I notice you have been very active in denouncing allofmp3.com whenever it is mentioned on slashdot.
I'm not sure denouncing is the right word.
As I've said before, I really don't care whether or not people d/l from allofmp3. Hell, I don't care whether people d/l from P2P networks.
What I do care about is that people not be misinformed about the law. I think that it is key to know what the law is so that 1) people can make informed decisions as to whether or not to break it, rather than to break it accidently (this being important since ignorance of the law is never considered an excuse for breaking it), and 2) so that people are aware of how insane the law is right now, and will be motivated to change it.
Certainly a lot of my interest in copyright reform arose only after I came to understand the dire need for it.
This is why I only make these sorts of responses to threads that indicate that it is legal. People who say that it's illegal but want to use it anyway, I generally ignore, since there's nothing to contribute there.
I am assuming you have a professional interest in the matter.
Well, I hope to be a practicing lawyer specializing in copyright by next summer when I finish getting my master's. Already got a JD and took the bar -- now I'm waiting for results to come back. Knock on wood.
While I need to get something to pay off my crippling student loans, my ultimate interest is in pursuing copyright reform and public interest work in this field. I'd like to work for the EFF. (And I'd like them to move back to Boston, since I cannot stand the thought of having to go to them in California -- I'm not leaving Boston again, dammit.)
I'm also an artist, and I dabble in writing, but I'm certainly not being directly harmed by allofmp3. At most just being undercut, given how the copyright system indirectly benefits everyone when it's working properly.
My position is that until somebody gets prosecuted for downloading from allofmp3.com I will assume it is defacto legal.
You're free to do so, but there's no basis for it in the US AFAIK.
It seems there is a loophole that prevents them from shutting them down otherwise they would have done so long ago.
No, I think it mostly has to do with jurisdictional issues and a weighing of transactional costs v. popularity. By the former, I mean that it is probably difficult for RIAA to do much against allofmp3 directly (which is more efficient than going after users -- recall how they went after Napster long before going after users). Enjoining CC companies is probably the best tactic available, and since that is a matter of 800 pound gorillas against one another, I think it's not a great tactic.
As for the latter, comparatively few people seem to be aware of or use allofmp3, in part due to it not being _that_ well known, and being dubious which discourages users. C.f. to Napster which was free and psuedonymous, or Apple which is costlier but beyond reproach and runs lots of ads. If they take off more, they'll become a higher priority for RIAA.
Basically I'd warn against conflating a decision to not do anything yet with an inability to do anything at all. There is at most only a correlation that can be drawn.
I bet RIAA is working very hard behind the scenes to secure stronger legislation so they can bring down allofmp3.com.
They don't need it, and their legislative efforts aren't that secret.
Really, any US law that could possibly ever favor RIAA already does. The others never could. The thing with enjoining CC processing is probably the only interesting area, and that's a very weird business, the details of which are kept tightly under wraps. (Seriously -- there are highly secret contracts at the heart of the CC industry; it's a bit creepy)
Like Napster, they are probably too good to last. Like Napster, we should enjoy it while it lasts.
Fine with me. Though recall that no changes to the law were needed to take down Napster. I merely advise you to not fool yourself about the situation. What you actually do is up to you, though, and I don't care.
It's a product of someone's work just like anything else. The artist has a right to charge for it.
I disagree.
People have a right to charge for their labor, and to choose whether or not to labor.
Having labored willingly, they do not have a right to charge for the fruits of their labor.
Two examples:
1) Will Shakespeare spends considerable effort writing numerous plays, generally considered to be the best in the English language. I can download copies of these plays for free. Shakespeare being a fairly money-minded guy can be safely assumed to hate this. He didn't give anyone permission, and he'd probably like us to be paying his heirs, whoever they might be.
Do you think that it is wrong for me to download, distribute, and perform his plays?
2) Alice is a baker. Every morning she bakes bread, which results in a delighful smell wafting through the neighborhood around her bakery. Should she be entitled to charge for people to smell this lovely odor which she is responsible for? Do people who don't want to pay have to wear clothespins on their noses, or move away?
I don't know about the USA, but I would assume you have similar laws to Australia.
I think that it would be more accurate to say that Australia's laws are being forced to become more similar to the US's.
What is telling to me is that in the article, the lawyer, like a good lawyer, hedges his bet.
