I concur, but it is important to know the current laws so that we a) know what we're being held to, b) know what we want to change and why, if it comes to that.
You can't effectively lobby against the current laws in favor of anything else unless you know what the current laws are./. is chock full of mistakes about copyright law. Few posters here have a good grasp of it. I'd be very careful in following any advice here, particularly if it seemed to run against CONVENTIONAL common sense -- the kind that non-computer using judges and opposing counsel might have.
Broadcasting is "we broadcast it and you listen", and there's no automatic right to tape records off the radio.
There IS.
It's part of the 'fair use' concept:
There is NOT. the previous poster said "automatic," and fair use is NOT automatic. In fact, it's impossible to make any blanket statement as to what is and is not fair use. In each case, you have to look at the specific facts at hand and test them according to the four part fair use analysis. Anything might pass, anything might fail -- you have to check.
But can you name a law you would violate when importing a legally purchased piece of music?
Yes. 17 USC 106. That was easy, give me a hard one next time.
But it's not relevant. This is NOT importation. Which means that it violates a different part of the same statute, the part about reproduction. This is somewhat worse, since while _some_ importation is legal, it's harder to find a situation where this is legal as reproduction. At least in the US.
They're licenced with the Russian equivalent of the RIAA, so I don't see where the problem is.
Provided you're in Russia, no problem at all I assume. Otherwise, there's an excellent chance that it violates your local copyright laws that you can be held subject to.
This is a great example of the free market combined with the internet. I'm able to buy goods and services from wherever it suits me.
Yeah, but copyright was set up deliberately to prevent just anyone from doing this sort of thing. It's artifical scarcity. So when it's undercut like this, copyright interests probably will take it personal.
Copyright holders hold a number of different rights, several of the most important of which are listed at 17 USC 106. One of them is the right to prevent others from distributing copies of the work.
If that right were not subject to exceptions, no one could ever give a legally created copy of a work (i.e. a copy bought from the copyright holder; an official copy) to anyone else, much less sell it, rent it, or whatever.
As it happens, there are exceptions -- limitations -- to that right. But due to the precise language of one of them (17 USC 109) things get a little wonky. What it says is: the owner of a particular copy... lawfully made under this title... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
Copies that aren't lawfully made under US law are not eligible for first sale, which is what 109 is. This applies to copies that are unlawfully made in the US (e.g. pirate copies) but also to copies that, while made lawfully in foreign countries, wouldn't have been made lawfully if they had been made here. Typically because they're not being made by the US copyright holder, who is the only person who can make them lawfully here.
Since the UK copyright holder cannot make copies lawfully in the US, first sale does not apply to any copies he makes. Ditto for people who make copies legally in countries where anyone is lawfully allowed to. This means that the US copyright holder controls importation of those copies.
More importantly, I wonder how Sid ever got the work in the first place. The distribution to Sid from Perry seems to fall under your case too.
Perry is the copyright holder in the UK initially, and can do whatever the hell he likes. When Perry and Sid act together once Perry's given Sid some rights, they can together do whatever the hell they want. And either of them can do whatever the hell they want where they have rights.
So, assuming that the UK had the same laws, Sid CAN import a copy from the US to the UK, since regardless of the law, as the copyright holder, he can just allow it.
Remember, copyrights are always controlled by the rights holders. The law says that the rights holder can tell other people to not copy something. It doesn't stop him from doing what he wants -- as long as he's a person who has the right to. In this respect, it is kind of like property law (in that you cannot trespass on your own property, and you can let others in or not at whim).
First Sale Doctrine, as I've read it, never makes mention of US rights. It only makes mention of copyright in general.
Not so, as demonstrated above. In the US, first sale originated in 1908. It made a big splash, and Congress immediately put it into the statutes in the 1909 act, and there has been a first sale statute since. You can read EXACTLY what it says at 17 USC 109, and I guarantee that it will hold surprises for you if you read the whole thing carefully. Judical first sale AFAIK hasn't ever done much because the statutory form usually applies negating any need to bother with the judicial form of it. Courts, as a rule, don't bother with finding two reasons to allow something when one will do.
Or the situation of importing a copy made in the UK into the US when an author has copyright over a work in both countries.
In that situation, there is no restriction, because first sale applies. 602 is only needed where the copy to be imported would not have been made legally had it been made under US law, i.e. wasn't made by the US rightsholder. There have been cases to that effect already.
But maybe I'm wrong. I'd really like to know what part of US law covers importing original or used copies of a copyrighted work for various situations (like the same right holder in one of the two countries or in both).
17 USC 101 -- useful definitions to refer to 17 USC 106 -- the distribution right 17 USC 109 -- first sale exception 17 USC 602 -- limited importation exceptions
Just because pirating is government sponsored doesn't make it a good idea...
True, but OTOH, just because copyrights are established doesn't make them a good idea either.
We'd probably be better off if we legalized some infringing behaviors that are currently prohibited.
Note, btw, that the US does something similar in the AHRA.
