As long as the voter has an opportunity to verify that their printout was correct, it's ok if almost everybody is lazy and doesn't bother.
No, because then there's a great opportunity for an attack -- if there's not likely to be any verification, you rig the machines. Since anyone that does verify would just correct the mistake, you don't push your luck, and don't fuck with the redo.
The best thing to do while still preserving anonymous voting is for people to write directly on the ballot. It is not even slightly hard, if the ballot is well-designed.
but it could be argued that this copy falls under fair use provisions of copyright law as you own the "original" copy.
Well, that's fine.
There is a four step analysis (see 17 USC 107) to determine if a particular use is a fair use. Note that it has to be conducted anew every time, since it is totally dependent on the facts of the specific case.
The four factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Let's go through them. (1) The use is not wholly of a commercial nature, but neither is it wholly nonprofit. It's being used to commercial advantage, since you're using this site to save money compared with other indisputably legal ways of getting music. So it's probably a strike against you.
(2) The work is not factual, being music, and nonfactual works are less likely to be used fairly. So a strike against you.
(3) You're copying the whole thing, quite probably at a high enough quality level that only purists would find it unacceptable. So a strike against you.
(4) By getting it so cheaply, from a source that isn't paying the US copyright holder for what happens in the US, and as a substitute for any legal avenue of getting it, that the commercial impact is about as substantial as could be. A strike against you.
So my prediction -- fair use will not work for an instant.
Whether the definition of importation applies only to physically moving a product across borders is something that may have to be tested in court.
Then transfer that copy onto a wire via DMA buffers (that are destroyed by the network driver right after they are on the wire).
Fucking listen to yourself. You just said that they make a copy, then they destroy it. You ADMITTED that a copy is made.
17 USC 106 says, among other things, that the copyright holder has the exclusive right to make copies of his work. It does NOT say 'except if they're short lived.'
So your argument is so utterly half-assed that you just conceeded it, then hand-waved to no avail.
So the actual copy is made in Russia and then transferred to your country.
This demonstrates that you have no fucking idea what a copy is, within the confines of copyright law. Ignore the commonplace definition, for it is specifically defined in this context, and it is this special definition that is the only appropriate one. It's in 17 USC 101.
''Copies'' are material objects... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
See that thing about MATERIAL OBJECTS? RAM is a material object. A wire is ANOTHER material object. A hard disk is yet another one.
When I download, there is a copy (1) on the server hard disk. The server loads some or all of it into RAM, making copy (2). The RAM copy is copied out onto the wire (3). There are eighty zillion copies made at various points along the wire (4). A copy is made from the wire on my end into RAM (5), and then to the hard disk (6).
To import means to bring over a material object from there to here. If you were bringing in Russian CDs, that is a zillion times different than downloading.
Because the only common thread between these copies is that each of them embodies the creative WORK. And a work is wholly immaterial, and can trivially exist in numerous media simultaneously.
If you download from someplace, the work is the same between all copies. But the copies are themselves distinct, just as two identical books on the shelf are not the same, single object.
Now how does the air work ?
Yes, I know all about that, and in fact I have made the same argument -- coupled with the example of mercury delay lines -- against the precedents that claim that copies in RAM are fixed.
But the law hasn't changed yet, and you are a huge fool to not only ignore the law, but to pretend it says something different than what it actually is.
I don't particularly agree with our copyright laws, but at least I have the advantage of knowing what they actually are. You are only familiar with the laws of la-la land, and it's not going to help you.
The US courts have agreed that so-called 'ephemeral' copies are not generally covered in the same fashion;
Prove it. On my side, I again point you to MAI, which held that when you run a program, a fixed copy is present in RAM, and Utah Lighthouse, which held that when you look at a web page, a fixed copy is present on your computer. In both cases, such behavior was found infringing.
so long as allofmp3 removes their bit/format specific file from their servers after they've finished the transfer, it is a *transfer* and not a new copy.
No, and you just admitted it. It IS a copy. Now you're just pretending that the later disposition of the original matters. It does not; it is reproduction, whether the original copy lasts for one second or one hundred years. In either event, the reproduction is a distinct copy.
Without this exemption, cache copies of copyrighted data would require seperate licenses, local storage in memory as opposed to on disk would require a new license, etc, etc.
Actually, that is EXACTLY where the law is going. I won't pretend to agree with that all the time, but I won't lie about what the current precedents are either.
As it stands, in the US, any copy made by a computer, even in the normal course of its operations is considered fixed.
There is an exemption in 17 USC 117 for copies and adaptations necessary to run [b]software[/b] you own a copy of. And there is the fair use exemption as well as a laches argument, but neither is applicable here.
The truth of the matter -- and I encourage you to actually look this stuff up instead of pulling crap out of your ass as you have been doing -- is that if you, for example, look at a web page that has been put up illegally, you are in violation of the law because your computer necessarily made a copy so as to present it to you. Utah Lighthouse said exactly that.
Whether you think that's reasonable or stupid is besides the point. It's where we are right now.
[quote]Allofmp3 produces a copy, they then transfer that copy to you.[/quote]
You CANNOT transfer copies across media. By its very definition, a copy is fixed in a specific medium. When you read from disk and write to RAM, you are making a copy. It doesn't matter whether they're in two different computers.
In fact, Congress would not have bothered to write 117 if that were not true! So as far as any court is concerned, it is almost certainly true according to the canons of statutory interpretation.
Alice is not transferring a book over a wire, she is transferring voice over the wire, and Bob is producing new content at his end. Allofmp3 works differently; the end content is *exactly* what was transferred over the wire.
Wrong. The book says "See Pierre run." Alice says "See Pierre run." Bob writes down "See Pierre run." It is all the same CREATIVE WORK. It is NOT the same SPECIFIC COPY OF A CREATIVE WORK.
THERE IS A VERY IMPORTANT DIFFERENCE BETWEEN A WORK AND A COPY, AND THE LAW CONSISTANTLY RELIES UPON THAT.
