Users easily fall into the trap of "It's so easy to do it for *free*, why should I pay some publishing or record company a duplicating fee?" The answer is that you still owe the author or artist due compensation.
Which is why there is a considerably better solution: change the laws so that no compensation is due. Creators don't have a right to copyrights.
Meh. Character creation under Palladium was always a gigantic PITA -- particularly when you got into working out combat skills. And then after that, you're extremely limited in what your character can do forever after.
And of course, their HP / SDC / MDC system grew increasingly broken as they moved on into Rifts, where looking at someone funny can easily crush a tank.
I remember how impressed I was with GURPS after having used Palladium for a few years. More when I sat in on a session of RIFTS last year and wound up having to struggle with all of the problems in the Palladium system.
GURPS could certainly be a lot better, but it's pretty nice so far, I've got to say.
That said, I'm not looking forward too much to 4e unless it's a very substantial improvement. That means paring things down so that combat and skill resolution are extremely easy and fast to get out of the way. The magic system could also stand to be totally redone, and GURPS needs quite a bit of work in extreme circumstances, e.g. 250pt+ characters, especially with heavy duty magic, superpowers, or cybernetics. Right now it's a bit too geared towards characters that aren't terribly far from ordinary.
You mean, your freedom to use their copyrighted material without compensating them? Selfish attitudes such as yours are actually quite prevalent in the world (imagine that), and believe it or not, most musicians and movie makers are not going to stand on street corners and manifest their arts for free, to anyone who comes by, out of the kindness of their hearts.
True. Nevertheless, it is a totally legitimate desire to want to enjoy (not merely use, but also copy, distribute, alter, etc.) other people's works for free. In fact, that's one of the two pillars upon which copyright stands.
The other pillar is that people want as many works created as possible, be they original or derivative.
Thus, in a situation where sacrificing some of the enjoyment desire does not yield a commensurate satisfaction of the creation desire -- there's no point in having copyrights at all. They would not, in that scenario, cause any more art to be out there. In fact, really an increase in the satisfaction of the one interest that was equal to the decrease in the other wouldn't be enough; the increase has to be more than the decrease, so that there is a net benefit to the public.
See, what you're forgetting is that the public does not grant copyrights to artists out of the kindness of our hearts either.
We want something for it. In fact, we want more back than we're putting in. Both sides (though n.b. that artists are also part of the public side) are self-interested. That's totally fine.
But since artists are the inferior party in that they can't just magically get copyrights -- they have to get the public to go along with them, pass the appropriate laws, etc. -- the system is going to be biased in favor of the public.
So there's nothing wrong or bad about saying that we should reform the system in a way that is best for the public even if it throws legions of artists out of work. For them to have even _been_ artists indicates that either a) the situation has changed significantly, requiring that the law be brought into alignment with reality, or b) they never should've been artists in the first place; they were enjoying their position unjustly.
What has happened is that technology has given us a way to very easily deny artists compensation for their work.
And? I could care less whether artists get paid with regards to copyrights. (Paying for actual labor or personal property is a different matter -- we're basically talking about royalties, not comissions or pieces)
I just care what makes me -- and you, and everyone -- best off. Best off in that we want our cake and we want to eat it too. Right now there is a lot of cake, but little eating, and that's bad. Alternatively there could be little cake and unrestricted eating, and that isn't great, but it's not the worst thing ever. There's probably an optimal point in the middle somewhere, though. That is what I want.
So I'm not against copyrights (so long as I think they are capable of yielding a net public benefit), but I am against copyrights that go too far. So I don't think it's good to totally deny artists all compensation, but OTOH, I think it's probably likely that we'll be cutting what they do get pretty sharply.
The trick in the next century will be to provide people with a way to pay what they think is fair for artistic creations. Then we'll see if the majority of people are fundamentally greedy.
Answer this, honestly: is the $10 price of a DVD so unfair, really? Do you really think you should be able to get it free just because there's a convenient technology available to do it? If $10 is too high, what would you pay?
People probably are greedy. Artists want to get paid, and that's greedy. And people don't want to pay them, and that's equally greedy. I don't really find either offensive.
And I sure don't mind getting free DVDs. Who precisely _doesn't_ like getting stuff for free? I imagine most people come to this realization pretty early in life.
But note: if the goal is to "legitimize" p2p so that artists get paid, how would you do it?
That's not necessarily the goal. I think that it'd probably be better to make it non-infringing for natural persons to do what they like non-commercially. Without having to pay for it.
It's more important that we do what is in the best interests of the public than that we make sure artists get paid.
Do you think that everybody whose income depends on their ability to sell their own copyrighted work should just have to find another job?
