No, I mean the FURTHER terms you typically get in the mail that go into even greater detail.
E.g. when I bought car and renter's insurance, I signed numerous forms at the insurance agent's office. A week or so later, I get an envelope with numerous packets of information all of which are additional terms to the agreement.
Well, the way the transaction is being construed is that the EULA is just a part of the purchase to begin with.
Essentially, you go to the store, and pay your money in advance of seeing the full terms of sale, on the understanding that the rest of the terms of the same transaction will be presented later, and that you can still disagree with them and return what you have for your money back.
It's been analogized to buying insurance (where you pay well before you get the terms), or a plane ticket (where you pay, and are later given a ticket with all kinds of terms attached to it), etc. The reason is that it's inconvenient to present the terms in advance, in the store, so given that the seller only wants to sell according to these terms, and you therefore could only buy according to these terms, it's not a big imposition to reorder when things occur.
Actually, there've been rulings on EULAs for years. In fact, the ProCD case is stronger than this one (also holding that they're generally enforcable) as it was a circuit decision, not a mere district opinion.
neither is the "data" of it that crosses over the internet or is represented by magnetic patterns on your hard drive.
Your hard drive is the tangible object in question. The precise means by which it is stored are not relevant, so long as it can be further reproduced or perceived from the tangible object, as is indeed the case here. Read the MAI v Peak decision, or any of the numerous cases that are based on it to witness courts finding reproductions into RAM to be amazingly illegal.
so you may just be talking about import law when you're defining a "copy" here
I'm saying that no importation occurs whatsoever.
To import a thing, it must already be a copy, i.e. a tangible object in which the intangible work is fixed. Importation occurs via airplanes, ships, trains, cars, and so forth.
To download a thing, a new copy, i.e. a tangible object in which the intangible work is fixed, comes into being at the downloading end. (prior to the fixation of the work into the tangible object, the tangible object is merely a blank medium; it's not a copy yet).
This isn't amazing. Think of a xerox machine. You put an original on the glass platen. There's a bright light, and various xerographic processes going on within, and the intangible information on the original (which is the copyrighted WORK) is reproduced onto a previously blank medium, producing a new tangible COPY in which the work is embodied.
Works, being intangible, can exist simultaneously in multiple copies.
what you're asserting is correct, then downloading an MP3 from a P2P service is _not_ an act of copyright infringement because a copy has not been made!
No, that's wrong.
A copy HAS been made. When you download, information is embodied into tangible media such as your RAM and hard drive. Volatility is irrelevant to the law (people have tried that tactic and lost).
Would you like me to give you a quote from a court stating this in very plain language? It's no trouble.
copyright has _absolutely_nothing_ to do with tangibility
The works that are protected by copyright are intangible. The protection, however, deals in large part with tangible objects in which those works happen to be embodied. In fact, we don't protect anything until it has been fixed in a tangible medium at least once! So it's hardly irrelevant.
I didn't say that BECAUSE it is cheap it is illegal.
I said that you should be suspicious of it, because it is very irregular. You can of course be suspicious of something and have it turn out to be above board. And that's fine. But you shouldn't take it as granted that it will be; when something is suspect, you should examine it carefully to be sure of its nature.
When Apple says that they have a music store, and it's legal, I generally trust them because it is reputable. Their offerings, taking into account all the downsides (EULA, DRM, lossy codec, price, etc.) all tend to indicate that they're dealing with the appropriate entities. After all, why would they degrade their service if they didn't have to in order to get permission to act lawfully? And why would they act unlawfully, willingly, when they have so much to lose by doing so? So I'm not very suspicious of them. What they're doing pretty much fits in with what I would expect of a lawful actor.
OTOH, allofmp3 offers an amazingly good deal. It's cheap as dirt, unencumbered, lossless, and has an even better catalog. That's great, but in comparison to EVERY OTHER MUSIC STORE OF NOTE it is highly suspicious. Who are they to be able to offer such a good deal? And then we find out that they're protecting themselves by operating out of another country, with different laws, and that they probably have little to lose by breaking the law, because they're comparatively judgment proof in the US. So now I am dubious.
And while being dubious is not grounds for saying that it must be illegal, it does mean that they deserve a good hard look because there is a very real possibility that something shady is going on. It's like when a man in a trenchcoat in a back alley offers to sell you a watch. He COULD be acting legally. There's no evidence that he is or isn't. But you'd be foolish to just believe that he is without some further evidence of it.
Therefore I _did_ look into it, and lo and behold, they're not acting legally according to all the information that is available.
Do you understand now what I am saying about being recalcitrant about deals that are too good to be true?
completely oblivious to matters of international commerce
I'll bite. What matters of international commerce?
