You keep saying downloading, but downloading isn't illegal and it has never been successfully litigated.
There are numerous court cases in which it was found that at least some downloading was illegal (obviously only certain downloading would be; downloading public domain works, or subject to a valid copyright license is not infringing). For example, from the Napster case, the Ninth Circuit said "We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holdersâ(TM) exclusive rights: the rights of reproduction, Â 106(1); and distribution, Â 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffsâ(TM) distribution rights. Napster users who download files containing copyrighted music violate plaintiffsâ(TM) reproduction rights." A&M Records v. Napster., 239 F.3d 1004, 1014 (9th Cir. 2001).
It's just that it's not usually worthwhile to sue downloaders. Even the MPAA, RIAA, et al have limited resources. Downloaders are the tail of the snake; shut down a single downloader, and all you've shut down is a single downloader. Shut down networks, and you can shut down all of their users. At least, that was the idea.
The rule that what I create with my own hands os mine to give away, trade, or sell exists for a very good reason.
And what reason is that, pray tell?
Fyi, it's copy right - the right to copy. Please feel free to lecture me about the history after you at least learn what it's called.
Actually, copyright is the right to prohibit other people from making copies, as well as from doing some other things, but that's not precisely where the name originates from.
The right to make copies is the right of free speech, and it inherently exists in everyone, and applies to everything. I'm not Shakespeare, and I don't have a copyright on his work, but I can make copies of his plays by exercising my free speech right.
Clearly, what you do is not copyright law. Arguing copyright law with you would be like arguing international monetary policy with a second grader.
I am not Vellmont, the poster to whom you were replying earlier, but I am a copyright lawyer, and there's nothing I like more than arguing about copyright law. Seriously, it's an actual hobby for me, not just a job.
I'm not doing it anymore
That's an acceptable outcome.
Copyright isn't meant to maximize creation and publication, nor is it meant to benefit all authors. Rather, it is meant to maximize the public benefit enjoyed by both on the one hand maximizing creation and publication of works that would not be created and published but for copyright, but also on the other hand, minimizing protection so that works are in the public domain as rapidly and as fully as possible.
I would love to sculpt the Moon into a piece of art, but the amount of copyright I'd require to make it economically worth my while is tremendous. Our society, through our government, appears to have decided that we are all literally better off without me doing it, given what I would require from everyone. I'm still free to do it at my own expense, for less reward than I deem necessary, but no one is obligated to cater to my needs, and no one does. And that's acceptable, just as it is in your case.
Much, though not all, piracy indicates the level of copyright that we ought to have, and if that is too little to sustain you, then that's an acceptable consequence. If it turns out that you're too important to let go, people will willingly choose to respect copyright more in order to do that.
The copyright infringement defines the infringement as "unauthorized distribution."... Now, downloading itself is not the distribution, so downloading cannot be illegal (can, but not currently).
No.
The Copyright Act defines infringement as unauthorized violation of any the exclusive rights of copyright. The making of new copies, such as by downloading, is such a right.
But if you're just downloading, you're not committing the copyright infringement.
Assuming a copyright and lack of permission or exception, yes you are.
it sure as hell isn't illegal to download it from there.
If it's copyrighted, if the downloads are made without permission, and there is no applicable copyright exception, then yes, it's illegal to download it.
The issue of piracy is complex, and personally, I am a pirate. However, I acknowledge that it is evil, but I consider it the lesser of two evils. And I sincerely believe each action is relative.
Suppose that you live in a place with a zoning code that requires each house to have a white picket fence. You paint your fence black. Is that evil? I would suggest that that law is probably amoral. It may be useful for some reason, or not, but one color of fence is not more or less evil than another color.
Copyright is the same sort of deal. It's meant to be an economic incentive to get authors to create and publish certain works, for the benefit of the public. Violating it may be selfish and may be self-defeating in the long run, but it's not evil, and copyrights and respecting copyrights are not morally good. Copyright is entirely utilitarian.
Assuming the normal case of a downloader issuing some command to the server which results in a new copy being made, the downloader has made the copy.
Now, if someone rooted your computer and used it to make copies without your involvement, then you'd have an argument, but that's not really what we're looking at usually.
If it helps, think of two people talking on the phone, the first reading a book, and the second writing it down. The reader isn't making the copy; if the writer secretly refuses to write, no new copy is produced. The writer does need the aid of the reader to make the copy, but he can't pretend that the blame entirely lies on the reader.