No. But nor do I think they're entitled to keep on doing what they're doing. If the public is best served by this, then by all means, let's have it keep going. If not, then I'm not going to cry any tears when they do have to find new jobs. Because in that scenario, not only would the loss of artists be offset, but everyone would actually end up better off overall.
Who was a secret Nazi agent. Now, the villain in The Shadow wasn't a Nazi, but at least he was still a foreigner, and that's just as bad as being a Nazi, or a member of Foreigner.
If you really want to get scared though, check out the natural result of MAI -- Intellectual Reserve v. Utah Lighthouse. This is a scary, scary decision.
Feel free to use the telephone analogy. You might want to take a look at historical examples of telephone-like forms of computer memory like mercury delay lines or CRT storage to bolster it. Computer memory doesn't have to be volatile, though. Core memory was quite popular for a while, and preserved information just fine even when unpowered.
At the moment, I'm not much.
I just finished law school, but I don't sit for the bar til summer. A paying spring job in my field has so far not made itself known. I'm hoping to get into an IP LLM program. I can't sit for the patent bar, but I'm a copyright person anyway; I find patents insanely boring. Trademarks are okay, but not where my real passions lie.
When you read a book you do not exercise any of the rights granted under 106. Use of a computer program is different in that, of necessity, a copy of that program is made and the right "to reproduce the copyrighted work" is right there in 106(1).
Not necessarily.
You see, I think that the MAI v. Peak decision was very wrong. Let me explain this.
Firstly, in the record accompanying 17 USC 102, Congress took care to point out that it didn't consider the following to be fixed copies -- images displayed on a CRT, or information temporarily stored in computer memory.
Secondly, let's think a bit about what is and isn't considered a fixed copy.
Fixation requires that an instance of the work be sufficiently embodied in a material object and is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration
Leaving aside the material object for a moment, if I read aloud from a book, I am altering the air around me in such a way that is sufficiently stable that if you're in proximity to me, you can perceive it.
Have I copied the book?
If you say, no, because it is only transitory, then let's say that I read from the book. Person A hears this and repeats it instantly to person B, who does the same to C, C to D, then back to A. They will continue a never-ending game of telephone with each other. Has the book been copied now?
If still no, let's add a material object. Instead of talking through the air, each one of them has a microphone hooked up directly to a speaker. The speaker is in a long tube filled with mercury (n.b. sound travels much faster in mercury than air, so it'll be present in the tube for less time than it would be otherwise) that leads up to the next person. At the second person's end is a microphone, hooked up to headphones the second person is wearing. Now they'll have their game of telephone, but it'll be through this device in which you can literally see the information propogate as a wave along the tube.
If still no, then let me point out that what I've just described is known as a mercury delay line. It's an early form of computer memory, and while it's a big hack, it works okay.
CRTs have also been used as computer memory, because it takes a few moments for a picture displayed on it to fade. Too short for us to normally notice, but plenty of computers used this, and had banks of CRTs with photosensors stuck on them. (There's a funny story about Ivan Sutherland replacing the visual test program used to look for worn-out tubes with one that spelled out dirty language)
Well, volatile RAM of the sort we use now stores any individual instance of data for nanoseconds at best. But it doesn't really differ in terms of operation from my method of storing information in four people playing telephone in a grassy field, other than that it's cheaper and smaller and probably doesn't employ as many people as if we switched to my idea.
I don't think that RAM copies -- as distingushed from copies made to substantially long-lived media such as magnetic disks, which 117 would also permit -- should qualify then.
Particularly because Congress did not grant an exclusive use right to copyright holders, and MAI would seek to do so.
Additionally, there are fairly good estoppel and fair use arguments to be made that it's okay for the legitimate owner of a copy of software to make incidental copies and adaptations of it for the purposes of using it. Using it doesn't seem so extreme as to be a copyright violation.
But I will agree that this is an area in which copyright law needs to be reformed to be more clearly on the side of the public, overturning MAI in the process.
I think it a difficult argument to make that 2-207 prevents the addition of terms to a contract between a merchant and a nonmerchant (or between nonmerchants).
Sure. I'm not saying that EULAs are, today, totally impossible. But I t
The meduim on which you purchase software is yours, just as the little five-inch diameter piece of plastic holding the latest [insert crappy band name here] album is yours
I agree, though again EULAs could be put forth to attack that position.
but that doesn't grant you any ownership interest in the software on that medium.
This is totally incorrect. You're failing to distinguish between a work as a whole, and a copy as a fixed medium embodying an individual instance of a work.
OBVIOUSLY the owner of a copy has rights pertaining to that copy. You are making the absurd argument that just because you buy a book doesn't mean you have the right to read the story printed in it. You're turning the limited nature of copyrights on its head as well; rights not exclusively granted to the copyright holder either don't exist or follow ordinary property law. Use is not an exclusive right, and thus follows ownership of the material object, just as with any material object.