No, I'm just sick of the inanity here. Of course it's getting better; more and more people are recognizing that unauthorized downloading is illegal. This means that they can not only make an informed decision as to whether or not they'll break the law (personally I couldn't care less) but also understand just how bad the law is, and might push for reform.
Russian law can actually apply to purchases in the United States.
Oh, that's certainly true. In fact in the US we are very pleased to enforce foreign laws when appropriate. We're used to it since the laws of each state tend to be different, and are all different from federal laws, and yet our federal and state courts routinely have to apply the law of their fellow domestic governments, and more rarely foreign governments, in order to see justice done.
I never said it couldn't.
But the trick is, if our law overrides an application of foreign law, as it does in this matter, then it is not appropriate to even consider the foreign law. It's a nullity.
I trust that you do not mean treaties, because copyright treaties in the US are not self-executing. Only our domestic law can be used for enforcement.
If you don't sell in Russia, they cannot license your work out.
But even if you do, they cannot license your work within the United States, because we determine what the law is within our borders. Their power to license exists solely within Russia. Nowhere else.
But if it were illegal to reproduce music via the internet we wouldn't have itunes and all the others.
If it were legal to download music, we would have Napster back. iTMS et al obtain permission to operate in the United States from the US copyright holders; and copyright law does not generally forbid a copyright holder from doing the things it forbids you or I from doing.
And of course, 17 USC 106(1) states that the copyright holder has the exclusive right to reproduce their work. So that also settles the matter.
Then you say "but these copies are "piratical" because they're cheap" (or "not rom the US" - or something.. frankly, I don't know what the hell you're saying there)
I didn't say that they are piratical because they are inexpensive. I said that common sense should be telling you that when a deal seems too good to be true, it probably is.
It is piratical because it lacks permission from the US copyright holders and is not otherwise legal. It wouldn't matter if it was free, if it was cheap, or if it cost an arm and a leg. It wouldn't matter if everyone on Earth outside the US, other than the US copyright holder, including any foreign copyright holders or authorities said it was legal within our borders; they have no power here.
But the fact is they do get something: they get their works protected in russia, by russian law.
Not so. If indeed Russia complies with any copyright treaties, they cannot proffer such a Hobson's Choice. So it would have to be mandated -- and that means that it is simply not a deal or contract. Putting aside the fact that where one is forced into a contract by economic duress, that contract typically won't be enforcable.
I've heard no one arguing japanese record stores are all pirates because they allow consumers to rent CDs and encourage them to make copies.
Given that that occurs entirely within Japan, and does not occur at all within the United States, duh.
Besides -- I'm not accusing allofmp3 of being pirates. I'm accusing the people in America who download from them of being pirates. Their activities DO occur within Russia.
The only difference here is the copies are easier to transport because of the internet... big whoopee.
Copies are defined as tangible objects in section 101. If you know how to send tangible objects via the Internet, please feel free to send one to me. Just put one paperclip, say, on your server, and I'll download it, and be able to hold it in my hands when it pops out of my NIC or wherever.
But if you can't arrange that, then please admit that you cannot move an extant copy across the Internet, but can only create a new copy at the downloading end, based upon a preexisting copy at the server.
If they want to sell in Russia (they could abstain, of course) then they must abide by the rules presented to then in Russia.
But a law that says, 'to do business in Russia, you have to permit Russians to generally ignore your copyrights in the US, and permit others to do the same' isn't worth the paper it's printed on in the US.
This is because activities in Russia occur only under the 'hat' of a Russian copyright holder. They don't influence what happens when wearing the hat of a US copyright holder. There's no agreement that's enforcable in the US.
You appear to have made that idea up, whole-cloth.
I wish. It seems that every idiot that comes along saying that downloading from allofmp3 is legal cites a discussion located here indicating that allofmp3 operates under a license from some group called ROMS.
ROMS seems to have issued a press release here which states: ROMS is authorized by the Russian law on copyright and related rights as well as by its members and other copyright managers, including foreign, to issue user licenses on behalf of all Russian and foreign rightsholders.
So when I see an entity authorized by Russian law to issue licenses, where that entity is NOT the copyright holder, I see a compulsory license.
We enforce compulsory licensing in the U.S. in other cases. Is there some reasons we would disregard it here?
We enforce US compulsory licensing laws here. However, we do not, as a rule of thumb, enforce foreign law within the US. So that's why we disregard it. It isn't our law. It has no effect within our borders.
If they don't want to experience the downside to Russian sales, they can choose not to sell in Russia at all.