This is fine for China at the moment, after all, they are screwing US software companies.
Well, I have no qualms with China doing what's good for China. I think the US ought to follow a similar (US oriented) policy.
If they expect to have a huge domestic software industry however, they are going to have reign in the pirates, because no software company will be able to remain solvent by selling software when 100% of its software is available just as easily, and nearly as legally, at a fraction of the price.
Again, I agree. When China feels that this is more important, then they should pursue it. Again, they'll be doing what's best for their own people.
The problem with US copyright law now is that while some copyright law is pretty certainly what would be best for us, the current laws are not what's best for us. Instead they're best for (some) artists and publishers, and that's a tiny subset of all Americans. Instead copyright law ought to do what's best for Americans generally. This probably means scaling down copyright laws.
There is no question, and copyright doesn't require intent. It's a strict liability statute -- you infringe, it doesn't matter if your shit smells like roses. All that's required is that you broke the law, however unwittingly. At best the fines will be less, though there's still going to be fines.
They haven't gone after downloaders yet because it's a pain in the ass to sue anyone. So if you're going to do it, you want it to count -- you sue P2P services and shut down millions of people in one blow. You sue uploaders and shut down tens or hundreds of leeches with them. Sue a leech, and you only get one guy. It's wasteful overkill, and they won't bother with it right now.
Actually, bankruptcy does NOT discharge all debts.
Some debts stick, as you note. One sort are intentional and malicious torts. While copyright infringement isn't necessarily of this type, it could be, and then you're fucked.
What happens then to the little guy that sues justly but can't prevail against a big, well funded wrongdoer? This is not at all uncommon in cases involving huge torts (dumping chemicals and such) some labor disputes, etc.
Yeah, I know. I fucking CITED 602. But it only applies for importation. If this isn't importation, 602 is irrelevant. Well, this isn't importation, and so it doesn't apply.
When you're buying literal CDs or a disk of mp3s or what the hell ever, as opposed to downloading, then go nuts with 602.
If Sid has legal rights to copy the album, then he has legal rights to copy the album.
Well, Sid does NOT have legal rights to copy the album. He has legal rights to copy the album IN THE UK. If he goes to France, Japan, the US, anywhere else, he can't do it. He only has the right to do it in the UK.
If I buy a legally produced copy of the album from Sid while on holiday in the UK, are you actually suggesting that's it's illegal for me to bring it back with me?
I am saying that it would be, if not for the fact that Congress anticipated this situation and made a special exemption that allows this to some extent in 17 USC 602. If not for that, you'd have to hope that a court relied on the judicial first sale doctrine which is highly uncommon, or fair use, which is unpredictable since it's always a case by case analysis. And those are exceptions too.
That's how copyright law is currently set up -- several extremely broad rights are given to copyright holders, and then little holes are cut in it to let some people get through without needing permission.
the proper licensing bodies are being paid so the creation would have been legal under US law
No, this is incorrect.
The proper RUSSIAN people are getting paid off. If you, in the US, paid the Russian copyright holder, and did not pay the American copyright holder, you would be fucked. Because the American copyright holder is the only one that matters as far as American copyright law is concerned.
People who are buying mp3s off of this site and who are American are basically getting suckered into buying the Brooklyn Bridge. If they get caught hauling it away, it will not go well for them, no matter how convincing the 'seller' was.
You interpretation is basically that the license under which Sid copies the work
Nit: Sid is not copying under license. He doesn't have authorization from Perry in my example. Perry SOLD the UK copyright to Sid. Sid is now the copyright holder in the UK, just like Perry is the copyright holder in the US and everywhere other than the UK more or less.
arbitrary export limitations
Well, import limitations. And the limitations are established in law.
US law says that the only person who can distribute copies in the US, including importing into the US, is the copyright holder. (106)
BUT that if the copy was made in a way that would be legal if it had been made in the US (i.e. only the US copyright holder can make it in the US, so that means him), then first sale applies. (109)
OTHERWISE, there might be minor exceptions available. (602)
AND OF COURSE the US copyright holder can always give permission to anyone to do anything, but it's up to him. (106 again in that it's his call as to what he wants to do)
If this is illegal, buying a hardcopy of a CD from Russia is illegal as well.
No one in the US gives a rat's ass what you do in Russia. It's not our problem. These laws only kick in when you're in the US or trying to import things into the US.
It's legal to buy a CD in Russia. It's legal -- provided that either 109 or 602 apply -- to bring it into the US. It's legal to order it and have it brought into the US for you under the same provisions, if they apply.
But here, they don't apply; it's not importation, and there's no similar exception that covers reproductions.
Ok, so there apparently is no law regarding export of books or other media using any electronic media, so it's assumed to be illegal.