Even if allofmp3.com's asserted licence is bogus, says Minahan, "the end user would seem to have a good basis to argue that he is an innocent infringer, which would mean he isn't liable to damages, although he would still be liable to an order requiring him to destroy or deliver up any copies and an order requiring him to refrain from doing it again."
This is different.
Here, if you infringe, and the copyright holder opts for statutory damages, the infringer is liable for $750 - $30,000 in the court's discretion, per work.
If the infringer can prove that he is an innocent infringer, i.e. didn't know that he was doing wrong, then he is only liable for $200 - $30,000 in the court's discretion, per work.
Of course, downloaders are rarely sued themselves, because it isn't strategically a good idea. However, since a lot of suits against middlemen have to be premised on the users breaking the law (Napster for example, was found liable for the infringement of its users) the questions are usually fairly settled.
I am not aware of any case in the US where it was found that a person who downloaded material that wasn't made available for that download by or at the direction of the copyright holder, was not liable for infringement.
I can think of several cases, however -- Marobie-FL, Intellectual Reserve, Napster, Religious Technology -- where individual users were liable, and this was used to attack others.
So I think that this is one of those spots where our respective laws differ notably.
Actually I seem to recall that they're fairly common. If I could be bothered to go through the Berne Convention right now, I would not be surprised to see import regulations in there as a minimum standard.
But import controls make sense anyway: Imagine that it's illegal to grow pot in the US, but we didn't prohibit importing it. The ban on domestic growing would be obviously worthless. So, since few people are stupid enough to leave that kind of loophole in the law, it's not there.
(Plus RIAA is not the only organization of its type; there are similar industry groups all over the world, often with the same members)
Well, I to the extent that I think we ought to legalize a lot of things currently considered piracy, I don't care about piracy.
Personally, I think that otherwise infringing acts engaged in by natural persons not for profit ought to be legal, which would result in a big resurgance in P2P trading.
Like I said, I don't especially care if they want to pirate (though I do think that we need some degree of copyright law, and so I wouldn't give everyone a pass to do just anything), and I don't especially intend to discourage them.
I just think that it is good for people to know when they're breaking the law and when they're abiding by it. That way if it matters to them, they'll be able to act accordingly, and if it doesn't, at least they won't be surprised if they get in trouble.
I just wish there was an easy way to motivate them.
That'd be nice, but we need reform now. Hell, things have been going to hell for about 30 years, if not 100 or more. I wouldn't wait for it to be easy; if it's hard work, then that's not as good as it could be, but we've gotta do it, so we'll have to deal with the hard work.
The US actually has laws regulating importation for precisely this reason. It would not be a big deal, and frankly, if the industry thought it was becoming a big deal, they'd restrict imports even further so that it wasn't.
Yes, but there is a lot of misinformation about the legality of allofmp3 for Americans, and this concerns me. And I'm not sure that it was clear from the earlier post precisely who he meant it was legal for.
Me, I don't actually care if people use it or not (though I think that I would not really want to give CC#'s to sketchy Russian pirates), but I do care that people make an informed decision as to whether to use it, and know how bad our law is so that they are motivated to push for reform.
You ought to look up the definition of a copy in 17 USC 101. Basically it's a tangible object in which the work is fixed long enough for it to be perceived.
The issue you raise will probably never arise in court because it's very weird and it is highly unlikely that there would be no easier way to show infringement (i.e. why bother with a hard argument if there's an easier one). But I think that once it's in the body, courts are not going to want to say that people are tangible mediums (other than, say, for body art purposes), and that it's already been perceived and isn't being further perceived or reproduced.
But I think your basic point was that the definition of what a copy is is extremely expansive, and that much I'll agree with.
Out of curiosity though, what would you suggest as an alternative? That is, what do you think the general definition of a copy of a creative work should be for copyright purposes?
Your interpretations don't agree with those of lawyers (real ones) who say it would be very difficult to prove downloading from allofmp3 is illegal.
Cite some of these interpretations, please. I would be amazed to see them.
The only one I've ever heard of came from Tech Law Advisor. However, I discussed the issue with him, and he ultimately agreed with me. It's not hard; the law is really really clear, and there are a number of cases directly on point. My favorite is Intellectual Reserve, cited previously, (where it was held that browsing a web page that was put up illegally was infringement on the part of the users who browsed it), but there are others.
The Napster case, for example, was premised entirely on the fact that both uploading and downloading are illegal. If they were not, Napster would've been fine.