Read fucking 17 USC 101 and 102 and 202 if you don't believe me, but this is how things are. And you'll note that I keep providing citations to the law and leading cases interpreting the law, all of which butress my point. You do not: you keep making statements without the slightest bit of foundation. So guess which one of us is more supremely confident. In fact, guess which one of us is actually right.
do I *produce* a copy if I buy a song from iTMS?
Yes, actually. You do. And because iTMS complies with US law, it's actually legal for people in the US to do so. What they have that's important, is the authorization of the US copyright holder. This is the reason why not everything is on iTMS; they haven't all agreed. Without that, the law would have to allow it to go through without permission, and that is something only rarely done.
Now go read the law regarding ephemeral copies
Since you seem so familiar with it, why don't you cite it for me. Or better yet, post it.
While I agree that there are such things as ephemeral copies, the courts have whittled 'em down to virtually nothing.
Actually, by the idea that you select your bitrate and format, which they then create a file specifically for your needs, it would seem that they are, in fact, making the copy, which you then download (equivalent to shipping a copy they had duplicated in Russia).
No -- they're making a copy there, and then when you download, you're making a copy of that copy here.
Simply put, you CANNOT import things over a wire.
Let's go back to that Alice and Bob example. Are you claiming that when Bob writes down what Alice told him over the phone, that he is importing a book printed abroad, rather than handwriting a book?
Can you square it at all with common sense, or the ordinary definition of importation, which is to carry an already-made thing into a place?
[quote]because both sides have pretty good claims to being 'right'.[/quote]
I'm sorry, but your side has NO claim. You just keep ignoring the fact that importation is distinct from reproduction. I guarantee you it is a loser argument.
As it happens, there are doubts about their legality in Russia, but that's besides the point.
They're NOT the ones making the copy you're downloading. You are, by downloading, making a copy. That is what the MAI line of cases indicate. And the copy you're making (assuming you're in the US) is not being made in Russia, it is being made in the US, and therefore has to comply with US law.
Russian copyright holders are irrelevant in the US. Russian law is irrelevant in the US. When you're here, you have to obey our law, and that points you towards US rightsholders.
Because it isn't importation. When you import something, you remove it from its source and bring the very object to the destination.
When you download something, you make a local duplicate based upon the original on a server.
For example, let's say that Alice is in Russia, and has a copy of War and Peace. She collect calls Bob, who is in the US. If Alice reads the book aloud over the phone, and Bob faithfully writes it all down at his end, it is plainly obvious that the book Alice is holding in her hands has NOT been physically moved anywhere. A copy has been made. Even if Alice destroys her book, even if she destroyed every word after saying it to Bob, Bob's copy is still being created in the US, and is still utterly distinct from Alice's copy. It's a new copy.
While I don't really agree with the MAI v. Peak, or Utah Lighthouse v. Intellectual Reserve cases, they VERY much stand for the proposition that computers reproduce things all the time. And in this instance, so does common sense.
And reproduction of copyrighted works is one of the exclusive rights of the copyright holder per 17 USC 106. Distribution is another, also per 106. While there is an exception for SOME importation under 109 and 602, it's considered to be connected to the distribution right, and that involves the distribution of existing copies, not the reproduction of more copies.
Not really, because people would probably not verify the printout as being correct. Automated counting systems are perhaps decent shortcuts for getting a good idea of the outcome of an election quickly, but in the end it needs to be human beings looking at ballots that were directly filled out by human beings.
I'd like to know what works being out of the public domain are hindering the progress of society.
Well, without works being in the public domain, they're not available for free. This means that the segment of the population that can't afford to get those works at whatever cost the author sets is left bereft of them. Access to knowledge is itself a good thing, and is easier when that knowledge can be had at the least cost.
Similarly, not just anyone can distribute copies, which further makes it difficult to gain easy access to these works. Public performances also are limited under copyright regimes.
One of the big harms inherent in a work not being in the public domain is that it's difficult to make legal derivative works. Remember, the other great desire of the public, aside from having unencumbered works is to have more works created, and it really doesn't matter whether they're derivative or original. Both probably enjoy a similar percentage of quality v. lousy works, but derivatives can be somewhat easier to get started with since a fair amount of the work is done already. There are also interesting things you can do with derivatives by significantly skewing the work so that while the audience expects it to go along certain lines, it may not.
These are the burdens of copyright. So long as the benefits outweigh these, it's all okay. But there is this bad side.
On the other hand, by being protected, the authors are making money (and, arguably, only making money because they are good at what they do, otherwise why would people pay money for works that are not good?) and using their talents to create new works.
Don't kid yourself. Most artists don't make money by virtue of their copyrights. Most artists make their money at other sorts of work, or as artistic labor, selling pieces unlikely to be pirated anyway, and so forth. Given this idiotic automatic copyright scheme your'e so enamored of, virtually everyone qualifies as an artist, but most of the works they're creating would've been created for other reasons -- as a part of their job, as a hobby, and so forth. I'm fairly confident that you have no chance of making money from your/. posts but you're investing effort in making them.
Artists who make a living from copyrights are a teeny tiny percentage of all artists. If they make a good living, that's even rarer.
This seems to be a better social bargain than allowing their works to be ripped off by the untalented masses, and forcing the talented guy to serve fries to support his writing habit.
Oh, he's probably serving fries ANYWAY. Most art is economically worthless. So why, to borrow a phrase from Jefferson, should the public endure the embarassment of a copyright for such things?
And remember -- the social bargain is unconcerned with artists for their own sakes. It's nice when people make money, but that's really rather tangental. The point is to enrich the public.
So when a work is written as a 20 year old, and found that it is not discovered until they are 40 years old, then it's tough for them that they don't get any recompense for it? So a creative writer across the course of their career has to bet on a 25 year window of viability for their work? That's a great incentive to attract people into creative pursuits.
It is, actually. Virtually all of the potential value of a copyright is up-front. It's unlikely it'll ever have any value to begin with of course. But it spikes very early on, and then declines again. So nothing worth fretting over is being lost. OTOH, lots of works become available for artists to make derivatives of, and that helps them quite a bit.