And remember -- a copy is defined in the law as a material object -- it can't be sent over the network.
No, that's a correct interpretation of the Copyright Act. That's how fucked up the actual law is; it's worse than you had apparently imagined it to be.
The FBI considers downloading to be illegal despite any law making it so. Unless downloading has morphed into one of those words like CPU (the actual CPU or as some think, the computer tower itself) with several meanings and I have yet to discover the one in use in this sentence, there should be cause for concern.
Downloading involves making copies, and unauthorizedly making copies of copyrighted works is infringing, unless there's an applicable exception to copyright. This is well-established.
Nope, the person offering it for download is making the copy and distributing it.
A copy is defined in the Copyright Act (17 USC 101) as a material object in which a copy is fixed. A hard drive is a material object, a flash drive is a material object, RAM is a material object. But data coming in over the network is not a material object. The downloader causes that data to be written to some sort of storage medium on his end, thereby making a new copy. The person on the other end of the connection is in trouble too, but it is clear in the statute, and settled in the caselaw, that downloading can be infringing.
No more so than if you were to use a tape record to copy music from the radio or a VCR to copy a movie or TV show.
That's like saying that murdering someone with a gun is no more murder than murdering them with a knife or with poison. All of the things you mention are also infringing, if of copyrighted works and without permission. There may be applicable exceptions, but there just as easily might not be.
decisions like the Sony Beta Max case would probably bar cases against most copying that didn't involve distribution or public performances
It didn't. In fact, if you read the Sony case, you'll see that the Court expected that not all home taping of TV would even be a fair use. All that mattered was that there was enough possibility of VCR recording being legal sometimes that copyright didn't require that the technology be banned altogether.
For instance, you walking down the street singing Lady Gaga tunes or listening to a radio playing it in which others could hear would not be a violation unless someone paid you to do it or you were advertising something and using that to attract attention or similar.
It's a public performance, and would be prima facie infringing.
Further, the laws against "piracy", (which is NOT the same as downloading)
There are no laws against "piracy" per se; rather there are laws against copyright infringement, which downloading commonly is.
were intended primarily to punish people who make bulk copies of copyrighted works and sell them for a profit.
The statute doesn't require infringement en masse, nor does it require selling them for a profit. Perhaps you'd like to read it? It's 17 USC 501. It refers to other sections, in particular 17 USC 106, and 101.
That's essentially what "copyright piracy" means. It's a legal term.
No it's not. The correct legal term would be copyright infringement.
And downloading doesn't qualify. Downloading isn't a "crime" at all. It's just a copyright violation.
No, any copyright infringement which meets the prerequisites of 17 USC 506 is a crime. For example, if you willfully download a work in an infringing manner, and that work has a retail value of over $1,000 (easily doable with certain computer programs), that's a criminal infringement.
And it sure as hell isn't "stealing"
This is the first, and perhaps only thing in your post that's correct.
The only problem is that there is no federal law against downloading. There is about copying and distributing which whoever offers it for download would definitely be doing but no law against you downloading it. All the court cases you see about it stem from the illegal distribution.
When you download, you necessarily make a new copy. If the work is copyrighted, and you lack permission or an applicable exception to copyright, you're infringing.
It's not the ripping software, it's the digital recording function, i.e. the ability to write to disk.
Here's what the court said in the RIAA v Diamond Multimedia case: (internal citations removed)
Unlike digital audio tape machines, for example, whose primary purpose is to make digital audio copied recordings, the primary purpose of a computer is to run various programs and to record the data necessary to run those programs and perform various tasks. The legislative history is consistent with this interpretation of the Act's provisions, stating that "the typical personal computer would not fall within the definition of 'digital audio recording device,'" because a personal computer's "recording function is designed and marketed primarily for the recording of data and computer programs." Another portion of the Senate Report states that "[i]f the 'primary purpose' of the recording function is to make objects other than digital audio copied recordings, then the machine or device is not a 'digital audio recording device,' even if the machine or device is technically capable of making such recordings."
So it really depends on what else the car's ability to write to disk is both primarily used for, and what it is primarily marketed for. The latter is probably worse for them; even if the car happens to be writing map or diagnostic information to disk, probably ripping CDs is what is mainly being advertised.
