Well, there was enough to the argument to get Napster. As a matter of law, I think it's already settled. I certainly don't see any good arguments around it.
Your constant quoting of 17 USC 106 is a little disturbing. That is not all there is to it. It can not be black and white like that. Why didnt' you then post 107? By only posting 106, even fair use is illegal.
For the sake of brevity. I mean I could've gone through 107 through 121, 1008, etc. Yes, fair use applies, and you'll note that 'subject to' bit at the beginning of 106. However, a) I am doubtful that fair use typically applies here, b) it's incumbent on the person alleging fair use to do so, so others that really believe it's viable under the circumstances would be better at it than I, but mostly c) it's not relevant to the issue of downloading being able to infringe.
Remember -- the parent felt that downloading was never an offense period. I have at least corrected that mistake; now I hope it'll be clear that downloading is always an offense, though sometimes exceptions might apply.
As a general matter? Just downloading by itself, no that's not illegal. Hence the qualifiers:
If you download music, and that music is copyrighted, and you're downloading it without authorization from the copyright holder -- _that_'s illegal.
Uploading and sharing copyrighted material without "authorization" -- yes, illegal (in many jurisdictions -- there are exceptions).
Downloading... as much as people tell you it is "illegal", it is not (at least in the US and Canada). It may be "immoral", or "wrong", but illegal? No.
And yes, we do read Copyright law.
Great -- now read 17 USC 106 and the MAI v. Peak case and tell me how downloading is not reproduction.
You can not make a copy of something you do not have the original copy of.
Of course you can. By making a copy of a copy. If the Mona Lisa were copyrighted, and I knew what it looked like based on pictures, even though I had never seen the real thing, and I painted one of my own, that would still be an infringing reproduction.
I'd love to see links from it, but then I'd love to see a living dinosaur too -- and the odds of seeing either are remote, at best.
Napster actually got in trouble for hosting everyone's list. What was the term?
What Napster got in trouble for was contributory and vicarious infringement. Essentially, they helped others infringe, they knew about it, it was to their benefit, and they could have stopped it, but didn't. The funny thing about contributory and vicarious infringement though, is that both causes of action simply CANNOT stand unless there is an underlying direct infringement -- that is, you cannot have helped someone else infringe unless that someone else did in fact infringe. Which takes us back to the users -- uploaders and downloaders -- who were found to have infringed as a part of the case.
Books are, in fact, digital. Each letter and word is distinct from the others -- there's nothing in between a and b, just as there's nothing in between 1 and 2.
Copyright infringement involves the illegal distribution of a copyright you do not own (or don't have permission from copyright holder).
It might, but that's not a prerequisite.
Let's look at the actual law, shall we? (emphasis below mine)
Anyone who violates
any of the exclusive rights of the copyright owner as provided by sections 106 through 121... is an infringer of the copyright... of the author. 17 USC 501(a)
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1)
to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission 17 USC 106
As you can see, both copying and distributing seperately qualify as infringing behavior, all else being equal.
ALL the lawsuits, settlements, fines, jail time involve the illegal distribution of said mp3's. Not the downloading of.
Yes, because it's more efficient to go after distributors right now than it is downloaders. You're making a stupid claim on par with 'because he only struck at the head of the snake, the rest must be invulnerable.' Remember, not too long ago, RIAA wasn't pursuing distributors, they were pursuing P2P services; did that mean they couldn't have possibly sued distributors? Of course not, but your 'logic' would've said that they of course could not do something because they hadn't already done something.
Well, so far it would seem that the RIAA doesn't have much confidence in your theory.
Hardly; they argued it successfully when bringing down Napster.
They go after uploaders, not downloaders.
Yes. It's a tactical decision -- given that even RIAA has limited resources available, they're going after the head of the snake first. Originally they went after the P2P services themselves since that had the promise of stopping users from infringing. It worked somewhat, but has since stalled. So now they're going after uploaders, since one uploader is likely to feed numerous leeching downloaders. Take out the uploader, and the downloaders will find it increasingly hard to infringe without throwing themselves in harm's way. Eventually they'll probably go after downloaders too -- but not yet.
It's just more effective to proceed as they have been, insofar as anything they do seems to have any effect. Downloaders are small fry, but they're still in danger.
Making a physical copy of a venerable media qualifies as fair use.
No, you can't say that for sure. It probably does, I agree, but you just cannot make blanket statements as to what fair use does and doesn't allow. You have to conduct a case by case analysis every single time.
In fact, making a cassette tape of a CD and giving it to someone you know (without money exchaning hands) is also fair use.
Well, the distribution side of it might be, but the reproduction side would almost never be analyzed under fair use -- the AHRA already covers it, so there's no reason to conduct an additional analysis.
However, putting a copyright work in a location where absolutely everyone can copy it is not fair use.
Under the right circumstances it might be. There's nothing that actually precludes it, it's just difficult.
