Actually, piracy was hijacked to describe unauthorized publishing. It was first used in that sense in 1668, many years before the first copyright law was passed in 1710. Look it up in your OED. (surely everyone has an unabridged OED;)
So I think that battle is probably a little too long lost to be fought again.
Even if it was the case that he had his own mp3's on an open share (the indexing service worked through open shares I understand), that's not actually illegal.
Like fun it isn't. It's distribution and contributory infringement for the copying involved in the download.
Interesting point, how do the RIAA show that all your mp3's arn't just ripped off your own CD's? - innocent until proven guilty etc, you could just claim to have lost all the relevent CD's.
It's fairly easy. You aren't innocent until proven guilty because this isn't a criminal trial. Liability is by a preponderance of the evidence, i.e. more likely liable than not.
And while you can claim what you like, they'll ask you directly, subject to perjury, which you can get in an amazing amount of trouble for. Plus you have little evidence to back up your claims if they are false, so it likely won't be convincing to a jury anyway.
Not an MP3 trading application, just a search engine that could be used, as Altavista and Google can, for finding MP3s...
That doesn't matter. Remember the Sony decision: as long as there is a possible substantial non-infringing use of the technology, the mere fact that the technology exists isn't enough for the provider to be liable.
A pure mp3 search engine is fine.
There are only three factors to be considered, and whether the search engine is general purpose or not is NOT one of them.
1) Does it help people infringe? 2) Does the provider know of specific infringements that it has helped? (more specific than knowing that they're possible; less specific than knowing individual filenames, though that would be good too) 3) Could the provider have stopped helping people infringe by changing his technology or failing to provide it anymore?
I suspect this kid knew that people were actually infringing using his search engine. I bet he even used it himself in that manner, as even getting a listing of illegally downloadable files could infringe the copyright holder's distribution right.
There is also one other way to escape liability; it is the one that the search engines use. And that is to comply with the DMCA safe harbor in 17 USC 512. But these kids didn't do that either, or else they'd be laughing at the RIAA while totally immune from suit.
So the reason to not sue Google et al, aside from that they do have better lawyers, is that Google was smart enough to shield themselves with the law; these kids were stupid and left themselves wide open to liability. Even though it would be easy-peasy to get the immunity.
But they didn't, and RIAA _was_ right here. Still a bully, but right. It happens from time to time, you know.
Because browsing HTML and and finding files on a hard drive aren't analogous?
I agree. However, I do think that integrating a browser is a good idea, because it permits for the display of local files qua icons, with potentially useful arrangement and formatting yet while easily editable by users.
For example, a CD with an installer program could, when browsed to, display a file browser window containing relevant icons in a spacial arrangement best suited to help users, with instructions printed alongside them directly in the window. (on the Mac this has sometimes been approximated by creating files or folders with 'invisible' icons but visible and descriptive names -- sometimes the icons are arranged like mosaic tiles to form a picture; see the MS Office 98 and Marathon 2 installer CDs for examples)
However, MS was motivated by evil, not a desire to help users. And they've ignored the UI potentials that this could provide.
But I do think that if it were UTILIZED it could be pretty helpful. The trick is doing it right; merely browsing through folders as though they were web pages (e.g. back/forward, etc.) is crap.
Now, if it's true that all these guys did was provide a search facility, why doesn't that ruling apply?
Because Morpheus and Grokster apparently could not stop people from using their software to infringe copyrights even if they really, really, wanted to.
But these kids could have just pulled the plug at any time, as well as pretty certainly have taken less drastic steps.
That's the big difference. And the DMCA safe harbor which also would have provided the kids with immunity had they actually tried to get it.
So basically, if you 1) provide something that helps people infringe, 2) know you're helping them specifically (as opposed to knowing that people could abuse what you're providing), and 3) don't stop helping even though you could stop -- you're hosed.
Can I run a search engine now? Exactly HOW are google and alta vista immune from similar suits? Simple -- they can pay lawyers who could kick the crap out of the RIAA.
You can run a search engine. And be immune. You can do it the same way that Google and AltaVista do it, and you don't even need lawyers.
Just follow ALL of the relevant requirements of 17 USC 512 (specifically 512(d), (c)(2), (c)(3), and (i), IIRC). Which is not at all hard to do, and shouldn't seriously interfere with the legal use of your search engine by others.
These kids were dumb; they didn't check this out. That Napster, which ran a search engine (general purpose or not is actually completely irrelevant!) got atomized should have been a big warning sign to these kids to at least check out the issues involved.
Or they could have still been okay if they had been careful about how they ran it. Which they likely weren't.
I don't think this will happen twice, but hopefully it will be because the people running the engines are smart enough to avoid liability themselves!
Well, he created it, and he controlled it. He allowed other people to use it, but it was still under his control; he could have turned it off, he could have changed how it worked, etc.
So, provided that a) his tool helped other people infringe copyrights, b) he was specifically aware that it was being used to infringe copyrights (quite distinct from any knowledge that was imputed from a knowledge of the capabilities of the tool), an c) he could have stopped allowing people to so use his tool but didn't; then yeah, it's his responsibility.
Or he could have just said fuck that and taken advantage of the extra protections in 17 USC 512. But he apparently didn't, even though it's really easy.
WRONG. Shakespeare sold his plays to companies of players who performed them. The performances themselves netted Shakespeare nothing, but the sale of the play is where he made his living.
Really? I can't imagine why you don't let everyone else in on your thorough knowledge of his history. Is the deer poaching story true?
As far as the rest of the world knows, Shakespeare more or less appeared on the London scene suddenly sometime around 1592, with his popular Henry VI. Henslowe had been performing it. The theaters shut down on account of plague pretty much through the beginning of 1593 through spring of 1594; Shakespeare wouldn't have been able to support himself with the stage, so he worked on Venus and Adonis which was basically supported through patronage. He also probably was writing sonnets around this time.
The way that Shakespeare finally made his fortune though was that as the playing companies reassembled in London, he became a shareholder in the newly formed Lord Chamberlain's Men (so named because their patron was Lord Hunsdon, who was the Chamberlain of Queen Elizabeth). Though he was a minor shareholder (fitting, given that he hadn't invested as much as others), he got a cut of the profits made from EVERY performance. He still acted in the plays, and fortunately for him, the L.C.M. became very popular. But bear in mind that they were a repertoire company.