Why would the UCC render a purported license inoperative? We've looked a fair amount at UCITA and UETA in my e-commerce class with respect to software licensing and it would seem to me that, at least UETA and ESIGN, having effect in most U.S. jurisdictions, emphasize that a license is not invalid merely because it is electronic. Maybe I don't understand your point.
I never mentioned electronic contracts, nor UETA, ESIGN, etc. UCITA is generally worth ignoring as it only exists in two jurisdictions, and several other states have anti-UCITA laws to keep them out.
The issue is this: when you buy something where, after the sale, further terms are proposed, are they binding?
If we treat UCC 2-204 to be controlling, then they probably are (though there must be an opportunity to reject and return per 2-606). OTOH, if we treat 2-207 as being controlling, then there is no obligation by nonmerchant purchasers to accept the additional terms; the original terms stand.
Personally, I'm on the 2-207 side, but this is by no means a resolved issue, and there've been court cases going all different ways on the subject. Plus of course, the UCC is in no small part concerned with protecting customers, and EULAs are nothing other than hostile towards customers. Frankly, I think they ought to be banned as a matter of contract law, as well as in copyright law.
Also, 117 does allow for copies to be "leased, sold, or otherwise transferred" which leads me to believe it would apply to copies of a software program that were licensed (the physical copy that is).
Wow. You didn't even finish reading the entire subsection.
That part of 117 says that if you have made additional copies, they have to follow the original if you no longer posess it. You can't sell an original copy and keep a backup.
I have no clue where you're reading in what you're talking about.
117 also only allows such extra copies to be made "as an essential step in the utilization of the computer program in conjunction with a machine and... in no other manner"
Those are adaptation copies, not backup copies. 117 allows two different kinds of copies.
Plus of course, it just says "in conjunction with a machine." It doesn't specify. If Congress wanted to specify, they know how to do so. The proper judicial interpretation of this would be that the machine can be any kind of machine. Congress didn't care, and if that's wrong, can trivially correct it. But given how readily things change in the computer world, it's quite likely that they meant just that.
For example, your needlessly narrow reading would prohibit people from getting a computer that postdates the software. That's absurd -- it would mean I couldn't run a copy of Visicalc for the Apple II on the IIgs for no other reason than that the hardware would be newer than the software.
It would also prevent somewhat unavoidable emulation, such as the 68LC040 emulator on Power Macs. Whole different processor family, but thanks to that, it can keep up.
One, in the absence of a EULA, you do own the copy of the software. So the alleged licensor has to prove that a license existed. Even if there is a purported license, it still might not be operative due to the UCC.
Two, 117 only applies to owned copies of software, not licensed copies.
Given that the MAI v. Peak decision is widely followed (despite being wrong), and holds that any of the reproduction that occurs in the normal operation of a computer -- e.g. reproduction on disk from packets coming down from a network, or reproduction in RAM of files loaded there from a disk -- qualifies, I don't think that would fly.
Well, the statute on importation is 17 USC 602, and IIRC permits some importation to occur without violating the distribution rights of the US copyright holder. The Napster case in the 9th Circuit pointed out that the direct infringements by users which Napster was contributorially and vicariously liable for were distribution (making files available for download) and reproduction (downloading the files).
And no, your ownership of a copy doesn't hinge on whether you're buying an extant copy or legally making a copy.
It's just that allofmp3 seems to be claiming that what they're doing is altogether legal because they're distributing in Russia under Russian law (which for all I know is true) and users are importing copies which in the typical allofmp3 scenario would be legal. But this argument relies on the users importing, not reproducing. If they're reproducing, it's a different ballgame, and the exemptions in 602 won't help.
I'm willing to allow something akin to the common-law copyright of old, but the protection ought to remain minimal, and expire at about the time of publication, requiring the author to apply for a real copyright quickly, or yield protection, much like the statutory bar for patents.
IIRC there are still some holdouts on the Berne Convention. Given how amazingly awful it is, I'm still upset that the US finally caved into it after rejecting it for so long.
Copyright law is best handled domestically without international agreements of any sort.
The problem is that you're not importing them. Importation is a form of distribution, but that would require the copy to already exist.
When you're downloading, you're creating a new copy on the downloader's end. This is a form of reproduction, not distribution (though the uploader making it available is distribution).
Since the reproduction is likely happening within the US, Russian copyright holders don't have authority to permit it.
RIAA may have a difficult time doing anything about this, but that doesn't make it legal.
Is it a bad thing that a writer gets to control whether their work is released or not?
No, but OTOH, it is appropriate to only grant copyrights to authors who distribute their works in appropriate ways. E.g. I think it would be reasonable to prohibit EULAs from applying to copyrighted works. In fact, EULAs are probably worth banning altogether. We might also only allow copyrights for published works, rather than unpublished ones.