So please don't think that it's common for artists to be in a Van Gogh mold, only being recognized later in life, or after their death. Most artists never get recognized at all. And hell, it's not as though Van Gogh had any reason to expect fame or fortune, and it didn't stop him.
The problem is that a hell of a lot of works that ought to be in the public domain are not.
No, not until they find that their works are being used by other people without any compensation. Nor until 20 years later when the work becomes relevant for some other reason.
Well, as to the first point, I suppose that the author will know better the next time, although typically it's not as though they'd be likely to get compensation anyhow, since the expenses of working with authors tends to drive people towards having to do things independently. That means there's a lot of wasted effort, another bad thing. As to the second, I personally favor 5 year copyrights that at most could be renewed so as to last a total of 25 years. So it's not as though such an author would be missing much. But then, few works are ever of any commercial value, and the vast majority of those are valuable within a few years of creation. It's sufficiently unusual to see a work being worthless for so long and then suddenly becoming useful that it's not something we should design the system for.
Explain the problems to me?
Terms got much longer, that "moral rights" bullshit made a tiny bit of headway, international copyright treaties didn't end up in the trash where they belong, formalities were largely forgotten, the utility doctrine has been gutted, etc.
Then these people can choose to publish their works without attribution or release them to the public domain. Other people can choose the opposite. Under your system, we're all forced to once choice.
Works are copyrighted regardless of attribution. Right now if you make something that's eligible for a copyright, it is copyrighted, unless you specifically place it in the public domain.
That's only one choice.
I merely propose to invert that, and put things back to the way they were for most of our history -- that works are in the public domain unless the author thinks it's worthwhile to get a copyright. Since a copyright is burdensome on the public, we should not hand them out willy nilly, but only see them granted to works where they're actively desired. Formalities help by making it clear what is in fact copyrighted, by preserving those works despite the author, and by weeding out authors who want something for nothing.
Wrong: copyright isn't an incentive
Nope. Copyright is an incentive.
It's simple how it works, but perhaps it escaped you: Without copyrights, some works are created (we know this from history) and the public can fully enjoy all of them. With copyrights, we give the copyright holder some control over public enjoyment, temporarily, which can be parlayed for money, and this encourages them to create more works so as to take advantage of that. Since the public wants both more works and full enjoyment, the copyrights are limited in duration.
Because it is harmful to the public for works to not be in the public domain, it shouldn't happen unless necessary. If it's necessary to encourage creation AND the creation and term expiration will ultimately yield a greater public good than would've happened without copyrights at all, then it's still for the net public good. If the work would've been created anyhow, then copyrights didn't encourage it, but did harm the public. That's bad.
It's impossible, of course, to perfectly weed the various sorts of works out, but requiring registration helps.
The same logic is at work in the patent system, which does require inventors to specifically apply for a patent. In fact, they have to very rapidly, and it's a long and expensive process.
This isn't really subject to debate -- this is how it is, as you'd know if you spent any amount of time studying the issue.
Default coypright ensures that my emails are default protected at no cost automatically from someone compiling a commercial publication.
automatic copyright attracting works and it caused no problems.
This is seriously short-sighted. It has caused a gigantic problem. Copyrights ideally should only be granted to those works which would not otherwise have been created. It is purely harmful to the public where superfluous.
When works are automatically copyrighted, that means virtually all works. And the large majority of those works would have been created otherwise -- hence the tremendous harm that ensues.
While in a proper system, people might not initially be aware that they need to register, the vast majority of them likely couldn't care less. This is particularly so considering that registration involves some formalities (notice, deposit, filing fees, etc.) that while rather minimal are more trouble to most people than a copyright would be worth.
The US got along GREAT when it required registration, and yet everything's been going to hell since we foolishly passed the 1976 Act. The truth of the matter is that we had an excellent copyright system that needed work, true, but was really quite good (especially prior to the 1909 Act), and that the rest of the world has been steadily dragging us down and fucking it up.
If I create a noteworthy paper, then I'm pleased that people can read it and use it, but the last thing I want is for other people to strip off the attribution and distribute the work - leaving me without any recognition.
That might be very true, but who the fuck cares what you want? Just you.
Copyright is a utilitarian system designed for maximizing the public good. Not your specific good. If you want some sort of benefit from a copyright system -- all the way to the idea of having such a system at all -- then you really ought to show me how it makes _me_ and the rest of the public better off to do so.
Again, this would be a huge disincentive: why create a work when you don't obtain attribution for it ?
Because it's your job, or hobby, or school assignment, or was comissioned, or it's for art's sake, or any of a hundred reasons.
Copyright is only _one_ incentive. It's probably not even the most important. And where it's possible to discern works that would've been created without a copyright -- they shouldn't get a copyright. Copyrights are only to be used for works that but for a copyright would not be created.
I was thinking that the difficulty had more to do with what happens on the other end -- a computer model of a sculpture still isn't something you can put on the mantel in your living room. We're getting there, but it's not commonplace yet, especially for any given set of materials.
If it costs you $100 million to create a feature film, what incentive is there for you as an investor, a studio, whoever, to put that money in if within a week of the final edit being finished it is distributed to your entire audience for free?
I think that a good first step would be to stop wasting $100 million on a movie when you could make an equally good movie for a few hundreds of thousands of dollars.
Personally, I have no problem with otherwise infringing activity that's commercial in nature -- theater showings, sales of copies, etc. -- being infringing, all else being equal. OTOH, I see little point to penalizing noncommercial activity. That would certainly result in a goodly sized reduction of available profit, but also would largely remove pressure from ordinary people doing what are in truth innocent things.
It also might shift creative activity to other media -- sculpture is somewhat annoying to send over P2P right now. But this is a short term thing, and ultimately wouldn't last.
So, instead of trying to take other people's music and distributing it without their permission, how about you actually try and create music people want and give it away under terms like the GPL, much in the same way you do with software now?
I vote for both -- particularly since other people's music is often a good base to begin with. Which is in fact why we have statutory licenses that force musicians to let people make covers of their works whether they like it or not.