Due to various problems with their landlord and their neighbors, the L.C.M. found themselves needing a new playhouse. So they dismantled their favored one, The Theatre, hauled it across the river, and rebuilt it as The Globe. The Globe was owned by a group of investors: the Burbages, and five of the L.C.M. including Shakespeare. The Burbages paid half the lease and took a half share, and the actors paid the other half of the lease and took the other half share. Thus Shakespeare got 10% of the profits from ANYTHING performed there. This money was then invested in real estate back in his hometown of Stratford.
He _did_ sell the plays he wrote to the acting company, that's true. But his pay for that was, again, based on attendance. Playwrights got a share of the admissions paid. And that was payment basically for his labor. It could not be expected repeatedly, and why should it? There weren't any copyrights. And other actors would sit in the audience, memorize the lines, or get ahold of copies of the script, and put on their own performances without paying a penny.
Frankly, I'd imagine that Shakespeare made more money as an actor than he did as a playwright. And it's certain that he made more money as an investor than he did as a playwright either.
Creators have perpetual rights to their creations. Our society seizes works after a time "to promote science and the useful arts."
Well you're just the stupidest person alive.
Riddle me this: Where in the Constitution does it say that copyrights MUST be granted?
Never mind, I'll answer for you, since you're such a moron. It doesn't say that. It gives Congress the POWER to grant them, but doesn't require any action to be taken. It is like the power to declare war, or raise taxes, or establish a post office; it is something that may be done, or not, at Congress' whim.
The first act, of 1790, only granted copyrights to Americans. If they were alive. And applied for a copyright. And only if it was for a book or a map.
Everyone else -- foreigners, dead authors, people who created but didn't apply for a copyright, people who weren't authors or cartographers (e.g. painters, sculptors, musicians, architects, etc.) -- could kindly go to hell.
They had no rights to their creation. And they certainly had no perpetual rights; that's madness.
And nothing was ever seized. The author could, at best go from having NO rights, to having ONLY those rights granted to him by the government, to having no rights again on account of his artifical rights coming with an expiration date attached.
Yeah, it's not like Shakespeare made his living writing plays or anything.
He didn't. He made his living charging admission to the theater where he and others performed the plays he wrote.
Other people performed his plays; he didn't make a penny. He performed other people's plays (and ripped them off when writing his own) and didn't pay a penny.
The money he made getting a percentage of the tickets he then invested into real estate, which is where he made more money, though he was never really rich.
Lots of artists made their money by charging for their labor or their finished wares; not for the insubstantial work. Shakespeare pretty much always made his money through real property: even charging tickets was giving people permission to go onto the land owned by the theater company. Copyrights certainly didn't exist then.
At any point the general premise that authors enjoy no permanent privilege was right on the money. If the whole world would be better off without copyrights tomorrow, and this is certainly possible, then why bother having them?
Yeah, the question is can the trademark effectively prevent the copyright from expiring? (i.e. because you cannot legally use the formerly-copyrighted materials without some use of the still-active trademark)
I'd say no, because it's more important that the copyright expire than the trademark be untouched by foreign hands.
That's not a bad analogy: Let's say I'm renting a house from you, and I use that house as a front for my pirate organization. Should you be sued by the RIAA? I say no.
This does actually happen, e.g. in the context of flea markets. Though it's more of a vicarious liability thing than contributory. There it will hinge on whether I a) retained the right and had the ability to control what you did, and b) derived a direct financial benefit from it.
If the rents are a percentage of your pirate income, I'm probably screwed. If they're a flat fee I'll likely be okay.
But people have gotten in trouble before for real-world providing of facilities to pirates.
It smacks of ridiculousness that a programmer can be sued for creating an index of files that end users shared out.
I dunno. I dimly recall someone getting in criminal trouble for creating a yellow pages for hookers and giving it out.
The index helps people infringe. The programmer knows it helps people infringe. The programmer knows he can edit it slightly to avoid so helping; or can take some other steps to avoid liability as well.
But he does know, or at least should, that he's participating in some manner in an illegal activity. Not even a vague activity, I mean he likely knows of specific instances of infringement or at least a widespread pattern of infringement.
I know what you're talking about. I understand fully the degree to which derivative works can be made.
Personally I would like to make a cartoon starring Mickey Mouse, but with original art and story. If Eldred had come out correctly I would already be working on it!
But it IS derivative because the character's mannerisms and description -- assuming you are doing something that involves the Mickey Mouse CHARACTER and not merely the NAME -- are derivative of Steamboat Willy.
Check out the Air Pirates case. They should've won as parody, but regardless they made a derivative of a public domain work, but that was in turn derivative of Steamboat Willy, and they wound up losing.
Now, if you were using the name alone, without anything other than the name that referred to the CHARACTER (i.e. you could call the character Alice Robertson and no one would see ANY resemblence to the Mickey Mouse character) then you might have a point.
But I don't think most people would care.
The character though has that name regardless of a trademark, and the character cannot be fully used without using the name. To allow the name to be stripped off would not change the underlying identity of the character, but could interfere with the use of the character as it stands in the public domain,.
I stand behind the arguments that the various posters have made elsewhere in this part of the thread as to why, and I've made the same arguements myself many, many times before, as you could see if you check out my posting history.
Content isn't property, and copyrights don't exist to protect authors.
The entire point of the system is to produce a societal good. Hell, the same is basically true of real property, but that system developed before anyone actually realized why it worked the way that it did.
(And of course, Locke has no place in a discussion of copyright. I despise Locke. But check out Jefferson, who cribbed from Locke, but left out the bits that Locke got wrong.;)
Me, I really need to finish my reading for Federal Courts, and then type up my Fed. Cts. and Tax outlines. Exams are next week.
But I aced IP last term, and I bet I aced Cyberlaw this term, so I must be doing something right.
For starters, the Constitution requires that copyrights expire. It doesn't say anything about trademarks; they're just an application of the commerce power. (a 19th century case held that the copyright and patent power couldn't be used for trademarks)
Secondly, there are exceptions in trademark law, such as nominative use, that I think might apply here.
