He has himself stated that he would not be "shocked" if the courts agreed that ripping CDs is fair use, so why would his own personal opinion matter?
Yeah, by saying that he was basically saying he would not be shocked if, in his opinion, a court wrongly determined that issue. His own personal opinion mattered because he was head counsel for the copyright office, and thus had more effect on setting US copyright policy than you or I will ever have.
Citing common sense won't get you very far in a court, especially on IP issues. Also, what precisely is the previous case law you would point to? Betamax is inapposite, since Betamax was about one type of time-shifting, and had nothing to say about space-shifting.
I'm not saying I agree with him. Technically he is probably right, but I don't think there's every been a legal test of that specific issue, and I imagine record companies would be loathe to sue someone for ripping a CD, it would be terrible publicity. But on its face, ripping a CD in my view, while definitely "fair", ends up failing all four fair use factors. It's not transformative, it usually applies to creative works, it copies the whole work, and it affects the related market for digital copies. It also plainly violates the reproduction right.
BTW there's nothing illegal about ripping your CDs
Well, that depends on who you ask. E.g., if you asked the former General Counsel of the Copyright Office, he would say that ripping your own CDs is probably copyright infringement.
So, I had to really cut down that quote to get it to fit in my sig. Here is the full quote.
There are those who confidently claim that making a copy of music on your hard drive is an act of space shifting protected by the fair use privilege. I'm sure that some people engage in such space shifting, for example by copying music files from lawfully purchased CDs onto their computer hard drives. But anybody why thinks that that is fair use is going out on a limb... I am not saying that it is frivolous to argue that space shifting is fair use. I am not saying that I would be shocked if some court were to conclude that it is fair use. But I don't happen to believe that it is, and I do happen to believe that anyone who makes such a a copy on a hard drive without the consent of the copyright owner is probably engaging in copyright infringement.
The citation is David O. Carson (former General Counsel for the US Copyright Office), "Making the Making Available Right Available", 33 Colum. J. L. & Arts. 135, 138.
Based on the summary and linked article, it sounds like not only are they probably asking for the maximum statutory damages for each work (which varies considerably, from a minimum of $750, up to $150,000 in cases of willful infringement), but they are also asking for those damages in each instance of infringement between two users, or between Limewire and each user.
Obviously that multiplies out to a huge number, but I can't really fault the lawyers for pressing the argument. They are just asking for as much as they possibly can, it doesn't mean they will receive it. So they ask the court both for maximum statutory damages, and ask the court to accept a way of counting infringements that maximizes the number of infringements. What, do we expect them to ask for less than they can, out of the goodness of their hearts, or some sense of "fairness"? For all they know, the court could have accepted their method of counting infringements, but only allowed a minimal level of statutory damages.
we would stop having writers like José Saramago, Vargas Llosa, Orwell, Huxley, Edgar Alan Poe, etc.
Considering Poe had serious gambling debts and long struggled to make any living off his work, then essentially died in a gutter in Baltimore, I'm not sure he's the best example for you to choose. He clearly wasn't in the business to get rich.
In principle, though I agree with you. Quality isn't measured by quantity. J. K. Rowling's or Stephanie Meyer's works might not have artistic merit commensurate with the money they're making. I think the point being made here, though, is that cutting the price has the potential to drive up volume and increase overall profits, especially with purchases of unknown quality. Really good quality stuff can still be priced higher... as long as word gets out that it's worth it, people should recognize the quality difference and be willing to pay a higher price.
It's really tough to convince me why Kindle editions typically run only a few dollars cheaper than real editions... and in the case of used books, often the Kindle edition is several dollars more. The whole "publisher is taking on risk by publishing" doesn't work as well when you're talking about digital goods.
Every application, game, song, movie, image, story, or whatever that is stored in digital form is just a number - a really big number, but still just a number. You can argue that some numbers are too small to be copyrighted, but I don't think it's reasonable to say no numbers are copyrightable.
Size matters. Words and short phrases, slogans, titles, etc. are ineligible for copyright, despite the fact that they are combinations of words just like a book or play. It is irrelevant that anything can be represented numerically. I cannot possibly see how the encryption key can be protected by copyright. It is functional, it is an extremely short sequence, it is arbitrary and required no creative effort... in short, it is everything that copyright is not. If it truly is protected by copyright, I would like to see them try to register it. Good luck with that.
A better question is whether the flag is a circumvention device, and that is nearly as hard to argue.
That's not right. While I fail to see how the key itself, as a short sequence of arbitrary numbers, can be copyrighted, the flag is a creative work and is just as eligible for copyright as anything else. The wiki page lists an author who released the image into the public domain.