Not only would be virtually impossible to implement, but would create a huge disincentive to create copyright works (I'd stop writing informal papers,
Not at all -- you just put those things into the public domain upon creation. Although I admit this proposal would work a lot better if we admitted that automatic copyrights were an amazingly huge mistake and went back to the old system where you had to actually register for one.
The fact is that you can sue someone without even a hint of a valid reason.
Yes, but you'll tend to lose if you don't have a valid reason. Plaintiffs generally bear the burdens of prove and persuasion. If their position is so lame that they cannot even make a prima face case, they can't win.
So what you're really saying is that people are bringing cases that are at least _somewhat_ valid, and although they could be defended against, that's not happening enough. Sound about right?
They're not fixed in those material objects, turn off the power and where's the copy? It's transient and not fixed. We probably now need a definition of 'fixed', but I really don't feel like going there.
We have a definition of fixation in 17 USC 101 already: 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.
And what percentage of all lawsuits are frivolous? It's always possible to find something freakish -- but if there is only a small number of notorious anomolies that doesn't mean that the system overall is broken. It mostly just means that no one bothers to print everyday cases, only really unusual ones.
Well, the previous poster said it was wrong, not illegal. Are you saying that all laws are right, all illegal activity is wrong, and that you must always obey the law? I think there are examples that contradict that -- abolitionists helping runaway slaves escape is a good one.
I agree that lawlessness is generally bad, but this should caution us then to only pass laws that are not so oppressive that ordinary people will feel they're doing nothing wrong when they do break the law. Prohibiting acceptable behavior is what leads to lawlessness ofttimes then, and we should not do it either. That way the laws will tend to be obeyed because people don't really have a problem with them.
I suspect that our current copyright laws have gone too far, hence people find themselves running afoul of them without ever doing anything that actually seems bad. It is reminiscent of prohibition, and I expect it'll come to the same end, as the laws are reduced in scope.
At any rate, your point isn't supportable. Let's try another.
Because you're making use of something you haven't paid for that you should have paid for.
Well, you again assume something. Why should you have paid for it? Seriously, I want to know.
Because you're depriving folks of income.
That's never been a very good argument. Suppose I build a replicator and use it to give away limitless supplies of food, water, medicine, fuel, clothes, etc. I will have put countless people out of work -- but also ensured that they will no longer need to work for any of those things.
Is the mere fact that I deprived them of their income wrong? I think not, and so we can dispense with this point too.
Because you wouldn't walk up to a jewlery store and take whatever you want.
Actually I find jewelrey pointless anyway, so I wouldn't bother. I don't even have any.
But again -- perhaps these situations aren't quite the same. After all, there is a finite amount of jewelry; it is rivalrous, it is subject to scarcity. This is not the case when it comes to information.
Contrary to what you might think it is the same thing for those of us who make our living off of IP.
Well, I used to make a living as an artist, so I think I know something about it.
But I think that maybe you should consider a different job, or at least adjust what you have now to accomodate a significant decrease in your fortunes. No one said that you were entitled to make a living doing what you're doing. You might need to do something else, as the buggy whip people found out.
if you give the copyright of a work to someone in the UK, the Berne convention should extend that copyright to the world (and hence back into the US)
No. If Perry gives Sid some rights, that's it. It's vaguely like selling land (which is in fact selling rights pertaining to land) -- you get what you paid for. Perry can limit what he gives Sid to being a copyright on derivative operas written by left handed people. And then that's all it will cover.
As a result, the transfer of copyright to someone else could effectively make two distributors in a single country.
No, when you _transfer_ copyright to someone else, you are it seems, not keeping anything for yourself. You're giving it away. This is not uncommon. Many authors have no rights whatsoever as to their works, having sold them off previously.
You're actually taking the line out of context. Here is the whole line.
The bit you added says, in short, that the owner of a copy that was lawfully made under US law, or a person authorized by the owner of such a copy can redistribute it. They are NOT talking about authorizations stemming from the copyright holder, nor anything involving anything other than taking an existing copy of a work and selling that specific copy.
It's really quite pointless as far as this discussion goes, that's why I cut it out to begin with. You need to parse this stuff better.
So, if allofmp3 is authorized to make copies... then the user as well as allofmp3 can resell the music.
Unless they are authorized by a person who can grant them such authority under US law -- which is likely different than Russian law -- those copies they make are STILL not lawfully made under our law, and hence cannot qualify for first sale in the US.
This is what I've been saying for a while: that while they might be perfect law abiding people in Russia, that doesn't mean they're ok to do business with Americans in America.
I just know that people sue way to fucking easly in this country.
How do you know that, actually? You've conducted studies? You've looked at the cases that actually come to trial -- as opposed to those that are threatened but never brought, brought but dropped, settled, dismissed, or otherwise never actually get to a judgment -- and found so many of them to be meritless?
I would really caution you against advocating reform based on hearsay and examples that while well known may be extremely unusual.
I didn't say it was simple. It's fairly complex, in fact. Hell, the entire analysis is subject to change; it's changed before and it will again.
Just that _that_ is how you determine if something is a fair use or not; by searching inquiry. You do not say 'parody' and it's magically protected, as the Air Pirates found out
it comes down to a simple question of "artist spends time, effort and cost making a creative work", and in return are you going to give the artist some protection for what he is created, or are you going to allow people to take it and use it as they please ?
I will do what is most socially beneficial.
Society benefits from artists creating works. Society benefits from not having to pay for, or otherwise be limited as to, works.
Assuming that they scale in interesting, non-linear fashions, I will juggle how much of each I have so as to maximize social benefit.
And that's the American model of copyright: it's wholly utilitarian. It's only recently that special interests (who I don't blame too much, as I expect everyone in this area to act out of self interest) have been fucking it all up to their benefit. I'd like to see reforms that fix it all up to the public's benefit.
Slashdot Mirror
As long as the voter has an opportunity to verify that their printout was correct, it's ok if almost everybody is lazy and doesn't bother.
No, because then there's a great opportunity for an attack -- if there's not likely to be any verification, you rig the machines. Since anyone that does verify would just correct the mistake, you don't push your luck, and don't fuck with the redo.