Well 1) it fails a common sense check as to being import/export since nothing tangible is moving. Those terms are too well tied to the real world to have any utility in this discussion; 2) There is a law -- 17 USC 106 says that the copyright holder can exclude other people from making or distributing copies of the work. What you want is an exception to that law that prevents that very broad rule from applying to this sort of behavior. First sale is an exception. Fair use is an exception. The 602 import exception is an exception. They're little holes cut in much broader laws, and sometimes you can go through them. If there were no law at all, it would in fact be legal. For example, the copyright holder LACKS the power to say who can and can't read things (assuming no copying is going on -- and computers copy all the time very subtly) so remember that it takes a law to make something illegal, and that another law can shrink the scope of the previous one.
Ok, so you are breaking the law then by watching a DVD or listening to a CD on your computer(or most likely on your DVD player) because they make a copy to working memory to display it?
Sort of. First, there's excellent arguments for fair use, but even better still is a concept known as laches, or equitable estoppel. Or, as one of my profs liked to call something similar, the Superchicken Rule.
Because the copyright holder KNEW that those copies were going to be inevitable as people used the media in the intended manner, and that they went around and sold it anyway, it's no good to cry foul later. That is, you cannot set someone up for a fall by encouraging behavior that you later sue them for; it's not fair, and courts do consider matters of equity all the time.
(Superchicken, as you'll recall, often told his sidekick that the sidekick knew the job was dangerous when he took it)
So those cases would really just get nowhere fast. But that isn't what's happening here, and it doesn't invalidate the MAI rule. I think there are excellent grounds for overturning MAI and I'd like to see the courts or Congress do it asap. But it is popular, despite not really being correct.
In fact, how is this different than looking at a website hosted in a different country?
Which brings us to the Utah Lighthouse case, which followed MAI, and held that when a user looked at material on a website that was illegally posted, the user broke the law. I agree, it's crazy, especially when you realize that in any non-computer related situation (e.g. reading an infringing book) the result would be the opposite, but this is what's actually going on.
If Perry sells his rights in the UK to Sid, then you can obviously import any copies Sid makes for sale because they're copyrighted. Or do you think the RIAA can't sell US music in the UK because it got hold of the copyright for songs from the authors?
No, you're wrong. Look, a copyright is not a single, indivisible thing. Think of it like a bundle of sticks. One pair of sticks are the right to reproduce and distribute copies in the US. Another pair are the rights to reproduce and distribute copies in the UK. Perry gave Sid the latter pair, but kept the former for himself.
This means that Sid has no right whatsoever to reproduce copies in the US. And the way the law is written, first sale only applies to copies that were made legally by whoever had the US rights. Since Sid does not have _those_ rights (despite having other rights), the UK edition cannot be imported as a matter of first sale. To do so would be infringing.
This is true even though Sid made his copies totally legally in the UK and has the blessing of the US rightsholder.
And in fact, it is not uncommon to see various publishers and distributors only having rights in certain parts of the world. Some movies are distributed by different companies, for example. And a lot of books have different publishers all over the place.
If copyright can extend from the US to the UK, I'm not sure why it can't extend back again.
Well, it doesn't. There's no such thing as a single worldwide copyright. There are US copyrights, and UK copyrights, and while the same person might hold both and get both at the same time, they are still different, and neither has any effect on the other. Bundles of sticks!
Then how can iTunes do it?
They're given permission to do so by the US copyright holder. And note that they try very hard to only do business where the local rightsholders have given them permission to do so.
No one AFAIK in the US has given these Russians permission to do what they're doing. So while it's fine for Russians in Russia to use it, it's not okay for Americans in America to.
I'm wondering who in this instance is breaking the law
Downloaders for sure. The Russians maybe -- depends on if a court decides to treat them as vicarious infringers.
If I'm making a copy on my end, as you say, but that copy is for my personal use and I don't distribute it, haven't I stayed within the bounds of US copyright law?
Probably not, no. Look at the four factors in 17 USC 107 -- the fair use statute. You'd be copying the whole work exactly as is, it's not transformative, it directly competes against the US rights holder, and it's a creative work. I see very little hope of fair use helping, and that's the only hope you'd have.
So, could the RIAA come after a US downloader under current laws? Well, yes, obviously they can, but would the case have legal merit?
No question that they could, and if they did, that they'd win. But it's not really effective for them to do so -- that's why as a strategic matter they go after bigger fish like P2P services or at least uploaders. Plus downloaders are marginally harder to catch. Only marginally though, IMO, as RIAA honeypots are easy to set up, especially as uploaders get busted or at least get careful. And since the statute of limitations is 3 years civilly, they can take their time about it.
That's not relevant. It doesn't matter how many instances there are -- I just made the point that there are likely to be two for purposes of illustration. What's relevant is the the downloaded copy is not the actual same thing as, despite being identical to, the server-side copy, however long it lasted.
If it was written to a fixed medium like RAM or a hard disk on your side -- a new copy was made. Computers copy stuff constantly in normal operation -- it doesn't move around in there.
I don't clearly see how I'm duplicating something I don't have.
I've worked out a new example of how easy this is to do that should illustrate it more clearly.
Imagine that Alice is in Russia, and has a copy of War and Peace. She calls Bob in America who has a lot of patience, blank paper, ink, and overseas minutes on his phone.