No. Here's the relevant part of the ruling, quoting the Senate report on the bill:
"[i]f the `primary purpose' of the recording function is to make objects other than digital audio copied recordings, then the machine or device is not a `digital audio recording device,' even if the machine or device is technically capable of making such recordings."
What information does the car's system digitally record other than music? That it might display digital information, or play digital information isn't relevant, since those don't involve the recording function.
Computers record lots of stuff to their hard drives. Some of it is music, but the ability to write to disk isn't primarily designed for digital music, nor primarily marketed for that.
Let's look at a bit more of the relevant language in the statute:
A âoedigital audio recording deviceâ is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use
It's what the primary purpose of the digital recording function is (or is marketed as) that matters. We disregard the car and the rest of the machine altogether.
I think you really need to go back and read up on Copyright Law (17 USC). The license is implied in Copyright Law.
No, there's no license, particularly no license 'implied in the law,' whatever that means.
You have an inherent free speech right to do anything with a work that you like, except for things that copyright gives an exclusive right to the copyright holder about. A copyright holder can only possibly grant a license for something that he holds a right to; he cannot give you permission to do something you don't need his permission for. And once the copyright on the work expires (no, seriously), you're no longer limited as to the exclusive rights either.
So for example, there is an exclusive right to publicly perform music, but not an exclusive right to privately perform music. Even if you have a stolen CD that was itself made illegally, you can lawfully privately perform it without infringing on copyright. No license or anything.
All this licensing bullshit basically is a side effect of stupid (and largely unnecessary) practices in the software industry. It's mostly folk myths. If there's a license, you'll usually know it: it will almost certainly be pages and pages long, written, and you'll have to expressly agree in some way. Record companies would not sell CDs with some sort of implied license.
No, the CD is the work, it is not the derivative.
Depends. Assuming you just mean an album, and not the piece of plastic, it'll either be a work or a compilation.
You do have a right to transform it.
No, that's preparation of a derivative work, probably; an exclusive right at 17 USC 106(2), and doing it is infringing at 17 USC 501(a). You'll need an exception to copyright, or for the work not to be copyrighted, or a license, in order to just make the derivative, never mind distributing it. And if it's not a derivative work after all (see the definition at 17 USC 101), it's likely an infringement of the reproduction right at 17 USC 106(1).
By definition, Fair Use is not an infringement.
Correct. Though as a practical matter, it's treated like an affirmative defense... it just makes more sense to do it that way, even though it is indeed an exception to copyright.
As long as you don't distribute it, its totally legal. No doubt about it.
No, it's only legal under the right circumstances. Fair use is entirely a case-by-case thing. Just because it could be a fair use sometimes doesn't mean that it will be every time. And vice versa, under the right circumstances, any sort of infringement might be a fair use.
Anyway, I wouldn't recommend relying entirely on it if a better option were available.
The AHRA means it is _legal_ to buy a blank audio CDR, copy a CD onto it (or make a mix CD), and give it to your friend.
No.
First, it doesn't make it legal, it makes it non-actionable; there's a difference. (I am reliably told that it was supposed to be legal, but it got changed at the last minute in a suspicious manner)
Second, it doesn't say you can give the AHRA-compliant copies away. Just that they can be noncommercially 'used.'
Even before CDs were invented it was legal to make your own copy for your own use of copyrighted material you owned
Actually, it was never quite clear. It's since been expressly made non-infringing (not technically the same thing as legal; they're very sneaky) in some situations, but not any that are relevant to most people. There's also a fair use argument, but that's not the best thing in the world to rely on; fair use depends on the specific circumstances at hand, and doesn't always produce consistent results.
This seems to be clearly format shifting for personal use which should be entirely legal.
Should be, but that's not actually what the case is about. This is about making & selling a limited purpose device with a digital music ripping function. Such devices are required to have certain limits, and the people who make, import, or distribute them, have to pay certain royalties. And it looks as though neither requirement has been complied with here.
People don't ordinarily run into this, since computers are general purpose devices which also happen to be able to rip, and are therefore exempt.
I don't think that it should be, but let's take a look at the actual law, since 'should be' doesn't provide much practical help.
What we're looking at is the Audio Home Recording Act, or AHRA, which is Chapter 10 of the Copyright Act, and can be found at 17 USC 1001 et seq.
