, which is still a decision that we get to make).
The issue, boiled down, is whether a Russian compulsory license can authorize people in America to do things which otherwise infringe.
So a better analogy might have been that it is illegal to be a buyer of liquor in the US on Sunday, but Russia passes a law saying merely that liquor sales are legal on Sunday. Then an American in America buys liquor which is located in America, from a Russian who's business is in Russia. I don't think that the Russians can legislate events that occur solely within the US.
I'm very surprised to see someone be so confused about matters of national sovereignty as to think otherwise.
The copyright holder can choose not to do business in Russia.
Well, first, that's economic duress, and will likely invalidate the compulsory license, which as it is not law in the US, could only be treated as a contract at best, even assuming that it claims to permit reproduction outside of Russia, which seems doubtful.
Second, the oft-cited faq regarding allofmp3 contradicts you -- though it's still not as though we have the actual law in front of us in a useful form, which would be infinitely preferable.
[U]nder Russian law a collecting society like ROMS automatically has the right to license ANY intellectual property to Russian distributors, even if the author is not subject to Russian law.
As does a press release that site links to, apparently issued by the licensing body:
According to the legislation of Russian Federation, ROMS is entitled and obliged to operate in the name and in the interests of absolutely all rightsholders, both Russian and foreign. ROMS carries out its activity on the basis of the powers given directly by the Law, irrespective of the presence or absence of a contract with a rightsholder. Licenses given by ROMS "allow using of all works and objects of related rights only in the form provided by such licenses, and are given on behalf of all owners of copyright and related rights, including those who have not given their authority to the organization" (Section 2 of Clause 45 of the Law of Russian Federation on Copyright and Related Rights).
So I'm curious as to where you're getting this 'voluntary' idea from. I don't see any support for that idea, not that it is voluntary anyway.
It has. Incidentally, mass confusion about what the law is doesn't change what it is. Most of the people on/., I'm sorry to say really don't know crap about law. This is why I try to cite to the law, so that people don't have to take my word for it.
You have conceded that you have no idea of what the terms of that licence is or whether or not it is enforceable in the US.
No, I've said I do not think it is enforcible in the US. I think the terms might be illuminating, but I'm quite confident of it being unenforcible. I've addressed this recently; there's a link below.
Let's start consolidating some of these threads to here.
Well, I'm probably the wrong person to ask about moral rights, because I think they're amazing bullshit and should simply not exist under any circumstances.
I'm a pure utilitarian with regards to copyright law. This isn't terribly surprising, as I'm an American, and this is the ultimate foundation of our system. It's a good one, IMO.
It is not illegal for me to go to the library, or bookstore and copy an entire book using either a pen or copy machine for my own personal use.
It is illegal, actually.
Or if it is illegal, the libraries and their users have been guilty for years
Users may be. Libraries a) generally aren't out there reproducing books on xerox machines, and b) get the benefit of a number of special exemptions to the law that do not apply to library patrons, such as 17 USC 108 (permitting libraries -- and just libraries -- to do some reproduction that's otherwise illegal).
Basically libraries have a decent lobby and good PR, and manage to get changes in the law to accomodate them more readily than you or I can.
Is it illegal for me to go to the library and copy an entire album using a microphone?
Out of curiosity, how do you reproduce an album using just a microphone? Or do you mean you're using a microphone in conjunction with some recording medium, and if so what medium are you using in your example? It's kind of important.
And no "Geophysical Union v. Texaco" doesn't count.
Oh hey, you know American Geophysical.
Well, it is actually a good case here, and you'll see it again as well. American Geophysical did find that the reproduction was unlawful. Profit, non-profit, that doesn't matter, because 17 USC 106 merely bans "reproduction" without regard to profit.
Texaco's defense was that it was fair use. Profit IS a factor in fair use, though it isn't probative. And profit from substituting free alternatives for a costly one is still profit.
If you're reproducing not for profit, then you may have a better fair use argument. But if you're reproducing using the reproduction as a substitute for having to go out and buy the work, and you're reproducing the entire creative work for non-transformative purposes, you're pretty fucked. None of the fair use factors are in your favor.
What rulings?... What makes you think that downloading music for non-commercial purposes is illegal?
[A] copy of the [work] 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.
Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).
We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights.