Alice can read her copy to Bob, who transcribes it. Obviously Alice didn't export her copy to Bob -- she still has it, and it never left her hands, much less Russia. But in the end, Bob has a brand new handwritten copy of War and Peace, writer's cramp, and the biggest phone bill ever.
There is no substantial difference between Alice's voice being transmitted over a phone line or packets. In fact, there's a decent chance that Alice's voice is being transmitted over the line as packets! It's not importation.
I was under the impression that american law did provide an exemption of copyright in so far as the "copy" was necessary due to the architecture of the device to actually use whatever it is that you bought that was getting copied.
Actually, that's only for copies of computer software you own. N.b. that copies of EULA'ed software may not be owned by you, at least according to the EULA.
Anything else would have to be under fair use, or in some cases, laches. But it's hardly widespread.
Let's try a different sort of example, which I used above to respond to a similar point.
Imagine that Alice is in Russia, and has a copy of War and Peace. She calls Bob in America who has a lot of patience, blank paper, ink, and overseas minutes on his phone.
Alice can read her copy to Bob, who transcribes it. Obviously Alice didn't export her copy to Bob -- she still has it, and it never left her hands, much less Russia. But in the end, Bob has a brand new handwritten copy of War and Peace, writer's cramp, and the biggest phone bill ever.
There is no substantial difference between Alice's voice being transmitted over a phone line or packets. In fact, there's a decent chance that Alice's voice is being transmitted over the line as packets! It's not importation. This should be fairly clear by now.
In order for Joe Consumer to make a copy, he would have to possess an original in his country that he could make the copy from. How would he do that if the original resides in Russia?
Rather easily, in fact. Consider this example:
Alice is in Russia, and Bob is in America. Alice has a copy of War and Peace, which we will assume is copyrighted for the purposes of this example, even though in fact it is not.
Alice makes a collect call to Bob's cellphone. She starts reading the novel to Bob over the phone. It starts out, "Well, Prince, so Genoa and Lucca are now just family estates of the Buonapartes," and continues from there for a godawfully long time.
Bob has been carefully writing down what Alice has been saying. In the end, he has a handwritten copy of War and Peace, and Alice's copy has never left Russia. Two copies now exist, where before, there was only one.
It's fairly simple, unless you're a total dumbass.
Because there are several copies: 1) Master copy (Russia) 2) Transcoded copy (Russia) 3) Copy in RAM (Russia) 4) Copy in NIC (Russia) 5) Many copies at different points on the Internet 6) Copy in NIC (US) 7) Copy in RAM (US) 8) Copy on hard disk (US)
Information in a computer can't physically move from place to place -- rather each destination creates a new copy according to what it is told by a source. If it worked the way you're saying, then when you ran a program, the hard drive copy would literally move from hd to ram. Instead, copies are made.
That's just stretching too far IMO. A court will look at places that sell music online -- Napster 2, iTMS, etc., and will look at Internet Radio, and I will eat my hat if they decide this site is even slightly radio-like.
There is a good expression to keep in mind when one develops tortured arguments like this: "The law is not an ass."
MAI v. Peak is pertinent since it deals directly with what constitutes reproduction and what does not. Importation exemptions like 602 don't permit reproduction.
If downloading results in reproduction -- as the MAI line of cases (e.g. Utah Lighthouse, Napster) indicates, then 602 is inapplicable.
Fair use _might_ be applicable, but it's unlikely IMO. Just looking at Diamond isn't good enough -- if you're interested in looking at the law, you need to conduct the four factor fair use test of 107 AND you need to remember that a Russian copyright holder cannot authorize you to do jack shit in the US -- only the person who holds the US rights can do that. So courts will consider the economic impact on American copyright holders and I predict that it won't go well for the defendant in such a case.
Well, the thing is, it doesn't matter what ultimately happens to the server-side copy if it's seperate from the copy you have, despite being identical. What's important is that your copy, although identical to a copy in Russia, was made locally. The issue of the sum total of copies floating around is for illustrative purposes, it's not determinative legally.
The point is that unless your copy was fixed in a medium in Russia and hasn't changed mediums since, you're probably reproducing the work, not merely moving a copy from one place to another. Importation is inescapably a physical world thing.
Actually, that's specifically covered by something else now, so we can leave it aside. If Congress wants to treat it as being more performance like than reproduction like, courts will abide by that.
anti-skip buffers in CD players
Yeah, that would count. But a court is fairly likely to accept a laches or fair use argument in that very limited case, I imagine. Plus, they won't give a rat's ass until someone brings the case.
[running software without EULAs]
Also specifically excepted. 17 USC 117 permits the owners of a copy of a computer program to make all the copies and adaptations they need to to run it. And all the (legitimate) backup copies they want.
EULAs actually interfere with this because they tend to claim that the user doesn't own that copy of the software -- and must then get the right to use it from the EULA. Try reading a decently drafted one, and you'll find the appropriate provisions sure enough.