Well, if the copyright holder has per 106 the exclusive right to distribute copies to the public either merely through transfer of posession or of transfer of ownership, then that means that others can't do that.
The language of 106 doesn't make a distinction between copies that have or haven't experienced first sale. For similar reasons, we had to have the Bobbs-Merril case in the early 20th century to resolve that first sale existed anyway, and this was immediately followed up by provisions in the 1909 Act which were akin to the 1976 Act's section 109.
The more recent exceptions in 109 should make fairly clear that Congress at least doesn't think that 106 inherently is limited only to first sale. Check out 109(b)(1)(A); that provision would be impossible if the main gist of 109 were redundant with 106.
Which isn't to say that 106 and Congress' power isn't limited by first sale, just that this is what's on the books.
Well, you're thinking of 17 USC 106, but that list is not in any kind of order of importance. There's nothing sacrosanct about the reproduction right as compared to the distribution right, or any of the others. There's not a 'core' copyright with a bunch of lesser copyrights surrounding it.
As for fair use, check out the language of 17 USC 107: In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include....
Thus, there aren't any categorical fair uses. There is only a test that has to be applied each and every time there is an alleged fair use. Previous testing might prove informative, but isn't determinative.
What it depends on then, are the various factors involved. If something about the factual situation changed substantially, it could skew the way the fair use analysis works, turning fair uses into infringements, and vice versa.
The best you can hope for with regards to time shifting is to say that in Sony time shifting was found fair, and that your situation is identical in all material respects, so the outcome should be same. And given the precedential value of that decision, it probably would be. But that doesn't mean that timeshifting is NECESSARILY fair, just that it is, so far, typically found to be fair.
Does it make any sense at all to you that we would be allowed to audiotape our LPs, but not transcode DVDs for PDA or laptop use?
No, but remember that audiotaping LPs is already specifically allowed even when it ISN'T a fair use. No court will bother conducting a fair use analysis of the situation since it doesn't have to do so. The AHRA takes care of this situation perfectly fine already.
Besides, if I had my druthers, I'd reform copyright law in a rather spectacular fashion. I'd probably make it legal for natural persons to do whatever they liked non-commercially for starters. But if wishes were horses, beggars would ride.
I don't see an equitable doctrine being worn down, but I do think that it needs freedom to meet the needs of the times its in.
Obviously a parallel set of exemptions is available for Congress to pass which might exceed fair use. It's important to remember that fair use is a judicial doctrine though.
And yes, passing along is distribution. To give a copy to a friend would be a violation of 17 USC 106's distribution right, if not for 17 USC 109 and the first sale doctrine which carve out an exemption to it. To have created a copy would've invoked the reproduction right, not the distribution right.
Well, 1) taping your records is allowed under a statutory exemption (17 USC 1008) so there's no reason -- so long as you're literally talking about audio tape here -- to bother with a fair use analysis, and 2) recording from TV broadcasts is NOT NECESSARILY fair use. It depends.
Similarly, ripping DVDs may or may not be a fair use depending on the circumstances involved. And then there are circumvention issues apart from infringement issues.
You said: copyright law allows you to make all the copies you want in the privacy of your own home and given that fair use doesn't say that (it only allows copying or other infringements when fair), I'd still like to know what does.
This is important since one can't go after tools used to infringe where the basis of their use was a fair use, and in fact tools that have possible substantial noninfringing uses such as fair uses can't be gone after at all with regards to infringement.
It would be a very bad idea to define fair use clearly. All we have right now is a test that can be used to find whether or not something is fair use, and the tests have changed over the ages.
Remember -- fair use as a doctrine dates back well into the 19th century. If it had been clearly defined back then, it would likely not have been extensible to cover the sorts of situations we're in now, e.g. timeshifting, mp3 ripping, etc.
Besides which, fair use is designed to apply to any situation that's fair based on the specific circumstances involved. There's no general type or form of copying that is uniformly fair. A case-by-case analysis is always required. Defining what uses are and aren't fair is impossible.
Finally, if you couldn't distribute a copy, you'd have no ability to loan it to a friend, rent it, or sell it used, all of which are important and covered by the first sale doctrine. Besides, no one cares so much about the copy -- they care about the work as a whole, which is embodied in the copies. You need to rethink what it is you want, and have it be something other than fair use.
Yeah, I hear you with regards to Netscape. I once managed to totally crash an SGI machine with it. It was kind of embarrasing for the SGI reps that were there showing it off.
Slashdot Mirror
Yeah, but I wouldn't really call MS Word a Macintosh app.
Users easily fall into the trap of "It's so easy to do it for *free*, why should I pay some publishing or record company a duplicating fee?" The answer is that you still owe the author or artist due compensation.
