"The copyright lawyers are laughing at this guy's defense, but these are the same lawyers who think that file sharing is immoral and that record companies should have the right to sue people into poverty because of a few kilobytes of uploads."
Huh? One of the fellows quoted was Ben Sheffner. He's very level-headed and insightful, and his blog is a good read for anybody tired of the Slashdot/Torrentfreak/Digg copyright misinformation echo chamber. Scott Mackenzie has tried a number of consumer advocacy cases. Your statement makes about as much sense as stating that NYCL or CptKangarooski think file sharing is immoral just because they also happen to be lawyers with expertise in copyright law.
"None of us engineers, programmers, or other laborers get a multi-decade monopoly over our creations.... we get paid an hourly rate, then we get laidoff, and that's it. No more money. I'm not entitled to a lifetime of free cash for a schematic I created at age 25, so why should an artist be entitled to a lifelong cash payment either? Fair treatment dictates they should get an hourly wage same as us engineers/laborers, and that's it. The 28 year monopoly is just a generous extra, and not required."
It is your choice -- and your choice alone -- if you want to work for an employer in a work-for-hire capacity (in which your employer owns your inventions) or strike it out on your own and work in an indepent capacity, licensing your software or engineering designs. Some are happy with the first method, as they get relatively steady employment and all the perks that go with it. Others prefer the second method. It can be a lot more risky, but if you're lucky and skilled enough, your code or your engineering designs can be making money for you even when you're not working.
"I'm not entitled to a lifetime of free cash for a schematic I created at age 25, so why should an artist be entitled to a lifelong cash payment either?"
Because you chose to create that schematic as an employee and gave up any opportunity to license it. That was your choice. You chose that route because it meant a more comfortable lifestyle for you at the time -- you got a guaranteed paycheck. You chose what you thought was best.
The artist, on the other hand, chose to hold on to his copyright. Perhaps he didn't have a family to feed at the time, and was able to try to eke out a living writing songs. And, since this artist receives a "lifelong cash payment," it means that he got very, VERY lucky. He effectively won the copyright lottery. What percentage of songs written in the 90s, 80s, or 70s are still making money for their creators today?
"But EMI don't own the particular soundwaves which comprise the Beatles' songs. Instead they own the very idea of these songs."
It's actually pretty well-known and well-documented that EMI owns the recordings, but that for many of the Beatles songs, it's actually Sony/ATV publishing who owns the publishing rights, which covers performance, licensing, covers, and most of the other ways you can make money off of a song other than selling a copy of the recording.
"No matter who sings it, or performs it, or records it, or sells it, or even hums it this music belongs to EMI because they own the very idea of it."
This is, of course, not correct based on the generally understood and documented state of ownership of the Beatles catalog.
"However, some authors, like J. K. Rowling, are rich greedy bastards who don't care about the disabled. I already own all her books, and most of the movies. I felt pretty good about downloading her collective works on The Pirate Bay, and would encourage all of you to get it there to punish her."
She supports charities dealing with AIDS, Animals, Cancer, Children, Creative Arts, Education, Family/Parent Support, Health, Homelessness, Human Rights, Hunger, Literacy, Mental Challenges, Physical Challenges, Poverty, Refugees, and Women. With regard to your assertation that she does not "care about the disabled," she's donated to charities that address Dyslexia, Multiple Sclerosis, and more.
Perhaps your point might be that she deserves punishment because she doesn't donate enough to these charities -- am I correct? You certainly wouldn't be the first Slashdotter to hold this view; the popular opinion is that Bill Gates is also greedy, despite the billions he's given away.
But back to JK -- do you have any information about how much she's donated, compared to your donations to charities for the disabled? Do you believe that most people reading your post have done more to support charities for the disabled than Mrs. Rowling? I understand that caring about disabled people is very, very important to you and I'm certainly not going to argue that point. But my guess would be that she's done more to help the disabled than most people reading this have.
"Probably because copyright infringement (unless commercial) is a civil matter"
This is a dangerous meme and I wish people would stop spreading it. What if somebody read the above and believed it to be true?
The "commercial" requirement was eliminated with the NET act, and the threshold for criminal infringement is very low. Distribute just a few copies of a $500 vertical app to your friends, or leak a pre-release album, and you're in criminal infringement territory. One's lack of money, or the greed or wealth of the software developer aren't conditions codified into law.
If that was a poor analogy, it shouldn't be hard to think of a better one. I agree that he was trying to point out the logical error in the statement " will always exist, so don't bother trying to stop it." It's one of those basic logical fallacies. We should know better, but when it's something where we are the threat, and an industry we don't care for is the one being threatened, logic tends to get pushed to the side.
If you're not sure what I mean, imagine if I were to tell you that people will always try to violate the GPL, so we shouldn't even bother with the GPL. You'd be upset, and rightly so: it's a stupid logical fallacy.
As for the viability of the two business models: the top Kazaa executives probably made $10 or $20 million each. The most popular bittorrent trackers might make maybe a million bucks a year. These amounts are more than your typical signed recording artist makes, and in fact, the most successful tracker operator probably makes more in a year than many, many indie record labels. So, at first glance, you can make a point that piracy is a better model than the traditional model. But when you make a more direct apples-to-apples comparison, the luminaries in the arts -- say, Stephen King, Jeffrey Koons, or Bruce Springsteen -- have incomes that dwarf the most successful people in the piracy industry by an order of magnitude.