Slashdot Mirror
I concur, but it is important to know the current laws so that we a) know what we're being held to, b) know what we want to change and why, if it comes to that.
/. is chock full of mistakes about copyright law. Few posters here have a good grasp of it. I'd be very careful in following any advice here, particularly if it seemed to run against CONVENTIONAL common sense -- the kind that non-computer using judges and opposing counsel might have.
You can't effectively lobby against the current laws in favor of anything else unless you know what the current laws are.
There IS.
It's part of the 'fair use' concept:
There is NOT. the previous poster said "automatic," and fair use is NOT automatic. In fact, it's impossible to make any blanket statement as to what is and is not fair use. In each case, you have to look at the specific facts at hand and test them according to the four part fair use analysis. Anything might pass, anything might fail -- you have to check.
But can you name a law you would violate when importing a legally purchased piece of music?
Yes. 17 USC 106. That was easy, give me a hard one next time.
But it's not relevant. This is NOT importation. Which means that it violates a different part of the same statute, the part about reproduction. This is somewhat worse, since while _some_ importation is legal, it's harder to find a situation where this is legal as reproduction. At least in the US.
They're licenced with the Russian equivalent of the RIAA, so I don't see where the problem is.
Provided you're in Russia, no problem at all I assume. Otherwise, there's an excellent chance that it violates your local copyright laws that you can be held subject to.
This is a great example of the free market combined with the internet. I'm able to buy goods and services from wherever it suits me.
Yeah, but copyright was set up deliberately to prevent just anyone from doing this sort of thing. It's artifical scarcity. So when it's undercut like this, copyright interests probably will take it personal.
Copyright holders hold a number of different rights, several of the most important of which are listed at 17 USC 106. One of them is the right to prevent others from distributing copies of the work.
... lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
If that right were not subject to exceptions, no one could ever give a legally created copy of a work (i.e. a copy bought from the copyright holder; an official copy) to anyone else, much less sell it, rent it, or whatever.
As it happens, there are exceptions -- limitations -- to that right. But due to the precise language of one of them (17 USC 109) things get a little wonky. What it says is: the owner of a particular copy
Copies that aren't lawfully made under US law are not eligible for first sale, which is what 109 is. This applies to copies that are unlawfully made in the US (e.g. pirate copies) but also to copies that, while made lawfully in foreign countries, wouldn't have been made lawfully if they had been made here. Typically because they're not being made by the US copyright holder, who is the only person who can make them lawfully here.
Since the UK copyright holder cannot make copies lawfully in the US, first sale does not apply to any copies he makes. Ditto for people who make copies legally in countries where anyone is lawfully allowed to. This means that the US copyright holder controls importation of those copies.
More importantly, I wonder how Sid ever got the work in the first place. The distribution to Sid from Perry seems to fall under your case too.
Perry is the copyright holder in the UK initially, and can do whatever the hell he likes. When Perry and Sid act together once Perry's given Sid some rights, they can together do whatever the hell they want. And either of them can do whatever the hell they want where they have rights.
So, assuming that the UK had the same laws, Sid CAN import a copy from the US to the UK, since regardless of the law, as the copyright holder, he can just allow it.
Remember, copyrights are always controlled by the rights holders. The law says that the rights holder can tell other people to not copy something. It doesn't stop him from doing what he wants -- as long as he's a person who has the right to. In this respect, it is kind of like property law (in that you cannot trespass on your own property, and you can let others in or not at whim).
First Sale Doctrine, as I've read it, never makes mention of US rights. It only makes mention of copyright in general.
Not so, as demonstrated above. In the US, first sale originated in 1908. It made a big splash, and Congress immediately put it into the statutes in the 1909 act, and there has been a first sale statute since. You can read EXACTLY what it says at 17 USC 109, and I guarantee that it will hold surprises for you if you read the whole thing carefully. Judical first sale AFAIK hasn't ever done much because the statutory form usually applies negating any need to bother with the judicial form of it. Courts, as a rule, don't bother with finding two reasons to allow something when one will do.
Or the situation of importing a copy made in the UK into the US when an author has copyright over a work in both countries.
In that situation, there is no restriction, because first sale applies. 602 is only needed where the copy to be imported would not have been made legally had it been made under US law, i.e. wasn't made by the US rightsholder. There have been cases to that effect already.
But maybe I'm wrong. I'd really like to know what part of US law covers importing original or used copies of a copyrighted work for various situations (like the same right holder in one of the two countries or in both).
17 USC 101 -- useful definitions to refer to
17 USC 106 -- the distribution right
17 USC 109 -- first sale exception
17 USC 602 -- limited importation exceptions
And yes, piracy is wrong.
Okay, but why?
Just because pirating is government sponsored doesn't make it a good idea...
True, but OTOH, just because copyrights are established doesn't make them a good idea either.
We'd probably be better off if we legalized some infringing behaviors that are currently prohibited.
Note, btw, that the US does something similar in the AHRA.
This is fine for China at the moment, after all, they are screwing US software companies.