And as noted, though this hasn't come up a lot in the past, there is the Comedy III case:
First, the footage at issue here was clearly covered by the Copyright Act, 17 U.S.C. 106, and the Lanham Act cannot be used to circumvent copyright law. If material covered by copyright law has passed into the public domain, it cannot then be protected by the Lanham Act without rendering the Copyright Act a nullity....Essentially, Comedy III is arguing that the clip at issue falls under the protection of the Lanham Act because it contains elements that in other contexts might serve as trademarks. Had New Line used the likeness of The Three Stooges on t-shirts which it was selling, Comedy III might have an arguable claim for trademark violation. But we will not entertain this expedition of trademark protection squarely into the dominion of copyright law, to allow for Lanham Act coverage of a piece of footage taken directly from a film by The Three Stooges. Comedy III' s assertion that this clip is itself a collection of trademarks of The Three Stooges is unconvincing.
At BEST there might be a claim regarding merchandising based on derivative works or public domain works. And even that seems sketchy to me.
What I'm saying is that once a character hits the public domain, I don't think anyone CAN have a trademark in the character generally, e.g. 'Mickey Mouse.'
It would no longer serve as a unique source identifier, which is what trademarks HAVE TO DO. Because anyone could reproduce or make derivatives of the character as a result of the copyright expiration.
Tacking on the 'Disney's' to it would be needed to save it, I think.
'Steamboat Willy' is the name of the first* Mickey Mouse cartoon. The title card says something like "Mickey Mouse in 'Steamboat Willy'" and the character is recognizably Mickey Mouse. I don't recall if he actually gets called that by another character or uses his own name, but there's no dispute as to who he is.
Ironically the name of the cartoon, 'Steamboat Willy,' is based on a Buster Keaton short of the era, 'Steamboat Bill Jr.' and the score to 'Steamboat Willy' even begins with the first bars of the music from S.B.Jr.
I'm not sure that he was called "Mickey" back then, so you wouldn't be able to use that name.
He was. I have copies of all the black and white Mickey Mouse shorts. Steamboat Willy is actually pretty boring, but the other two 1928 shorts I mentioned are pretty good.
Had Eldred been decided correctly, I would've been working on my own Mickey Mouse cartoons. Minnie, and a sort of proto-Pegleg Pete character also date back that far, so some good stuff could be done.
You also would have to draw him the way he was drawn in the early cartoons (looking more like a rat, really), rather than as the child friendly icon he is today.
Not at all. You could draw him in the original Ub Iwerks style. Or in a style derivative of that that WASN'T derivative of later copyrighted works. It could still be friendly and different; it just wouldn't look like the current Disney Mickey Mouse.
No great loss there. Look at how many interpretations there are of other public domain characters from the Alice stories, or Oz, or myths.
No, you can avoid contributory infringement merely by stopping your contribution to it. You don't have to stop the infringement itself.
True. But these guys weren't sued as end users. They were sued as software developers. If they were sued as end users, that'd be a whole 'nother kettle of fish.
Well... contributory and vicarious infringement are the typical methods one uses to sue someone who didn't directly infringe themselves, but who did have some involvement with someone else infringing.
Napster was sued under these theories. So were these guys. So would be the landlord of a place where illegal CDs were sold.
Thus, as I said, if you don't want to be sued for contributory infringement, don't contribute towards another's direct infringement. If you don't want to be sued for direct (i.e. normal) infringement, don't infringe.
End users would be sued under the latter theory, and even the two third party sorts of action do require that there was direct infringement by SOMEONE which the defendant contributed to in some manner. Though you needn't actually sue that party.
How exactly would you suggest [filtering of infringing files] be done?
No, you're going overboard. If a file has a copyright notice -- presumably a machine-readable one -- don't return it as a hit. If you personally find out, e.g. because you get a nasty letter from the RIAA, that a particular file is likely infringing, don't return it as a hit.
This is more or less how the DMCA operates. If you work to get into the section 512 safe harbor for service providers (easy, but you have to take certain steps) then you have to, e.g. not return hits if the copyright holder sends you a letter indicating that they're infringing copies. If the alleged infringer disagrees, he sends a counter-takedown notice to you and it goes back up, and the various other parties involved go to court or whatever.
You don't especially have to LOOK. But if there is something that passes through your system that should draw your attention, particularly a copyright notice, then that's what you act upon.
And of course, bearing the Netcom case in mind, if there is even a possible fair use defense of the person putting up the data (though remember that fair use is not what most people on the internet seem to claim it is -- for ALL of this stuff, you DEFINATELY should consult a lawyer licensed to practice in your jurisdiction) then you shouldn't filter it.
But I agree with you when you say that computers don't understand the nuance of the legal system.
This is precisely why I hate DRMs with the burning passion of a thousand suns. Or as I like to put it, a kilosol.
Oh yeah... I remember that. If someone created an audio codec that restricted digital copying to one generation (share with friends, but your friends can't share) and allowed burning to CD, wouldn't that fall under the terms of the AHRA? I'd be cool with that... it's a healthy compromise.
Well, as noted above, I'd hate the living daylights out of it. Unless you could selectively make copies with a single device that a) complied with SCMS, but still b) switch that off and make unlimited copies BUT take the chance that it might be illegal.
Machines can't tell that I'm the copyright holder of the music on a consumer DAT; they block me from exercising my own rights. I hate them.
And as for your hypothesized DRM system, it depends. I don't really want to get into the fine details of what DRM falls within the AHRA exception.
The RIAA should not be able to sink any project that transfers bits between computers simply because it does not have DRM technology built in.
Well, it sure seems that way when they can sue search engines.
Well, as I said, most search engines do just a tiny bit of work under 17 USC 512 (which I suggest you read) and gain absolute immunity for everything but actual direct
Even if "Steamboat Willy" becomes public domain people would still have to pay Disney to use Mickey Mouse.
Then it doesn't sound like it's in the public domain to me. The only sensible answer is that the trademark on the character cannot block other people from using the character in order to make derivative works or to duplicate the existing public domain works.
It sounds like a nominative use to me -- it _IS_ Mickey Mouse. There's no getting around it. It isn't as though the derivative creators can reasonably call him something else.
At best Disney could only retreat to a trademark on "Disney's Mickey Mouse" and even that wouldn't be likely to work for straight reproductions of actual Disney Mickey Mouse materials.