17 USC 1002:
No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to-- (1) the Serial Copy Management System; (2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system's method of serial copying regulation and devices using the Serial Copy Management System; or (3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying.
17 USC 1004:
(a) Prohibition on Importation and Manufacture.-- No person shall import into and distribute, or manufacture and distribute, any digital audio recording device or digital audio recording medium unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments for such device or medium specified in section 1004.
So the question is, is this feature in the car a "digital audio recording device," "digital audio interface device," or "digital audio recording medium"? As always, if a term is specially defined in the statute, that meaning controls, as opposed to the ordinary meaning. Definitions are provided at section 1001. They're a bit complicated, and we'll have to work through several layers here.
Let's start with a digital audio recording device.
Per 17 USC 1001, a "digital audio recording device" is:
A "digital audio recording device" is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for-- (A) professional model products, and (B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.
This refers to another definition:
A "digital audio copied recording" is a reproduction in a digital recording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.
And that refers to yet another definition:
(A) A "digital musical recording" is a material object-- (i) in which are fixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sounds, if any, and (ii) from which the sounds and material can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
(B) A "digital musical recording" does not include a material object-- (i) in which the fixed sounds consist entirely of spoken word recordings, or (ii) in which one or more computer programs are fixed, except that a digital musical recording may contain statements or instructions constituting the fixed sounds and incidental material, and statements or instructions to be used directly or indirectly in order to bring about the perception, reproduction, or communication of the fixed sounds and incidental material.
(C) For purposes of this paragraph-- (i) a "spoken word recording" is a sound recording in which are fixed only a series of spoken words, except that the spoken words may be accompanied by incidenta
This bill actually does very little. The DMCA is written very broadly, and has been commonly interpreted as to prohibit cell phone unlocking. Because Congress, in the 90s, when they enacted the stupid thing, was aware that the DMCA could go too far, but didn't want to be cautious or have to keep reexamining the law itself, they gave authority to the Library of Congress to add exceptions to it in specific cases. The process for these exceptions is that every three years, anyone who wants an exception has to plead their case. If found worthy, they get an exception. But the exception only lasts until the next rule making session, three years hence. Then it has to be reargued from scratch or lost.
Two rule making sessions ago, the Library of Congress found that cellphone unlocking was worthy of an exception. But in the most recent rule making session, they did not find it worthy, and the exception was lost; it went back to its default state of being illegal.
This law could have amended the DMCA to permanently allow cellphone unlocking. Or it could've directed the Library of Congress to always find that cellphone unlocking is allowed. But it does neither of these.
Instead it only reinstates the rule from two sessions ago for the remainder of the current session. Next year it will have to be argued again, from scratch, to the Library of Congress, or lost, again. And even if argued, it can be rejected, again.
This is less than useless. It's only a temporary patch, it doesn't even have an iota of long term effect (the rules don't take precedent into account, and this doesn't change it), and we've wasted all this effort getting it instead of something worthwhile.
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You keep saying downloading, but downloading isn't illegal and it has never been successfully litigated.
There are numerous court cases in which it was found that at least some downloading was illegal (obviously only certain downloading would be; downloading public domain works, or subject to a valid copyright license is not infringing). For example, from the Napster case, the Ninth Circuit said "We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holdersâ(TM) exclusive rights: the rights of reproduction, Â 106(1); and distribution, Â 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffsâ(TM) distribution rights. Napster users who download files containing copyrighted music violate plaintiffsâ(TM) reproduction rights." A&M Records v. Napster., 239 F.3d 1004, 1014 (9th Cir. 2001).
It's just that it's not usually worthwhile to sue downloaders. Even the MPAA, RIAA, et al have limited resources. Downloaders are the tail of the snake; shut down a single downloader, and all you've shut down is a single downloader. Shut down networks, and you can shut down all of their users. At least, that was the idea.
The rule that what I create with my own hands os mine to give away, trade, or sell exists for a very good reason.
And what reason is that, pray tell?
Fyi, it's copy right - the right to copy. Please feel free to lecture me about the history after you at least learn what it's called.
Actually, copyright is the right to prohibit other people from making copies, as well as from doing some other things, but that's not precisely where the name originates from.
The right to make copies is the right of free speech, and it inherently exists in everyone, and applies to everything. I'm not Shakespeare, and I don't have a copyright on his work, but I can make copies of his plays by exercising my free speech right.