Which is why there is a considerably better solution: change the laws so that no compensation is due. Creators don't have a right to copyrights.
Meh. Character creation under Palladium was always a gigantic PITA -- particularly when you got into working out combat skills. And then after that, you're extremely limited in what your character can do forever after.
And of course, their HP / SDC / MDC system grew increasingly broken as they moved on into Rifts, where looking at someone funny can easily crush a tank.
I remember how impressed I was with GURPS after having used Palladium for a few years. More when I sat in on a session of RIFTS last year and wound up having to struggle with all of the problems in the Palladium system.
GURPS could certainly be a lot better, but it's pretty nice so far, I've got to say.
That said, I'm not looking forward too much to 4e unless it's a very substantial improvement. That means paring things down so that combat and skill resolution are extremely easy and fast to get out of the way. The magic system could also stand to be totally redone, and GURPS needs quite a bit of work in extreme circumstances, e.g. 250pt+ characters, especially with heavy duty magic, superpowers, or cybernetics. Right now it's a bit too geared towards characters that aren't terribly far from ordinary.
You mean, your freedom to use their copyrighted material without compensating them? Selfish attitudes such as yours are actually quite prevalent in the world (imagine that), and believe it or not, most musicians and movie makers are not going to stand on street corners and manifest their arts for free, to anyone who comes by, out of the kindness of their hearts.
True. Nevertheless, it is a totally legitimate desire to want to enjoy (not merely use, but also copy, distribute, alter, etc.) other people's works for free. In fact, that's one of the two pillars upon which copyright stands.
The other pillar is that people want as many works created as possible, be they original or derivative.
Thus, in a situation where sacrificing some of the enjoyment desire does not yield a commensurate satisfaction of the creation desire -- there's no point in having copyrights at all. They would not, in that scenario, cause any more art to be out there. In fact, really an increase in the satisfaction of the one interest that was equal to the decrease in the other wouldn't be enough; the increase has to be more than the decrease, so that there is a net benefit to the public.
See, what you're forgetting is that the public does not grant copyrights to artists out of the kindness of our hearts either.
We want something for it. In fact, we want more back than we're putting in. Both sides (though n.b. that artists are also part of the public side) are self-interested. That's totally fine.
But since artists are the inferior party in that they can't just magically get copyrights -- they have to get the public to go along with them, pass the appropriate laws, etc. -- the system is going to be biased in favor of the public.
So there's nothing wrong or bad about saying that we should reform the system in a way that is best for the public even if it throws legions of artists out of work. For them to have even _been_ artists indicates that either a) the situation has changed significantly, requiring that the law be brought into alignment with reality, or b) they never should've been artists in the first place; they were enjoying their position unjustly.
What has happened is that technology has given us a way to very easily deny artists compensation for their work.
And? I could care less whether artists get paid with regards to copyrights. (Paying for actual labor or personal property is a different matter -- we're basically talking about royalties, not comissions or pieces)
I just care what makes me -- and you, and everyone -- best off. Best off in that we want our cake and we want to eat it too. Right now there is a lot of cake, but little eating, and that's bad. Alternatively there could be little cake and unrestricted eating, and that isn't great, but it's not the worst thing ever. There's probably an optimal point in the middle somewhere, though. That is what I want.
So I'm not against copyrights (so long as I think they are capable of yielding a net public benefit), but I am against copyrights that go too far. So I don't think it's good to totally deny artists all compensation, but OTOH, I think it's probably likely that we'll be cutting what they do get pretty sharply.
The trick in the next century will be to provide people with a way to pay what they think is fair for artistic creations. Then we'll see if the majority of people are fundamentally greedy.
Answer this, honestly: is the $10 price of a DVD so unfair, really? Do you really think you should be able to get it free just because there's a convenient technology available to do it? If $10 is too high, what would you pay?
People probably are greedy. Artists want to get paid, and that's greedy. And people don't want to pay them, and that's equally greedy. I don't really find either offensive.
And I sure don't mind getting free DVDs. Who precisely _doesn't_ like getting stuff for free? I imagine most people come to this realization pretty early in life.
But note: if the goal is to "legitimize" p2p so that artists get paid, how would you do it?
That's not necessarily the goal. I think that it'd probably be better to make it non-infringing for natural persons to do what they like non-commercially. Without having to pay for it.
It's more important that we do what is in the best interests of the public than that we make sure artists get paid.
Do you think that everybody whose income depends on their ability to sell their own copyrighted work should just have to find another job?
No. But nor do I think they're entitled to keep on doing what they're doing. If the public is best served by this, then by all means, let's have it keep going. If not, then I'm not going to cry any tears when they do have to find new jobs. Because in that scenario, not only would the loss of artists be offset, but everyone would actually end up better off overall.
The film, in other words, is one long special effect with Jude-Law-size holes in it.