Safe harbor laws are written to ease the burden as much as possible on hosting providers, but they can't resolve people of all responsibility. When these sorts of things go to court, a big question is whether the plaintiff made a reasonable effort to ensure that the service complies. The courts typically have pretty good BS detectors and can figure out if somebody's acting in good faith. But the process isn't perfect.
Agreed with you that there's more than one example of somebody who's acting in good faith but is unfairly caught in the contributory infringement net. I happen to be acquaintances with some of the higher-ups at the MP3tunes music locker service; Universal has been on their case for years and I believe that it's completely unwarranted.
Just to say what the AC said, but a bit more gently: you're correct, of course, that the DMCA is a US law, but it's an example of a safe harbor law. Safe harbor laws are found all over the world, and in various areas of the law -- not just in matters of copyright. Wikipedia has a good article on safe harbors if you'd like to learn more. Either way, it's a safe bet that Brazilian law has some sort of safe harbor provision for contributory copyright infringement that protects people who act in good faith.
The essential point to understand about safe harbors is that they work both ways: not only are they designed to protect you, but if a safe harbor exists and you don't take it, it can work against you. That might be what happened in this case; the defendant opted not to implement filtering, and (as would likely happen in the US as well), "we are incapable of adding a filter" did not work as a defense.
It's the principle of acting in good faith that many Slashdotters seem to miss, and it's a crucial part of understanding the "just like Google" fallacy. How you act plays a huge part in how the courts will treat you.
"The truly fear and depression induced thing about Slashdot, is just how many of its' readers appear to have drunk the government or corporate Kool-Aid with regard to things like copyright, and actively defend and advocate the government/cartel position."
Don't look at me. I think copyright terms and (in particular) statutory limits are hugely of control. Understanding how something works certainly isn't drinking Kool-Aid. I'm agnostic about piracy; I certainly did enough of it when I was a teenager.
Disliking copyright law is no excuse for not understanding it. Notice how the same arguments keep coming up and Slashdotters keep getting surprised? The "it's just like Google" fallacy has been around for as long as Google itself, and yet people are still surprised that it's not a magic bullet.
The state of self-serving, willful ignorance of the basics of copyright law is pretty sad. If file-sharing enthusiasts want to change the law, first they must understand it. Tilting at windmills and counting on loopholes that only exist in the collective imagination of the file-sharing community won't help.
"I've yet to see one which says, "Well, this can be used for infringement, but technologically, it's no different from other programs which are not used for infringement"."
But how would that be relevant -- and more to the point, how would it help the case?
Pirate tracker sites share much of the same technology as, say, legaltorrents.com. The latter gets a pass while the pirate sites go down because of things unrelated to technology: the actions and intent of the people running them. This is one of those fundamental legal things, unrelated to the level of technical experience of the person making the judgement.
"Certainly that's been what's been behind the decision to ban "peer-to-peer software" on a lot of private networks. And yet, this same logic isn't applied to other technologies which have also been used for piracy like ftp, tftp, newsgroups or http."
Because it's irrelevant. It's about actions and intent. And we should acknowledge the people who have been busted for serving up pirated files via http and ftp.
"The judges aren't idiots. They have a basic understand of what's going on and how these programs work, but they don't have a deep understanding of how the internet actual works. If they did, at least some of the decisions would have to be written quite differently."
Well, to be fair, your belief is a common one among Slashdotters: the problem is not that we don't sufficiently understand copyright law, but that nobody in authority -- not one person -- sufficiently understands the technology. If they did, then they'd throw out all of this "actions" and "intent" and "safe harbor" and "substantial non-infringing uses" mumbo jumbo and simply understand that since a warez tracker or Kazaa trades packets in much the same way as other technologies, then the operators can't be held liable.
You're setting up a false premise here -- nobody believes that one can't use Google to infringe. We're all smart people here and we owe it to ourselves to not fall into these sort of silly traps.
If you're genuinely curious why "just like Google" doesn't work, Google on "substantial non-infringing uses." It's a fundamental legal test for contributory copyright infringement.
Turning it around, if you're wondering if Google and similar facilities are in danger of being held liable for the actions of their users, this is an important one to understand:
Another critical thing to understand is that safe harbors (the DMCA being the most relevant) are, to mangle the metaphor, a two-way street. Yeah, they'll protect you, but only if you make use of them. For example, Google and many other sites honor DMCA takedown requests. If you're running a P2P site and you know that filtering out pirated material would put you out of business, you don't have the luxury of ignoring takedown requests simply because honoring them would affect your site's viability -- and excuses like "I'm too busy" or "I don't have the manpower to handle all those requests" don't hold any weight with the court. To take advantage of the DMCA safe harbor that Google and so many others enjoy, you must take active steps to make use of it.
That appears to be similar to what happened in the case described in the article.
No other questions. To be fair, Reading TFA was particularly tough this time since there were a number of PDF files with garishly bad color schemes. I probably wouldn't have either, but the statements in the summary sounded so blatantly false I had to see for myself if the RIAA really was saying that. I thought for a while that maybe they were in some of the PDFs I hadn't checked, but I finally figured out that the submitter was simply pulling things out of his butt.
"I'm curious if this will change if and when judges understand the underlying technology better."
Statements like this are like Chicken Soup for the Pirate's Soul. We convince ourselves that it's all because the people in charge just don't understand the technology. I completely understand; this is a much more acceptable situation than the judges understanding the technology just fine.