Sure -- but since the US won't enforce that against them, it doesn't much matter. It's a downside that only applies within Russian jurisdiction.
we've already covered that those bans apply to illegally-gotten music.
Yes, but illegally, where the law in question is that of the US. Since the US has no provision allowing for compulsory licensing of sound recordings, they're per se illegal, regardless of Russian law.
If I legally buy a CD in Russia, there exists no legal precedent of which I am aware to make that CD suddenly illegal in the U.S.
Only the US copyright holder can authorize the making of a copy that is legal for import into the US. So if you legally buy a CD in Russia that was not made with the authorization of that entity, where such authorization is valid under US law, it's illegal for import.
our own USPTO has conjoined with to set international policy on recorded works
You're saying that the United States Patent and Trademark Office has set policy on copyrights? Isn't that a bit outside their mandate? I would think that the United States Copyright Office would be more involved with that. (And also Congress, the President, the US Trade Representative, various international lobbyists, etc.)
The Russian recording contracts are vetted by WIPO for compliance.
Where the fuck are you coming up with this crap? WIPO does no such thing. They're a trade treaty organization. They don't deign to to look at individual contracts.
Well, the purpose of a patent system is not to provide rewards, but rather to promote the interests of society generally. People want new inventions to be created. They also want to be able to freely use those inventions.
If a minor, temporary reduction in the free use of inventions resulted in a much more significant increase in the number of inventions created, there is a net gain for society. That it happens to involve giving protection for inventors is purely secondary; it's the means by which we accomplish the goal of a net societal gain.
But OTOH, if there were great incentives already, and the loss of freedom that a patent represents were significant, then having a patent system might in fact result in a net loss to society.
(Naturally, the degree of gain or loss depends on the details of the system involved, and the surrounding circumstances)
With software, our past history indicates that there is an immense amount of inventive activity going on without patents as an incentive. And furthermore that people routinely use one another's inventions freely, and this only serves to increase the pace of inventiveness as well as how cheaply and rapidly those inventions can be in the hands of the public, where they are best used.
So would a patent system for software -- which would have to spur on yet more invention, yet would restrict how freely people could use one another's inventions -- make life better for the public as a whole?
Oh, well that's just because in my social circle, an inane statement is generally termed 'crazy moon talk' and so 'moon-man law' is the logical outgrowth of that.
fight a battle that you can't win
Well, I don't care if they do something illegal. Hell, I think US copyright law is insanely crappy right now, and in serious need of reform. And I loathe RIAA's behavior in pushing for the law to get worse.
I just don't like people spreading misinformation or being misinformed about the law. In particular, I think that if people know just how bad the law actually is, it'll help induce reform. Plus of course, when people know if some action is illegal, then they can plan better as to whether they want to go through with it, and if so, how best to do it.
Generally, I think the law ought to conform to people's common sense attitudes of what it likely is, since that's what they'll usually do anyway, unless they're unusually aware of what it actually is. This won't always work, but I think it's a good guiding principle.
Even under US Copyright law, these copies are legal.
No. They would only be legal if the US copyright holder willingly gave permission for otherwise-infringing activities within the US to occur.
Are you seriously telling me that you think that damn near every person with a US copyright on popular music just jumped at the chance to let a shady Russian music store sell lossless, non-DRMed music for a pittance? When no one else even has a thorough catalog?
You must be pretty stupid to believe that.
allofmp3 appears to operate under a compulsory license. That means that, in the US, we wouldn't treat the copyright holder as having willingly permitted US downloads. Thus, they're not within the bounds of what's permitted under US law -- they have no authority granted to them by the US copyright holder, regardless of whatever Russian law says, since it doesn't apply in the US.
There exists no prohibition against sale accross borders once the music is legally licensed.
That's untrue. There are bans on it in 602(a) and (b), and only narrow exceptions in 602(a) and 109. But of course, downloading isn't importation.
When the RIAA had legal grounds to injunct a music distribution method, they do so.
Since when? They have finite resources, and use them in the most efficient manner. This is why they went after P2P services first -- it had the greatest impact on the scene. Now they're going after uploaders, because they have a greater impact when taken down than if they went after downloaders.
Eventually they may also act against downloaders. It's just not very practical to do so, since it's not the most efficient use of resources.
This isn't surprising: I can't hold a letter or word, all by itself, in my hand either.
Now, I can hold some kind of medium that embodies such a thing: fridge magnets in the shape of a letter, paper with writing on it, and so forth. But the letter 'A' divorced from any medium, is an intangible.
So is a bit.
You NEED a carrier medium. A CD, an HD, RAM, etc. That medium is a tangible object. It's a copy, as that word is defined in the law. And making new copies is subject to some restriction.