Roughly the same thing already goes on with their fairy tale cartoons. Disney cannot stop you from making movies about Aladdin, and calling them Aladdin. But they can stop you -- for now -- from calling them Disney's Aladdin.
One would imagine so. Otherwise mere commerce power trademark law would consume a constitutional limit on copyrights.
But I haven't seen it come up much. There's the Comedy III Productions thing; the Amos 'n Andy case is vaguely related.
However, there is a very important caveat. Consider Mickey Mouse: the original Mickey Mouse from the 1928 shorts (Steamboat Willy, The Galloping Gaucho, and Plane Crazy) looks and acts and talks differently than the 'modern' Mickey.
If the copyright on the original Mickey expired, you could create new works that were derivative of that. But they could NOT be derivative of later works that were still copyrighted. So the later changes to the character (e.g. facial structure) couldn't be used by you, though you could change your own Mickey in new ways.
My understanding was that they did *not* have the ability to stop the infringement.
No, you can avoid contributory infringement merely by stopping your contribution to it. You don't have to stop the infringement itself.
In this case: don't list files in the search results that you know are infringing.
I don't even see how that'd be technically feasible from an automated standpoint.
Yeah, it's tough. The Netcom case recognized this. Following it, I would suggest: a) not listing files that have a copyright notice attached; b) not listing files the copyright holder has reasonably indicated to you are infringing; c) not listing files where there could not possibly be any fair use defense.
But note that Napster requires the defendant here to also not have actual or constructive knowledge of infringement. Napster had documents indicating that they knew infringement was going on generally and wanted to remain willfully blind to it; instead that screwed them. And Napster was also informed by RIAA. And Napster officials actually used their own system to infringe. And took screen shots of that to market Napster. And Napster officials had some experience in the music industry, so they were hardly naive.
My point that 'Napster this is not' was simply that you cannot argue that there are not significant non-infringing uses for the software.
Well, I'm NOT arguing that. In fact, there were significant non-infringing uses of Napster. At least in potential, and that's all you need -- the potential.
But the mere fact that there are actual or possible significant non-infringing uses is NOT THE END OF THE ANALYSIS. YOU CAN STILL BE LIABLE FOR CONTRIBUTORY INFRINGEMENT ANYWAY! It just makes it harder for you to lose; that's a hell of a long way from impossible.
Again, I still don't understand how the creators of the search spiders were expected to filter copyrighted material.
By not returning results they know or should know are infringing if they're aware of them. This includes files with copyright notices, files that you've been notified by the copyright holder to be infringing, files that could not possibly be shared per fair use, etc.
It can't be that hard to check all search results against a blacklist and not display them if they're on there.
Nevermind that sharing music between friends is generally considered legit, if I remember correctly.
Not via general purpose computers it's not. The AHRA only applies to noncommercial music copying if it is via analog devices, analog media, or CERTAIN, QUALIFYING digital devices or media. Computers don't qualify. DAT would. I think Minidisc might as well. Check my recent posts -- I've been discussing it as well in this thread.
The RIAA should not be able to sink any project that transfers bits between computers simply because it does not have DRM technology built in.
I agree. However, they can't.
If I wanted to create a better way to share directories in Windows or Unix, it shouldn't be my responsibility to police my users to make sure they aren't doing something blatently illegal.
It isn't. But you're not allowed to knowingly help them do something blatantly illegal either. You don't have to stop them -- just refrain from helping them. And only if you know or ought to know.
On one level it looks like the downloader is the one making a copy, but actually the server is making the copy and then sending that copy over the network to the client machine.
Well, the way that computers work, it's not like bits physically move places. The server reads off the information in the file, and the client follows that instruction and creates a new copy of the file. The client therefore winds up with only one copy, but an infringing copy, of the file.
If we could move a copy from the server to the client as you describe, it would solve a great number of problems.
As for distribution v. copying, they're both basically just as bad per section 106. Maybe performance and display are variations of distribution, but in the end it doesn't matter much to the defendant.
Let's take down the inventors of the FTP protocol now too. After all, I know plenty of people who run pirate FTP servers. Therefore, the creators of the protocol must be to blame for contributory infringement.
Won't work.
The developers of FTP (which is positively ancient, incidently) are not liable for contributory infringement because of their development of FTP. They didn't know of, and had no reason to know -- because of their invention -- that there would be direct infringement. That FTP had that capability isn't sufficient as long as it also had substantial possible noninfringing uses.
And furthermore, the FTP inventors, though they did provide technology, retained no control over that technology. They could not stop it from being used for infringement, and other than giving away their invention, have no control over what is and is not done with it. Considering the Netcom case, they couldn't be liable.
Vicarious infringement also fails against them for the same reason, plus the lack of direct financial benefit from the infringement.
So the FTP guys are in the clear.
Incidentally, this is IIRC, how a couple of P2P app developers got off the hook -- they retained no control over the technology. They can't kick off users for infringing. They can't prevent things from being searched for, and they can't prevent answers to the search from being provided.
These kids pretty likely did know of actual infringement; and they had the ability to stop their participation in it, at least, and did not.
WTF were they supposed to do? Ban all *.mp3 searches? That'd restrict substantial legitimite uses. Believe it or not, but the RIAA does not hold a copyright on every piece of audio that might be encoded as an mp3. I've got recorded mp3s from all sorts of random places that have nothing to do with the RIAA.
I know mp3s are often ok.
What they should have done was to create something that they released out into the wild, instead of providing the service themselves. Or, barring that, they should have taken advantage of the DMCA safe harbor for service providers (it doesn't quite mean ISPs, though they're certainly included in that) which is pretty easy to do.
All they provided was a search engine for a Local Area Network. That's what it was created to be. This isn't Napster, and saying it's the same is disingenuous at best, and probably a flat out lie. The tech was to make Windows file sharing easier in general, rather than being created for the explicit purpose of sharing mp3s.
Well, as you say, you can often share mp3s legally. So there is no real difference; both can be used legally -- but here they were not. The providers knew this, could have done something about it so as to not contribute to the direct infringements, but didn't.
The fact that they got sued for this is absolutely ridiculous. It's a damn shame that they settled... it sets a horrible precedent and the RIAA really doesn't deserve the money.
I agree, save that it's their choice to settle, and it was probably wise, as I think they'd lose in court. Very badly. And of course, this doesn't set any kind of legal precedent -- it merely serves as a cautionary example to people to act legally.