The best thing to do while still preserving anonymous voting is for people to write directly on the ballot. It is not even slightly hard, if the ballot is well-designed.
but it could be argued that this copy falls under fair use provisions of copyright law as you own the "original" copy.
Well, that's fine.
There is a four step analysis (see 17 USC 107) to determine if a particular use is a fair use. Note that it has to be conducted anew every time, since it is totally dependent on the facts of the specific case.
The four factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Let's go through them. (1) The use is not wholly of a commercial nature, but neither is it wholly nonprofit. It's being used to commercial advantage, since you're using this site to save money compared with other indisputably legal ways of getting music. So it's probably a strike against you.
(2) The work is not factual, being music, and nonfactual works are less likely to be used fairly. So a strike against you.
(3) You're copying the whole thing, quite probably at a high enough quality level that only purists would find it unacceptable. So a strike against you.
(4) By getting it so cheaply, from a source that isn't paying the US copyright holder for what happens in the US, and as a substitute for any legal avenue of getting it, that the commercial impact is about as substantial as could be. A strike against you.
So my prediction -- fair use will not work for an instant.
Whether the definition of importation applies only to physically moving a product across borders is something that may have to be tested in court.
No it will not. It is thoroughly clear.
Then transfer that copy onto a wire via DMA buffers (that are destroyed by the network driver right after they are on the wire).
... 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.
Fucking listen to yourself. You just said that they make a copy, then they destroy it. You ADMITTED that a copy is made.
17 USC 106 says, among other things, that the copyright holder has the exclusive right to make copies of his work. It does NOT say 'except if they're short lived.'
So your argument is so utterly half-assed that you just conceeded it, then hand-waved to no avail.
So the actual copy is made in Russia and then transferred to your country.
This demonstrates that you have no fucking idea what a copy is, within the confines of copyright law. Ignore the commonplace definition, for it is specifically defined in this context, and it is this special definition that is the only appropriate one. It's in 17 USC 101.
''Copies'' are material objects
See that thing about MATERIAL OBJECTS? RAM is a material object. A wire is ANOTHER material object. A hard disk is yet another one.
When I download, there is a copy (1) on the server hard disk. The server loads some or all of it into RAM, making copy (2). The RAM copy is copied out onto the wire (3). There are eighty zillion copies made at various points along the wire (4). A copy is made from the wire on my end into RAM (5), and then to the hard disk (6).
To import means to bring over a material object from there to here. If you were bringing in Russian CDs, that is a zillion times different than downloading.
Because the only common thread between these copies is that each of them embodies the creative WORK. And a work is wholly immaterial, and can trivially exist in numerous media simultaneously.
If you download from someplace, the work is the same between all copies. But the copies are themselves distinct, just as two identical books on the shelf are not the same, single object.
Now how does the air work ?
Yes, I know all about that, and in fact I have made the same argument -- coupled with the example of mercury delay lines -- against the precedents that claim that copies in RAM are fixed.
But the law hasn't changed yet, and you are a huge fool to not only ignore the law, but to pretend it says something different than what it actually is.
I don't particularly agree with our copyright laws, but at least I have the advantage of knowing what they actually are. You are only familiar with the laws of la-la land, and it's not going to help you.
The US courts have agreed that so-called 'ephemeral' copies are not generally covered in the same fashion;
Prove it. On my side, I again point you to MAI, which held that when you run a program, a fixed copy is present in RAM, and Utah Lighthouse, which held that when you look at a web page, a fixed copy is present on your computer. In both cases, such behavior was found infringing.
so long as allofmp3 removes their bit/format specific file from their servers after they've finished the transfer, it is a *transfer* and not a new copy.
No, and you just admitted it. It IS a copy. Now you're just pretending that the later disposition of the original matters. It does not; it is reproduction, whether the original copy lasts for one second or one hundred years. In either event, the reproduction is a distinct copy.
Without this exemption, cache copies of copyrighted data would require seperate licenses, local storage in memory as opposed to on disk would require a new license, etc, etc.
Actually, that is EXACTLY where the law is going. I won't pretend to agree with that all the time, but I won't lie about what the current precedents are either.
As it stands, in the US, any copy made by a computer, even in the normal course of its operations is considered fixed.
There is an exemption in 17 USC 117 for copies and adaptations necessary to run [b]software[/b] you own a copy of. And there is the fair use exemption as well as a laches argument, but neither is applicable here.
The truth of the matter -- and I encourage you to actually look this stuff up instead of pulling crap out of your ass as you have been doing -- is that if you, for example, look at a web page that has been put up illegally, you are in violation of the law because your computer necessarily made a copy so as to present it to you. Utah Lighthouse said exactly that.
Whether you think that's reasonable or stupid is besides the point. It's where we are right now.
[quote]Allofmp3 produces a copy, they then transfer that copy to you.[/quote]
You CANNOT transfer copies across media. By its very definition, a copy is fixed in a specific medium. When you read from disk and write to RAM, you are making a copy. It doesn't matter whether they're in two different computers.
In fact, Congress would not have bothered to write 117 if that were not true! So as far as any court is concerned, it is almost certainly true according to the canons of statutory interpretation.
Alice is not transferring a book over a wire, she is transferring voice over the wire, and Bob is producing new content at his end. Allofmp3 works differently; the end content is *exactly* what was transferred over the wire.
Wrong. The book says "See Pierre run." Alice says "See Pierre run." Bob writes down "See Pierre run." It is all the same CREATIVE WORK. It is NOT the same SPECIFIC COPY OF A CREATIVE WORK.
THERE IS A VERY IMPORTANT DIFFERENCE BETWEEN A WORK AND A COPY, AND THE LAW CONSISTANTLY RELIES UPON THAT.
Read fucking 17 USC 101 and 102 and 202 if you don't believe me, but this is how things are. And you'll note that I keep providing citations to the law and leading cases interpreting the law, all of which butress my point. You do not: you keep making statements without the slightest bit of foundation. So guess which one of us is more supremely confident. In fact, guess which one of us is actually right.
do I *produce* a copy if I buy a song from iTMS?