It may be legal in Russia. I don't know anything about Russian copyright law, and I don't care.
But it IS illegal to download from them if you're in the US, as I discussed in a thread here. (If you'd like more detail, and cannot google for the cited materials, I'm happy to get into it further).
So you're kind of screwed.
Is it even vaguely surprising to you that US copyright law would screw you and would generally not leave a gaping loophole for you to use? It shouldn't be. I find a good rule of thumb to be that if a deal seems too good to be true, it's suspicious as all hell.
My research indicates that it's legit, and has been online for awhile.
It is NOT legal to download from them if you are in the US.
Basically how this goes is that:
1) It is infringing to reproduce the work in copies (17 USC 106(1)).
2) Downloading constitutes reproduction of the work in a new copy given the definitions of the pertinent terms in the law (17 USC 101; Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) ("[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.")).
3) The downloader is the party that's responsible for the reproduction occuring (Marobie-FL v. NAFED, 983 F. Supp. 1167 (N.D. Ill. 1997)).
According to the copyright laws of the US, you can "import" things from outside the US, even if they violate US law if purchased here.
No, that's not true.
1) Importation is, per 17 USC 602(a), an aspect of the distribution right at 17 USC 106(3), and therefore, any exemptions to the distribution right don't apply to the reality of the infringement being unlawful reproduction as shown conclusively above.
2) Importation, being a form of distribution, requires a copy (which is defined in 17 USC 101 as a tangible object, such as a hard drive containing a work, as opposed to intangible bits all by themselves) to cross the border. This does not happen when you download, thus it's not importation.
3) You can't read, or you're remarkably stupid, because while there is an exemption for some importation in 17 USC 602(a), that exemption does NOT apply to 17 USC 602(b) which ALSO prohibits importation. Specifically, it is always illegal to import a work that was made in a manner where, had US law applied, it would've been illegal, regardless of the local law where it was made.
so far no one has shown how this is illegal.
Well, now you can retract that statement, I guess.
People do not need to prove that every time they do something, it's legal.
Well, since fair use is an affirmative defense, you don't get to use it unless you are infringing. So yeah, if someone makes out a prima face case of copyright infringement against you (which really isn't all that difficult) you do actually need to prove it, if you want to claim it.
In the US, we're innocent until proven guilty
True, but most copyright infringement actions are civil. Criminal suits can be brought, however. In civil actions, it's not guilty and innocent, it's liable and not liable.
So unless the record companies can prove than in each case we're doing something wrong, we're innocent.
Yes, and only once they have successfully done so, can you allege the defense of fair use. It's just not applicable unless you've infringed.
But don't worry; it's amazingly easy to infringe on copyrights.
The important thing to note is that not all timeshifting is necessarily fair use; the Court only had to determine that it qualified as a potential, substantial, noninfringing use. Fair use is the antithesis of a bright line rule; every case must be analyzed on its own facts. Thus there is not an absolute right to time shift.
And not all taping off the radio will necessarily be considered time shifting; if you keep the taped copy permanently, the fair use analysis will have to take that into account, and might come out differently. (AHRA taping, when it occurs, is specifically nonactionable, so will not be analyzed at all)
I can rip CDs I own and listen to them on my computer or on my iPod, and indeed that sort of usage is the basis for billion dollar industries
It's actually unclear as to whether that's legal. AHRA cleared up some things, but as the Diamond case discussed, computers and computer-related audio devices such as mp3 players don't fall under AHRA. And since no one asked whether fair use applied, the court there didn't really look into it, though it did suggest that might. Later decisions have perhaps validated this (including the Napster case), though I don't recall any rulings directly on point.
N.b. of course that since fair use is a case by case analysis, just because one use is fair for one person under one set of circumstances doesn't mean it'll be fair for another person under different circumstances. At most the earlier case is just instructive in analyzing the later case.
The entire point made by blorg is that they're going after P2P user for their uploading, and there seemingly hasn't been a single case where they've gone after someone who is only downloading
But this is because it is impractical to do so, rather than impossible.
In tort law, a tort can be infintesimally small, and still be actionable. The damages are so minor however (e.g. $1 in nominal damages) and the transaction costs involved in getting those damages (i.e. pricey lawyers, court fees) so high, that hardly anyone ever bothers to try. But that doesn't mean that they cannot do so.
And yet we have the aforementioned billion dollar industries.