Well, I have no qualms with China doing what's good for China. I think the US ought to follow a similar (US oriented) policy.
If they expect to have a huge domestic software industry however, they are going to have reign in the pirates, because no software company will be able to remain solvent by selling software when 100% of its software is available just as easily, and nearly as legally, at a fraction of the price.
Again, I agree. When China feels that this is more important, then they should pursue it. Again, they'll be doing what's best for their own people.
The problem with US copyright law now is that while some copyright law is pretty certainly what would be best for us, the current laws are not what's best for us. Instead they're best for (some) artists and publishers, and that's a tiny subset of all Americans. Instead copyright law ought to do what's best for Americans generally. This probably means scaling down copyright laws.
There is no question, and copyright doesn't require intent. It's a strict liability statute -- you infringe, it doesn't matter if your shit smells like roses. All that's required is that you broke the law, however unwittingly. At best the fines will be less, though there's still going to be fines.
They haven't gone after downloaders yet because it's a pain in the ass to sue anyone. So if you're going to do it, you want it to count -- you sue P2P services and shut down millions of people in one blow. You sue uploaders and shut down tens or hundreds of leeches with them. Sue a leech, and you only get one guy. It's wasteful overkill, and they won't bother with it right now.
Actually, bankruptcy does NOT discharge all debts.
Some debts stick, as you note. One sort are intentional and malicious torts. While copyright infringement isn't necessarily of this type, it could be, and then you're fucked.
What happens then to the little guy that sues justly but can't prevail against a big, well funded wrongdoer? This is not at all uncommon in cases involving huge torts (dumping chemicals and such) some labor disputes, etc.
Yeah, I know. I fucking CITED 602. But it only applies for importation. If this isn't importation, 602 is irrelevant. Well, this isn't importation, and so it doesn't apply.
When you're buying literal CDs or a disk of mp3s or what the hell ever, as opposed to downloading, then go nuts with 602.
If Sid has legal rights to copy the album, then he has legal rights to copy the album.
Well, Sid does NOT have legal rights to copy the album. He has legal rights to copy the album IN THE UK. If he goes to France, Japan, the US, anywhere else, he can't do it. He only has the right to do it in the UK.
If I buy a legally produced copy of the album from Sid while on holiday in the UK, are you actually suggesting that's it's illegal for me to bring it back with me?
I am saying that it would be, if not for the fact that Congress anticipated this situation and made a special exemption that allows this to some extent in 17 USC 602. If not for that, you'd have to hope that a court relied on the judicial first sale doctrine which is highly uncommon, or fair use, which is unpredictable since it's always a case by case analysis. And those are exceptions too.
That's how copyright law is currently set up -- several extremely broad rights are given to copyright holders, and then little holes are cut in it to let some people get through without needing permission.
the proper licensing bodies are being paid so the creation would have been legal under US law
No, this is incorrect.
The proper RUSSIAN people are getting paid off. If you, in the US, paid the Russian copyright holder, and did not pay the American copyright holder, you would be fucked. Because the American copyright holder is the only one that matters as far as American copyright law is concerned.
People who are buying mp3s off of this site and who are American are basically getting suckered into buying the Brooklyn Bridge. If they get caught hauling it away, it will not go well for them, no matter how convincing the 'seller' was.
You interpretation is basically that the license under which Sid copies the work
Nit: Sid is not copying under license. He doesn't have authorization from Perry in my example. Perry SOLD the UK copyright to Sid. Sid is now the copyright holder in the UK, just like Perry is the copyright holder in the US and everywhere other than the UK more or less.
arbitrary export limitations
Well, import limitations. And the limitations are established in law.
US law says that the only person who can distribute copies in the US, including importing into the US, is the copyright holder. (106)
BUT that if the copy was made in a way that would be legal if it had been made in the US (i.e. only the US copyright holder can make it in the US, so that means him), then first sale applies. (109)
OTHERWISE, there might be minor exceptions available. (602)
AND OF COURSE the US copyright holder can always give permission to anyone to do anything, but it's up to him. (106 again in that it's his call as to what he wants to do)
If this is illegal, buying a hardcopy of a CD from Russia is illegal as well.
No one in the US gives a rat's ass what you do in Russia. It's not our problem. These laws only kick in when you're in the US or trying to import things into the US.
It's legal to buy a CD in Russia. It's legal -- provided that either 109 or 602 apply -- to bring it into the US. It's legal to order it and have it brought into the US for you under the same provisions, if they apply.
But here, they don't apply; it's not importation, and there's no similar exception that covers reproductions.
Ok, so there apparently is no law regarding export of books or other media using any electronic media, so it's assumed to be illegal.
Well 1) it fails a common sense check as to being import/export since nothing tangible is moving. Those terms are too well tied to the real world to have any utility in this discussion; 2) There is a law -- 17 USC 106 says that the copyright holder can exclude other people from making or distributing copies of the work. What you want is an exception to that law that prevents that very broad rule from applying to this sort of behavior. First sale is an exception. Fair use is an exception. The 602 import exception is an exception. They're little holes cut in much broader laws, and sometimes you can go through them. If there were no law at all, it would in fact be legal. For example, the copyright holder LACKS the power to say who can and can't read things (assuming no copying is going on -- and computers copy all the time very subtly) so remember that it takes a law to make something illegal, and that another law can shrink the scope of the previous one.