Yes, actually. You do. And because iTMS complies with US law, it's actually legal for people in the US to do so. What they have that's important, is the authorization of the US copyright holder. This is the reason why not everything is on iTMS; they haven't all agreed. Without that, the law would have to allow it to go through without permission, and that is something only rarely done.
Now go read the law regarding ephemeral copies
Since you seem so familiar with it, why don't you cite it for me. Or better yet, post it.
While I agree that there are such things as ephemeral copies, the courts have whittled 'em down to virtually nothing.
Actually, by the idea that you select your bitrate and format, which they then create a file specifically for your needs, it would seem that they are, in fact, making the copy, which you then download (equivalent to shipping a copy they had duplicated in Russia).
No -- they're making a copy there, and then when you download, you're making a copy of that copy here.
Simply put, you CANNOT import things over a wire.
Let's go back to that Alice and Bob example. Are you claiming that when Bob writes down what Alice told him over the phone, that he is importing a book printed abroad, rather than handwriting a book?
Can you square it at all with common sense, or the ordinary definition of importation, which is to carry an already-made thing into a place?
[quote]because both sides have pretty good claims to being 'right'.[/quote]
I'm sorry, but your side has NO claim. You just keep ignoring the fact that importation is distinct from reproduction. I guarantee you it is a loser argument.
As it happens, there are doubts about their legality in Russia, but that's besides the point.
They're NOT the ones making the copy you're downloading. You are, by downloading, making a copy. That is what the MAI line of cases indicate. And the copy you're making (assuming you're in the US) is not being made in Russia, it is being made in the US, and therefore has to comply with US law.
Russian copyright holders are irrelevant in the US. Russian law is irrelevant in the US. When you're here, you have to obey our law, and that points you towards US rightsholders.
Because it isn't importation. When you import something, you remove it from its source and bring the very object to the destination.
When you download something, you make a local duplicate based upon the original on a server.
For example, let's say that Alice is in Russia, and has a copy of War and Peace. She collect calls Bob, who is in the US. If Alice reads the book aloud over the phone, and Bob faithfully writes it all down at his end, it is plainly obvious that the book Alice is holding in her hands has NOT been physically moved anywhere. A copy has been made. Even if Alice destroys her book, even if she destroyed every word after saying it to Bob, Bob's copy is still being created in the US, and is still utterly distinct from Alice's copy. It's a new copy.
While I don't really agree with the MAI v. Peak, or Utah Lighthouse v. Intellectual Reserve cases, they VERY much stand for the proposition that computers reproduce things all the time. And in this instance, so does common sense.
And reproduction of copyrighted works is one of the exclusive rights of the copyright holder per 17 USC 106. Distribution is another, also per 106. While there is an exception for SOME importation under 109 and 602, it's considered to be connected to the distribution right, and that involves the distribution of existing copies, not the reproduction of more copies.
Not really, because people would probably not verify the printout as being correct. Automated counting systems are perhaps decent shortcuts for getting a good idea of the outcome of an election quickly, but in the end it needs to be human beings looking at ballots that were directly filled out by human beings.
It's only legal -- at best -- in Russia. It's not legal for people in America.
But for Coke's case, they should just pay all the related taxes for the winner.
Sorry, but you just can't win.
IIRC, when someone else pays your taxes for you, it's considered taxable income.
I'd like to know what works being out of the public domain are hindering the progress of society.
/. posts but you're investing effort in making them.
Well, without works being in the public domain, they're not available for free. This means that the segment of the population that can't afford to get those works at whatever cost the author sets is left bereft of them. Access to knowledge is itself a good thing, and is easier when that knowledge can be had at the least cost.
Similarly, not just anyone can distribute copies, which further makes it difficult to gain easy access to these works. Public performances also are limited under copyright regimes.
One of the big harms inherent in a work not being in the public domain is that it's difficult to make legal derivative works. Remember, the other great desire of the public, aside from having unencumbered works is to have more works created, and it really doesn't matter whether they're derivative or original. Both probably enjoy a similar percentage of quality v. lousy works, but derivatives can be somewhat easier to get started with since a fair amount of the work is done already. There are also interesting things you can do with derivatives by significantly skewing the work so that while the audience expects it to go along certain lines, it may not.
These are the burdens of copyright. So long as the benefits outweigh these, it's all okay. But there is this bad side.
On the other hand, by being protected, the authors are making money (and, arguably, only making money because they are good at what they do, otherwise why would people pay money for works that are not good?) and using their talents to create new works.
Don't kid yourself. Most artists don't make money by virtue of their copyrights. Most artists make their money at other sorts of work, or as artistic labor, selling pieces unlikely to be pirated anyway, and so forth. Given this idiotic automatic copyright scheme your'e so enamored of, virtually everyone qualifies as an artist, but most of the works they're creating would've been created for other reasons -- as a part of their job, as a hobby, and so forth. I'm fairly confident that you have no chance of making money from your
Artists who make a living from copyrights are a teeny tiny percentage of all artists. If they make a good living, that's even rarer.
This seems to be a better social bargain than allowing their works to be ripped off by the untalented masses, and forcing the talented guy to serve fries to support his writing habit.
Oh, he's probably serving fries ANYWAY. Most art is economically worthless. So why, to borrow a phrase from Jefferson, should the public endure the embarassment of a copyright for such things?
And remember -- the social bargain is unconcerned with artists for their own sakes. It's nice when people make money, but that's really rather tangental. The point is to enrich the public.
So when a work is written as a 20 year old, and found that it is not discovered until they are 40 years old, then it's tough for them that they don't get any recompense for it? So a creative writer across the course of their career has to bet on a 25 year window of viability for their work? That's a great incentive to attract people into creative pursuits.
It is, actually. Virtually all of the potential value of a copyright is up-front. It's unlikely it'll ever have any value to begin with of course. But it spikes very early on, and then declines again. So nothing worth fretting over is being lost. OTOH, lots of works become available for artists to make derivatives of, and that helps them quite a bit.