Clearly, what you do is not copyright law. Arguing copyright law with you would be like arguing international monetary policy with a second grader.
I am not Vellmont, the poster to whom you were replying earlier, but I am a copyright lawyer, and there's nothing I like more than arguing about copyright law. Seriously, it's an actual hobby for me, not just a job.
I'm not doing it anymore
That's an acceptable outcome.
Copyright isn't meant to maximize creation and publication, nor is it meant to benefit all authors. Rather, it is meant to maximize the public benefit enjoyed by both on the one hand maximizing creation and publication of works that would not be created and published but for copyright, but also on the other hand, minimizing protection so that works are in the public domain as rapidly and as fully as possible.
I would love to sculpt the Moon into a piece of art, but the amount of copyright I'd require to make it economically worth my while is tremendous. Our society, through our government, appears to have decided that we are all literally better off without me doing it, given what I would require from everyone. I'm still free to do it at my own expense, for less reward than I deem necessary, but no one is obligated to cater to my needs, and no one does. And that's acceptable, just as it is in your case.
Much, though not all, piracy indicates the level of copyright that we ought to have, and if that is too little to sustain you, then that's an acceptable consequence. If it turns out that you're too important to let go, people will willingly choose to respect copyright more in order to do that.
The copyright infringement defines the infringement as "unauthorized distribution." ... Now, downloading itself is not the distribution, so downloading cannot be illegal (can, but not currently).
No.
The Copyright Act defines infringement as unauthorized violation of any the exclusive rights of copyright. The making of new copies, such as by downloading, is such a right.
But if you're just downloading, you're not committing the copyright infringement.
Assuming a copyright and lack of permission or exception, yes you are.
it sure as hell isn't illegal to download it from there.
If it's copyrighted, if the downloads are made without permission, and there is no applicable copyright exception, then yes, it's illegal to download it.
The issue of piracy is complex, and personally, I am a pirate. However, I acknowledge that it is evil, but I consider it the lesser of two evils. And I sincerely believe each action is relative.
Suppose that you live in a place with a zoning code that requires each house to have a white picket fence. You paint your fence black. Is that evil? I would suggest that that law is probably amoral. It may be useful for some reason, or not, but one color of fence is not more or less evil than another color.
Copyright is the same sort of deal. It's meant to be an economic incentive to get authors to create and publish certain works, for the benefit of the public. Violating it may be selfish and may be self-defeating in the long run, but it's not evil, and copyrights and respecting copyrights are not morally good. Copyright is entirely utilitarian.
Who makes the copy?
Assuming the normal case of a downloader issuing some command to the server which results in a new copy being made, the downloader has made the copy.
Now, if someone rooted your computer and used it to make copies without your involvement, then you'd have an argument, but that's not really what we're looking at usually.
If it helps, think of two people talking on the phone, the first reading a book, and the second writing it down. The reader isn't making the copy; if the writer secretly refuses to write, no new copy is produced. The writer does need the aid of the reader to make the copy, but he can't pretend that the blame entirely lies on the reader.
And remember -- a copy is defined in the law as a material object -- it can't be sent over the network.
No, that's a correct interpretation of the Copyright Act. That's how fucked up the actual law is; it's worse than you had apparently imagined it to be.
The FBI considers downloading to be illegal despite any law making it so. Unless downloading has morphed into one of those words like CPU (the actual CPU or as some think, the computer tower itself) with several meanings and I have yet to discover the one in use in this sentence, there should be cause for concern.
Downloading involves making copies, and unauthorizedly making copies of copyrighted works is infringing, unless there's an applicable exception to copyright. This is well-established.
Nope, the person offering it for download is making the copy and distributing it.
A copy is defined in the Copyright Act (17 USC 101) as a material object in which a copy is fixed. A hard drive is a material object, a flash drive is a material object, RAM is a material object. But data coming in over the network is not a material object. The downloader causes that data to be written to some sort of storage medium on his end, thereby making a new copy. The person on the other end of the connection is in trouble too, but it is clear in the statute, and settled in the caselaw, that downloading can be infringing.
No more so than if you were to use a tape record to copy music from the radio or a VCR to copy a movie or TV show.