Which brings us to contributory or vicarious infringement; since the deep pocket is one other than the direct infringer, plaintiffs will attempt to attack the defendant on the basis that defendant helped the infringement occur or profited from it, in the right circumstances.
This is the nature of the attack against Sony for making VCRs, and against Napster for running a P2P network. Neither party infringed themselves to a degree that we care about, but rather was involved in infringement by third parties, for which they can be held indirectly liable. This is a very commonplace theory of infringement and is totally accepted by the courts, though mind that I've completely glossed over the details up to this point, and they're important.
In the case of mp3 rippers and players, the makers of the technologies are generally shielded by the outcome of the Sony case. Because they are capable of substantial noninfringing uses (e.g. used in conjunction with public domain works or authorized to be used), and there's no issue of control, the manufacturers aren't liable for contributory infringement. And the lack of sufficiently closely tied financial benefits and inability of supervision make a prima face case of vicarious infringement impossible.
Thus the industry is generally safe enough -- users who directly infringe, are not.
As I see it, very little matters for the owner of the media regarding how they got that rip.
This is an argument, certainly. Though I remind you that mp3.com tried this, when they provided rips to users who could demonstrate that they owned copies, and they didn't fare well in the courts.
Please give a good link for those that supports your claim, because I am dubious.
I'll provide cites; the case can easily be googled for based on them. First is Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999). It dealt with a person who had illegally reproduced materials and put them on a website. One of the claims brought against him was that when third parties looked at the website, the third parties necessarily infringed because their computers download the information. The defendant would be liable for this infringement under a contributory theory. The court agreed with plaintiff that users performing normal web browsing did indeed infringe:
The first question, then, is whether those who browse
To solve that last problem, you'd need to require a nonexclusive license to use, make, nonexclusively relicense, etc. any patented inventions added; failure to do so would be breach of the Patent GPL, and leave the contributor open for an infringement suit.
The problem still is that if the contributor infringes on a third party's patent, everyone using the contribution is infringing too. Perhaps they can seek indemnification, but it might not be effective, and the fact that contributors would have to indemnify the world is a serious deterrent against contributing. I wouldn't do it.
Here is a google cache of part of a license. The relevant bit is the grant-back clause.
Basically it works like the GPL. A licensee can use the licensor's patented invention provided that, among other things, he grants back to the licensor a right to use any relevant improvement patents the licensee invents.
Tweak it a bit, and there's your GPL for patents.
But it doesn't help much, since the scope of patent protection is amazingly broad, and most people willing to invest into getting patents aren't likely to then want to let everyone use them. So so long as any GPL-Patent developer could still stand a good chance of infringing a non GPL-Patent invention, the problem remains.
Since we're still close enough to the transitory period, the patent might last 17 years from issuance or 20 years from filing. (the latter is the newer term)
The electric charge that is used to send the data across the internet is just as "tangible" as the electric charge that is stored in RAM at the end of the chain (or magnetic field in a HDD).
The tangible medium is something more than just the charge.
Additionally, I believe that the law treats me borrowing your CD and copying it for myself differently than you copying your CD and giving me the copy.
In the US, no it really doesn't treat them differently, save in the unusual case that 17 USC 1008 can be applied. Since it relies on unusual definitions in 17 USC 1001, it generally applies a lot less than one would think it did if one wasn't careful about reading all the relevant sections of the law.
I wouldn't mind a couple links because it seems to fly in the face of common sense.
I have just exerpted any interesting bits from these cases. It's a bit long, but not as long as it would be if I merely linked you to the cases themselves. Behold:
The Copyright Act defines "copies" as:
material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C. Section 101.
The Copyright Act then explains:
A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 17 U.S.C. Section 101.
The district court's grant of summary judgment on MAI's claims of copyright infringement reflects its conclusion that a "copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM. This conclusion is consistent with its finding, in granting the preliminary injunction, that: "the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." We find that this conclusion is supported by the record and by the law....
Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not "fixed." However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer, MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."...
[S]ince we find that the copy created in the RAM can be "perceived, reproduced, or otherwise communicated," we hold that the loading of software into the RAM creates a copy under the Copyright Act. 17 U.S.C. Section 101.