Well, that's better than a lot of movies which have big enough holes in the plot that you could drive a truck through them.
Who was a secret Nazi agent. Now, the villain in The Shadow wasn't a Nazi, but at least he was still a foreigner, and that's just as bad as being a Nazi, or a member of Foreigner.
If you really want to get scared though, check out the natural result of MAI -- Intellectual Reserve v. Utah Lighthouse. This is a scary, scary decision.
Feel free to use the telephone analogy. You might want to take a look at historical examples of telephone-like forms of computer memory like mercury delay lines or CRT storage to bolster it. Computer memory doesn't have to be volatile, though. Core memory was quite popular for a while, and preserved information just fine even when unpowered.
At the moment, I'm not much.
I just finished law school, but I don't sit for the bar til summer. A paying spring job in my field has so far not made itself known. I'm hoping to get into an IP LLM program. I can't sit for the patent bar, but I'm a copyright person anyway; I find patents insanely boring. Trademarks are okay, but not where my real passions lie.
When you read a book you do not exercise any of the rights granted under 106. Use of a computer program is different in that, of necessity, a copy of that program is made and the right "to reproduce the copyrighted work" is right there in 106(1).
Not necessarily.
You see, I think that the MAI v. Peak decision was very wrong. Let me explain this.
Firstly, in the record accompanying 17 USC 102, Congress took care to point out that it didn't consider the following to be fixed copies -- images displayed on a CRT, or information temporarily stored in computer memory.
Secondly, let's think a bit about what is and isn't considered a fixed copy.
Fixation requires that an instance of the work be sufficiently embodied in a material object and is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration
Leaving aside the material object for a moment, if I read aloud from a book, I am altering the air around me in such a way that is sufficiently stable that if you're in proximity to me, you can perceive it.
Have I copied the book?
If you say, no, because it is only transitory, then let's say that I read from the book. Person A hears this and repeats it instantly to person B, who does the same to C, C to D, then back to A. They will continue a never-ending game of telephone with each other. Has the book been copied now?
If still no, let's add a material object. Instead of talking through the air, each one of them has a microphone hooked up directly to a speaker. The speaker is in a long tube filled with mercury (n.b. sound travels much faster in mercury than air, so it'll be present in the tube for less time than it would be otherwise) that leads up to the next person. At the second person's end is a microphone, hooked up to headphones the second person is wearing. Now they'll have their game of telephone, but it'll be through this device in which you can literally see the information propogate as a wave along the tube.
If still no, then let me point out that what I've just described is known as a mercury delay line. It's an early form of computer memory, and while it's a big hack, it works okay.
CRTs have also been used as computer memory, because it takes a few moments for a picture displayed on it to fade. Too short for us to normally notice, but plenty of computers used this, and had banks of CRTs with photosensors stuck on them. (There's a funny story about Ivan Sutherland replacing the visual test program used to look for worn-out tubes with one that spelled out dirty language)
Well, volatile RAM of the sort we use now stores any individual instance of data for nanoseconds at best. But it doesn't really differ in terms of operation from my method of storing information in four people playing telephone in a grassy field, other than that it's cheaper and smaller and probably doesn't employ as many people as if we switched to my idea.
I don't think that RAM copies -- as distingushed from copies made to substantially long-lived media such as magnetic disks, which 117 would also permit -- should qualify then.
Particularly because Congress did not grant an exclusive use right to copyright holders, and MAI would seek to do so.
Additionally, there are fairly good estoppel and fair use arguments to be made that it's okay for the legitimate owner of a copy of software to make incidental copies and adaptations of it for the purposes of using it. Using it doesn't seem so extreme as to be a copyright violation.
But I will agree that this is an area in which copyright law needs to be reformed to be more clearly on the side of the public, overturning MAI in the process.
I think it a difficult argument to make that 2-207 prevents the addition of terms to a contract between a merchant and a nonmerchant (or between nonmerchants).
Sure. I'm not saying that EULAs are, today, totally impossible. But I t
The meduim on which you purchase software is yours, just as the little five-inch diameter piece of plastic holding the latest [insert crappy band name here] album is yours
... in no other manner"
I agree, though again EULAs could be put forth to attack that position.
but that doesn't grant you any ownership interest in the software on that medium.
This is totally incorrect. You're failing to distinguish between a work as a whole, and a copy as a fixed medium embodying an individual instance of a work.
OBVIOUSLY the owner of a copy has rights pertaining to that copy. You are making the absurd argument that just because you buy a book doesn't mean you have the right to read the story printed in it. You're turning the limited nature of copyrights on its head as well; rights not exclusively granted to the copyright holder either don't exist or follow ordinary property law. Use is not an exclusive right, and thus follows ownership of the material object, just as with any material object.