There's a huge disconnect here. When Napster, Kazaa, Morpheus, and most recently The Pirate Bay went down, file-sharing fans quickly pointed out that it was obviously because the legal professionals don't know what they were doing. "Just like Google!" they shouted. "A web browser is P2P! Let's ban guns, too!".
The problem is this: I've read all of the rulings (I'm kind of a nerd like that) and it's generally clear that the lawyers and the judges understand the technology just fine. They might not be able to code a P2P client themselves or even mount a Linux volume, but reading the documents makes it very clear that they know exactly how the technology works and how it's being used.
You can use Occam's Razor here: it's a hard scenario to swallow that there simply aren't enough defense lawyers who understand P2P technology. If the law really worked like so many Slashdotters think it does -- a legal world in which intent and usage aren't relevant -- then wouldn't all of these judgments be thrown out once some legal folks as smart as you took up the cases and clearly showed that it was all a matter of the judge not understanding the technology? A simple matter of a smart person explaining to the appeal court that a pirate torrent site is just like Google, a P2P client is just like a web browser?
The ironic thing here is that if you ask any lawyer with a background in copyright law, they'll be happy to explain to you exactly why TPB, etc. aren't exactly like Google and why Kazaa and Morpheus weren't just like a web browser. It's actually even pretty easy to understand by folks who don't have a JD. Yet we collective Slashdotters just continue to stamp our metaphorical feet and pine for the day when judges just understand. "Substantial non-infringing uses," "contributory infringement," "vicarious infringement" and even basic principles like mens rea whoosh past us like a late summer breeze, while we close our eyes and dream of a day when legal professionals will finally be as smart as we are.
"I'd like to see a reference on where they say that it's illegal to play your music for your friends. That's specifically what I'm trying to find in the PDFs, I think that claim by TFS is false."
Agreed. I've read most of the stuff on the site (until the awful colors got to me) and found no such statement. In fact, at several points they gave examples of fair use, so TFS's "at no point is fair use mentioned" statement is also a lie.
The record industry has certainly been known to whitewash, confuse, and outright lie. This apparently gives many file-sharing advocates the impression that it's okay to lie as well when fighting against copyright owners. Pity.
I know the summary stated that -- but when you read the actual course materials, it states that making a backup copy is generally OK. I'm wondering where you got your info (besides the incorrect summary, of course).
"The message that the RIAA is trying to send is that there's no legal way to copy music files once you've gotten your hands on your CD of choice."
I know that this is Slashdot and we never read the original articles, but this is what the actual parent's guide states:
"Copying music you've bought to your personal computer or player is a common activity which can generally be done without legal consequences. However, distributing a song to others without the permission of the rights holders is a very different story."
This contradicts your statement. There's a wide gulf between distributing tracks via P2P and simply playing music in your home for your friends. I know that it may be blurry for some, but trust me -- one is unauthorized distribution, the other is not.
"If copying CDs to my computer for backup (or for main use while having the CDs lying around somewhere) is fine, but letting my friends listen to this, without copying it to their devices, isn't, exactly what is or is not legal to do with my music?"
Huh? You can let your friends listen to your music in your own home. You might be confusing this with the "unauthorized public performance" clause you see in those scary FBI warnings. The bar is set pretty high here... your home would need to be regularly open to the public. A house party, even if you're charging money for beer cups, doesn't count, since it's not a public venue.
"And if letting friends listen is illegal, why should I be allowed to, say, broadcast the song from my computer's speakers? There's a chance that someone who didn't buy the CD could hear the music!"
Sorry, I just think you're being paranoid. Letting your friends hear your music in your house is not illegal.
"1.) What, exactly, is "fair use"?"
Lots of folks are confused about this one. Fair use isn't a defined set of rules, but rather guidelines (you'll often hear the word "doctrine"). Often, what is or isn't fair use is decided in court based on the facts of the particular case. But in case I haven't been clear, playing music for your friends in your house isn't even near the boundary.
"2.) Does the RIAA have any authority whatsoever to define what "fair use" means?"
Nope. They've taken several file sharing sites and services to court, and many of the defendants (beginning with Napster) have attempted the fair use defense. In each of these cases, it was the court that decided whether fair use applied.
"For the MAFIAA to declare this illegal is retarded."
Can you point me to somewhere on the site where they actually do this?
If you're not seeing my point, perhaps I read a Slashdot summary that stated that tuxgeek has dyed his hair green. Somebody might state that the decision to dye your hair green is retarded. Perhaps it would be, if we're dealing with abstracts, but the essential point is that you did not dye your hair green.
"Exactly. If they were to do that, it would contradict other things that they say, and they'd end up with no credibility."
I don't follow. The parent's guide pretty clearly states that making a personal copy of your music is generally OK. Are you referring to something else? What's the basis of your understanding that they're presenting all copying as illegal? Serious question.
I've downloaded and read much of the content, but I couldn't find anything that matched up with the summary's statement that the materials state that playing music for your friends in your house can be illegal. It does state this:
"Copying music you've bought to your personal computer or player is a common activity which can generally be done without legal consequences. However, distributing a song to others without the permission of the rights holders is a very different story."
This is more or less correct. You can generally make a backup of your music, and you generally can't redistribute those copies without permission of the rightsholders. They've given an example of the dividing line between fair use and infringement, despite the summary's claim that there's no mention of fair use.