So please don't think that it's common for artists to be in a Van Gogh mold, only being recognized later in life, or after their death. Most artists never get recognized at all. And hell, it's not as though Van Gogh had any reason to expect fame or fortune, and it didn't stop him.
It's not b
And those problems are ?
The problem is that a hell of a lot of works that ought to be in the public domain are not.
No, not until they find that their works are being used by other people without any compensation. Nor until 20 years later when the work becomes relevant for some other reason.
Well, as to the first point, I suppose that the author will know better the next time, although typically it's not as though they'd be likely to get compensation anyhow, since the expenses of working with authors tends to drive people towards having to do things independently. That means there's a lot of wasted effort, another bad thing. As to the second, I personally favor 5 year copyrights that at most could be renewed so as to last a total of 25 years. So it's not as though such an author would be missing much. But then, few works are ever of any commercial value, and the vast majority of those are valuable within a few years of creation. It's sufficiently unusual to see a work being worthless for so long and then suddenly becoming useful that it's not something we should design the system for.
Explain the problems to me?
Terms got much longer, that "moral rights" bullshit made a tiny bit of headway, international copyright treaties didn't end up in the trash where they belong, formalities were largely forgotten, the utility doctrine has been gutted, etc.
Then these people can choose to publish their works without attribution or release them to the public domain. Other people can choose the opposite. Under your system, we're all forced to once choice.
Works are copyrighted regardless of attribution. Right now if you make something that's eligible for a copyright, it is copyrighted, unless you specifically place it in the public domain.
That's only one choice.
I merely propose to invert that, and put things back to the way they were for most of our history -- that works are in the public domain unless the author thinks it's worthwhile to get a copyright. Since a copyright is burdensome on the public, we should not hand them out willy nilly, but only see them granted to works where they're actively desired. Formalities help by making it clear what is in fact copyrighted, by preserving those works despite the author, and by weeding out authors who want something for nothing.
Wrong: copyright isn't an incentive
Nope. Copyright is an incentive.
It's simple how it works, but perhaps it escaped you: Without copyrights, some works are created (we know this from history) and the public can fully enjoy all of them. With copyrights, we give the copyright holder some control over public enjoyment, temporarily, which can be parlayed for money, and this encourages them to create more works so as to take advantage of that. Since the public wants both more works and full enjoyment, the copyrights are limited in duration.
Because it is harmful to the public for works to not be in the public domain, it shouldn't happen unless necessary. If it's necessary to encourage creation AND the creation and term expiration will ultimately yield a greater public good than would've happened without copyrights at all, then it's still for the net public good. If the work would've been created anyhow, then copyrights didn't encourage it, but did harm the public. That's bad.
It's impossible, of course, to perfectly weed the various sorts of works out, but requiring registration helps.
The same logic is at work in the patent system, which does require inventors to specifically apply for a patent. In fact, they have to very rapidly, and it's a long and expensive process.
This isn't really subject to debate -- this is how it is, as you'd know if you spent any amount of time studying the issue.
Default coypright ensures that my emails are default protected at no cost automatically from someone compiling a commercial publication.
Yes, and how does it benefit the public f
automatic copyright attracting works and it caused no problems.
This is seriously short-sighted. It has caused a gigantic problem. Copyrights ideally should only be granted to those works which would not otherwise have been created. It is purely harmful to the public where superfluous.
When works are automatically copyrighted, that means virtually all works. And the large majority of those works would have been created otherwise -- hence the tremendous harm that ensues.
While in a proper system, people might not initially be aware that they need to register, the vast majority of them likely couldn't care less. This is particularly so considering that registration involves some formalities (notice, deposit, filing fees, etc.) that while rather minimal are more trouble to most people than a copyright would be worth.
The US got along GREAT when it required registration, and yet everything's been going to hell since we foolishly passed the 1976 Act. The truth of the matter is that we had an excellent copyright system that needed work, true, but was really quite good (especially prior to the 1909 Act), and that the rest of the world has been steadily dragging us down and fucking it up.
If I create a noteworthy paper, then I'm pleased that people can read it and use it, but the last thing I want is for other people to strip off the attribution and distribute the work - leaving me without any recognition.
That might be very true, but who the fuck cares what you want? Just you.
Copyright is a utilitarian system designed for maximizing the public good. Not your specific good. If you want some sort of benefit from a copyright system -- all the way to the idea of having such a system at all -- then you really ought to show me how it makes _me_ and the rest of the public better off to do so.
Again, this would be a huge disincentive: why create a work when you don't obtain attribution for it ?
Because it's your job, or hobby, or school assignment, or was comissioned, or it's for art's sake, or any of a hundred reasons.
Copyright is only _one_ incentive. It's probably not even the most important. And where it's possible to discern works that would've been created without a copyright -- they shouldn't get a copyright. Copyrights are only to be used for works that but for a copyright would not be created.
I was thinking that the difficulty had more to do with what happens on the other end -- a computer model of a sculpture still isn't something you can put on the mantel in your living room. We're getting there, but it's not commonplace yet, especially for any given set of materials.
If it costs you $100 million to create a feature film, what incentive is there for you as an investor, a studio, whoever, to put that money in if within a week of the final edit being finished it is distributed to your entire audience for free?
I think that a good first step would be to stop wasting $100 million on a movie when you could make an equally good movie for a few hundreds of thousands of dollars.
Personally, I have no problem with otherwise infringing activity that's commercial in nature -- theater showings, sales of copies, etc. -- being infringing, all else being equal. OTOH, I see little point to penalizing noncommercial activity. That would certainly result in a goodly sized reduction of available profit, but also would largely remove pressure from ordinary people doing what are in truth innocent things.
It also might shift creative activity to other media -- sculpture is somewhat annoying to send over P2P right now. But this is a short term thing, and ultimately wouldn't last.
So, instead of trying to take other people's music and distributing it without their permission, how about you actually try and create music people want and give it away under terms like the GPL, much in the same way you do with software now?