Why would the UCC render a purported license inoperative? We've looked a fair amount at UCITA and UETA in my e-commerce class with respect to software licensing and it would seem to me that, at least UETA and ESIGN, having effect in most U.S. jurisdictions, emphasize that a license is not invalid merely because it is electronic. Maybe I don't understand your point.
I never mentioned electronic contracts, nor UETA, ESIGN, etc. UCITA is generally worth ignoring as it only exists in two jurisdictions, and several other states have anti-UCITA laws to keep them out.
The issue is this: when you buy something where, after the sale, further terms are proposed, are they binding?
If we treat UCC 2-204 to be controlling, then they probably are (though there must be an opportunity to reject and return per 2-606). OTOH, if we treat 2-207 as being controlling, then there is no obligation by nonmerchant purchasers to accept the additional terms; the original terms stand.
Personally, I'm on the 2-207 side, but this is by no means a resolved issue, and there've been court cases going all different ways on the subject. Plus of course, the UCC is in no small part concerned with protecting customers, and EULAs are nothing other than hostile towards customers. Frankly, I think they ought to be banned as a matter of contract law, as well as in copyright law.
Also, 117 does allow for copies to be "leased, sold, or otherwise transferred" which leads me to believe it would apply to copies of a software program that were licensed (the physical copy that is).
Wow. You didn't even finish reading the entire subsection.
That part of 117 says that if you have made additional copies, they have to follow the original if you no longer posess it. You can't sell an original copy and keep a backup.
I have no clue where you're reading in what you're talking about.
117 also only allows such extra copies to be made "as an essential step in the utilization of the computer program in conjunction with a machine and
Those are adaptation copies, not backup copies. 117 allows two different kinds of copies.
Plus of course, it just says "in conjunction with a machine." It doesn't specify. If Congress wanted to specify, they know how to do so. The proper judicial interpretation of this would be that the machine can be any kind of machine. Congress didn't care, and if that's wrong, can trivially correct it. But given how readily things change in the computer world, it's quite likely that they meant just that.
For example, your needlessly narrow reading would prohibit people from getting a computer that postdates the software. That's absurd -- it would mean I couldn't run a copy of Visicalc for the Apple II on the IIgs for no other reason than that the hardware would be newer than the software.
It would also prevent somewhat unavoidable emulation, such as the 68LC040 emulator on Power Macs. Whole different processor family, but thanks to that, it can keep up.
I think you need to seriously reread 117.
Wow.
One, in the absence of a EULA, you do own the copy of the software. So the alleged licensor has to prove that a license existed. Even if there is a purported license, it still might not be operative due to the UCC.
Two, 117 only applies to owned copies of software, not licensed copies.
Given that the MAI v. Peak decision is widely followed (despite being wrong), and holds that any of the reproduction that occurs in the normal operation of a computer -- e.g. reproduction on disk from packets coming down from a network, or reproduction in RAM of files loaded there from a disk -- qualifies, I don't think that would fly.
Well, the statute on importation is 17 USC 602, and IIRC permits some importation to occur without violating the distribution rights of the US copyright holder. The Napster case in the 9th Circuit pointed out that the direct infringements by users which Napster was contributorially and vicariously liable for were distribution (making files available for download) and reproduction (downloading the files).
And no, your ownership of a copy doesn't hinge on whether you're buying an extant copy or legally making a copy.
It's just that allofmp3 seems to be claiming that what they're doing is altogether legal because they're distributing in Russia under Russian law (which for all I know is true) and users are importing copies which in the typical allofmp3 scenario would be legal. But this argument relies on the users importing, not reproducing. If they're reproducing, it's a different ballgame, and the exemptions in 602 won't help.
Trade secret law might be applicable.
I'm willing to allow something akin to the common-law copyright of old, but the protection ought to remain minimal, and expire at about the time of publication, requiring the author to apply for a real copyright quickly, or yield protection, much like the statutory bar for patents.
IIRC there are still some holdouts on the Berne Convention. Given how amazingly awful it is, I'm still upset that the US finally caved into it after rejecting it for so long.
Copyright law is best handled domestically without international agreements of any sort.
The problem is that you're not importing them. Importation is a form of distribution, but that would require the copy to already exist.
When you're downloading, you're creating a new copy on the downloader's end. This is a form of reproduction, not distribution (though the uploader making it available is distribution).
Since the reproduction is likely happening within the US, Russian copyright holders don't have authority to permit it.
RIAA may have a difficult time doing anything about this, but that doesn't make it legal.
Is it a bad thing that a writer gets to control whether their work is released or not?
No, but OTOH, it is appropriate to only grant copyrights to authors who distribute their works in appropriate ways. E.g. I think it would be reasonable to prohibit EULAs from applying to copyrighted works. In fact, EULAs are probably worth banning altogether. We might also only allow copyrights for published works, rather than unpublished ones.