This is incorrect. In fact, as a rule, reproducing a copyrighted work unauthorizedly is infringing. There are various exceptions to this, but that's a far cry from being 'entirely legal.'
We have always been alowed to record a friends CD or tape, the radio, TV shows, movies we rent, etc, etc, etc.
Also incorrect. The AHRA is permissive of certain sorts of copying, but is pretty new, and isn't really that expansive. Most copying around here probably isn't AHRA compliant. And there's no blanket exceptions generally that match what you're talking about. The closest you could get would be fair use, but fair use does not permit blanket statements to be made -- each fair use must be justifed anew based on the circumstances that surround it; making a copy of a show on tv for time shifting might have much better chances of success in a fair use argument than copying a rented movie.
Truthfully the only crime (legally) with copying music is not the downloading but the sharing.
Incorrect, and three for three. Downloading copyrighted music unauthorizedly is illegal as it infringes on the copyright holder's exclusive right to reproduce the work. Sharing it is also illegal, since the copyright holder also has an exclusive right to distribute the work.
The downloader is merely receiving the copy, he did not create the copy (and couldn't since he doesn't have the original).
This is incorrect. He is making a copy. At the very least, he is having his computer write a copy into RAM or onto a disk according to what's coming down over the network. That's enough to count, given the MAI precedent.
The RIAA's recent lawsuits have all been targetted at the people making music available to download via P2P, but surely it's the people that actually download it that are committing the copyright infringement.
Both are infringing -- the sharer is distributing, and that infringes, and the downloader is reproducing, and that infringes. There's a number of different ways to infringe, and only one involves making a copy.
Remember, talk on slashdot is all fine and good, but unless you have a plan to mobilize a couple hundred million americans to speak out against DRMing music, then attacking indiscriminately will only hurt our position.
The thing is, attacking all DRM is a death sentence for fair use because we as consumers don't have as much say over the content or copyright laws as the RIAA does.
All that I see there is that it's time for the public interest to retake control of copyright legislation. RIAA et al usurped it; it's not appropriate for them to have a significant say in this.
The thing is, DRM is an attack on copyright. It is profoundly anti-copyright. Copyright envisions that a) the public gets to decide what the scope of copyright is, b) copyrights must ultimately expire. DRM seeks to prevent both by letting the creator determine the scope of protection (e.g. it's legal to make backups of software you own a copy of per 17 USC 117, but DRM might hinder your attempts to meaningfully do so) and since DRM never goes away, the creator's control doesn't expire when the copyright term does.
If we want the copyright system to work properly, we need to stamp out DRM wherever it rears its ugly head.
I am not against people using encryption, of course -- just against works being protected by both copyright (which requires no DRM) and encryption at the same time. Encryption is great for privacy, just bad for published works. If you're going to publish with DRM and without copyright, that's your perogative, but just as we would applaud someone who discovered a long-lost creative work of significance (e.g. digging up an ancient sculpture or something) we should also applaud those who break DRM so as to get public domain works meaningfully into the public domain.
Your idiotic attempt at a counterargument in the real world is, well, idiotic, because this is a discussion about copyrights, and they're a whole different kettle of fish.
DRM is simply unacceptable. Frankly, I'm in favor of revoking the copyrights of any work that is authorizedly subjected to DRM, and to not only legalize, but encourage the circumvention of DRM. Obviously, it's perfectly fine for encryption to exist -- but there's certainly no reason we have to encourage it in the realm of works that are supposed to be published.
You want fair use? Fine! Write your own program for doing whatever you want.
That is also unacceptable, and frankly it's very hostile. You are basically saying that people who want to record a show off TV should have to invent and build their own VCRs; that people who want to xerox a page from a book should have to develop their own xerox machine. It's the kind of inanity that I normally only associate with people who have weevils infesting their brains. People typically create tools not only for themselves, but for the benefit of other people who may not be so able to make their own tools. Hell -- I feel quite confident that you didn't build your own computer from the grains of sand level on up. You relied on others, and that's _great_. Why should it be any different here?
It is because without the DRM, the RIAA would not permit any sort of digital distribution.
Then fuck them. Let's work on reforming the law so that they can't prevent it in the first place.
Who? Seriously, I have no idea who you're comparing me to.
My analogy, incidently, since you're missing it a little bit was:
The public is the farmer. The public good (works created and totally free in both senses) is the farmer's good (exploiting the mule for the most labor at the least or no cost in carrots). The carrot is a copyright. And the artist, as you correctly perceive, is the mule, who doesn't directly care about the farmer's wants, but instead is interested in the carrot.
If there were no copyright everything would be free and there would be no (or little) profit for reproduction and distribution of creative works.
No, there would still be a decent profit for reproduction and distribution of works. Books don't print themselves, you know, and not everyone wants to read on their computers. You can go to any decent bookstore today and find volume upon volume of books that are in the public domain and still cost good coin.