Ok, so you are breaking the law then by watching a DVD or listening to a CD on your computer(or most likely on your DVD player) because they make a copy to working memory to display it?
Sort of. First, there's excellent arguments for fair use, but even better still is a concept known as laches, or equitable estoppel. Or, as one of my profs liked to call something similar, the Superchicken Rule.
Because the copyright holder KNEW that those copies were going to be inevitable as people used the media in the intended manner, and that they went around and sold it anyway, it's no good to cry foul later. That is, you cannot set someone up for a fall by encouraging behavior that you later sue them for; it's not fair, and courts do consider matters of equity all the time.
(Superchicken, as you'll recall, often told his sidekick that the sidekick knew the job was dangerous when he took it)
So those cases would really just get nowhere fast. But that isn't what's happening here, and it doesn't invalidate the MAI rule. I think there are excellent grounds for overturning MAI and I'd like to see the courts or Congress do it asap. But it is popular, despite not really being correct.
In fact, how is this different than looking at a website hosted in a different country?
Which brings us to the Utah Lighthouse case, which followed MAI, and held that when a user looked at material on a website that was illegally posted, the user broke the law. I agree, it's crazy, especially when you realize that in any non-computer related situation (e.g. reading an infringing book) the result would be the opposite, but this is what's actually going on.
If Perry sells his rights in the UK to Sid, then you can obviously import any copies Sid makes for sale because they're copyrighted. Or do you think the RIAA can't sell US music in the UK because it got hold of the copyright for songs from the authors?
No, you're wrong. Look, a copyright is not a single, indivisible thing. Think of it like a bundle of sticks. One pair of sticks are the right to reproduce and distribute copies in the US. Another pair are the rights to reproduce and distribute copies in the UK. Perry gave Sid the latter pair, but kept the former for himself.
This means that Sid has no right whatsoever to reproduce copies in the US. And the way the law is written, first sale only applies to copies that were made legally by whoever had the US rights. Since Sid does not have _those_ rights (despite having other rights), the UK edition cannot be imported as a matter of first sale. To do so would be infringing.
This is true even though Sid made his copies totally legally in the UK and has the blessing of the US rightsholder.
And in fact, it is not uncommon to see various publishers and distributors only having rights in certain parts of the world. Some movies are distributed by different companies, for example. And a lot of books have different publishers all over the place.
If copyright can extend from the US to the UK, I'm not sure why it can't extend back again.
Well, it doesn't. There's no such thing as a single worldwide copyright. There are US copyrights, and UK copyrights, and while the same person might hold both and get both at the same time, they are still different, and neither has any effect on the other. Bundles of sticks!
Then how can iTunes do it?
They're given permission to do so by the US copyright holder. And note that they try very hard to only do business where the local rightsholders have given them permission to do so.
No one AFAIK in the US has given these Russians permission to do what they're doing. So while it's fine for Russians in Russia to use it, it's not okay for Americans in America to.
I'm wondering who in this instance is breaking the law
Downloaders for sure. The Russians maybe -- depends on if a court decides to treat them as vicarious infringers.
If I'm making a copy on my end, as you say, but that copy is for my personal use and I don't distribute it, haven't I stayed within the bounds of US copyright law?
Probably not, no. Look at the four factors in 17 USC 107 -- the fair use statute. You'd be copying the whole work exactly as is, it's not transformative, it directly competes against the US rights holder, and it's a creative work. I see very little hope of fair use helping, and that's the only hope you'd have.
So, could the RIAA come after a US downloader under current laws? Well, yes, obviously they can, but would the case have legal merit?
No question that they could, and if they did, that they'd win. But it's not really effective for them to do so -- that's why as a strategic matter they go after bigger fish like P2P services or at least uploaders. Plus downloaders are marginally harder to catch. Only marginally though, IMO, as RIAA honeypots are easy to set up, especially as uploaders get busted or at least get careful. And since the statute of limitations is 3 years civilly, they can take their time about it.
That's not relevant. It doesn't matter how many instances there are -- I just made the point that there are likely to be two for purposes of illustration. What's relevant is the the downloaded copy is not the actual same thing as, despite being identical to, the server-side copy, however long it lasted.
If it was written to a fixed medium like RAM or a hard disk on your side -- a new copy was made. Computers copy stuff constantly in normal operation -- it doesn't move around in there.
I don't clearly see how I'm duplicating something I don't have.
I've worked out a new example of how easy this is to do that should illustrate it more clearly.
Imagine that Alice is in Russia, and has a copy of War and Peace. She calls Bob in America who has a lot of patience, blank paper, ink, and overseas minutes on his phone.