I vote for both -- particularly since other people's music is often a good base to begin with. Which is in fact why we have statutory licenses that force musicians to let people make covers of their works whether they like it or not.
Naw, you just have an either/or clause, pinning the tax to the greater of either revenue or a statutory amount based on age.
Not only would be virtually impossible to implement, but would create a huge disincentive to create copyright works (I'd stop writing informal papers,
Not at all -- you just put those things into the public domain upon creation. Although I admit this proposal would work a lot better if we admitted that automatic copyrights were an amazingly huge mistake and went back to the old system where you had to actually register for one.
The fact is that you can sue someone without even a hint of a valid reason.
Yes, but you'll tend to lose if you don't have a valid reason. Plaintiffs generally bear the burdens of prove and persuasion. If their position is so lame that they cannot even make a prima face case, they can't win.
So what you're really saying is that people are bringing cases that are at least _somewhat_ valid, and although they could be defended against, that's not happening enough. Sound about right?
They're not fixed in those material objects, turn off the power and where's the copy? It's transient and not fixed. We probably now need a definition of 'fixed', but I really don't feel like going there.
We have a definition of fixation in 17 USC 101 already: 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.
And what percentage of all lawsuits are frivolous? It's always possible to find something freakish -- but if there is only a small number of notorious anomolies that doesn't mean that the system overall is broken. It mostly just means that no one bothers to print everyday cases, only really unusual ones.
Because you're breaking the law.
Well, the previous poster said it was wrong, not illegal. Are you saying that all laws are right, all illegal activity is wrong, and that you must always obey the law? I think there are examples that contradict that -- abolitionists helping runaway slaves escape is a good one.
I agree that lawlessness is generally bad, but this should caution us then to only pass laws that are not so oppressive that ordinary people will feel they're doing nothing wrong when they do break the law. Prohibiting acceptable behavior is what leads to lawlessness ofttimes then, and we should not do it either. That way the laws will tend to be obeyed because people don't really have a problem with them.
I suspect that our current copyright laws have gone too far, hence people find themselves running afoul of them without ever doing anything that actually seems bad. It is reminiscent of prohibition, and I expect it'll come to the same end, as the laws are reduced in scope.
At any rate, your point isn't supportable. Let's try another.
Because you're making use of something you haven't paid for that you should have paid for.
Well, you again assume something. Why should you have paid for it? Seriously, I want to know.
Because you're depriving folks of income.
That's never been a very good argument. Suppose I build a replicator and use it to give away limitless supplies of food, water, medicine, fuel, clothes, etc. I will have put countless people out of work -- but also ensured that they will no longer need to work for any of those things.
Is the mere fact that I deprived them of their income wrong? I think not, and so we can dispense with this point too.
Because you wouldn't walk up to a jewlery store and take whatever you want.
Actually I find jewelrey pointless anyway, so I wouldn't bother. I don't even have any.
But again -- perhaps these situations aren't quite the same. After all, there is a finite amount of jewelry; it is rivalrous, it is subject to scarcity. This is not the case when it comes to information.
Contrary to what you might think it is the same thing for those of us who make our living off of IP.
Well, I used to make a living as an artist, so I think I know something about it.
But I think that maybe you should consider a different job, or at least adjust what you have now to accomodate a significant decrease in your fortunes. No one said that you were entitled to make a living doing what you're doing. You might need to do something else, as the buggy whip people found out.
if you give the copyright of a work to someone in the UK, the Berne convention should extend that copyright to the world (and hence back into the US)
... then the user as well as allofmp3 can resell the music.
No. If Perry gives Sid some rights, that's it. It's vaguely like selling land (which is in fact selling rights pertaining to land) -- you get what you paid for. Perry can limit what he gives Sid to being a copyright on derivative operas written by left handed people. And then that's all it will cover.
As a result, the transfer of copyright to someone else could effectively make two distributors in a single country.
No, when you _transfer_ copyright to someone else, you are it seems, not keeping anything for yourself. You're giving it away. This is not uncommon. Many authors have no rights whatsoever as to their works, having sold them off previously.
You're actually taking the line out of context. Here is the whole line.
The bit you added says, in short, that the owner of a copy that was lawfully made under US law, or a person authorized by the owner of such a copy can redistribute it. They are NOT talking about authorizations stemming from the copyright holder, nor anything involving anything other than taking an existing copy of a work and selling that specific copy.
It's really quite pointless as far as this discussion goes, that's why I cut it out to begin with. You need to parse this stuff better.
So, if allofmp3 is authorized to make copies
Unless they are authorized by a person who can grant them such authority under US law -- which is likely different than Russian law -- those copies they make are STILL not lawfully made under our law, and hence cannot qualify for first sale in the US.
This is what I've been saying for a while: that while they might be perfect law abiding people in Russia, that doesn't mean they're ok to do business with Americans in America.
I just know that people sue way to fucking easly in this country.
How do you know that, actually? You've conducted studies? You've looked at the cases that actually come to trial -- as opposed to those that are threatened but never brought, brought but dropped, settled, dismissed, or otherwise never actually get to a judgment -- and found so many of them to be meritless?
I would really caution you against advocating reform based on hearsay and examples that while well known may be extremely unusual.
I didn't say it was simple. It's fairly complex, in fact. Hell, the entire analysis is subject to change; it's changed before and it will again.
Just that _that_ is how you determine if something is a fair use or not; by searching inquiry. You do not say 'parody' and it's magically protected, as the Air Pirates found out
it comes down to a simple question of "artist spends time, effort and cost making a creative work", and in return are you going to give the artist some protection for what he is created, or are you going to allow people to take it and use it as they please ?
I will do what is most socially beneficial.
Society benefits from artists creating works. Society benefits from not having to pay for, or otherwise be limited as to, works.
Assuming that they scale in interesting, non-linear fashions, I will juggle how much of each I have so as to maximize social benefit.
And that's the American model of copyright: it's wholly utilitarian. It's only recently that special interests (who I don't blame too much, as I expect everyone in this area to act out of self interest) have been fucking it all up to their benefit. I'd like to see reforms that fix it all up to the public's benefit.