Provide some reference that supports your insistance these copies are "piratical" when they comply with all local laws.
602(b): In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
Those works right there are the 'piratical works.' They are not lawfully made, because the only law that is being referred to is US law. Foreign law, whatever it is, does not count.
This should be pretty damn obvious, given that the one sentence precedes the other, and they divvy the world of foreign-produced copies into halves.
So importation is absolutely prohibited when a work was made in a fashion, or by a party, that could not have legally done so within the US.
But ANYWAY, no importation is going on here. Downloading is inarguably a form of reproduction, not importation, which is defined as a form of distribution. So 602 is not really important (I merely included it here to refute fools that think it's relevant to the discussion at hand, as you'll note if you read through the postings), whereas 106 and the definitions in 101, and the caselaw dealing with downloading is vitally important. And uniformly comes out against the downloader in this matter.
Because it is up to each country, individually, to even HAVE copyright laws. And the laws generally only apply within each country. And this overall does make sense: developing countries don't need strong copyrights, because each country should do what benefits it the most, and they'll benefit the most from piracy. Eventually they'll start to develop local authors that want stronger rights, and a more conventional, by our standards, copyright will emerge. But the kind of culture that works well with copyright cannot be forced to develop.
While an initial vesting of copyright might result in only one person being the copyright holder, they can of course sell off their rights, or be required to assign them, to different parties within different countries.
But what's particularly important here is that even if there is still only one copyright holder, who has, say, both the US and Russian copyrights, they are wearing different hats. The Russians might say that by virtue of having a copyright there, or publishing there, that the author constructively consents to a compulsory license. But in his capacity as a US copyright holder, as to what goes on within the US, we won't care about what's been going on in other countries. We don't have the same compulsory licensing; and so therefore if the Russian materials end up in the US, we find them to be piratical.
Perhaps you don't know this because you don't buy Russian music, but ALL russian CDs are dirt cheap.
That is precisely why we don't allow willy-nilly imports of copyrighted works. It would undercut US copyright holders. (and in the past we also wanted to protect US publishers and printers, but that's a seperate thing)
It's not illegal for me to import for my personal use
Generally, it is. 17 USC 602(b) prevents you from importing so-called piratical copies into the US, even for personal use. The 602(a)(2) and 109 exemptions are very, very narrow. There is simply NO blanket 'personal use' importation exemption. There is an unbelievable amount of misunderstanding of this section. And it's awfully worded, so I can see why, but it's still very sad.
Downloading is illegal in the US. Unless authorized by the US copyright holder, or permitted in one of the exemptions in the law.
This is because when you download, you are creating a new copy. I've gone into the details of why that is so in other posts in this topic; you can check them out if you're interested, or take it as a given for purposes of our present discussion.
It is of course possible for the US copyright holder to permit another party to do something within the US, which otherwise would be illegal. And it is further possible for the US copyright holder to allow that party to extend the permission to yet other parties. Of course, such grants of permission tend to be conditional; for example, that you have to pay a fee in order to get permission even via an intermediary.
So when, say, iTMS sells someone music, the US-based downloader is, in a convoluted way, getting permission from the US copyright holder to download the music, and to make some other incidental copies of it.
However, since such permission can only ever derive, ultimately, from the US copyright holder, third parties cannot grant permission all by themselves, as to activities, such as downloading, that take place within the US.
So unless allofmp3 directly or indirectly has ACTUAL PERMISSION FROM THE US COPYRIGHT HOLDERS to sell music -- which seems impossible, given the vast differences between all notable US-based music stores, and allofmp3 -- then it is illegal for people in the US to download music from them.
The fact that allofmp3, or possibly some other Russians, say that it is okay is in fact irrelevant, since they have no power as to what can go on in the US, and downloading by people in the US, occurs within the US.
Read the first sentence again. Lawfully made means 'if it was made in such a fashion that it would have been lawful if US law applied.' And remember that under US law, only the US copyright holder may authorize the making of otherwise infringing copies.
But of course, again, downloading is not importation, so this is a more academic discussion than the other one which is more direct as to why it's illegal to be in the US and download from allofmp3.
Slashdot Mirror
They do, actually. Big research schools such as the UC system or MIT hold and license out patents on tons of stuff.
No, I mean the FURTHER terms you typically get in the mail that go into even greater detail.
E.g. when I bought car and renter's insurance, I signed numerous forms at the insurance agent's office. A week or so later, I get an envelope with numerous packets of information all of which are additional terms to the agreement.
It's not an unusual practice.
Of course, for copies of software you own (as opposed to license) no court would ever answer the question. 17 USC 117 takes care of it explicitly.