So hopefully the next guy to write a shared file search engine will comply with the DMCA safe harbor, or take steps to avoid actually contributing or being vicariously liable. Both of which are entirely possible.
Of course the people _using_ the service still can get screwed, but they're smaller fry, and may be willing to take the risk, indefensible as their actions might be.
Slashdot Mirror
Actually, piracy was hijacked to describe unauthorized publishing. It was first used in that sense in 1668, many years before the first copyright law was passed in 1710. Look it up in your OED. (surely everyone has an unabridged OED ;)
So I think that battle is probably a little too long lost to be fought again.
Even if it was the case that he had his own mp3's on an open share (the indexing service worked through open shares I understand), that's not actually illegal.
Like fun it isn't. It's distribution and contributory infringement for the copying involved in the download.
Interesting point, how do the RIAA show that all your mp3's arn't just ripped off your own CD's? - innocent until proven guilty etc, you could just claim to have lost all the relevent CD's.
It's fairly easy. You aren't innocent until proven guilty because this isn't a criminal trial. Liability is by a preponderance of the evidence, i.e. more likely liable than not.
And while you can claim what you like, they'll ask you directly, subject to perjury, which you can get in an amazing amount of trouble for. Plus you have little evidence to back up your claims if they are false, so it likely won't be convincing to a jury anyway.
Not an MP3 trading application, just a search engine that could be used, as Altavista and Google can, for finding MP3s...
That doesn't matter. Remember the Sony decision: as long as there is a possible substantial non-infringing use of the technology, the mere fact that the technology exists isn't enough for the provider to be liable.
A pure mp3 search engine is fine.
There are only three factors to be considered, and whether the search engine is general purpose or not is NOT one of them.
1) Does it help people infringe?
2) Does the provider know of specific infringements that it has helped? (more specific than knowing that they're possible; less specific than knowing individual filenames, though that would be good too)
3) Could the provider have stopped helping people infringe by changing his technology or failing to provide it anymore?
I suspect this kid knew that people were actually infringing using his search engine. I bet he even used it himself in that manner, as even getting a listing of illegally downloadable files could infringe the copyright holder's distribution right.
There is also one other way to escape liability; it is the one that the search engines use. And that is to comply with the DMCA safe harbor in 17 USC 512. But these kids didn't do that either, or else they'd be laughing at the RIAA while totally immune from suit.
So the reason to not sue Google et al, aside from that they do have better lawyers, is that Google was smart enough to shield themselves with the law; these kids were stupid and left themselves wide open to liability. Even though it would be easy-peasy to get the immunity.
But they didn't, and RIAA _was_ right here. Still a bully, but right. It happens from time to time, you know.
Did anyone see the movie "Tron?"
Because browsing HTML and and finding files on a hard drive aren't analogous?
I agree. However, I do think that integrating a browser is a good idea, because it permits for the display of local files qua icons, with potentially useful arrangement and formatting yet while easily editable by users.
For example, a CD with an installer program could, when browsed to, display a file browser window containing relevant icons in a spacial arrangement best suited to help users, with instructions printed alongside them directly in the window. (on the Mac this has sometimes been approximated by creating files or folders with 'invisible' icons but visible and descriptive names -- sometimes the icons are arranged like mosaic tiles to form a picture; see the MS Office 98 and Marathon 2 installer CDs for examples)
However, MS was motivated by evil, not a desire to help users. And they've ignored the UI potentials that this could provide.
But I do think that if it were UTILIZED it could be pretty helpful. The trick is doing it right; merely browsing through folders as though they were web pages (e.g. back/forward, etc.) is crap.
Now, if it's true that all these guys did was provide a search facility, why doesn't that ruling apply?
Because Morpheus and Grokster apparently could not stop people from using their software to infringe copyrights even if they really, really, wanted to.
But these kids could have just pulled the plug at any time, as well as pretty certainly have taken less drastic steps.
That's the big difference. And the DMCA safe harbor which also would have provided the kids with immunity had they actually tried to get it.
So basically, if you 1) provide something that helps people infringe, 2) know you're helping them specifically (as opposed to knowing that people could abuse what you're providing), and 3) don't stop helping even though you could stop -- you're hosed.
Can I run a search engine now? Exactly HOW are google and alta vista immune from similar suits? Simple -- they can pay lawyers who could kick the crap out of the RIAA.
You can run a search engine. And be immune. You can do it the same way that Google and AltaVista do it, and you don't even need lawyers.
Just follow ALL of the relevant requirements of 17 USC 512 (specifically 512(d), (c)(2), (c)(3), and (i), IIRC). Which is not at all hard to do, and shouldn't seriously interfere with the legal use of your search engine by others.
These kids were dumb; they didn't check this out. That Napster, which ran a search engine (general purpose or not is actually completely irrelevant!) got atomized should have been a big warning sign to these kids to at least check out the issues involved.
Or they could have still been okay if they had been careful about how they ran it. Which they likely weren't.
I don't think this will happen twice, but hopefully it will be because the people running the engines are smart enough to avoid liability themselves!
Well, he created it, and he controlled it. He allowed other people to use it, but it was still under his control; he could have turned it off, he could have changed how it worked, etc.
So, provided that a) his tool helped other people infringe copyrights, b) he was specifically aware that it was being used to infringe copyrights (quite distinct from any knowledge that was imputed from a knowledge of the capabilities of the tool), an c) he could have stopped allowing people to so use his tool but didn't; then yeah, it's his responsibility.
Or he could have just said fuck that and taken advantage of the extra protections in 17 USC 512. But he apparently didn't, even though it's really easy.
But it's fun. And I keep my palms flat.
WRONG. Shakespeare sold his plays to companies of players who performed them. The performances themselves netted Shakespeare nothing, but the sale of the play is where he made his living.
Really? I can't imagine why you don't let everyone else in on your thorough knowledge of his history. Is the deer poaching story true?
As far as the rest of the world knows, Shakespeare more or less appeared on the London scene suddenly sometime around 1592, with his popular Henry VI. Henslowe had been performing it. The theaters shut down on account of plague pretty much through the beginning of 1593 through spring of 1594; Shakespeare wouldn't have been able to support himself with the stage, so he worked on Venus and Adonis which was basically supported through patronage. He also probably was writing sonnets around this time.