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
Direct economic benefit is not required to demonstrate a commercial use [for purposes of a fair use analysis]. Rather, repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use. See Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110, 1118 (9th Cir. 2000) (stating that church that copied religious text for its members "unquestionably profit[ed]" from the unauthorized "distribution and use of [the text] without having to account to the copyright holder"); American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 922 (2d Cir. 1994) (finding that researchers at for-profit laboratory gained indirect economic advantage by photocopying copyrighted scholarly articles). In the record before us, commercial use is demonstrated by a showing that repeated and exploitative unauthorized copies of copyrighted works were made to save the expense of purchasing authorized copies. See Worldwide Church, 227 F.3d at 1117-18; Sega Enters. Ltd. v. MAPHIA, 857 F. Supp. 679, 687 (N.D. Cal. 1994) (fin
The license in Russia is a compulsory license, right? It's basically the government saying that it will force the work to be licensed to anyone it please, at rates it sets. The copyright holder doesn't have a choice.
This brings us to 17 USC 201(e). I grant that it might not apply in every case. But it applies a lot.
When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.
Thus, when the Russian government attempts to exercise the right of eligible copyright holders with regards to not excluding compulsory licensees in Russia, US law says that that compulsory license is void.
So whatever compulsory license allofmp3 might claim to have, we ignore it for purposes of looking for infringements under US law.
There is of course also a more general issue of contract interpretation and enforcibility, which I think will also result in the compulsory license failing due to duress, and depending on the precise terms of the Russian law, which I don't have before me.
But if this doesn't knock it out of the park, it's still a good counter to your rather specious arguments to date.
Incidentally, if you have an English translation of the relevant law, I'd like to see it.
In fact, I have not found any reputable legal sources that claim downloading of mp3's is illegal
The Napster case clearly said it was.
The Intellectual Reserve case was about web pages, not mp3's, but again clearly said that unauthorized downloading of copyrighted materials was infringement. The difference between pages and mp3's is probably not important.
Look, the courts live on analogy. They constantly liken or distinguish the situation before them to previous situations so as to know how to act in a consistent manner.
For example, if there are a hundred cases about if the owner of a dog is liable when a dog bites a person, the courts are going to use those precedents when deciding for the first time who is liable when a cat bites a person.
The mere fact that the case of a cat bite would be of first impression doesn't mean that you cannot be pretty confident of what's going to happen based on all the dog bite cases. They're pretty damn certain to all come out the same way.
So unless you think that, for example, cat bites ought to be considered to be very distinguishable from dog bites, why do you think that downloaders are very distinguishable from uploaders? And how do you explain away the rulings that do actually talk about downloaders?
since copying files on a computer system has long been held to not constitute publishing
Infringement, per 17 USC 501 and 106 involves, among other things, reproduction. Reproduction is NOT the same thing as publication. You're confused about the issue. This is why it is so damn essential to read the actual statutes, and not make up what you think the statutes say, based on what some guy said. This is why I try very hard to cite the statutes and cases I base my opinions on -- so that people can check these things out for themselves. Will you please check these things out for yourself, by going straight to the source?
Also, since it has been "long held" let's see your support for that. You are citing a holding, i.e. a judicial opinion, right? It is a reported opinon, right? What's the cite? I'd like to read it.
Your argument relies upon the premise that these legal suits are intended to stop people from sharing files by actually suing everyone doing so.
No, I'm saying that all else being equal, lawsuits will target the defendant who most fits in with the aims of the plaintiff. If a plaintiff wants money, he will uniformly sue the 'deep pocket.' If a plaintiff wants to stop something from happening, he will go after whoever it takes in order to accomplish that.
Since the deterrance factor is pretty similar for any group of users, one might as well go after those who also support leechers, since that's slightly better than going after a mere leecher alone.
The very fact that the RIAA has not yet sued a downloader is very strong evidence that they do not think they can win such a lawsuit or, perhaps, that they fear doing so would frighten enough people to actually get laws passed that make it legal.
No it is not. The absence of something happening isn't proof of anything other than that it hasn't happened yet.
For example, I have a stick. Since there are no wild tigers around here (southern New Hampshire) it clearly must be a tiger repelling stick. This is the product of your 'logic.' Think my stick will continue to repel tigers if I go to the untamed wilds of India, or even if I were to hop in the tiger habitat at the nearest tiger-having zoo? After all, it has a perfect success record to date.