Well, the way the transaction is being construed is that the EULA is just a part of the purchase to begin with.
Essentially, you go to the store, and pay your money in advance of seeing the full terms of sale, on the understanding that the rest of the terms of the same transaction will be presented later, and that you can still disagree with them and return what you have for your money back.
It's been analogized to buying insurance (where you pay well before you get the terms), or a plane ticket (where you pay, and are later given a ticket with all kinds of terms attached to it), etc. The reason is that it's inconvenient to present the terms in advance, in the store, so given that the seller only wants to sell according to these terms, and you therefore could only buy according to these terms, it's not a big imposition to reorder when things occur.
Actually, there've been rulings on EULAs for years. In fact, the ProCD case is stronger than this one (also holding that they're generally enforcable) as it was a circuit decision, not a mere district opinion.
What the hell was that?
neither is the "data" of it that crosses over the internet or is represented by magnetic patterns on your hard drive.
Your hard drive is the tangible object in question. The precise means by which it is stored are not relevant, so long as it can be further reproduced or perceived from the tangible object, as is indeed the case here. Read the MAI v Peak decision, or any of the numerous cases that are based on it to witness courts finding reproductions into RAM to be amazingly illegal.
so you may just be talking about import law when you're defining a "copy" here
I'm saying that no importation occurs whatsoever.
To import a thing, it must already be a copy, i.e. a tangible object in which the intangible work is fixed. Importation occurs via airplanes, ships, trains, cars, and so forth.
To download a thing, a new copy, i.e. a tangible object in which the intangible work is fixed, comes into being at the downloading end. (prior to the fixation of the work into the tangible object, the tangible object is merely a blank medium; it's not a copy yet).
This isn't amazing. Think of a xerox machine. You put an original on the glass platen. There's a bright light, and various xerographic processes going on within, and the intangible information on the original (which is the copyrighted WORK) is reproduced onto a previously blank medium, producing a new tangible COPY in which the work is embodied.
Works, being intangible, can exist simultaneously in multiple copies.
what you're asserting is correct, then downloading an MP3 from a P2P service is _not_ an act of copyright infringement because a copy has not been made!
No, that's wrong.
A copy HAS been made. When you download, information is embodied into tangible media such as your RAM and hard drive. Volatility is irrelevant to the law (people have tried that tactic and lost).
Would you like me to give you a quote from a court stating this in very plain language? It's no trouble.
copyright has _absolutely_nothing_ to do with tangibility
The works that are protected by copyright are intangible. The protection, however, deals in large part with tangible objects in which those works happen to be embodied. In fact, we don't protect anything until it has been fixed in a tangible medium at least once! So it's hardly irrelevant.
Sigh.
I didn't say that BECAUSE it is cheap it is illegal.
I said that you should be suspicious of it, because it is very irregular. You can of course be suspicious of something and have it turn out to be above board. And that's fine. But you shouldn't take it as granted that it will be; when something is suspect, you should examine it carefully to be sure of its nature.
When Apple says that they have a music store, and it's legal, I generally trust them because it is reputable. Their offerings, taking into account all the downsides (EULA, DRM, lossy codec, price, etc.) all tend to indicate that they're dealing with the appropriate entities. After all, why would they degrade their service if they didn't have to in order to get permission to act lawfully? And why would they act unlawfully, willingly, when they have so much to lose by doing so? So I'm not very suspicious of them. What they're doing pretty much fits in with what I would expect of a lawful actor.
OTOH, allofmp3 offers an amazingly good deal. It's cheap as dirt, unencumbered, lossless, and has an even better catalog. That's great, but in comparison to EVERY OTHER MUSIC STORE OF NOTE it is highly suspicious. Who are they to be able to offer such a good deal? And then we find out that they're protecting themselves by operating out of another country, with different laws, and that they probably have little to lose by breaking the law, because they're comparatively judgment proof in the US. So now I am dubious.
And while being dubious is not grounds for saying that it must be illegal, it does mean that they deserve a good hard look because there is a very real possibility that something shady is going on. It's like when a man in a trenchcoat in a back alley offers to sell you a watch. He COULD be acting legally. There's no evidence that he is or isn't. But you'd be foolish to just believe that he is without some further evidence of it.
Therefore I _did_ look into it, and lo and behold, they're not acting legally according to all the information that is available.
Do you understand now what I am saying about being recalcitrant about deals that are too good to be true?
completely oblivious to matters of international commerce
I'll bite. What matters of international commerce?
No, I'm just sick of the inanity here. Of course it's getting better; more and more people are recognizing that unauthorized downloading is illegal. This means that they can not only make an informed decision as to whether or not they'll break the law (personally I couldn't care less) but also understand just how bad the law is, and might push for reform.