In fact, in the days before copyright existed at all, publishing was a big growth industry. After all, the only costs were paper, ink, bindings, the press and type (amortized, I'd imagine) and labor for printing. Being the first to market, or having a reputation for good quality work still counts for a great deal. Hell, I've paid plenty of cash for high quality copies of Shakespeare and Chaucer; I could've gotten a paperback with newsprint inside, but I didn't.
you cannot deny profit is the historical motive - at least in the US - for copyright.
I can and do.
Profit is the historical motive for artists.
The copyright system as a whole, however, is motivated by a desire to benefit the public. If Americans really wanted artists to benefit, it would be a lot easier and more efficient to just give them money for free. As it happens, most artists are and always will be poor. No one really cares about their specific plight, however. I support social welfare of course, since I think it's inappropriate for us to let people starve in the streets -- but that's for all the poor, not any particular subset of them.
The copyright "fair exchange" is exactly how the law ensures artists get paid for those works they eventually release into the "public domain.
Like I said, you're wrong.
Most artists will produce works and NEVER get paid. Their works are unpopular, their reputations are non-existant or are bad. They are starving artists and would in fact be better off personally going into some other line of work.
Despite the fact that they create and create and never make a penny, their works WILL NEVERTHELESS enter the public domain. Copyrights expire after time -- not after costs are recouped and a handsome profit secured.
If you were right, the system would be radically different than it in fact is. QED.
The copyright quid pro quo, incidentally, is that artists will create and have a _slim chance_ at fortune, and the public _will_ get their works in the end regardless. And the public, like the house, always has to come out on top, or otherwise it wouldn't bother to establish the system to begin with. No self-interested party intentionally sets out to lose!
While publishers might be making out better than artists, that's old news. Publishers have ALWAYS been making out better than artists because artists need publishers, but publishers don't need artists. And while artists might have motives other than money, publishers almost never ever do, or at least can't afford to.
The increasing problem in the copyright bargain is that the PUBLIC is getting shafted by artists and publishers, and that has GOT to be rectified by radically scaling back the scope of copyright law such that the public benefits more than anyone else.
It doesn't invalidate my premise, that those who create are masters of what they create.
Of course, it does. You seem to claim, without support, that creators are the permanent masters of their works. I only agree that creators are the masters of the creation and unveiling of their works. After that, they have no inherent power. Power might be given to them, but it also might not, or come with strings attached, or whatever.
By their whim they create, and by their whim they choose to set it free. Society can not by whip or chains change that.
I agree that it's completely up to artists to decide whether or not to create a work. I agree that it's completely up to artists to decide to unveil a work -- that is to make a work known any other person, or the public at large. And I agree that it would be absolutely wrong to try to change either of those.
But the point remains that we were not talking about that. You're going off on a rather bizarre tangent. What I'm interested in is solely what comes AFTER the work has been created and becomes known to others.
And here is the marrow of your argument, majority rules.
Yes. It's a utilitarian argument -- which copyright must always be founded upon -- and naturally has to deal with the greatest good for the greatest number of people.
It's not as though there's something inherently bad about a majority rules system. Oh, I agree, we must establish checks so that the majority doesn't tyrranize the minority. But there's a reason why we, e.g. elect officials based upon majority vote, rather than picking them randomly out of a hat.
Here, a minority desires to control what the majority can do. One artist wants to be able to tell the world not to reproduce a work, no matter how much anyone else might want to.
While I don't necessarily mind agreeing to that, I'm not going to unless I feel that I -- the public -- benefit. I already know that I'll benefit from unrestrained reproduction et al, so in fact, keeping myself in check at the behest of the artist had better benefit me _more_. It's possible, certainly, at least for some forms of copyright. But it HAS to be done. Otherwise why would the public make such a great sacrifice? They're self interested, just as artists are.
your forced "favour of society" camps
Ah! Now I see. You're just a lying moron.
I NEVER said or even implied that artists should be required to create works or release them publicly. In fact, I would oppose such a thing to no end.
What I said was that where artists have freely chosen to create a work and to make the work known to others -- it's not a given that they'll have any more part to play in the future disposition of that work.
But people who create already have control of their works. For a demonstration, simply have the creators stop creating.
No, that's control of whether the works exist or not. It's certainly quite valid, and there's nothing wrong with that.
But once the work is created and is out in the wild, so to speak, the creator only has as much control as the world is willing to cede to him. Because what's the creator going to do to get people to not copy his works? Put them in jail? Not single-handledly!
Besides that's "societies" position, not the creators position.
Well, 1) creators are a subset of society at large. For example, were we to weaken copyrights as they stand now, a lot of creators of derivatives would benefit, as would society, even though some creators of original works or authorized derivatives might suffer. 2) Society outnumbers creators; an ideal solution will be amazingly one-sided in favor of society.
And what other reasons are there for exclusive rights other than personal gains of the creator?