That's like saying that murdering someone with a gun is no more murder than murdering them with a knife or with poison. All of the things you mention are also infringing, if of copyrighted works and without permission. There may be applicable exceptions, but there just as easily might not be.
decisions like the Sony Beta Max case would probably bar cases against most copying that didn't involve distribution or public performances
It didn't. In fact, if you read the Sony case, you'll see that the Court expected that not all home taping of TV would even be a fair use. All that mattered was that there was enough possibility of VCR recording being legal sometimes that copyright didn't require that the technology be banned altogether.
For instance, you walking down the street singing Lady Gaga tunes or listening to a radio playing it in which others could hear would not be a violation unless someone paid you to do it or you were advertising something and using that to attract attention or similar.
It's a public performance, and would be prima facie infringing.
Further, the laws against "piracy", (which is NOT the same as downloading)
There are no laws against "piracy" per se; rather there are laws against copyright infringement, which downloading commonly is.
were intended primarily to punish people who make bulk copies of copyrighted works and sell them for a profit.
The statute doesn't require infringement en masse, nor does it require selling them for a profit. Perhaps you'd like to read it? It's 17 USC 501. It refers to other sections, in particular 17 USC 106, and 101.
That's essentially what "copyright piracy" means. It's a legal term.
No it's not. The correct legal term would be copyright infringement.
And downloading doesn't qualify. Downloading isn't a "crime" at all. It's just a copyright violation.
No, any copyright infringement which meets the prerequisites of 17 USC 506 is a crime. For example, if you willfully download a work in an infringing manner, and that work has a retail value of over $1,000 (easily doable with certain computer programs), that's a criminal infringement.
And it sure as hell isn't "stealing"
This is the first, and perhaps only thing in your post that's correct.
The only problem is that there is no federal law against downloading. There is about copying and distributing which whoever offers it for download would definitely be doing but no law against you downloading it. All the court cases you see about it stem from the illegal distribution.
When you download, you necessarily make a new copy. If the work is copyrighted, and you lack permission or an applicable exception to copyright, you're infringing.
Well, actually it's the Supreme Judicial Court, or SJC.
It's not the ripping software, it's the digital recording function, i.e. the ability to write to disk.
Here's what the court said in the RIAA v Diamond Multimedia case: (internal citations removed)
So it really depends on what else the car's ability to write to disk is both primarily used for, and what it is primarily marketed for. The latter is probably worse for them; even if the car happens to be writing map or diagnostic information to disk, probably ripping CDs is what is mainly being advertised.
No. Here's the relevant part of the ruling, quoting the Senate report on the bill:
What information does the car's system digitally record other than music? That it might display digital information, or play digital information isn't relevant, since those don't involve the recording function.
Computers record lots of stuff to their hard drives. Some of it is music, but the ability to write to disk isn't primarily designed for digital music, nor primarily marketed for that.
If you don't own the CD you're ripping, it's obviously illegal.
Well, there are ways to do it with CDs you don't own where you will be protected from legal trouble. But in practice, it never comes up.
No, the car doesn't count.
Let's look at a bit more of the relevant language in the statute:
A âoedigital audio recording deviceâ is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use
It's what the primary purpose of the digital recording function is (or is marketed as) that matters. We disregard the car and the rest of the machine altogether.
I think you really need to go back and read up on Copyright Law (17 USC). The license is implied in Copyright Law.
No, there's no license, particularly no license 'implied in the law,' whatever that means.
You have an inherent free speech right to do anything with a work that you like, except for things that copyright gives an exclusive right to the copyright holder about. A copyright holder can only possibly grant a license for something that he holds a right to; he cannot give you permission to do something you don't need his permission for. And once the copyright on the work expires (no, seriously), you're no longer limited as to the exclusive rights either.
So for example, there is an exclusive right to publicly perform music, but not an exclusive right to privately perform music. Even if you have a stolen CD that was itself made illegally, you can lawfully privately perform it without infringing on copyright. No license or anything.
All this licensing bullshit basically is a side effect of stupid (and largely unnecessary) practices in the software industry. It's mostly folk myths. If there's a license, you'll usually know it: it will almost certainly be pages and pages long, written, and you'll have to expressly agree in some way. Record companies would not sell CDs with some sort of implied license.
No, the CD is the work, it is not the derivative.
Depends. Assuming you just mean an album, and not the piece of plastic, it'll either be a work or a compilation.
You do have a right to transform it.