Russian law can actually apply to purchases in the United States.
Oh, that's certainly true. In fact in the US we are very pleased to enforce foreign laws when appropriate. We're used to it since the laws of each state tend to be different, and are all different from federal laws, and yet our federal and state courts routinely have to apply the law of their fellow domestic governments, and more rarely foreign governments, in order to see justice done.
I never said it couldn't.
But the trick is, if our law overrides an application of foreign law, as it does in this matter, then it is not appropriate to even consider the foreign law. It's a nullity.
WIPO agreements are enforceable in the U.S.
And what, pray, is a WIPO agreement?
I trust that you do not mean treaties, because copyright treaties in the US are not self-executing. Only our domestic law can be used for enforcement.
If you don't sell in Russia, they cannot license your work out.
But even if you do, they cannot license your work within the United States, because we determine what the law is within our borders. Their power to license exists solely within Russia. Nowhere else.
But if it were illegal to reproduce music via the internet we wouldn't have itunes and all the others.
If it were legal to download music, we would have Napster back. iTMS et al obtain permission to operate in the United States from the US copyright holders; and copyright law does not generally forbid a copyright holder from doing the things it forbids you or I from doing.
And of course, 17 USC 106(1) states that the copyright holder has the exclusive right to reproduce their work. So that also settles the matter.
Then you say "but these copies are "piratical" because they're cheap" (or "not rom the US" - or something.. frankly, I don't know what the hell you're saying there)
I didn't say that they are piratical because they are inexpensive. I said that common sense should be telling you that when a deal seems too good to be true, it probably is.
It is piratical because it lacks permission from the US copyright holders and is not otherwise legal. It wouldn't matter if it was free, if it was cheap, or if it cost an arm and a leg. It wouldn't matter if everyone on Earth outside the US, other than the US copyright holder, including any foreign copyright holders or authorities said it was legal within our borders; they have no power here.
But the fact is they do get something: they get their works protected in russia, by russian law.
Not so. If indeed Russia complies with any copyright treaties, they cannot proffer such a Hobson's Choice. So it would have to be mandated -- and that means that it is simply not a deal or contract. Putting aside the fact that where one is forced into a contract by economic duress, that contract typically won't be enforcable.
I've heard no one arguing japanese record stores are all pirates because they allow consumers to rent CDs and encourage them to make copies.
Given that that occurs entirely within Japan, and does not occur at all within the United States, duh.
Besides -- I'm not accusing allofmp3 of being pirates. I'm accusing the people in America who download from them of being pirates. Their activities DO occur within Russia.
The only difference here is the copies are easier to transport because of the internet... big whoopee.
Copies are defined as tangible objects in section 101. If you know how to send tangible objects via the Internet, please feel free to send one to me. Just put one paperclip, say, on your server, and I'll download it, and be able to hold it in my hands when it pops out of my NIC or wherever.
But if you can't arrange that, then please admit that you cannot move an extant copy across the Internet, but can only create a new copy at the downloading end, based upon a preexisting copy at the server.
If it's reproduction then there is a historical chain of SCOTUS protection for the user.
Such as?
If they want to sell in Russia (they could abstain, of course) then they must abide by the rules presented to then in Russia.
But a law that says, 'to do business in Russia, you have to permit Russians to generally ignore your copyrights in the US, and permit others to do the same' isn't worth the paper it's printed on in the US.
This is because activities in Russia occur only under the 'hat' of a Russian copyright holder. They don't influence what happens when wearing the hat of a US copyright holder. There's no agreement that's enforcable in the US.
You appear to have made that idea up, whole-cloth.
I wish. It seems that every idiot that comes along saying that downloading from allofmp3 is legal cites a discussion located here indicating that allofmp3 operates under a license from some group called ROMS.
ROMS seems to have issued a press release here which states: ROMS is authorized by the Russian law on copyright and related rights as well as by its members and other copyright managers, including foreign, to issue user licenses on behalf of all Russian and foreign rightsholders.
So when I see an entity authorized by Russian law to issue licenses, where that entity is NOT the copyright holder, I see a compulsory license.
We enforce compulsory licensing in the U.S. in other cases. Is there some reasons we would disregard it here?
We enforce US compulsory licensing laws here. However, we do not, as a rule of thumb, enforce foreign law within the US. So that's why we disregard it. It isn't our law. It has no effect within our borders.
If they don't want to experience the downside to Russian sales, they can choose not to sell in Russia at all.
Sure -- but since the US won't enforce that against them, it doesn't much matter. It's a downside that only applies within Russian jurisdiction.
we've already covered that those bans apply to illegally-gotten music.