That's not a reason, as it happens. In fact, that would be the worst POSSIBLE reason, and it's responsible for a lot of the misery in this field for the past 30-100 years. It is best ignored all but completely. We should not care about whether creators gain at all, at least not directly and then not much.
Rather, the reason is the reason provided in the Constitution, in numerous contemporary writings (such as Jefferson's), and in similar doctrines dating back to the Venetian patent system of the 15th century, and an idea the ancient Greeks had (and ignored, as they often did) thousands of years ago.
That reason is that copyrights benefit the public as a whole.
It's just that it's a bit convoluted as to how this happens, so people often don't see the forest for the trees, and get caught up, like you do, in mere implementation details that aren't particularly important in themselves.
Let's look at how copyrights properly fulfill their purpose. First, note that there are two relevant public goods involved. Each is a satisfaction of an insatiable public desire. The first desire is the desire for more works. The public always wants more creative works to be made, whether they are original or derivative in nature (they're basically equal). The second desire is the desire to be unrestricted with respect to those works. The public wants to be able to enjoy them, but also to acquire them for no or minimal cost, copy them, alter them, distribute them, preserve them, etc.
We know from history that there are always artists creating something. So in a world without copyright (as was the case until the 18th century, and in practice until the 20th century) there is some degree of satisfaction of the first desire, and total satisfaction of the second desire. The net public good is basically the sum of the satisfaction of both desires.
When we establish a copyright regime, it results in an immediate detriment to the second desire's satisfaction. This is because the nature of a copyright -- at least as we've seen them to date -- is to impede, for a time, the ability to acquire works at the lowest cost, to copy them, etc. freely. Furthermore, that desire is never even going to be fully satisfied in the long run, after the term expires, because some works are lost, or some works are no longer desired, by the time the term runs out. This means that where copyrights (as we know them) exist, the satisfaction of the second public desire is significantly less at first, and only at the end of the term does it have a chance to rise towards total satisfaction (though the longer the term, the lower this will be). This means that net public good is lower. But we're not done.
The result, ideally, of a copyright regime, is a dramatic increase in the number of works created. Hopefully it is an increase that is out of all proportion with the commensurate decrease in unrestricted public enjoyment of the work, as discussed above; the increase has to far outweigh the decrease. Part of this will come by virtue of the fact that when there are more works available to enjoy unrestrictedly, that second desire can be more thoroughly satisfied than before. Again n.b. that long terms will hinder this as works tend to be lost or ignored over time. Thus, if terms are relatively short, and the increase in works created is significant (orignal works will tend to be created more at the expense of derivatives; both are of equal value, so don't mistake this as a good thing), then we'll see the satisfaction of the first goal increase AND the second goal increase somewhat even in spite of the decrease we already discussed.
What it boils down to is this:
Considering the two forms of public good discussed above -- copyrights benefit the public only when they result in a greater net public good than would be the case if copyrights didn't exist. Ideally, copyrights will not just be a minor improve
All people posess all rights to works, notwithstanding those restricted by external laws (e.g. libel laws, false advertising, etc.) which we needn't get into here.
Copyright only deals with a small, though admittedly important, subset of those rights. Still, many important rights -- such as the right to read or use -- are not touched upon by copyright at all. For example, the author of a work does not retain the sole right to perform his work. Anyone can perform it. Copyright deals with, among other things, public performances, which are somewhat more limited. Feel free to go nuts with private performances. The two important rights you failed to note -- probably the two most important overall, in fact -- are reproduction and the creation of derivatives.
Furthermore, given that all people inherently posess these rights, it is important to note the means by which copyright functions; it doesn't grant rights, but it temporarily gives the copyright holder the power to exclude some or all people from lawfully exercising certain rights of which they are already posessed.
Plus, that power to exclude is itself further constrained by various exceptions built into the law. So, for example, the copyright holder has no right to prevent distributions of his work after first sale in the vast majority of circumstances.
As for fair use, it isn't a singular right. Rather, any sort of otherwise infringing behavior might, given the right circumstances, be fair. It's really just a method of analyzing other, rather pedestrian exercises of rights to see whether or not they infringe on the copyright holder's exclusive power to deny. Plus of course, from a more pedantic stance, it's basically an affirmative defense.
So basically, the parent was wrong because he claimed that copyrights were FAR more expansive than they actually are, forgetting about all the many rights that people enjoy and can freely exercise, probably didn't realize that an expiration of copyright grants rights to no one but instead lifts potential restrictions, and felt that fair use is something different than it actually is.
Slashdot Mirror
THe downloading part is simply unproven in court.
Well, there was enough to the argument to get Napster. As a matter of law, I think it's already settled. I certainly don't see any good arguments around it.
Your constant quoting of 17 USC 106 is a little disturbing. That is not all there is to it. It can not be black and white like that. Why didnt' you then post 107? By only posting 106, even fair use is illegal.