Slashdot Mirror
Publicly Available Videos (e.g. Star Trek fan videos, Presidential Debates, funny commercials)
None of the videos you mention as examples can be legally downloaded without the permission of all the copyright holders.
For example, in the case of Star Trek fan videos, you'd also probably need permission from the holders of the copyright for Star Trek itself (Paramount, IIRC). This is because the fan video is probably illegal, having infringed on the derivative right of the Star Trek copyright holders.
You should probably review your list. It's not legal to torrent things unless:
1) All pertinent copyright holders have granted sufficient permission to do so;
2) The work is entirely in the public domain and there are no copyrights encumbering the work at all; or
3) You hold the copyright on the work yourself, and no one else holds copyrights or any other rights that could encumber the work, or your release of it.
Only if the legal aid group is willing to take the case. If it's a tax problem, or you're a tenant having problems with a landlord, or something to that effect, then you likely can get help.
If you're just being sued for fairly clear wrongdoing, you're probably on your own. Legal aid, like many charities, goes to people who are felt appropriately deserving of it.
Not using your common sense, I see.
See, courts and judges are not extraordinarily stupid, as a rule. They will see right through such feeble facades as that and still be able to throw the book at you.
It's a bit like what went on during the 50's-70's with segregation. When obvious discrimination was overturned, subtle methods were tried. The courts overturned them just as easily, because what's illegal is the underlying behavior, whether accomplished through blatant or clever means.
And your idea isn't even clever.
The way I understand it is that when a book is copied, the person who produced the copy is the one who infringed, not the person who merely received the copy. Similarly, in a digital situation the uploader is at fault, because they're the ones providing the copy. The downloader doesn't actually reproduce anything; they just receive it.
You don't understand it.
It's not a matter of sender/recipient. It's who caused the download to occur. And that is generally the downloader, since no one made him initiate the download. The Marobie-FL case discusses this a bit.
Now, if your computer had been taken over by malware and was d/l'ing things without you causing it to, THEN, you might get off the hook.
I suggest taking a look at the Napster decision. It flatly says that downloaders are infringing on the reproduction right. And it's by no means the only such case. It's a pretty uniform holding.
Besides being more in accordance with traditional copyright law (for books and such), it also makes more technical sense: the uploader's computer is the one that actually copies the bits, puts them into packets and sends them. After all, how could the receiver make a copy if he didn't have one in the first place?
You didn't read 17 USC 101, which defines a LOT of terms in the law; common definitions often do not apply.
A copy is a tangible object. Bits are not a copy. The hard drive or RAM in question is. When you download, you are causing a copy to be made by reproducing the intangible work into a tangible medium within your control. All that is needed to reproduce is to have access to the work. Not access to a copy embodying the work. It's no different than if someone were to read a book aloud and you wrote down what they said; that's illegal.
N.b. that a single act of downloading may result in numerous instances of infringement, by various parties. But if you caused the download to occur, at least some of that is going to be your problem.
Well, Lucas has been killing the original trilogy for even longer.
No, her former husband was a Heinz. He died and left her a lot of money. Then she married Kerry.
Actually, I doubt that the firm just decided to buy the patent. It seems more likely to me that someone had it, couldn't pay their lawyers in cash, and instead got them to accept the patent as payment for their services.
My uncle is a partner in a small firm, and he's notorious in the family for accepting payment in unusual forms, e.g. food, sports equipment, etc.
No, that's not what they said.
The default rule in the US is that activities are lawful unless actively made unlawful.
So if there was no law that talked about abortion at all, neither saying it was legal nor illegal, then it would by default be legal.
In order to make it illegal, a government has to pass a law saying that it is illegal.
The power of a government to make a law is limited by higher laws. For example, cities cannot make laws that their state legislatures tell them they cannot make. State legislatures cannot make laws that their state constitutions tell them they cannot make. And so forth. The highest law is the federal Constitution, which among other things, tells all levels of government that some things are not in their power to forbid.
The federal Supreme Court is the ultimate interpreter of the federal Constitution. Where there is a dispute as to whether a certain passage in the Constitution means one thing or another, they ultimately decide. Of course, the members of the Court are only human, and sometimes make mistakes which can be corrected by the Court later, or by amending the Constitution. Also one might ultimately propose that the interpretation is more limited than it initially appears, by trying potentially feasible variations on whatever led to the prior interpretation.