If somebody who's read the PDFs more thoroughly can point out where it states that you're not allowed to play a backup copy of music for your friends in your home can be illegal, I would be much obliged.
"I've never been in favor of either of them. ASCAP are a bunch of assholes, as big or bigger than the RIAA. ASCAP does not help the artists."
I've talked to some folks who've made a couple of hundred bucks a month from radio airplay. These weren't big-name artists. If you're of a certain income, you might scoff at a measly couple of hundred bucks a month -- but for a struggling songwriter (and most are), it can pay for groceries or the rent. For the lesser-known songwriters and lyricists, it's not uncommon to make more money in performance royalties than you make in mechanical royalties paid by the label.
"They take a tax out of every venue on the assumption that there might be some music played by some artist that they represent."
Sorta. If you want to play music licensed through ASCAP or BMI then you purchase a license. It's not mandatory. If you have, say, a bar or club and you don't thik you'll get any financial gain out of playing music at your establishment, then you can skip the license.
"And the redistribution works like with the RIAA... the top acts get a ton of cash, the rest get fuck-all. After ASCAP takes their fees, of course."
You're correct that fees are distributed roughly in proportion to popularity. The song and lyric writing biz is a bit unfair this way; popularity often doesn't scale to talent. They used to measure only by radio airplay sampling, but in recent years they've made it more equitable, by getting playlists from satellite and Internet radio stations, for instance -- which play a lot more eclectic and lesser-known music.
"ASCAP is just as much of a cancer on 90% of artists and the public as the RIAA is."
If you're a songwriter or lyricist, there are tons of good reasons to join ASCAP/BMI, and no reasons not to. There's a one-time $25 fee to apply, but if you don't think that you'll be able to collect $25 in performance royalties during your career, perhaps you're in the wrong business!
The RIAA certainly doesn't care about you; they look after the record labels and they certainly don't have your interests in mind. They wouldn't even offer mechanicals if they weren't legally obligated to. By contrast, ASCAP has your back. They're run by and for artists. If you get minor airplay only on obscure XM stations, can you expect to get as big a check as the guy who wrote Beyonce's latest hit? No, but this isn't an ASCAP issue. ASCAP is just there to be an advocacy organization for artists; they're not obligated to pay each member equally.
Remember, ASCAP's primary function is to collect and redistribute royalties. Their operating costs are a small, small portion of the fees they collect and pass through. The RIAA is a trade organization for the record labels the record labels pay them, not the other way around.
They're a collective. Their execs are board members. You might recognize some of the names: Paul Williams (the president and chairman of the board), Hal David, Johnny Mandel, Marilyn Bergman, Jimmy Webb, and so on. ASCAP is truly run by and for artists.
I can think of a few reasons why Paul Williams should be punished beyond the issue at hand.
There's an interesting dichotomy here. We generally regard the record labels (as represented by the RIAA) as the "bad guys," and the artists (who are represented by ASCAP) as the "good guys." We are generally in favor of ASCAP, as it allows artists to make money via a revenue stream that the record labels can't touch. But whenever ASCAP does something in its own interests, our hatred toward them burns just as brightly as it does for the record labels.
The popular wisdom on Slashdot (I'm not inferring that it's correct) is that artists don't actually make money on song sales. If ASCAP's scheme were to become reality, it would (per popular Slashdot wisdom) finally allow the artists to make a little money, too.
While in general I wouldn't mind if Apple threw ASCAP a bit of money, the additional costs would likely be reflected in higher prices. While I'm generally a big fan of musicians and I understand ASCAP's obligation here to try to get as much money for the artists that they can, I think this is a bad move. A 30-second clip for the purposes of generating a sale should fall outside the boundaries for licensable performances.
The huge difference is that you would be acting in good faith. Steven Chen was not.
The more I read about the case and about his businesses, it's clearly not a case of "innocent webhost caught in the crossfire." It's more like "entrepreneur sees market in providing hosting to companies selling counterfeit goods, profits from it, gets caught." Before he was in this business, he catered to spammers.
"Yes it rather is setting a nasty precedent. Either these webhosts will filter the heck out of their content and lose out to some other site that doesn't [eg. the pirate bay] or copyright claims are nigh unenforceable for small acts of copyright infringement."
The case in TFA is about trademark infringement. There's already plenty of precedent in the US for going after webhosts who knowingly allow their users to infringe copyright. This is why the US-based P2P services (remember Aimster?) and the big US-based tracker sites that specialized in pirated material are largely gone. Note that I wrote "largely" -- there are still a few around, but typically because they haven't yet caught the attention of the feds, and not because they've discovered some magic loophole.
We don't know all the facts in this case. Judges and lawyers are typically somewhat intelligent, and given the size of the judgement, it appears that mens rea was applied here -- Steven Chen knew exactly what he was doing, in the same way that tracker owners will tell you that they don't know nothing about no piracy when in truth they understand that it's their bread and butter. Googling his company names gives the impression that Steven Chen wasn't simply running a respectable hosting company. Like tracker operators see the demand for pirated materials, Steven catered to spammers and purveyors of counterfeit goods.
Slashdot Mirror
"The copyright lawyers are laughing at this guy's defense, but these are the same lawyers who think that file sharing is immoral and that record companies should have the right to sue people into poverty because of a few kilobytes of uploads."