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
NAFED admits that Robisheaux obtained copies of files containing plaintiff's clip art and placed the; files onto the hard drive of his computer. NAFED also admits that Robisheaux placed the files onto the NAFED Web Page by copying them onto to the hard drive of Northwest's computer. These actions constitute a violation of plaintiff's exclusive right to reproduce the clip art. See Sega Enterprises Ltd. v. Maphia, 948 F. Supp. 923, 931-32 (N.D. Cal. 1996) (copies made each time Sega computer program files uploaded to or downloaded from computer bulletin board service); Playboy E
Without repeating myself, I think you're viewing things in a way quite different than how the law views things, and as it happens, they're probably going to win if it comes down to some sort of fight between the two of you.
Slashdot Mirror
Sounds like Jefferson. Not civil war, but revolution every 20 years or so.
I notice you have been very active in denouncing allofmp3.com whenever it is mentioned on slashdot.
I'm not sure denouncing is the right word.
As I've said before, I really don't care whether or not people d/l from allofmp3. Hell, I don't care whether people d/l from P2P networks.
What I do care about is that people not be misinformed about the law. I think that it is key to know what the law is so that 1) people can make informed decisions as to whether or not to break it, rather than to break it accidently (this being important since ignorance of the law is never considered an excuse for breaking it), and 2) so that people are aware of how insane the law is right now, and will be motivated to change it.
Certainly a lot of my interest in copyright reform arose only after I came to understand the dire need for it.
This is why I only make these sorts of responses to threads that indicate that it is legal. People who say that it's illegal but want to use it anyway, I generally ignore, since there's nothing to contribute there.
I am assuming you have a professional interest in the matter.
Well, I hope to be a practicing lawyer specializing in copyright by next summer when I finish getting my master's. Already got a JD and took the bar -- now I'm waiting for results to come back. Knock on wood.
While I need to get something to pay off my crippling student loans, my ultimate interest is in pursuing copyright reform and public interest work in this field. I'd like to work for the EFF. (And I'd like them to move back to Boston, since I cannot stand the thought of having to go to them in California -- I'm not leaving Boston again, dammit.)
I'm also an artist, and I dabble in writing, but I'm certainly not being directly harmed by allofmp3. At most just being undercut, given how the copyright system indirectly benefits everyone when it's working properly.
My position is that until somebody gets prosecuted for downloading from allofmp3.com I will assume it is defacto legal.
You're free to do so, but there's no basis for it in the US AFAIK.
It seems there is a loophole that prevents them from shutting them down otherwise they would have done so long ago.
No, I think it mostly has to do with jurisdictional issues and a weighing of transactional costs v. popularity. By the former, I mean that it is probably difficult for RIAA to do much against allofmp3 directly (which is more efficient than going after users -- recall how they went after Napster long before going after users). Enjoining CC companies is probably the best tactic available, and since that is a matter of 800 pound gorillas against one another, I think it's not a great tactic.
As for the latter, comparatively few people seem to be aware of or use allofmp3, in part due to it not being _that_ well known, and being dubious which discourages users. C.f. to Napster which was free and psuedonymous, or Apple which is costlier but beyond reproach and runs lots of ads. If they take off more, they'll become a higher priority for RIAA.
Basically I'd warn against conflating a decision to not do anything yet with an inability to do anything at all. There is at most only a correlation that can be drawn.
I bet RIAA is working very hard behind the scenes to secure stronger legislation so they can bring down allofmp3.com.
They don't need it, and their legislative efforts aren't that secret.
Really, any US law that could possibly ever favor RIAA already does. The others never could. The thing with enjoining CC processing is probably the only interesting area, and that's a very weird business, the details of which are kept tightly under wraps. (Seriously -- there are highly secret contracts at the heart of the CC industry; it's a bit creepy)
Like Napster, they are probably too good to last. Like Napster, we should enjoy it while it lasts.
Fine with me. Though recall that no changes to the law were needed to take down Napster. I merely advise you to not fool yourself about the situation. What you actually do is up to you, though, and I don't care.
It's a product of someone's work just like anything else. The artist has a right to charge for it.
I disagree.
People have a right to charge for their labor, and to choose whether or not to labor.
Having labored willingly, they do not have a right to charge for the fruits of their labor.
Two examples:
1) Will Shakespeare spends considerable effort writing numerous plays, generally considered to be the best in the English language. I can download copies of these plays for free. Shakespeare being a fairly money-minded guy can be safely assumed to hate this. He didn't give anyone permission, and he'd probably like us to be paying his heirs, whoever they might be.