Alice can read her copy to Bob, who transcribes it. Obviously Alice didn't export her copy to Bob -- she still has it, and it never left her hands, much less Russia. But in the end, Bob has a brand new handwritten copy of War and Peace, writer's cramp, and the biggest phone bill ever.
There is no substantial difference between Alice's voice being transmitted over a phone line or packets. In fact, there's a decent chance that Alice's voice is being transmitted over the line as packets! It's not importation.
I was under the impression that american law did provide an exemption of copyright in so far as the "copy" was necessary due to the architecture of the device to actually use whatever it is that you bought that was getting copied.
Actually, that's only for copies of computer software you own. N.b. that copies of EULA'ed software may not be owned by you, at least according to the EULA.
Anything else would have to be under fair use, or in some cases, laches. But it's hardly widespread.
Let's try a different sort of example, which I used above to respond to a similar point.
Imagine that Alice is in Russia, and has a copy of War and Peace. She calls Bob in America who has a lot of patience, blank paper, ink, and overseas minutes on his phone.
Alice can read her copy to Bob, who transcribes it. Obviously Alice didn't export her copy to Bob -- she still has it, and it never left her hands, much less Russia. But in the end, Bob has a brand new handwritten copy of War and Peace, writer's cramp, and the biggest phone bill ever.
There is no substantial difference between Alice's voice being transmitted over a phone line or packets. In fact, there's a decent chance that Alice's voice is being transmitted over the line as packets! It's not importation. This should be fairly clear by now.
In order for Joe Consumer to make a copy, he would have to possess an original in his country that he could make the copy from. How would he do that if the original resides in Russia?
Rather easily, in fact. Consider this example:
Alice is in Russia, and Bob is in America. Alice has a copy of War and Peace, which we will assume is copyrighted for the purposes of this example, even though in fact it is not.
Alice makes a collect call to Bob's cellphone. She starts reading the novel to Bob over the phone. It starts out, "Well, Prince, so Genoa and Lucca are now just family estates of the Buonapartes," and continues from there for a godawfully long time.
Bob has been carefully writing down what Alice has been saying. In the end, he has a handwritten copy of War and Peace, and Alice's copy has never left Russia. Two copies now exist, where before, there was only one.
It's fairly simple, unless you're a total dumbass.
Heh. Nevertheless, it's obvious, and that's going to be bad for the patent.
Because there are several copies:
1) Master copy (Russia)
2) Transcoded copy (Russia)
3) Copy in RAM (Russia)
4) Copy in NIC (Russia)
5) Many copies at different points on the Internet
6) Copy in NIC (US)
7) Copy in RAM (US)
8) Copy on hard disk (US)
Information in a computer can't physically move from place to place -- rather each destination creates a new copy according to what it is told by a source. If it worked the way you're saying, then when you ran a program, the hard drive copy would literally move from hd to ram. Instead, copies are made.
That's just stretching too far IMO. A court will look at places that sell music online -- Napster 2, iTMS, etc., and will look at Internet Radio, and I will eat my hat if they decide this site is even slightly radio-like.
There is a good expression to keep in mind when one develops tortured arguments like this: "The law is not an ass."
MAI v. Peak is pertinent since it deals directly with what constitutes reproduction and what does not. Importation exemptions like 602 don't permit reproduction.
If downloading results in reproduction -- as the MAI line of cases (e.g. Utah Lighthouse, Napster) indicates, then 602 is inapplicable.
Fair use _might_ be applicable, but it's unlikely IMO. Just looking at Diamond isn't good enough -- if you're interested in looking at the law, you need to conduct the four factor fair use test of 107 AND you need to remember that a Russian copyright holder cannot authorize you to do jack shit in the US -- only the person who holds the US rights can do that. So courts will consider the economic impact on American copyright holders and I predict that it won't go well for the defendant in such a case.
Well, the thing is, it doesn't matter what ultimately happens to the server-side copy if it's seperate from the copy you have, despite being identical. What's important is that your copy, although identical to a copy in Russia, was made locally. The issue of the sum total of copies floating around is for illustrative purposes, it's not determinative legally.
The point is that unless your copy was fixed in a medium in Russia and hasn't changed mediums since, you're probably reproducing the work, not merely moving a copy from one place to another. Importation is inescapably a physical world thing.
internet radio
Actually, that's specifically covered by something else now, so we can leave it aside. If Congress wants to treat it as being more performance like than reproduction like, courts will abide by that.
anti-skip buffers in CD players
Yeah, that would count. But a court is fairly likely to accept a laches or fair use argument in that very limited case, I imagine. Plus, they won't give a rat's ass until someone brings the case.
[running software without EULAs]
Also specifically excepted. 17 USC 117 permits the owners of a copy of a computer program to make all the copies and adaptations they need to to run it. And all the (legitimate) backup copies they want.
EULAs actually interfere with this because they tend to claim that the user doesn't own that copy of the software -- and must then get the right to use it from the EULA. Try reading a decently drafted one, and you'll find the appropriate provisions sure enough.