For the sake of brevity. I mean I could've gone through 107 through 121, 1008, etc. Yes, fair use applies, and you'll note that 'subject to' bit at the beginning of 106. However, a) I am doubtful that fair use typically applies here, b) it's incumbent on the person alleging fair use to do so, so others that really believe it's viable under the circumstances would be better at it than I, but mostly c) it's not relevant to the issue of downloading being able to infringe.
Remember -- the parent felt that downloading was never an offense period. I have at least corrected that mistake; now I hope it'll be clear that downloading is always an offense, though sometimes exceptions might apply.
Downloading is not illegal.
As a general matter? Just downloading by itself, no that's not illegal. Hence the qualifiers:
If you download music, and that music is copyrighted, and you're downloading it without authorization from the copyright holder -- _that_'s illegal.
Uploading and sharing copyrighted material without "authorization" -- yes, illegal (in many jurisdictions -- there are exceptions).
Downloading... as much as people tell you it is "illegal", it is not (at least in the US and Canada). It may be "immoral", or "wrong", but illegal? No.
And yes, we do read Copyright law.
Great -- now read 17 USC 106 and the MAI v. Peak case and tell me how downloading is not reproduction.
You can not make a copy of something you do not have the original copy of.
Of course you can. By making a copy of a copy. If the Mona Lisa were copyrighted, and I knew what it looked like based on pictures, even though I had never seen the real thing, and I painted one of my own, that would still be an infringing reproduction.
I'd love to see links from it, but then I'd love to see a living dinosaur too -- and the odds of seeing either are remote, at best.
Napster actually got in trouble for hosting everyone's list. What was the term?
What Napster got in trouble for was contributory and vicarious infringement. Essentially, they helped others infringe, they knew about it, it was to their benefit, and they could have stopped it, but didn't. The funny thing about contributory and vicarious infringement though, is that both causes of action simply CANNOT stand unless there is an underlying direct infringement -- that is, you cannot have helped someone else infringe unless that someone else did in fact infringe. Which takes us back to the users -- uploaders and downloaders -- who were found to have infringed as a part of the case.
Fair use was created during the Analog days
Heh. People always say this, but it isn't so.
Books are, in fact, digital. Each letter and word is distinct from the others -- there's nothing in between a and b, just as there's nothing in between 1 and 2.
It might, but that's not a prerequisite.
Let's look at the actual law, shall we? (emphasis below mine)
As you can see, both copying and distributing seperately qualify as infringing behavior, all else being equal.
ALL the lawsuits, settlements, fines, jail time involve the illegal distribution of said mp3's. Not the downloading of.
Yes, because it's more efficient to go after distributors right now than it is downloaders. You're making a stupid claim on par with 'because he only struck at the head of the snake, the rest must be invulnerable.' Remember, not too long ago, RIAA wasn't pursuing distributors, they were pursuing P2P services; did that mean they couldn't have possibly sued distributors? Of course not, but your 'logic' would've said that they of course could not do something because they hadn't already done something.
Well, so far it would seem that the RIAA doesn't have much confidence in your theory.
Hardly; they argued it successfully when bringing down Napster.
They go after uploaders, not downloaders.
Yes. It's a tactical decision -- given that even RIAA has limited resources available, they're going after the head of the snake first. Originally they went after the P2P services themselves since that had the promise of stopping users from infringing. It worked somewhat, but has since stalled. So now they're going after uploaders, since one uploader is likely to feed numerous leeching downloaders. Take out the uploader, and the downloaders will find it increasingly hard to infringe without throwing themselves in harm's way. Eventually they'll probably go after downloaders too -- but not yet.
It's just more effective to proceed as they have been, insofar as anything they do seems to have any effect. Downloaders are small fry, but they're still in danger.
Making a physical copy of a venerable media qualifies as fair use.
No, you can't say that for sure. It probably does, I agree, but you just cannot make blanket statements as to what fair use does and doesn't allow. You have to conduct a case by case analysis every single time.
In fact, making a cassette tape of a CD and giving it to someone you know (without money exchaning hands) is also fair use.
Well, the distribution side of it might be, but the reproduction side would almost never be analyzed under fair use -- the AHRA already covers it, so there's no reason to conduct an additional analysis.
However, putting a copyright work in a location where absolutely everyone can copy it is not fair use.
Under the right circumstances it might be. There's nothing that actually precludes it, it's just difficult.
In fact copying music is entirely legal anyway.
This is incorrect. In fact, as a rule, reproducing a copyrighted work unauthorizedly is infringing. There are various exceptions to this, but that's a far cry from being 'entirely legal.'
We have always been alowed to record a friends CD or tape, the radio, TV shows, movies we rent, etc, etc, etc.