Do you think that it is wrong for me to download, distribute, and perform his plays?
2) Alice is a baker. Every morning she bakes bread, which results in a delighful smell wafting through the neighborhood around her bakery. Should she be entitled to charge for people to smell this lovely odor which she is responsible for? Do people who don't want to pay have to wear clothespins on their noses, or move away?
I think that it would be more accurate to say that Australia's laws are being forced to become more similar to the US's.
What is telling to me is that in the article, the lawyer, like a good lawyer, hedges his bet.
This is different.
Here, if you infringe, and the copyright holder opts for statutory damages, the infringer is liable for $750 - $30,000 in the court's discretion, per work.
If the infringer can prove that he is an innocent infringer, i.e. didn't know that he was doing wrong, then he is only liable for $200 - $30,000 in the court's discretion, per work.
Of course, downloaders are rarely sued themselves, because it isn't strategically a good idea. However, since a lot of suits against middlemen have to be premised on the users breaking the law (Napster for example, was found liable for the infringement of its users) the questions are usually fairly settled.
I am not aware of any case in the US where it was found that a person who downloaded material that wasn't made available for that download by or at the direction of the copyright holder, was not liable for infringement.
I can think of several cases, however -- Marobie-FL, Intellectual Reserve, Napster, Religious Technology -- where individual users were liable, and this was used to attack others.
So I think that this is one of those spots where our respective laws differ notably.
My favorite case on this point (favorite in that it's notable, not that I like it) is Intellectual Reserve v. Utah Lighthouse Ministry.
I would like it if you'd read through it, or at the very least the part that begins "Do those who browse the websites infringe plaintiff's copyright?"
Actually I seem to recall that they're fairly common. If I could be bothered to go through the Berne Convention right now, I would not be surprised to see import regulations in there as a minimum standard.
But import controls make sense anyway: Imagine that it's illegal to grow pot in the US, but we didn't prohibit importing it. The ban on domestic growing would be obviously worthless. So, since few people are stupid enough to leave that kind of loophole in the law, it's not there.
(Plus RIAA is not the only organization of its type; there are similar industry groups all over the world, often with the same members)
Well, I to the extent that I think we ought to legalize a lot of things currently considered piracy, I don't care about piracy.
Personally, I think that otherwise infringing acts engaged in by natural persons not for profit ought to be legal, which would result in a big resurgance in P2P trading.
Like I said, I don't especially care if they want to pirate (though I do think that we need some degree of copyright law, and so I wouldn't give everyone a pass to do just anything), and I don't especially intend to discourage them.
I just think that it is good for people to know when they're breaking the law and when they're abiding by it. That way if it matters to them, they'll be able to act accordingly, and if it doesn't, at least they won't be surprised if they get in trouble.
I just wish there was an easy way to motivate them.
That'd be nice, but we need reform now. Hell, things have been going to hell for about 30 years, if not 100 or more. I wouldn't wait for it to be easy; if it's hard work, then that's not as good as it could be, but we've gotta do it, so we'll have to deal with the hard work.
Well, did someone on the street just hand you an iPod, or did you have to do something in order to get it?
Need some more facts here, guy.
The US actually has laws regulating importation for precisely this reason. It would not be a big deal, and frankly, if the industry thought it was becoming a big deal, they'd restrict imports even further so that it wasn't.
Yes, but there is a lot of misinformation about the legality of allofmp3 for Americans, and this concerns me. And I'm not sure that it was clear from the earlier post precisely who he meant it was legal for.
Me, I don't actually care if people use it or not (though I think that I would not really want to give CC#'s to sketchy Russian pirates), but I do care that people make an informed decision as to whether to use it, and know how bad our law is so that they are motivated to push for reform.
You ought to look up the definition of a copy in 17 USC 101. Basically it's a tangible object in which the work is fixed long enough for it to be perceived.
The issue you raise will probably never arise in court because it's very weird and it is highly unlikely that there would be no easier way to show infringement (i.e. why bother with a hard argument if there's an easier one). But I think that once it's in the body, courts are not going to want to say that people are tangible mediums (other than, say, for body art purposes), and that it's already been perceived and isn't being further perceived or reproduced.
But I think your basic point was that the definition of what a copy is is extremely expansive, and that much I'll agree with.
Out of curiosity though, what would you suggest as an alternative? That is, what do you think the general definition of a copy of a creative work should be for copyright purposes?