Here, states had laws forbidding abortion. The Supreme Court found that at least to a certain extent, the Constitution forbids governments from doing so.
They didn't say that people can get abortions so much as they said that the government generally cannot stop them from doing so. This is pretty much what they do all the time: the government tries to make people do something or not do something, and the Court either forbids the government from it on the basis that they have no power to do so, or they find that such power does exist.
Now, courts ALSO do create laws in our common law tradition. Most of the law of contracts, torts, property, etc. have been created by the courts for many centuries, all the way back to England. But that isn't what has happened in any of the notable abortion cases.
Seriously: have you actually READ Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood of Southeastern Pennsylvania v. Casey? They're all fairly important, and if you want to intelligently discuss abortion generally, you're not going to be able to do so otherwise.
Of course, if intelligent discourse is not what you're looking for, feel free to remain ignorant.
1) That only applies to music recordings; not tv shows.
2) The devices and media listed have special, limited definitions elsewhere in the law which are different from their everyday meaning.
Basically 1008 is not interesting unless you are making an analog tape, DAT, Audio CDR, or minidisc of some music.
It's been decided by the US supreme court that me recording someting that comes into my house, for my own personal, permanent use, is considered legal 'fair use'.
Yeah? And where precisely did they say that? Got a quote and a citation that supports your claim that you can keep it permanently?
The key word in Article I Section 8 Clause 8 of the Constitution is 'useful'.
Yes, for patents. In 1789, the useful arts meant the field of technology, of applied science. Vestiges of this can still be seen, e.g. 'state of the art' technology, or a 'person having ordinary skill in the art.' Technology has to have some kind of use, in order to be covered by what's known as a utility patent. Inventions that don't work (e.g. perpetual motion devices) are therefore unpatentable.
Science, which at the time meant something more like general knowledge, is the bit that refers to copyrights.
This is evident in the structure of the clause as well. It always goes in order, copyright, patent: science/useful arts -- authors/inventors -- writings/discoveries.
It does say that you get to use the CD, box and manuals you purchased.
Of course, if you only licensed things, then you didn't really purchase what you would need in order to use those things in the conventional manner.
The EULA may look like a contract, but it isn't worth the paper it's printed on because nobody signed it and you weren't allowed to read it before the transaction closed. So that's not a "license" either.
And yet, they keep on getting enforced. See a couple of choice quotes here.
What precisely are you basing that on?
Pro-CD v. Zeidenberg, 86 F.3D 1447 (7th Cir. 1996).
Davidson & Associates v. Internet Gateway, 2004 E.D. Mo. LEXIS 20369 (Sept. 30, 2004).
Looks to me like they often are enforced. Sure, there's Klocek, Specht, maybe a few others, but they don't seem to be the dominant trend these days.
Well here you go then. Like most definitions of terms in copyright law, they're at 17 USC 101, which is easily googled for.
I don't think that a performance for everyone at MIT would be non public, given the definition Congress has placed in the law. The definition can't be argued with. It might be interpreted differently by different persons, but you can't change it per se.
That MIT performances would be public is probably also bolstered by, e.g. 17 USC 110, which specifically exempts certain performances such as some of those by a school to its students. This doesn't mean that such performances are public and have to be exempted, but it does imply this, since otherwise why would Congress have enacted this particular section?
No, but that's where most of the definitions for terms in the copyright statutes are kept, so it's pretty important. Probably the most important sections to keep in mind are:
101 -- Definitions
102, 103 -- Copyrightability
106 -- Exclusive rights
107 -- Fair use
109 -- First sale
411, 412 -- Registration with regards to infringement actions
504 -- Damages
506 -- Criminal infringement penalties
The rest of the stuff doesn't need to be kept closely in mind; you can look it up on an as needed basis.
By and large, when I'm citing statutes in title 17, I'm doing it from memory. Case names worth bringing up here, I usually remember -- the actual cites I have written down since it's not important to know off the top of your head which volume and page of which reporter something is at.
Incidentally, why the apparent complaint? Do you disagree with my post? I try pretty hard to be accurate, even when it means telling people things that they don't want to hear. I welcome corrections.