Yes, but illegally, where the law in question is that of the US. Since the US has no provision allowing for compulsory licensing of sound recordings, they're per se illegal, regardless of Russian law.
If I legally buy a CD in Russia, there exists no legal precedent of which I am aware to make that CD suddenly illegal in the U.S.
Only the US copyright holder can authorize the making of a copy that is legal for import into the US. So if you legally buy a CD in Russia that was not made with the authorization of that entity, where such authorization is valid under US law, it's illegal for import.
our own USPTO has conjoined with to set international policy on recorded works
You're saying that the United States Patent and Trademark Office has set policy on copyrights? Isn't that a bit outside their mandate? I would think that the United States Copyright Office would be more involved with that. (And also Congress, the President, the US Trade Representative, various international lobbyists, etc.)
The Russian recording contracts are vetted by WIPO for compliance.
Where the fuck are you coming up with this crap? WIPO does no such thing. They're a trade treaty organization. They don't deign to to look at individual contracts.
Copyright applies to:
* Reproduction
* Distribution and importation
* Creation of derivatives
* Some public performance and display
And more.
You mean to say that copyright only protects an expression of an idea, whereas patents protect an invention however executed.
20 years from filing, now, not 17 years from issuance. The term length changed back in the 90's.
Well, the purpose of a patent system is not to provide rewards, but rather to promote the interests of society generally. People want new inventions to be created. They also want to be able to freely use those inventions.
If a minor, temporary reduction in the free use of inventions resulted in a much more significant increase in the number of inventions created, there is a net gain for society. That it happens to involve giving protection for inventors is purely secondary; it's the means by which we accomplish the goal of a net societal gain.
But OTOH, if there were great incentives already, and the loss of freedom that a patent represents were significant, then having a patent system might in fact result in a net loss to society.
(Naturally, the degree of gain or loss depends on the details of the system involved, and the surrounding circumstances)
With software, our past history indicates that there is an immense amount of inventive activity going on without patents as an incentive. And furthermore that people routinely use one another's inventions freely, and this only serves to increase the pace of inventiveness as well as how cheaply and rapidly those inventions can be in the hands of the public, where they are best used.
So would a patent system for software -- which would have to spur on yet more invention, yet would restrict how freely people could use one another's inventions -- make life better for the public as a whole?
There's a good argument that it would not.
Moon-Man law
Oh, well that's just because in my social circle, an inane statement is generally termed 'crazy moon talk' and so 'moon-man law' is the logical outgrowth of that.
fight a battle that you can't win
Well, I don't care if they do something illegal. Hell, I think US copyright law is insanely crappy right now, and in serious need of reform. And I loathe RIAA's behavior in pushing for the law to get worse.
I just don't like people spreading misinformation or being misinformed about the law. In particular, I think that if people know just how bad the law actually is, it'll help induce reform. Plus of course, when people know if some action is illegal, then they can plan better as to whether they want to go through with it, and if so, how best to do it.
Generally, I think the law ought to conform to people's common sense attitudes of what it likely is, since that's what they'll usually do anyway, unless they're unusually aware of what it actually is. This won't always work, but I think it's a good guiding principle.
Even under US Copyright law, these copies are legal.
No. They would only be legal if the US copyright holder willingly gave permission for otherwise-infringing activities within the US to occur.
Are you seriously telling me that you think that damn near every person with a US copyright on popular music just jumped at the chance to let a shady Russian music store sell lossless, non-DRMed music for a pittance? When no one else even has a thorough catalog?
You must be pretty stupid to believe that.
allofmp3 appears to operate under a compulsory license. That means that, in the US, we wouldn't treat the copyright holder as having willingly permitted US downloads. Thus, they're not within the bounds of what's permitted under US law -- they have no authority granted to them by the US copyright holder, regardless of whatever Russian law says, since it doesn't apply in the US.
There exists no prohibition against sale accross borders once the music is legally licensed.
That's untrue. There are bans on it in 602(a) and (b), and only narrow exceptions in 602(a) and 109. But of course, downloading isn't importation.
When the RIAA had legal grounds to injunct a music distribution method, they do so.
Since when? They have finite resources, and use them in the most efficient manner. This is why they went after P2P services first -- it had the greatest impact on the scene. Now they're going after uploaders, because they have a greater impact when taken down than if they went after downloaders.
Eventually they may also act against downloaders. It's just not very practical to do so, since it's not the most efficient use of resources.
How are bits not tangible?
I cannot hold a bit, all by itself, in my hand.
This isn't surprising: I can't hold a letter or word, all by itself, in my hand either.