The way that Shakespeare finally made his fortune though was that as the playing companies reassembled in London, he became a shareholder in the newly formed Lord Chamberlain's Men (so named because their patron was Lord Hunsdon, who was the Chamberlain of Queen Elizabeth). Though he was a minor shareholder (fitting, given that he hadn't invested as much as others), he got a cut of the profits made from EVERY performance. He still acted in the plays, and fortunately for him, the L.C.M. became very popular. But bear in mind that they were a repertoire company.
Due to various problems with their landlord and their neighbors, the L.C.M. found themselves needing a new playhouse. So they dismantled their favored one, The Theatre, hauled it across the river, and rebuilt it as The Globe. The Globe was owned by a group of investors: the Burbages, and five of the L.C.M. including Shakespeare. The Burbages paid half the lease and took a half share, and the actors paid the other half of the lease and took the other half share. Thus Shakespeare got 10% of the profits from ANYTHING performed there. This money was then invested in real estate back in his hometown of Stratford.
He _did_ sell the plays he wrote to the acting company, that's true. But his pay for that was, again, based on attendance. Playwrights got a share of the admissions paid. And that was payment basically for his labor. It could not be expected repeatedly, and why should it? There weren't any copyrights. And other actors would sit in the audience, memorize the lines, or get ahold of copies of the script, and put on their own performances without paying a penny.
Frankly, I'd imagine that Shakespeare made more money as an actor than he did as a playwright. And it's certain that he made more money as an investor than he did as a playwright either.
Creators have perpetual rights to their creations. Our society seizes works after a time "to promote science and the useful arts."
Well you're just the stupidest person alive.
Riddle me this: Where in the Constitution does it say that copyrights MUST be granted?
Never mind, I'll answer for you, since you're such a moron. It doesn't say that. It gives Congress the POWER to grant them, but doesn't require any action to be taken. It is like the power to declare war, or raise taxes, or establish a post office; it is something that may be done, or not, at Congress' whim.
The first act, of 1790, only granted copyrights to Americans. If they were alive. And applied for a copyright. And only if it was for a book or a map.
Everyone else -- foreigners, dead authors, people who created but didn't apply for a copyright, people who weren't authors or cartographers (e.g. painters, sculptors, musicians, architects, etc.) -- could kindly go to hell.
They had no rights to their creation. And they certainly had no perpetual rights; that's madness.
And nothing was ever seized. The author could, at best go from having NO rights, to having ONLY those rights granted to him by the government, to having no rights again on account of his artifical rights coming with an expiration date attached.
Think of it
Yeah, it's not like Shakespeare made his living writing plays or anything.
He didn't. He made his living charging admission to the theater where he and others performed the plays he wrote.
Other people performed his plays; he didn't make a penny. He performed other people's plays (and ripped them off when writing his own) and didn't pay a penny.
The money he made getting a percentage of the tickets he then invested into real estate, which is where he made more money, though he was never really rich.
Lots of artists made their money by charging for their labor or their finished wares; not for the insubstantial work. Shakespeare pretty much always made his money through real property: even charging tickets was giving people permission to go onto the land owned by the theater company. Copyrights certainly didn't exist then.
At any point the general premise that authors enjoy no permanent privilege was right on the money. If the whole world would be better off without copyrights tomorrow, and this is certainly possible, then why bother having them?
Yeah, the question is can the trademark effectively prevent the copyright from expiring? (i.e. because you cannot legally use the formerly-copyrighted materials without some use of the still-active trademark)
I'd say no, because it's more important that the copyright expire than the trademark be untouched by foreign hands.
That's not a bad analogy: Let's say I'm renting a house from you, and I use that house as a front for my pirate organization. Should you be sued by the RIAA? I say no.
This does actually happen, e.g. in the context of flea markets. Though it's more of a vicarious liability thing than contributory. There it will hinge on whether I a) retained the right and had the ability to control what you did, and b) derived a direct financial benefit from it.
If the rents are a percentage of your pirate income, I'm probably screwed. If they're a flat fee I'll likely be okay.
But people have gotten in trouble before for real-world providing of facilities to pirates.
It smacks of ridiculousness that a programmer can be sued for creating an index of files that end users shared out.
I dunno. I dimly recall someone getting in criminal trouble for creating a yellow pages for hookers and giving it out.
The index helps people infringe. The programmer knows it helps people infringe. The programmer knows he can edit it slightly to avoid so helping; or can take some other steps to avoid liability as well.
But he does know, or at least should, that he's participating in some manner in an illegal activity. Not even a vague activity, I mean he likely knows of specific instances of infringement or at least a widespread pattern of infringement.
He isn't lily-white.
I know what you're talking about. I understand fully the degree to which derivative works can be made.
Personally I would like to make a cartoon starring Mickey Mouse, but with original art and story. If Eldred had come out correctly I would already be working on it!
But it IS derivative because the character's mannerisms and description -- assuming you are doing something that involves the Mickey Mouse CHARACTER and not merely the NAME -- are derivative of Steamboat Willy.
Check out the Air Pirates case. They should've won as parody, but regardless they made a derivative of a public domain work, but that was in turn derivative of Steamboat Willy, and they wound up losing.
Now, if you were using the name alone, without anything other than the name that referred to the CHARACTER (i.e. you could call the character Alice Robertson and no one would see ANY resemblence to the Mickey Mouse character) then you might have a point.
But I don't think most people would care.
The character though has that name regardless of a trademark, and the character cannot be fully used without using the name. To allow the name to be stripped off would not change the underlying identity of the character, but could interfere with the use of the character as it stands in the public domain,.
No, Soft Core, IS still right.
;)
I stand behind the arguments that the various posters have made elsewhere in this part of the thread as to why, and I've made the same arguements myself many, many times before, as you could see if you check out my posting history.
Content isn't property, and copyrights don't exist to protect authors.
The entire point of the system is to produce a societal good. Hell, the same is basically true of real property, but that system developed before anyone actually realized why it worked the way that it did.
(And of course, Locke has no place in a discussion of copyright. I despise Locke. But check out Jefferson, who cribbed from Locke, but left out the bits that Locke got wrong.
Me, I really need to finish my reading for Federal Courts, and then type up my Fed. Cts. and Tax outlines. Exams are next week.