This is a public performance, and so it infringes the exclusive right of public performance of musical works in 17 USC 106 unless the appropriate licensing takes place.
If it were just a friend, then likely it wouldn't be a public performance, but rather a private one. All the students at MIT, however, are pretty certainly outside of the scope of what a non-public performance, as it's defined in 17 USC 101.
The problem is that your analogy is inappropriate as to jurisdiction. And given that it is settled that there is no importation going on here anyway, your analogy isn't all that good anyway.
Here, the reproduction occurs within the US. Unless US law permits that reproduction to occur legally, it is infringing. What Russian law has to say on the matter is irrelevant; the medium and the infringer are both within our borders, and our courts will determine whether our law grants effect to any purported licenses. It has to, because it's our law alone that applies within our borders (unless our law permits another law to operate, which is still a decision that we get to make).
The issue, boiled down, is whether a Russian compulsory license can authorize people in America to do things which otherwise infringe.
So a better analogy might have been that it is illegal to be a buyer of liquor in the US on Sunday, but Russia passes a law saying merely that liquor sales are legal on Sunday. Then an American in America buys liquor which is located in America, from a Russian who's business is in Russia. I don't think that the Russians can legislate events that occur solely within the US.
I'm very surprised to see someone be so confused about matters of national sovereignty as to think otherwise.
The copyright holder can choose not to do business in Russia.
Well, first, that's economic duress, and will likely invalidate the compulsory license, which as it is not law in the US, could only be treated as a contract at best, even assuming that it claims to permit reproduction outside of Russia, which seems doubtful.
Second, the oft-cited faq regarding allofmp3 contradicts you -- though it's still not as though we have the actual law in front of us in a useful form, which would be infinitely preferable.
[U]nder Russian law a collecting society like ROMS automatically has the right to license ANY intellectual property to Russian distributors, even if the author is not subject to Russian law.
As does a press release that site links to, apparently issued by the licensing body:
According to the legislation of Russian Federation, ROMS is entitled and obliged to operate in the name and in the interests of absolutely all rightsholders, both Russian and foreign. ROMS carries out its activity on the basis of the powers given directly by the Law, irrespective of the presence or absence of a contract with a rightsholder. Licenses given by ROMS "allow using of all works and objects of related rights only in the form provided by such licenses, and are given on behalf of all owners of copyright and related rights, including those who have not given their authority to the organization" (Section 2 of Clause 45 of the Law of Russian Federation on Copyright and Related Rights).
So I'm curious as to where you're getting this 'voluntary' idea from. I don't see any support for that idea, not that it is voluntary anyway.
Well, that depends on the validity of the license. What makes you think that the license will be found to be enforcable in the US?
Unless you're not allowed to bring music into the US.
Let's start consolidating some of these threads to here.
Right now it's a PITA to keep track of.
but I doubt that it has
/., I'm sorry to say really don't know crap about law. This is why I try to cite to the law, so that people don't have to take my word for it.
It has. Incidentally, mass confusion about what the law is doesn't change what it is. Most of the people on
You have conceded that you have no idea of what the terms of that licence is or whether or not it is enforceable in the US.
No, I've said I do not think it is enforcible in the US. I think the terms might be illuminating, but I'm quite confident of it being unenforcible. I've addressed this recently; there's a link below.
Let's start consolidating some of these threads to here.
Right now it's a PITA to keep track of.
Well, I'm probably the wrong person to ask about moral rights, because I think they're amazing bullshit and should simply not exist under any circumstances.
I'm a pure utilitarian with regards to copyright law. This isn't terribly surprising, as I'm an American, and this is the ultimate foundation of our system. It's a good one, IMO.
It is illegal, actually.
Or if it is illegal, the libraries and their users have been guilty for years
Users may be. Libraries a) generally aren't out there reproducing books on xerox machines, and b) get the benefit of a number of special exemptions to the law that do not apply to library patrons, such as 17 USC 108 (permitting libraries -- and just libraries -- to do some reproduction that's otherwise illegal).
Basically libraries have a decent lobby and good PR, and manage to get changes in the law to accomodate them more readily than you or I can.
Is it illegal for me to go to the library and copy an entire album using a microphone?