Also incorrect. The AHRA is permissive of certain sorts of copying, but is pretty new, and isn't really that expansive. Most copying around here probably isn't AHRA compliant. And there's no blanket exceptions generally that match what you're talking about. The closest you could get would be fair use, but fair use does not permit blanket statements to be made -- each fair use must be justifed anew based on the circumstances that surround it; making a copy of a show on tv for time shifting might have much better chances of success in a fair use argument than copying a rented movie.
Truthfully the only crime (legally) with copying music is not the downloading but the sharing.
Incorrect, and three for three. Downloading copyrighted music unauthorizedly is illegal as it infringes on the copyright holder's exclusive right to reproduce the work. Sharing it is also illegal, since the copyright holder also has an exclusive right to distribute the work.
Man, doesn't anyone read 17 USC 106 anymore?
The downloader is merely receiving the copy, he did not create the copy (and couldn't since he doesn't have the original).
This is incorrect. He is making a copy. At the very least, he is having his computer write a copy into RAM or onto a disk according to what's coming down over the network. That's enough to count, given the MAI precedent.
The Napster case was pretty clear about all this.
If it doesn't fall under fair use, then it's copyright infringement.
That's woefully simplistic. There are numerous exceptions to copyright other than fair use that permit people to make copies without infringing.
The RIAA's recent lawsuits have all been targetted at the people making music available to download via P2P, but surely it's the people that actually download it that are committing the copyright infringement.
Both are infringing -- the sharer is distributing, and that infringes, and the downloader is reproducing, and that infringes. There's a number of different ways to infringe, and only one involves making a copy.
Type II - Better sound than Type II.
So how did they manage that, exactly?
(b) while the RIAA is ridiculously greedy and deceitful, nobody is entitled to just get free music whenever they want
True enough. But perhaps it might be worthwhile to change this.
Remember, talk on slashdot is all fine and good, but unless you have a plan to mobilize a couple hundred million americans to speak out against DRMing music, then attacking indiscriminately will only hurt our position.
I'm working on this.
The thing is, attacking all DRM is a death sentence for fair use because we as consumers don't have as much say over the content or copyright laws as the RIAA does.
All that I see there is that it's time for the public interest to retake control of copyright legislation. RIAA et al usurped it; it's not appropriate for them to have a significant say in this.
I don't understand. Could you clarify your post?
The thing is, DRM is an attack on copyright. It is profoundly anti-copyright. Copyright envisions that a) the public gets to decide what the scope of copyright is, b) copyrights must ultimately expire. DRM seeks to prevent both by letting the creator determine the scope of protection (e.g. it's legal to make backups of software you own a copy of per 17 USC 117, but DRM might hinder your attempts to meaningfully do so) and since DRM never goes away, the creator's control doesn't expire when the copyright term does.
If we want the copyright system to work properly, we need to stamp out DRM wherever it rears its ugly head.
I am not against people using encryption, of course -- just against works being protected by both copyright (which requires no DRM) and encryption at the same time. Encryption is great for privacy, just bad for published works. If you're going to publish with DRM and without copyright, that's your perogative, but just as we would applaud someone who discovered a long-lost creative work of significance (e.g. digging up an ancient sculpture or something) we should also applaud those who break DRM so as to get public domain works meaningfully into the public domain.
Your idiotic attempt at a counterargument in the real world is, well, idiotic, because this is a discussion about copyrights, and they're a whole different kettle of fish.
DRM is simply unacceptable. Frankly, I'm in favor of revoking the copyrights of any work that is authorizedly subjected to DRM, and to not only legalize, but encourage the circumvention of DRM. Obviously, it's perfectly fine for encryption to exist -- but there's certainly no reason we have to encourage it in the realm of works that are supposed to be published.
You want fair use? Fine! Write your own program for doing whatever you want.
That is also unacceptable, and frankly it's very hostile. You are basically saying that people who want to record a show off TV should have to invent and build their own VCRs; that people who want to xerox a page from a book should have to develop their own xerox machine. It's the kind of inanity that I normally only associate with people who have weevils infesting their brains. People typically create tools not only for themselves, but for the benefit of other people who may not be so able to make their own tools. Hell -- I feel quite confident that you didn't build your own computer from the grains of sand level on up. You relied on others, and that's _great_. Why should it be any different here?
It is because without the DRM, the RIAA would not permit any sort of digital distribution.
Then fuck them. Let's work on reforming the law so that they can't prevent it in the first place.
you-know-who
Who? Seriously, I have no idea who you're comparing me to.
My analogy, incidently, since you're missing it a little bit was:
The public is the farmer. The public good (works created and totally free in both senses) is the farmer's good (exploiting the mule for the most labor at the least or no cost in carrots). The carrot is a copyright. And the artist, as you correctly perceive, is the mule, who doesn't directly care about the farmer's wants, but instead is interested in the carrot.
If there were no copyright everything would be free and there would be no (or little) profit for reproduction and distribution of creative works.