Huh? One of the fellows quoted was Ben Sheffner. He's very level-headed and insightful, and his blog is a good read for anybody tired of the Slashdot/Torrentfreak/Digg copyright misinformation echo chamber. Scott Mackenzie has tried a number of consumer advocacy cases. Your statement makes about as much sense as stating that NYCL or CptKangarooski think file sharing is immoral just because they also happen to be lawyers with expertise in copyright law.
"None of us engineers, programmers, or other laborers get a multi-decade monopoly over our creations.... we get paid an hourly rate, then we get laidoff, and that's it. No more money. I'm not entitled to a lifetime of free cash for a schematic I created at age 25, so why should an artist be entitled to a lifelong cash payment either? Fair treatment dictates they should get an hourly wage same as us engineers/laborers, and that's it. The 28 year monopoly is just a generous extra, and not required."
It is your choice -- and your choice alone -- if you want to work for an employer in a work-for-hire capacity (in which your employer owns your inventions) or strike it out on your own and work in an indepent capacity, licensing your software or engineering designs. Some are happy with the first method, as they get relatively steady employment and all the perks that go with it. Others prefer the second method. It can be a lot more risky, but if you're lucky and skilled enough, your code or your engineering designs can be making money for you even when you're not working.
"I'm not entitled to a lifetime of free cash for a schematic I created at age 25, so why should an artist be entitled to a lifelong cash payment either?"
Because you chose to create that schematic as an employee and gave up any opportunity to license it. That was your choice. You chose that route because it meant a more comfortable lifestyle for you at the time -- you got a guaranteed paycheck. You chose what you thought was best.
The artist, on the other hand, chose to hold on to his copyright. Perhaps he didn't have a family to feed at the time, and was able to try to eke out a living writing songs. And, since this artist receives a "lifelong cash payment," it means that he got very, VERY lucky. He effectively won the copyright lottery. What percentage of songs written in the 90s, 80s, or 70s are still making money for their creators today?
"But EMI don't own the particular soundwaves which comprise the Beatles' songs. Instead they own the very idea of these songs."
It's actually pretty well-known and well-documented that EMI owns the recordings, but that for many of the Beatles songs, it's actually Sony/ATV publishing who owns the publishing rights, which covers performance, licensing, covers, and most of the other ways you can make money off of a song other than selling a copy of the recording.
"No matter who sings it, or performs it, or records it, or sells it, or even hums it this music belongs to EMI because they own the very idea of it."
This is, of course, not correct based on the generally understood and documented state of ownership of the Beatles catalog.
"However, some authors, like J. K. Rowling, are rich greedy bastards who don't care about the disabled. I already own all her books, and most of the movies. I felt pretty good about downloading her collective works on The Pirate Bay, and would encourage all of you to get it there to punish her."
Per http://www.looktothestars.org/celebrity/171-jk-rowling:
She supports charities dealing with AIDS, Animals, Cancer, Children, Creative Arts, Education, Family/Parent Support, Health, Homelessness, Human Rights, Hunger, Literacy, Mental Challenges, Physical Challenges, Poverty, Refugees, and Women. With regard to your assertation that she does not "care about the disabled," she's donated to charities that address Dyslexia, Multiple Sclerosis, and more.
Perhaps your point might be that she deserves punishment because she doesn't donate enough to these charities -- am I correct? You certainly wouldn't be the first Slashdotter to hold this view; the popular opinion is that Bill Gates is also greedy, despite the billions he's given away.
But back to JK -- do you have any information about how much she's donated, compared to your donations to charities for the disabled? Do you believe that most people reading your post have done more to support charities for the disabled than Mrs. Rowling? I understand that caring about disabled people is very, very important to you and I'm certainly not going to argue that point. But my guess would be that she's done more to help the disabled than most people reading this have.
"Probably because copyright infringement (unless commercial) is a civil matter"
This is a dangerous meme and I wish people would stop spreading it. What if somebody read the above and believed it to be true?
The "commercial" requirement was eliminated with the NET act, and the threshold for criminal infringement is very low. Distribute just a few copies of a $500 vertical app to your friends, or leak a pre-release album, and you're in criminal infringement territory. One's lack of money, or the greed or wealth of the software developer aren't conditions codified into law.
If that was a poor analogy, it shouldn't be hard to think of a better one. I agree that he was trying to point out the logical error in the statement " will always exist, so don't bother trying to stop it." It's one of those basic logical fallacies. We should know better, but when it's something where we are the threat, and an industry we don't care for is the one being threatened, logic tends to get pushed to the side.
If you're not sure what I mean, imagine if I were to tell you that people will always try to violate the GPL, so we shouldn't even bother with the GPL. You'd be upset, and rightly so: it's a stupid logical fallacy.
As for the viability of the two business models: the top Kazaa executives probably made $10 or $20 million each. The most popular bittorrent trackers might make maybe a million bucks a year. These amounts are more than your typical signed recording artist makes, and in fact, the most successful tracker operator probably makes more in a year than many, many indie record labels. So, at first glance, you can make a point that piracy is a better model than the traditional model. But when you make a more direct apples-to-apples comparison, the luminaries in the arts -- say, Stephen King, Jeffrey Koons, or Bruce Springsteen -- have incomes that dwarf the most successful people in the piracy industry by an order of magnitude.
You make some excellent points.
Safe harbor laws are written to ease the burden as much as possible on hosting providers, but they can't resolve people of all responsibility. When these sorts of things go to court, a big question is whether the plaintiff made a reasonable effort to ensure that the service complies. The courts typically have pretty good BS detectors and can figure out if somebody's acting in good faith. But the process isn't perfect.