But I aced IP last term, and I bet I aced Cyberlaw this term, so I must be doing something right.
I don't agree.
For starters, the Constitution requires that copyrights expire. It doesn't say anything about trademarks; they're just an application of the commerce power. (a 19th century case held that the copyright and patent power couldn't be used for trademarks)
Secondly, there are exceptions in trademark law, such as nominative use, that I think might apply here.
And as noted, though this hasn't come up a lot in the past, there is the Comedy III case:
At BEST there might be a claim regarding merchandising based on derivative works or public domain works. And even that seems sketchy to me.
What I'm saying is that once a character hits the public domain, I don't think anyone CAN have a trademark in the character generally, e.g. 'Mickey Mouse.'
It would no longer serve as a unique source identifier, which is what trademarks HAVE TO DO. Because anyone could reproduce or make derivatives of the character as a result of the copyright expiration.
Tacking on the 'Disney's' to it would be needed to save it, I think.
'Steamboat Willy' is the name of the first* Mickey Mouse cartoon. The title card says something like "Mickey Mouse in 'Steamboat Willy'" and the character is recognizably Mickey Mouse. I don't recall if he actually gets called that by another character or uses his own name, but there's no dispute as to who he is.
Ironically the name of the cartoon, 'Steamboat Willy,' is based on a Buster Keaton short of the era, 'Steamboat Bill Jr.' and the score to 'Steamboat Willy' even begins with the first bars of the music from S.B.Jr.
I'm not sure that he was called "Mickey" back then, so you wouldn't be able to use that name.
He was. I have copies of all the black and white Mickey Mouse shorts. Steamboat Willy is actually pretty boring, but the other two 1928 shorts I mentioned are pretty good.
Had Eldred been decided correctly, I would've been working on my own Mickey Mouse cartoons. Minnie, and a sort of proto-Pegleg Pete character also date back that far, so some good stuff could be done.
You also would have to draw him the way he was drawn in the early cartoons (looking more like a rat, really), rather than as the child friendly icon he is today.
Not at all. You could draw him in the original Ub Iwerks style. Or in a style derivative of that that WASN'T derivative of later copyrighted works. It could still be friendly and different; it just wouldn't look like the current Disney Mickey Mouse.
No great loss there. Look at how many interpretations there are of other public domain characters from the Alice stories, or Oz, or myths.
True. But these guys weren't sued as end users. They were sued as software developers. If they were sued as end users, that'd be a whole 'nother kettle of fish.
Well... contributory and vicarious infringement are the typical methods one uses to sue someone who didn't directly infringe themselves, but who did have some involvement with someone else infringing.
Napster was sued under these theories. So were these guys. So would be the landlord of a place where illegal CDs were sold.
Thus, as I said, if you don't want to be sued for contributory infringement, don't contribute towards another's direct infringement. If you don't want to be sued for direct (i.e. normal) infringement, don't infringe.
End users would be sued under the latter theory, and even the two third party sorts of action do require that there was direct infringement by SOMEONE which the defendant contributed to in some manner. Though you needn't actually sue that party.
How exactly would you suggest [filtering of infringing files] be done?
No, you're going overboard. If a file has a copyright notice -- presumably a machine-readable one -- don't return it as a hit. If you personally find out, e.g. because you get a nasty letter from the RIAA, that a particular file is likely infringing, don't return it as a hit.
This is more or less how the DMCA operates. If you work to get into the section 512 safe harbor for service providers (easy, but you have to take certain steps) then you have to, e.g. not return hits if the copyright holder sends you a letter indicating that they're infringing copies. If the alleged infringer disagrees, he sends a counter-takedown notice to you and it goes back up, and the various other parties involved go to court or whatever.
You don't especially have to LOOK. But if there is something that passes through your system that should draw your attention, particularly a copyright notice, then that's what you act upon.
And of course, bearing the Netcom case in mind, if there is even a possible fair use defense of the person putting up the data (though remember that fair use is not what most people on the internet seem to claim it is -- for ALL of this stuff, you DEFINATELY should consult a lawyer licensed to practice in your jurisdiction) then you shouldn't filter it.
But I agree with you when you say that computers don't understand the nuance of the legal system.
This is precisely why I hate DRMs with the burning passion of a thousand suns. Or as I like to put it, a kilosol.
Oh yeah... I remember that. If someone created an audio codec that restricted digital copying to one generation (share with friends, but your friends can't share) and allowed burning to CD, wouldn't that fall under the terms of the AHRA? I'd be cool with that... it's a healthy compromise.
Well, as noted above, I'd hate the living daylights out of it. Unless you could selectively make copies with a single device that a) complied with SCMS, but still b) switch that off and make unlimited copies BUT take the chance that it might be illegal.
Machines can't tell that I'm the copyright holder of the music on a consumer DAT; they block me from exercising my own rights. I hate them.
And as for your hypothesized DRM system, it depends. I don't really want to get into the fine details of what DRM falls within the AHRA exception.
The RIAA should not be able to sink any project that transfers bits between computers simply because it does not have DRM technology built in.
Well, it sure seems that way when they can sue search engines.
Well, as I said, most search engines do just a tiny bit of work under 17 USC 512 (which I suggest you read) and gain absolute immunity for everything but actual direct
SoftCore is absolutely right here. Your post is totally wrong.
Even if "Steamboat Willy" becomes public domain people would still have to pay Disney to use Mickey Mouse.
Then it doesn't sound like it's in the public domain to me. The only sensible answer is that the trademark on the character cannot block other people from using the character in order to make derivative works or to duplicate the existing public domain works.
It sounds like a nominative use to me -- it _IS_ Mickey Mouse. There's no getting around it. It isn't as though the derivative creators can reasonably call him something else.
At best Disney could only retreat to a trademark on "Disney's Mickey Mouse" and even that wouldn't be likely to work for straight reproductions of actual Disney Mickey Mouse materials.
Roughly the same thing already goes on with their fairy tale cartoons. Disney cannot stop you from making movies about Aladdin, and calling them Aladdin. But they can stop you -- for now -- from calling them Disney's Aladdin.
One would imagine so. Otherwise mere commerce power trademark law would consume a constitutional limit on copyrights.
But I haven't seen it come up much. There's the Comedy III Productions thing; the Amos 'n Andy case is vaguely related.