No, there would still be a decent profit for reproduction and distribution of works. Books don't print themselves, you know, and not everyone wants to read on their computers. You can go to any decent bookstore today and find volume upon volume of books that are in the public domain and still cost good coin.
In fact, in the days before copyright existed at all, publishing was a big growth industry. After all, the only costs were paper, ink, bindings, the press and type (amortized, I'd imagine) and labor for printing. Being the first to market, or having a reputation for good quality work still counts for a great deal. Hell, I've paid plenty of cash for high quality copies of Shakespeare and Chaucer; I could've gotten a paperback with newsprint inside, but I didn't.
you cannot deny profit is the historical motive - at least in the US - for copyright.
I can and do.
Profit is the historical motive for artists.
The copyright system as a whole, however, is motivated by a desire to benefit the public. If Americans really wanted artists to benefit, it would be a lot easier and more efficient to just give them money for free. As it happens, most artists are and always will be poor. No one really cares about their specific plight, however. I support social welfare of course, since I think it's inappropriate for us to let people starve in the streets -- but that's for all the poor, not any particular subset of them.
The copyright "fair exchange" is exactly how the law ensures artists get paid for those works they eventually release into the "public domain.
Like I said, you're wrong.
Most artists will produce works and NEVER get paid. Their works are unpopular, their reputations are non-existant or are bad. They are starving artists and would in fact be better off personally going into some other line of work.
Despite the fact that they create and create and never make a penny, their works WILL NEVERTHELESS enter the public domain. Copyrights expire after time -- not after costs are recouped and a handsome profit secured.
If you were right, the system would be radically different than it in fact is. QED.
The copyright quid pro quo, incidentally, is that artists will create and have a _slim chance_ at fortune, and the public _will_ get their works in the end regardless. And the public, like the house, always has to come out on top, or otherwise it wouldn't bother to establish the system to begin with. No self-interested party intentionally sets out to lose!
While publishers might be making out better than artists, that's old news. Publishers have ALWAYS been making out better than artists because artists need publishers, but publishers don't need artists. And while artists might have motives other than money, publishers almost never ever do, or at least can't afford to.
The increasing problem in the copyright bargain is that the PUBLIC is getting shafted by artists and publishers, and that has GOT to be rectified by radically scaling back the scope of copyright law such that the public benefits more than anyone else.
It doesn't invalidate my premise, that those who create are masters of what they create.
Of course, it does. You seem to claim, without support, that creators are the permanent masters of their works. I only agree that creators are the masters of the creation and unveiling of their works. After that, they have no inherent power. Power might be given to them, but it also might not, or come with strings attached, or whatever.
By their whim they create, and by their whim they choose to set it free. Society can not by whip or chains change that.
I agree that it's completely up to artists to decide whether or not to create a work. I agree that it's completely up to artists to decide to unveil a work -- that is to make a work known any other person, or the public at large. And I agree that it would be absolutely wrong to try to change either of those.
But the point remains that we were not talking about that. You're going off on a rather bizarre tangent. What I'm interested in is solely what comes AFTER the work has been created and becomes known to others.
And here is the marrow of your argument, majority rules.
Yes. It's a utilitarian argument -- which copyright must always be founded upon -- and naturally has to deal with the greatest good for the greatest number of people.
It's not as though there's something inherently bad about a majority rules system. Oh, I agree, we must establish checks so that the majority doesn't tyrranize the minority. But there's a reason why we, e.g. elect officials based upon majority vote, rather than picking them randomly out of a hat.
Here, a minority desires to control what the majority can do. One artist wants to be able to tell the world not to reproduce a work, no matter how much anyone else might want to.
While I don't necessarily mind agreeing to that, I'm not going to unless I feel that I -- the public -- benefit. I already know that I'll benefit from unrestrained reproduction et al, so in fact, keeping myself in check at the behest of the artist had better benefit me _more_. It's possible, certainly, at least for some forms of copyright. But it HAS to be done. Otherwise why would the public make such a great sacrifice? They're self interested, just as artists are.
your forced "favour of society" camps
Ah! Now I see. You're just a lying moron.
I NEVER said or even implied that artists should be required to create works or release them publicly. In fact, I would oppose such a thing to no end.
What I said was that where artists have freely chosen to create a work and to make the work known to others -- it's not a given that they'll have any more part to play in the future disposition of that work.
But people who create already have control of their works. For a demonstration, simply have the creators stop creating.
No, that's control of whether the works exist or not. It's certainly quite valid, and there's nothing wrong with that.
But once the work is created and is out in the wild, so to speak, the creator only has as much control as the world is willing to cede to him. Because what's the creator going to do to get people to not copy his works? Put them in jail? Not single-handledly!
Besides that's "societies" position, not the creators position.
Well, 1) creators are a subset of society at large. For example, were we to weaken copyrights as they stand now, a lot of creators of derivatives would benefit, as would society, even though some creators of original works or authorized derivatives might suffer. 2) Society outnumbers creators; an ideal solution will be amazingly one-sided in favor of society.