Agreed with you that there's more than one example of somebody who's acting in good faith but is unfairly caught in the contributory infringement net. I happen to be acquaintances with some of the higher-ups at the MP3tunes music locker service; Universal has been on their case for years and I believe that it's completely unwarranted.
Just to say what the AC said, but a bit more gently: you're correct, of course, that the DMCA is a US law, but it's an example of a safe harbor law. Safe harbor laws are found all over the world, and in various areas of the law -- not just in matters of copyright. Wikipedia has a good article on safe harbors if you'd like to learn more. Either way, it's a safe bet that Brazilian law has some sort of safe harbor provision for contributory copyright infringement that protects people who act in good faith.
The essential point to understand about safe harbors is that they work both ways: not only are they designed to protect you, but if a safe harbor exists and you don't take it, it can work against you. That might be what happened in this case; the defendant opted not to implement filtering, and (as would likely happen in the US as well), "we are incapable of adding a filter" did not work as a defense.
It's the principle of acting in good faith that many Slashdotters seem to miss, and it's a crucial part of understanding the "just like Google" fallacy. How you act plays a huge part in how the courts will treat you.
I hope this is clear -- if not, let me know.
"The truly fear and depression induced thing about Slashdot, is just how many of its' readers appear to have drunk the government or corporate Kool-Aid with regard to things like copyright, and actively defend and advocate the government/cartel position."
Don't look at me. I think copyright terms and (in particular) statutory limits are hugely of control. Understanding how something works certainly isn't drinking Kool-Aid. I'm agnostic about piracy; I certainly did enough of it when I was a teenager.
Disliking copyright law is no excuse for not understanding it. Notice how the same arguments keep coming up and Slashdotters keep getting surprised? The "it's just like Google" fallacy has been around for as long as Google itself, and yet people are still surprised that it's not a magic bullet.
The state of self-serving, willful ignorance of the basics of copyright law is pretty sad. If file-sharing enthusiasts want to change the law, first they must understand it. Tilting at windmills and counting on loopholes that only exist in the collective imagination of the file-sharing community won't help.
"I've yet to see one which says, "Well, this can be used for infringement, but technologically, it's no different from other programs which are not used for infringement"."
But how would that be relevant -- and more to the point, how would it help the case?
Pirate tracker sites share much of the same technology as, say, legaltorrents.com. The latter gets a pass while the pirate sites go down because of things unrelated to technology: the actions and intent of the people running them. This is one of those fundamental legal things, unrelated to the level of technical experience of the person making the judgement.
"Certainly that's been what's been behind the decision to ban "peer-to-peer software" on a lot of private networks. And yet, this same logic isn't applied to other technologies which have also been used for piracy like ftp, tftp, newsgroups or http."
Because it's irrelevant. It's about actions and intent. And we should acknowledge the people who have been busted for serving up pirated files via http and ftp.
"The judges aren't idiots. They have a basic understand of what's going on and how these programs work, but they don't have a deep understanding of how the internet actual works. If they did, at least some of the decisions would have to be written quite differently."
Well, to be fair, your belief is a common one among Slashdotters: the problem is not that we don't sufficiently understand copyright law, but that nobody in authority -- not one person -- sufficiently understands the technology. If they did, then they'd throw out all of this "actions" and "intent" and "safe harbor" and "substantial non-infringing uses" mumbo jumbo and simply understand that since a warez tracker or Kazaa trades packets in much the same way as other technologies, then the operators can't be held liable.
You're setting up a false premise here -- nobody believes that one can't use Google to infringe. We're all smart people here and we owe it to ourselves to not fall into these sort of silly traps.
If you're genuinely curious why "just like Google" doesn't work, Google on "substantial non-infringing uses." It's a fundamental legal test for contributory copyright infringement.
Turning it around, if you're wondering if Google and similar facilities are in danger of being held liable for the actions of their users, this is an important one to understand:
http://en.wikipedia.org/wiki/Mens_rea
Another critical thing to understand is that safe harbors (the DMCA being the most relevant) are, to mangle the metaphor, a two-way street. Yeah, they'll protect you, but only if you make use of them. For example, Google and many other sites honor DMCA takedown requests. If you're running a P2P site and you know that filtering out pirated material would put you out of business, you don't have the luxury of ignoring takedown requests simply because honoring them would affect your site's viability -- and excuses like "I'm too busy" or "I don't have the manpower to handle all those requests" don't hold any weight with the court. To take advantage of the DMCA safe harbor that Google and so many others enjoy, you must take active steps to make use of it.
That appears to be similar to what happened in the case described in the article.
HTH.
No other questions. To be fair, Reading TFA was particularly tough this time since there were a number of PDF files with garishly bad color schemes. I probably wouldn't have either, but the statements in the summary sounded so blatantly false I had to see for myself if the RIAA really was saying that. I thought for a while that maybe they were in some of the PDFs I hadn't checked, but I finally figured out that the submitter was simply pulling things out of his butt.
"I'm curious if this will change if and when judges understand the underlying technology better."
Statements like this are like Chicken Soup for the Pirate's Soul. We convince ourselves that it's all because the people in charge just don't understand the technology. I completely understand; this is a much more acceptable situation than the judges understanding the technology just fine.