Your interpretations don't agree with those of lawyers (real ones) who say it would be very difficult to prove downloading from allofmp3 is illegal.
Cite some of these interpretations, please. I would be amazed to see them.
The only one I've ever heard of came from Tech Law Advisor. However, I discussed the issue with him, and he ultimately agreed with me. It's not hard; the law is really really clear, and there are a number of cases directly on point. My favorite is Intellectual Reserve, cited previously, (where it was held that browsing a web page that was put up illegally was infringement on the part of the users who browsed it), but there are others.
The Napster case, for example, was premised entirely on the fact that both uploading and downloading are illegal. If they were not, Napster would've been fine.
It may be legal in Russia. I don't know anything about Russian copyright law, and I don't care.
But it IS illegal to download from them if you're in the US, as I discussed in a thread here. (If you'd like more detail, and cannot google for the cited materials, I'm happy to get into it further).
So you're kind of screwed.
Is it even vaguely surprising to you that US copyright law would screw you and would generally not leave a gaping loophole for you to use? It shouldn't be. I find a good rule of thumb to be that if a deal seems too good to be true, it's suspicious as all hell.
My research indicates that it's legit, and has been online for awhile.
It is NOT legal to download from them if you are in the US.
Basically how this goes is that:
1) It is infringing to reproduce the work in copies (17 USC 106(1)).
2) Downloading constitutes reproduction of the work in a new copy given the definitions of the pertinent terms in the law (17 USC 101; Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) ("[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.")).
3) The downloader is the party that's responsible for the reproduction occuring (Marobie-FL v. NAFED, 983 F. Supp. 1167 (N.D. Ill. 1997)).
According to the copyright laws of the US, you can "import" things from outside the US, even if they violate US law if purchased here.
No, that's not true.
1) Importation is, per 17 USC 602(a), an aspect of the distribution right at 17 USC 106(3), and therefore, any exemptions to the distribution right don't apply to the reality of the infringement being unlawful reproduction as shown conclusively above.
2) Importation, being a form of distribution, requires a copy (which is defined in 17 USC 101 as a tangible object, such as a hard drive containing a work, as opposed to intangible bits all by themselves) to cross the border. This does not happen when you download, thus it's not importation.
3) You can't read, or you're remarkably stupid, because while there is an exemption for some importation in 17 USC 602(a), that exemption does NOT apply to 17 USC 602(b) which ALSO prohibits importation. Specifically, it is always illegal to import a work that was made in a manner where, had US law applied, it would've been illegal, regardless of the local law where it was made.
so far no one has shown how this is illegal.
Well, now you can retract that statement, I guess.
Enjoy.
People do not need to prove that every time they do something, it's legal.
Well, since fair use is an affirmative defense, you don't get to use it unless you are infringing. So yeah, if someone makes out a prima face case of copyright infringement against you (which really isn't all that difficult) you do actually need to prove it, if you want to claim it.
In the US, we're innocent until proven guilty
True, but most copyright infringement actions are civil. Criminal suits can be brought, however. In civil actions, it's not guilty and innocent, it's liable and not liable.
So unless the record companies can prove than in each case we're doing something wrong, we're innocent.
Yes, and only once they have successfully done so, can you allege the defense of fair use. It's just not applicable unless you've infringed.
But don't worry; it's amazingly easy to infringe on copyrights.
That's better.
The important thing to note is that not all timeshifting is necessarily fair use; the Court only had to determine that it qualified as a potential, substantial, noninfringing use. Fair use is the antithesis of a bright line rule; every case must be analyzed on its own facts. Thus there is not an absolute right to time shift.
And not all taping off the radio will necessarily be considered time shifting; if you keep the taped copy permanently, the fair use analysis will have to take that into account, and might come out differently. (AHRA taping, when it occurs, is specifically nonactionable, so will not be analyzed at all)
So a recorder for K Band radio would be KiBo?
No it does not. Feel free to find a case with that name, and having done so, finding the pertinent part of the opinion so that you can post it.
It's actually unclear as to whether that's legal. AHRA cleared up some things, but as the Diamond case discussed, computers and computer-related audio devices such as mp3 players don't fall under AHRA. And since no one asked whether fair use applied, the court there didn't really look into it, though it did suggest that might. Later decisions have perhaps validated this (including the Napster case), though I don't recall any rulings directly on point.