Out of curiosity, how do you reproduce an album using just a microphone? Or do you mean you're using a microphone in conjunction with some recording medium, and if so what medium are you using in your example? It's kind of important.
And no "Geophysical Union v. Texaco" doesn't count.
Oh hey, you know American Geophysical.
Well, it is actually a good case here, and you'll see it again as well. American Geophysical did find that the reproduction was unlawful. Profit, non-profit, that doesn't matter, because 17 USC 106 merely bans "reproduction" without regard to profit.
Texaco's defense was that it was fair use. Profit IS a factor in fair use, though it isn't probative. And profit from substituting free alternatives for a costly one is still profit.
If you're reproducing not for profit, then you may have a better fair use argument. But if you're reproducing using the reproduction as a substitute for having to go out and buy the work, and you're reproducing the entire creative work for non-transformative purposes, you're pretty fucked. None of the fair use factors are in your favor.
What rulings?
Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
This brings us to 17 USC 201(e). I grant that it might not apply in every case. But it applies a lot.
Thus, when the Russian government attempts to exercise the right of eligible copyright holders with regards to not excluding compulsory licensees in Russia, US law says that that compulsory license is void.
So whatever compulsory license allofmp3 might claim to have, we ignore it for purposes of looking for infringements under US law.
There is of course also a more general issue of contract interpretation and enforcibility, which I think will also result in the compulsory license failing due to duress, and depending on the precise terms of the Russian law, which I don't have before me.
But if this doesn't knock it out of the park, it's still a good counter to your rather specious arguments to date.
Incidentally, if you have an English translation of the relevant law, I'd like to see it.
In fact, I have not found any reputable legal sources that claim downloading of mp3's is illegal
The Napster case clearly said it was.
The Intellectual Reserve case was about web pages, not mp3's, but again clearly said that unauthorized downloading of copyrighted materials was infringement. The difference between pages and mp3's is probably not important.
Look, the courts live on analogy. They constantly liken or distinguish the situation before them to previous situations so as to know how to act in a consistent manner.
For example, if there are a hundred cases about if the owner of a dog is liable when a dog bites a person, the courts are going to use those precedents when deciding for the first time who is liable when a cat bites a person.
The mere fact that the case of a cat bite would be of first impression doesn't mean that you cannot be pretty confident of what's going to happen based on all the dog bite cases. They're pretty damn certain to all come out the same way.
So unless you think that, for example, cat bites ought to be considered to be very distinguishable from dog bites, why do you think that downloaders are very distinguishable from uploaders? And how do you explain away the rulings that do actually talk about downloaders?
since copying files on a computer system has long been held to not constitute publishing
Infringement, per 17 USC 501 and 106 involves, among other things, reproduction. Reproduction is NOT the same thing as publication. You're confused about the issue. This is why it is so damn essential to read the actual statutes, and not make up what you think the statutes say, based on what some guy said. This is why I try very hard to cite the statutes and cases I base my opinions on -- so that people can check these things out for themselves. Will you please check these things out for yourself, by going straight to the source?
Also, since it has been "long held" let's see your support for that. You are citing a holding, i.e. a judicial opinion, right? It is a reported opinon, right? What's the cite? I'd like to read it.
Your argument relies upon the premise that these legal suits are intended to stop people from sharing files by actually suing everyone doing so.
No, I'm saying that all else being equal, lawsuits will target the defendant who most fits in with the aims of the plaintiff. If a plaintiff wants money, he will uniformly sue the 'deep pocket.' If a plaintiff wants to stop something from happening, he will go after whoever it takes in order to accomplish that.
Since the deterrance factor is pretty similar for any group of users, one might as well go after those who also support leechers, since that's slightly better than going after a mere leecher alone.
The very fact that the RIAA has not yet sued a downloader is very strong evidence that they do not think they can win such a lawsuit or, perhaps, that they fear doing so would frighten enough people to actually get laws passed that make it legal.
No it is not. The absence of something happening isn't proof of anything other than that it hasn't happened yet.
For example, I have a stick. Since there are no wild tigers around here (southern New Hampshire) it clearly must be a tiger repelling stick. This is the product of your 'logic.' Think my stick will continue to repel tigers if I go to the untamed wilds of India, or even if I were to hop in the tiger habitat at the nearest tiger-having zoo? After all, it has a perfect success record to date.