There's a huge disconnect here. When Napster, Kazaa, Morpheus, and most recently The Pirate Bay went down, file-sharing fans quickly pointed out that it was obviously because the legal professionals don't know what they were doing. "Just like Google!" they shouted. "A web browser is P2P! Let's ban guns, too!".
The problem is this: I've read all of the rulings (I'm kind of a nerd like that) and it's generally clear that the lawyers and the judges understand the technology just fine. They might not be able to code a P2P client themselves or even mount a Linux volume, but reading the documents makes it very clear that they know exactly how the technology works and how it's being used.
You can use Occam's Razor here: it's a hard scenario to swallow that there simply aren't enough defense lawyers who understand P2P technology. If the law really worked like so many Slashdotters think it does -- a legal world in which intent and usage aren't relevant -- then wouldn't all of these judgments be thrown out once some legal folks as smart as you took up the cases and clearly showed that it was all a matter of the judge not understanding the technology? A simple matter of a smart person explaining to the appeal court that a pirate torrent site is just like Google, a P2P client is just like a web browser?
The ironic thing here is that if you ask any lawyer with a background in copyright law, they'll be happy to explain to you exactly why TPB, etc. aren't exactly like Google and why Kazaa and Morpheus weren't just like a web browser. It's actually even pretty easy to understand by folks who don't have a JD. Yet we collective Slashdotters just continue to stamp our metaphorical feet and pine for the day when judges just understand. "Substantial non-infringing uses," "contributory infringement," "vicarious infringement" and even basic principles like mens rea whoosh past us like a late summer breeze, while we close our eyes and dream of a day when legal professionals will finally be as smart as we are.
"I'd like to see a reference on where they say that it's illegal to play your music for your friends. That's specifically what I'm trying to find in the PDFs, I think that claim by TFS is false."
Agreed. I've read most of the stuff on the site (until the awful colors got to me) and found no such statement. In fact, at several points they gave examples of fair use, so TFS's "at no point is fair use mentioned" statement is also a lie.
The record industry has certainly been known to whitewash, confuse, and outright lie. This apparently gives many file-sharing advocates the impression that it's okay to lie as well when fighting against copyright owners. Pity.
I know the summary stated that -- but when you read the actual course materials, it states that making a backup copy is generally OK. I'm wondering where you got your info (besides the incorrect summary, of course).
"The message that the RIAA is trying to send is that there's no legal way to copy music files once you've gotten your hands on your CD of choice."
I know that this is Slashdot and we never read the original articles, but this is what the actual parent's guide states:
"Copying music you've bought to your personal computer or player is a common activity which can generally be done without legal consequences. However, distributing a song to others without the permission of the rights holders is a very different story."
This contradicts your statement. There's a wide gulf between distributing tracks via P2P and simply playing music in your home for your friends. I know that it may be blurry for some, but trust me -- one is unauthorized distribution, the other is not.
"If copying CDs to my computer for backup (or for main use while having the CDs lying around somewhere) is fine, but letting my friends listen to this, without copying it to their devices, isn't, exactly what is or is not legal to do with my music?"
Huh? You can let your friends listen to your music in your own home. You might be confusing this with the "unauthorized public performance" clause you see in those scary FBI warnings. The bar is set pretty high here... your home would need to be regularly open to the public. A house party, even if you're charging money for beer cups, doesn't count, since it's not a public venue.
"And if letting friends listen is illegal, why should I be allowed to, say, broadcast the song from my computer's speakers? There's a chance that someone who didn't buy the CD could hear the music!"
Sorry, I just think you're being paranoid. Letting your friends hear your music in your house is not illegal.
"1.) What, exactly, is "fair use"?"
Lots of folks are confused about this one. Fair use isn't a defined set of rules, but rather guidelines (you'll often hear the word "doctrine"). Often, what is or isn't fair use is decided in court based on the facts of the particular case. But in case I haven't been clear, playing music for your friends in your house isn't even near the boundary.
"2.) Does the RIAA have any authority whatsoever to define what "fair use" means?"
Nope. They've taken several file sharing sites and services to court, and many of the defendants (beginning with Napster) have attempted the fair use defense. In each of these cases, it was the court that decided whether fair use applied.
"For the MAFIAA to declare this illegal is retarded."
Can you point me to somewhere on the site where they actually do this?
If you're not seeing my point, perhaps I read a Slashdot summary that stated that tuxgeek has dyed his hair green. Somebody might state that the decision to dye your hair green is retarded. Perhaps it would be, if we're dealing with abstracts, but the essential point is that you did not dye your hair green.
"WTF?"
Indeed.
"Exactly. If they were to do that, it would contradict other things that they say, and they'd end up with no credibility."
I don't follow. The parent's guide pretty clearly states that making a personal copy of your music is generally OK. Are you referring to something else? What's the basis of your understanding that they're presenting all copying as illegal? Serious question.
I've downloaded and read much of the content, but I couldn't find anything that matched up with the summary's statement that the materials state that playing music for your friends in your house can be illegal. It does state this:
"Copying music you've bought to your personal computer or player is a common activity which can generally be done without legal consequences. However, distributing a song to others without the permission of the rights holders is a very different story."
This is more or less correct. You can generally make a backup of your music, and you generally can't redistribute those copies without permission of the rightsholders. They've given an example of the dividing line between fair use and infringement, despite the summary's claim that there's no mention of fair use.