However, there is a very important caveat. Consider Mickey Mouse: the original Mickey Mouse from the 1928 shorts (Steamboat Willy, The Galloping Gaucho, and Plane Crazy) looks and acts and talks differently than the 'modern' Mickey.
If the copyright on the original Mickey expired, you could create new works that were derivative of that. But they could NOT be derivative of later works that were still copyrighted. So the later changes to the character (e.g. facial structure) couldn't be used by you, though you could change your own Mickey in new ways.
My understanding was that they did *not* have the ability to stop the infringement.
No, you can avoid contributory infringement merely by stopping your contribution to it. You don't have to stop the infringement itself.
In this case: don't list files in the search results that you know are infringing.
I don't even see how that'd be technically feasible from an automated standpoint.
Yeah, it's tough. The Netcom case recognized this. Following it, I would suggest: a) not listing files that have a copyright notice attached; b) not listing files the copyright holder has reasonably indicated to you are infringing; c) not listing files where there could not possibly be any fair use defense.
But note that Napster requires the defendant here to also not have actual or constructive knowledge of infringement. Napster had documents indicating that they knew infringement was going on generally and wanted to remain willfully blind to it; instead that screwed them. And Napster was also informed by RIAA. And Napster officials actually used their own system to infringe. And took screen shots of that to market Napster. And Napster officials had some experience in the music industry, so they were hardly naive.
My point that 'Napster this is not' was simply that you cannot argue that there are not significant non-infringing uses for the software.
Well, I'm NOT arguing that. In fact, there were significant non-infringing uses of Napster. At least in potential, and that's all you need -- the potential.
But the mere fact that there are actual or possible significant non-infringing uses is NOT THE END OF THE ANALYSIS. YOU CAN STILL BE LIABLE FOR CONTRIBUTORY INFRINGEMENT ANYWAY! It just makes it harder for you to lose; that's a hell of a long way from impossible.
Again, I still don't understand how the creators of the search spiders were expected to filter copyrighted material.
By not returning results they know or should know are infringing if they're aware of them. This includes files with copyright notices, files that you've been notified by the copyright holder to be infringing, files that could not possibly be shared per fair use, etc.
It can't be that hard to check all search results against a blacklist and not display them if they're on there.
Nevermind that sharing music between friends is generally considered legit, if I remember correctly.
Not via general purpose computers it's not. The AHRA only applies to noncommercial music copying if it is via analog devices, analog media, or CERTAIN, QUALIFYING digital devices or media. Computers don't qualify. DAT would. I think Minidisc might as well. Check my recent posts -- I've been discussing it as well in this thread.
The RIAA should not be able to sink any project that transfers bits between computers simply because it does not have DRM technology built in.
I agree. However, they can't.
If I wanted to create a better way to share directories in Windows or Unix, it shouldn't be my responsibility to police my users to make sure they aren't doing something blatently illegal.
It isn't. But you're not allowed to knowingly help them do something blatantly illegal either. You don't have to stop them -- just refrain from helping them. And only if you know or ought to know.
On one level it looks like the downloader is the one making a copy, but actually the server is making the copy and then sending that copy over the network to the client machine.
Well, the way that computers work, it's not like bits physically move places. The server reads off the information in the file, and the client follows that instruction and creates a new copy of the file. The client therefore winds up with only one copy, but an infringing copy, of the file.
If we could move a copy from the server to the client as you describe, it would solve a great number of problems.
As for distribution v. copying, they're both basically just as bad per section 106. Maybe performance and display are variations of distribution, but in the end it doesn't matter much to the defendant.
Let's take down the inventors of the FTP protocol now too. After all, I know plenty of people who run pirate FTP servers. Therefore, the creators of the protocol must be to blame for contributory infringement.
Won't work.
The developers of FTP (which is positively ancient, incidently) are not liable for contributory infringement because of their development of FTP. They didn't know of, and had no reason to know -- because of their invention -- that there would be direct infringement. That FTP had that capability isn't sufficient as long as it also had substantial possible noninfringing uses.
And furthermore, the FTP inventors, though they did provide technology, retained no control over that technology. They could not stop it from being used for infringement, and other than giving away their invention, have no control over what is and is not done with it. Considering the Netcom case, they couldn't be liable.
Vicarious infringement also fails against them for the same reason, plus the lack of direct financial benefit from the infringement.
So the FTP guys are in the clear.
Incidentally, this is IIRC, how a couple of P2P app developers got off the hook -- they retained no control over the technology. They can't kick off users for infringing. They can't prevent things from being searched for, and they can't prevent answers to the search from being provided.
These kids pretty likely did know of actual infringement; and they had the ability to stop their participation in it, at least, and did not.
WTF were they supposed to do? Ban all *.mp3 searches? That'd restrict substantial legitimite uses. Believe it or not, but the RIAA does not hold a copyright on every piece of audio that might be encoded as an mp3. I've got recorded mp3s from all sorts of random places that have nothing to do with the RIAA.
I know mp3s are often ok.
What they should have done was to create something that they released out into the wild, instead of providing the service themselves. Or, barring that, they should have taken advantage of the DMCA safe harbor for service providers (it doesn't quite mean ISPs, though they're certainly included in that) which is pretty easy to do.
All they provided was a search engine for a Local Area Network. That's what it was created to be. This isn't Napster, and saying it's the same is disingenuous at best, and probably a flat out lie. The tech was to make Windows file sharing easier in general, rather than being created for the explicit purpose of sharing mp3s.
Well, as you say, you can often share mp3s legally. So there is no real difference; both can be used legally -- but here they were not. The providers knew this, could have done something about it so as to not contribute to the direct infringements, but didn't.
The fact that they got sued for this is absolutely ridiculous. It's a damn shame that they settled... it sets a horrible precedent and the RIAA really doesn't deserve the money.
I agree, save that it's their choice to settle, and it was probably wise, as I think they'd lose in court. Very badly. And of course, this doesn't set any kind of legal precedent -- it merely serves as a cautionary example to people to act legally.
So hopefully the next guy to write a shared file search engine will comply with the DMCA safe harbor, or take steps to avoid actually contributing or being vicariously liable. Both of which are entirely possible.
Of course the people _using_ the service still can get screwed, but they're smaller fry, and may be willing to take the risk, indefensible as their actions might be.