And what other reasons are there for exclusive rights other than personal gains of the creator?
That's not a reason, as it happens. In fact, that would be the worst POSSIBLE reason, and it's responsible for a lot of the misery in this field for the past 30-100 years. It is best ignored all but completely. We should not care about whether creators gain at all, at least not directly and then not much.
Rather, the reason is the reason provided in the Constitution, in numerous contemporary writings (such as Jefferson's), and in similar doctrines dating back to the Venetian patent system of the 15th century, and an idea the ancient Greeks had (and ignored, as they often did) thousands of years ago.
That reason is that copyrights benefit the public as a whole.
It's just that it's a bit convoluted as to how this happens, so people often don't see the forest for the trees, and get caught up, like you do, in mere implementation details that aren't particularly important in themselves.
Let's look at how copyrights properly fulfill their purpose. First, note that there are two relevant public goods involved. Each is a satisfaction of an insatiable public desire. The first desire is the desire for more works. The public always wants more creative works to be made, whether they are original or derivative in nature (they're basically equal). The second desire is the desire to be unrestricted with respect to those works. The public wants to be able to enjoy them, but also to acquire them for no or minimal cost, copy them, alter them, distribute them, preserve them, etc.
We know from history that there are always artists creating something. So in a world without copyright (as was the case until the 18th century, and in practice until the 20th century) there is some degree of satisfaction of the first desire, and total satisfaction of the second desire. The net public good is basically the sum of the satisfaction of both desires.
When we establish a copyright regime, it results in an immediate detriment to the second desire's satisfaction. This is because the nature of a copyright -- at least as we've seen them to date -- is to impede, for a time, the ability to acquire works at the lowest cost, to copy them, etc. freely. Furthermore, that desire is never even going to be fully satisfied in the long run, after the term expires, because some works are lost, or some works are no longer desired, by the time the term runs out. This means that where copyrights (as we know them) exist, the satisfaction of the second public desire is significantly less at first, and only at the end of the term does it have a chance to rise towards total satisfaction (though the longer the term, the lower this will be). This means that net public good is lower. But we're not done.
The result, ideally, of a copyright regime, is a dramatic increase in the number of works created. Hopefully it is an increase that is out of all proportion with the commensurate decrease in unrestricted public enjoyment of the work, as discussed above; the increase has to far outweigh the decrease. Part of this will come by virtue of the fact that when there are more works available to enjoy unrestrictedly, that second desire can be more thoroughly satisfied than before. Again n.b. that long terms will hinder this as works tend to be lost or ignored over time. Thus, if terms are relatively short, and the increase in works created is significant (orignal works will tend to be created more at the expense of derivatives; both are of equal value, so don't mistake this as a good thing), then we'll see the satisfaction of the first goal increase AND the second goal increase somewhat even in spite of the decrease we already discussed.
What it boils down to is this:
Considering the two forms of public good discussed above -- copyrights benefit the public only when they result in a greater net public good than would be the case if copyrights didn't exist. Ideally, copyrights will not just be a minor improve
In fact, it does NOT say "the exclusive right to profit from" and you're more than welcome to look the damn thing up. There's a copy here if you like.
All people posess all rights to works, notwithstanding those restricted by external laws (e.g. libel laws, false advertising, etc.) which we needn't get into here.
Copyright only deals with a small, though admittedly important, subset of those rights. Still, many important rights -- such as the right to read or use -- are not touched upon by copyright at all. For example, the author of a work does not retain the sole right to perform his work. Anyone can perform it. Copyright deals with, among other things, public performances, which are somewhat more limited. Feel free to go nuts with private performances. The two important rights you failed to note -- probably the two most important overall, in fact -- are reproduction and the creation of derivatives.
Furthermore, given that all people inherently posess these rights, it is important to note the means by which copyright functions; it doesn't grant rights, but it temporarily gives the copyright holder the power to exclude some or all people from lawfully exercising certain rights of which they are already posessed.
Plus, that power to exclude is itself further constrained by various exceptions built into the law. So, for example, the copyright holder has no right to prevent distributions of his work after first sale in the vast majority of circumstances.
As for fair use, it isn't a singular right. Rather, any sort of otherwise infringing behavior might, given the right circumstances, be fair. It's really just a method of analyzing other, rather pedestrian exercises of rights to see whether or not they infringe on the copyright holder's exclusive power to deny. Plus of course, from a more pedantic stance, it's basically an affirmative defense.
So basically, the parent was wrong because he claimed that copyrights were FAR more expansive than they actually are, forgetting about all the many rights that people enjoy and can freely exercise, probably didn't realize that an expiration of copyright grants rights to no one but instead lifts potential restrictions, and felt that fair use is something different than it actually is.
No -- I believe that there are at the very least some circumstances where it is. Please, go ahead.