No, that's preparation of a derivative work, probably; an exclusive right at 17 USC 106(2), and doing it is infringing at 17 USC 501(a). You'll need an exception to copyright, or for the work not to be copyrighted, or a license, in order to just make the derivative, never mind distributing it. And if it's not a derivative work after all (see the definition at 17 USC 101), it's likely an infringement of the reproduction right at 17 USC 106(1).
By definition, Fair Use is not an infringement.
Correct. Though as a practical matter, it's treated like an affirmative defense... it just makes more sense to do it that way, even though it is indeed an exception to copyright.
As long as you don't distribute it, its totally legal. No doubt about it.
No, it's only legal under the right circumstances. Fair use is entirely a case-by-case thing. Just because it could be a fair use sometimes doesn't mean that it will be every time. And vice versa, under the right circumstances, any sort of infringement might be a fair use.
Anyway, I wouldn't recommend relying entirely on it if a better option were available.
Correction: I said non-infringing, but I meant to say non-actionable. Non-infringing would, in fact, be legal.
I apologize for the error.
The AHRA means it is _legal_ to buy a blank audio CDR, copy a CD onto it (or make a mix CD), and give it to your friend.
No.
First, it doesn't make it legal, it makes it non-actionable; there's a difference. (I am reliably told that it was supposed to be legal, but it got changed at the last minute in a suspicious manner)
Second, it doesn't say you can give the AHRA-compliant copies away. Just that they can be noncommercially 'used.'
Even before CDs were invented it was legal to make your own copy for your own use of copyrighted material you owned
Actually, it was never quite clear. It's since been expressly made non-infringing (not technically the same thing as legal; they're very sneaky) in some situations, but not any that are relevant to most people. There's also a fair use argument, but that's not the best thing in the world to rely on; fair use depends on the specific circumstances at hand, and doesn't always produce consistent results.
This seems to be clearly format shifting for personal use which should be entirely legal.
Should be, but that's not actually what the case is about. This is about making & selling a limited purpose device with a digital music ripping function. Such devices are required to have certain limits, and the people who make, import, or distribute them, have to pay certain royalties. And it looks as though neither requirement has been complied with here.
People don't ordinarily run into this, since computers are general purpose devices which also happen to be able to rip, and are therefore exempt.
I don't think that it should be, but let's take a look at the actual law, since 'should be' doesn't provide much practical help.
What we're looking at is the Audio Home Recording Act, or AHRA, which is Chapter 10 of the Copyright Act, and can be found at 17 USC 1001 et seq.
17 USC 1002:
17 USC 1004:
So the question is, is this feature in the car a "digital audio recording device," "digital audio interface device," or "digital audio recording medium"? As always, if a term is specially defined in the statute, that meaning controls, as opposed to the ordinary meaning. Definitions are provided at section 1001. They're a bit complicated, and we'll have to work through several layers here.
Let's start with a digital audio recording device.
Per 17 USC 1001, a "digital audio recording device" is:
This refers to another definition:
And that refers to yet another definition:
This bill actually does very little. The DMCA is written very broadly, and has been commonly interpreted as to prohibit cell phone unlocking. Because Congress, in the 90s, when they enacted the stupid thing, was aware that the DMCA could go too far, but didn't want to be cautious or have to keep reexamining the law itself, they gave authority to the Library of Congress to add exceptions to it in specific cases. The process for these exceptions is that every three years, anyone who wants an exception has to plead their case. If found worthy, they get an exception. But the exception only lasts until the next rule making session, three years hence. Then it has to be reargued from scratch or lost.
Two rule making sessions ago, the Library of Congress found that cellphone unlocking was worthy of an exception. But in the most recent rule making session, they did not find it worthy, and the exception was lost; it went back to its default state of being illegal.
This law could have amended the DMCA to permanently allow cellphone unlocking. Or it could've directed the Library of Congress to always find that cellphone unlocking is allowed. But it does neither of these.
Instead it only reinstates the rule from two sessions ago for the remainder of the current session. Next year it will have to be argued again, from scratch, to the Library of Congress, or lost, again. And even if argued, it can be rejected, again.
This is less than useless. It's only a temporary patch, it doesn't even have an iota of long term effect (the rules don't take precedent into account, and this doesn't change it), and we've wasted all this effort getting it instead of something worthwhile.
Shakespeare had alerady recommended killing all the lawyers hundreds of years earlier, and who could argue with the bard?
I say, we let them go!