N.b. of course that since fair use is a case by case analysis, just because one use is fair for one person under one set of circumstances doesn't mean it'll be fair for another person under different circumstances. At most the earlier case is just instructive in analyzing the later case.
The entire point made by blorg is that they're going after P2P user for their uploading, and there seemingly hasn't been a single case where they've gone after someone who is only downloading
But this is because it is impractical to do so, rather than impossible.
In tort law, a tort can be infintesimally small, and still be actionable. The damages are so minor however (e.g. $1 in nominal damages) and the transaction costs involved in getting those damages (i.e. pricey lawyers, court fees) so high, that hardly anyone ever bothers to try. But that doesn't mean that they cannot do so.
And yet we have the aforementioned billion dollar industries.
Which brings us to contributory or vicarious infringement; since the deep pocket is one other than the direct infringer, plaintiffs will attempt to attack the defendant on the basis that defendant helped the infringement occur or profited from it, in the right circumstances.
This is the nature of the attack against Sony for making VCRs, and against Napster for running a P2P network. Neither party infringed themselves to a degree that we care about, but rather was involved in infringement by third parties, for which they can be held indirectly liable. This is a very commonplace theory of infringement and is totally accepted by the courts, though mind that I've completely glossed over the details up to this point, and they're important.
In the case of mp3 rippers and players, the makers of the technologies are generally shielded by the outcome of the Sony case. Because they are capable of substantial noninfringing uses (e.g. used in conjunction with public domain works or authorized to be used), and there's no issue of control, the manufacturers aren't liable for contributory infringement. And the lack of sufficiently closely tied financial benefits and inability of supervision make a prima face case of vicarious infringement impossible.
Thus the industry is generally safe enough -- users who directly infringe, are not.
As I see it, very little matters for the owner of the media regarding how they got that rip.
This is an argument, certainly. Though I remind you that mp3.com tried this, when they provided rips to users who could demonstrate that they owned copies, and they didn't fare well in the courts.
Please give a good link for those that supports your claim, because I am dubious.
I'll provide cites; the case can easily be googled for based on them. First is Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999). It dealt with a person who had illegally reproduced materials and put them on a website. One of the claims brought against him was that when third parties looked at the website, the third parties necessarily infringed because their computers download the information. The defendant would be liable for this infringement under a contributory theory. The court agreed with plaintiff that users performing normal web browsing did indeed infringe:
To solve that last problem, you'd need to require a nonexclusive license to use, make, nonexclusively relicense, etc. any patented inventions added; failure to do so would be breach of the Patent GPL, and leave the contributor open for an infringement suit.
The problem still is that if the contributor infringes on a third party's patent, everyone using the contribution is infringing too. Perhaps they can seek indemnification, but it might not be effective, and the fact that contributors would have to indemnify the world is a serious deterrent against contributing. I wouldn't do it.
Here is a google cache of part of a license. The relevant bit is the grant-back clause.
Basically it works like the GPL. A licensee can use the licensor's patented invention provided that, among other things, he grants back to the licensor a right to use any relevant improvement patents the licensee invents.
Tweak it a bit, and there's your GPL for patents.
But it doesn't help much, since the scope of patent protection is amazingly broad, and most people willing to invest into getting patents aren't likely to then want to let everyone use them. So so long as any GPL-Patent developer could still stand a good chance of infringing a non GPL-Patent invention, the problem remains.
The experimental use exception is amazingly narrow. Not all, in fact, not most, educational uses are within it.
Since we're still close enough to the transitory period, the patent might last 17 years from issuance or 20 years from filing. (the latter is the newer term)
These exist, but they would not solve the problem.
The tangible medium is something more than just the charge.
Additionally, I believe that the law treats me borrowing your CD and copying it for myself differently than you copying your CD and giving me the copy
In the US, no it really doesn't treat them differently, save in the unusual case that 17 USC 1008 can be applied. Since it relies on unusual definitions in 17 USC 1001, it generally applies a lot less than one would think it did if one wasn't careful about reading all the relevant sections of the law.
I wouldn't mind a couple links because it seems to fly in the face of common sense.
I have just exerpted any interesting bits from these cases. It's a bit long, but not as long as it would be if I merely linked you to the cases themselves. Behold:
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
Without repeating myself, I think you're viewing things in a way quite different than how the law views things, and as it happens, they're probably going to win if it comes down to some sort of fight between the two of you.
I discussed this some here.