If somebody who's read the PDFs more thoroughly can point out where it states that you're not allowed to play a backup copy of music for your friends in your home can be illegal, I would be much obliged.
"I've never been in favor of either of them. ASCAP are a bunch of assholes, as big or bigger than the RIAA. ASCAP does not help the artists."
I've talked to some folks who've made a couple of hundred bucks a month from radio airplay. These weren't big-name artists. If you're of a certain income, you might scoff at a measly couple of hundred bucks a month -- but for a struggling songwriter (and most are), it can pay for groceries or the rent. For the lesser-known songwriters and lyricists, it's not uncommon to make more money in performance royalties than you make in mechanical royalties paid by the label.
"They take a tax out of every venue on the assumption that there might be some music played by some artist that they represent."
Sorta. If you want to play music licensed through ASCAP or BMI then you purchase a license. It's not mandatory. If you have, say, a bar or club and you don't thik you'll get any financial gain out of playing music at your establishment, then you can skip the license.
"And the redistribution works like with the RIAA... the top acts get a ton of cash, the rest get fuck-all. After ASCAP takes their fees, of course."
You're correct that fees are distributed roughly in proportion to popularity. The song and lyric writing biz is a bit unfair this way; popularity often doesn't scale to talent. They used to measure only by radio airplay sampling, but in recent years they've made it more equitable, by getting playlists from satellite and Internet radio stations, for instance -- which play a lot more eclectic and lesser-known music.
"ASCAP is just as much of a cancer on 90% of artists and the public as the RIAA is."
If you're a songwriter or lyricist, there are tons of good reasons to join ASCAP/BMI, and no reasons not to. There's a one-time $25 fee to apply, but if you don't think that you'll be able to collect $25 in performance royalties during your career, perhaps you're in the wrong business!
The RIAA certainly doesn't care about you; they look after the record labels and they certainly don't have your interests in mind. They wouldn't even offer mechanicals if they weren't legally obligated to. By contrast, ASCAP has your back. They're run by and for artists. If you get minor airplay only on obscure XM stations, can you expect to get as big a check as the guy who wrote Beyonce's latest hit? No, but this isn't an ASCAP issue. ASCAP is just there to be an advocacy organization for artists; they're not obligated to pay each member equally.
Remember, ASCAP's primary function is to collect and redistribute royalties. Their operating costs are a small, small portion of the fees they collect and pass through. The RIAA is a trade organization for the record labels the record labels pay them, not the other way around.
They're a collective. Their execs are board members. You might recognize some of the names: Paul Williams (the president and chairman of the board), Hal David, Johnny Mandel, Marilyn Bergman, Jimmy Webb, and so on. ASCAP is truly run by and for artists.
I can think of a few reasons why Paul Williams should be punished beyond the issue at hand.
There's an interesting dichotomy here. We generally regard the record labels (as represented by the RIAA) as the "bad guys," and the artists (who are represented by ASCAP) as the "good guys." We are generally in favor of ASCAP, as it allows artists to make money via a revenue stream that the record labels can't touch. But whenever ASCAP does something in its own interests, our hatred toward them burns just as brightly as it does for the record labels.
The popular wisdom on Slashdot (I'm not inferring that it's correct) is that artists don't actually make money on song sales. If ASCAP's scheme were to become reality, it would (per popular Slashdot wisdom) finally allow the artists to make a little money, too.
While in general I wouldn't mind if Apple threw ASCAP a bit of money, the additional costs would likely be reflected in higher prices. While I'm generally a big fan of musicians and I understand ASCAP's obligation here to try to get as much money for the artists that they can, I think this is a bad move. A 30-second clip for the purposes of generating a sale should fall outside the boundaries for licensable performances.
The huge difference is that you would be acting in good faith. Steven Chen was not.
The more I read about the case and about his businesses, it's clearly not a case of "innocent webhost caught in the crossfire." It's more like "entrepreneur sees market in providing hosting to companies selling counterfeit goods, profits from it, gets caught." Before he was in this business, he catered to spammers.
Sometimes there are bad guys out there./p.
"Yes it rather is setting a nasty precedent. Either these webhosts will filter the heck out of their content and lose out to some other site that doesn't [eg. the pirate bay] or copyright claims are nigh unenforceable for small acts of copyright infringement."
The case in TFA is about trademark infringement. There's already plenty of precedent in the US for going after webhosts who knowingly allow their users to infringe copyright. This is why the US-based P2P services (remember Aimster?) and the big US-based tracker sites that specialized in pirated material are largely gone. Note that I wrote "largely" -- there are still a few around, but typically because they haven't yet caught the attention of the feds, and not because they've discovered some magic loophole.
We don't know all the facts in this case. Judges and lawyers are typically somewhat intelligent, and given the size of the judgement, it appears that mens rea was applied here -- Steven Chen knew exactly what he was doing, in the same way that tracker owners will tell you that they don't know nothing about no piracy when in truth they understand that it's their bread and butter. Googling his company names gives the impression that Steven Chen wasn't simply running a respectable hosting company. Like tracker operators see the demand for pirated materials, Steven catered to spammers and purveyors of counterfeit goods.
"I love those numbers. So she, as a single file-sharer, cost them $1.92 million dollars."
Straw man. These are statutory damages. The record labels don't have to show or even claim that they've lost this amount.
"So it's ok to punish someone even though you can't prove they damaged you or how much they damaged you? "
At the risk of oversimplifying, that's pretty much the point of statutory damages.