Now, I can hold some kind of medium that embodies such a thing: fridge magnets in the shape of a letter, paper with writing on it, and so forth. But the letter 'A' divorced from any medium, is an intangible.
So is a bit.
You NEED a carrier medium. A CD, an HD, RAM, etc. That medium is a tangible object. It's a copy, as that word is defined in the law. And making new copies is subject to some restriction.
Provide some reference that supports your insistance these copies are "piratical" when they comply with all local laws.
602(b): In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
Those works right there are the 'piratical works.' They are not lawfully made, because the only law that is being referred to is US law. Foreign law, whatever it is, does not count.
This should be pretty damn obvious, given that the one sentence precedes the other, and they divvy the world of foreign-produced copies into halves.
So importation is absolutely prohibited when a work was made in a fashion, or by a party, that could not have legally done so within the US.
But ANYWAY, no importation is going on here. Downloading is inarguably a form of reproduction, not importation, which is defined as a form of distribution. So 602 is not really important (I merely included it here to refute fools that think it's relevant to the discussion at hand, as you'll note if you read through the postings), whereas 106 and the definitions in 101, and the caselaw dealing with downloading is vitally important. And uniformly comes out against the downloader in this matter.
Because it is up to each country, individually, to even HAVE copyright laws. And the laws generally only apply within each country. And this overall does make sense: developing countries don't need strong copyrights, because each country should do what benefits it the most, and they'll benefit the most from piracy. Eventually they'll start to develop local authors that want stronger rights, and a more conventional, by our standards, copyright will emerge. But the kind of culture that works well with copyright cannot be forced to develop.
While an initial vesting of copyright might result in only one person being the copyright holder, they can of course sell off their rights, or be required to assign them, to different parties within different countries.
But what's particularly important here is that even if there is still only one copyright holder, who has, say, both the US and Russian copyrights, they are wearing different hats. The Russians might say that by virtue of having a copyright there, or publishing there, that the author constructively consents to a compulsory license. But in his capacity as a US copyright holder, as to what goes on within the US, we won't care about what's been going on in other countries. We don't have the same compulsory licensing; and so therefore if the Russian materials end up in the US, we find them to be piratical.
That might make sense, if not for the first sentence, which is all about whether or not it's lawfully made HAD US law applied as to its making.
Perhaps you don't know this because you don't buy Russian music, but ALL russian CDs are dirt cheap.
That is precisely why we don't allow willy-nilly imports of copyrighted works. It would undercut US copyright holders. (and in the past we also wanted to protect US publishers and printers, but that's a seperate thing)
It's not illegal for me to import for my personal use
Generally, it is. 17 USC 602(b) prevents you from importing so-called piratical copies into the US, even for personal use. The 602(a)(2) and 109 exemptions are very, very narrow. There is simply NO blanket 'personal use' importation exemption. There is an unbelievable amount of misunderstanding of this section. And it's awfully worded, so I can see why, but it's still very sad.
What is illegal in the US?
Downloading is illegal in the US. Unless authorized by the US copyright holder, or permitted in one of the exemptions in the law.
This is because when you download, you are creating a new copy. I've gone into the details of why that is so in other posts in this topic; you can check them out if you're interested, or take it as a given for purposes of our present discussion.
It is of course possible for the US copyright holder to permit another party to do something within the US, which otherwise would be illegal. And it is further possible for the US copyright holder to allow that party to extend the permission to yet other parties. Of course, such grants of permission tend to be conditional; for example, that you have to pay a fee in order to get permission even via an intermediary.
So when, say, iTMS sells someone music, the US-based downloader is, in a convoluted way, getting permission from the US copyright holder to download the music, and to make some other incidental copies of it.
However, since such permission can only ever derive, ultimately, from the US copyright holder, third parties cannot grant permission all by themselves, as to activities, such as downloading, that take place within the US.
So unless allofmp3 directly or indirectly has ACTUAL PERMISSION FROM THE US COPYRIGHT HOLDERS to sell music -- which seems impossible, given the vast differences between all notable US-based music stores, and allofmp3 -- then it is illegal for people in the US to download music from them.
The fact that allofmp3, or possibly some other Russians, say that it is okay is in fact irrelevant, since they have no power as to what can go on in the US, and downloading by people in the US, occurs within the US.
Is this simple enough?
Read the first sentence again. Lawfully made means 'if it was made in such a fashion that it would have been lawful if US law applied.' And remember that under US law, only the US copyright holder may authorize the making of otherwise infringing copies.
But of course, again, downloading is not importation, so this is a more academic discussion than the other one which is more direct as to why it's illegal to be in the US and download from allofmp3.