Well, if the copyright holder has per 106 the exclusive right to distribute copies to the public either merely through transfer of posession or of transfer of ownership, then that means that others can't do that.
The language of 106 doesn't make a distinction between copies that have or haven't experienced first sale. For similar reasons, we had to have the Bobbs-Merril case in the early 20th century to resolve that first sale existed anyway, and this was immediately followed up by provisions in the 1909 Act which were akin to the 1976 Act's section 109.
The more recent exceptions in 109 should make fairly clear that Congress at least doesn't think that 106 inherently is limited only to first sale. Check out 109(b)(1)(A); that provision would be impossible if the main gist of 109 were redundant with 106.
Which isn't to say that 106 and Congress' power isn't limited by first sale, just that this is what's on the books.
Well, you're thinking of 17 USC 106, but that list is not in any kind of order of importance. There's nothing sacrosanct about the reproduction right as compared to the distribution right, or any of the others. There's not a 'core' copyright with a bunch of lesser copyrights surrounding it.
As for fair use, check out the language of 17 USC 107: In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include....
Thus, there aren't any categorical fair uses. There is only a test that has to be applied each and every time there is an alleged fair use. Previous testing might prove informative, but isn't determinative.
What it depends on then, are the various factors involved. If something about the factual situation changed substantially, it could skew the way the fair use analysis works, turning fair uses into infringements, and vice versa.
The best you can hope for with regards to time shifting is to say that in Sony time shifting was found fair, and that your situation is identical in all material respects, so the outcome should be same. And given the precedential value of that decision, it probably would be. But that doesn't mean that timeshifting is NECESSARILY fair, just that it is, so far, typically found to be fair.
Does it make any sense at all to you that we would be allowed to audiotape our LPs, but not transcode DVDs for PDA or laptop use?
No, but remember that audiotaping LPs is already specifically allowed even when it ISN'T a fair use. No court will bother conducting a fair use analysis of the situation since it doesn't have to do so. The AHRA takes care of this situation perfectly fine already.
Besides, if I had my druthers, I'd reform copyright law in a rather spectacular fashion. I'd probably make it legal for natural persons to do whatever they liked non-commercially for starters. But if wishes were horses, beggars would ride.
I don't see an equitable doctrine being worn down, but I do think that it needs freedom to meet the needs of the times its in.
Obviously a parallel set of exemptions is available for Congress to pass which might exceed fair use. It's important to remember that fair use is a judicial doctrine though.
And yes, passing along is distribution. To give a copy to a friend would be a violation of 17 USC 106's distribution right, if not for 17 USC 109 and the first sale doctrine which carve out an exemption to it. To have created a copy would've invoked the reproduction right, not the distribution right.
Well, 1) taping your records is allowed under a statutory exemption (17 USC 1008) so there's no reason -- so long as you're literally talking about audio tape here -- to bother with a fair use analysis, and 2) recording from TV broadcasts is NOT NECESSARILY fair use. It depends.
Similarly, ripping DVDs may or may not be a fair use depending on the circumstances involved. And then there are circumvention issues apart from infringement issues.
You said: copyright law allows you to make all the copies you want in the privacy of your own home and given that fair use doesn't say that (it only allows copying or other infringements when fair), I'd still like to know what does.
This is important since one can't go after tools used to infringe where the basis of their use was a fair use, and in fact tools that have possible substantial noninfringing uses such as fair uses can't be gone after at all with regards to infringement.
It would be a very bad idea to define fair use clearly. All we have right now is a test that can be used to find whether or not something is fair use, and the tests have changed over the ages.
Remember -- fair use as a doctrine dates back well into the 19th century. If it had been clearly defined back then, it would likely not have been extensible to cover the sorts of situations we're in now, e.g. timeshifting, mp3 ripping, etc.
Besides which, fair use is designed to apply to any situation that's fair based on the specific circumstances involved. There's no general type or form of copying that is uniformly fair. A case-by-case analysis is always required. Defining what uses are and aren't fair is impossible.
Finally, if you couldn't distribute a copy, you'd have no ability to loan it to a friend, rent it, or sell it used, all of which are important and covered by the first sale doctrine. Besides, no one cares so much about the copy -- they care about the work as a whole, which is embodied in the copies. You need to rethink what it is you want, and have it be something other than fair use.
That's a truly bizarre reading of Title 17. Where are you getting that from?
17 USC 506 covers criminal liability for copyright infringement. 17 USC 1204 covers criminal liability for circumvention.
They are both civil and criminal matters, and you could go to prison.
Yeah, I hear you with regards to Netscape. I once managed to totally crash an SGI machine with it. It was kind of embarrasing for the SGI reps that were there showing it off.