If you drop the price of your goods by 80% but sales go up by 400%, you're now making the same money but with a lot higher market penetration, right? Is my math wrong? (Likely wrong -- I attended Louisiana public schools.:P)
The problem is that because of income inequality in a lot of developing countries, it is often more profitable to sell to a small but wealthy portion of the population, rather than to drop the price to a level that expands affordability and access.
To be fair, the report has much more than just the info about prices... I just had to condense something down for the summary. There's also a lot of information about the effectiveness (or lack thereof) of the various IP and anti-piracy "education" (propaganda) attempts, empirical data on the failure of enforcement activities to make any dent in piracy, and findings about what does in fact drive prices down to more affordable levels (competition from domestic creative industries). There are six detailed country studies involving local researchers, etc.
Yes, there is some price differentiation going on with pharmaceutical products and other IP-heavy goods... however, it's not as much as you might think. A large part of the problem has to do with high income inequality in many developing countries. This has the perverse effect of actually making it more profitable to sell to a tiny sliver of the wealthy elite, than to sell in large volumes at lower prices. For more on this, see Flynn, Sean, Aidan Hollis, and Mike Palmedo. “Economic Justification for Open Access to Essential Medicine Patents in Developing Countries, An.” Journal of Law, Medicine and Ethics 37 (2009): 185.
The various collecting societies have data and estimates about how often songs and artists are playing, and royalties are distributed accordingly. This has been going on for years, it's nothing new. When it comes to downloading, they'll figure out a way to estimate whose work is being downloaded, and how often. It won't be exact, but it'll probably be good enough for them. Also, it's usually not the government, it's a private organization, albeit often with special privileges.
A better question about this proposal is whether it only prevents suits from songwriters... or are the performers and producers going to each want another $10/mo. as well? Royalties are split between a lot of different people, and they'll all need to be on board with any agreement like this.
Yeah, I was thinking the same thing... I think a tour guide at my alma mater told us this story, and it was not Iowa State. I'm beginning to think it's an urban legend:-)
Just FYI, the order of the parties does not necessarily tell you who is the defendant. In federal courts of appeal and the Supreme Court, the name of the appealing party, which could be either plaintiff or defendant, is listed first.
The blog post is from 2011, but the article it discusses was published in 2008 (so the study itself was probably done in 2007 or so). (‘Not necessarily a bad thing ’: a study of online plagiarism amongst undergraduate students. Neil Selwyn, Assessment & Evaluation in Higher Education, 1469-297X, Volume 33, Issue 5, First published 2008, Pages 465 – 479.)
Betamax was more complicated than you make it out to be. The court didn't just rule that all recording from the air was fair use. Specifically, they said that time shifting was fair use:
Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use.
On the other hand, the opinion didn't clearly specify whether building a library of tapes that you would watch over and over would be non-infringing (it likely would be infringing, since it significantly affects the commercial value of the copyright holder's work... if you tape a showing for repeated viewing, you have no reason to go purchase the VHS/DVD version). Since this was a common use of audio taping, it's very likely that taping from the radio for repeated listening isn't fair use.
I'm not totally up to date on all of this, but I'd guess it's quite likely that using MythTV to archive television shows is not fair use. On the other hand, that doesn't make the technology itself illegal, since, like Betamax, it's capable of the same substantial non-infringing uses (time-shifting).
Essentially if this applies to individuals, it means you don't actually own anything. The whole point of Right of First Sale is it is your property. You can use it, loan it, sell it, or destroy it at will.
I'm not even sure of how copyright applies here -- no copy is being made, and the manufacturer isn't being deprived of either rights or revenue.
This is what most people are missing. The whole reason this case invoked copyright law was because of a copyrighted design on the back of the watch. In theory, the discussion is only about the copyrighted design, not the watch that it just so happens to be on.
First sale doctrine is about copyright, not about goods in general. If what you're reselling doesn't have a copyrighted work emblazoned on it, then this case isn't relevant.
Of course, the policy problem here is that now everyone might start slapping copyrighted designs on their products solely to take advantage of this decision. If you could prove that was the reason it was being done, you might have an argument that the design was being used for a functional purpose, which as a big no-no in copyright.
FYI, copyright applies because copyright grants you more rights than just copying. In US law, it also grants you the exclusive right to import the work. I haven't been following this case closely, but IIRC the big question concerned whether the watches were "lawfully made under this title" (17 USC) and Omega had the sole right to import the design.
what is to stop an ISP from just doing things as SOP (flat-rate) and making hand over fist when all the streamers, gamers, downloaders jump ship of the ISPs bilking them from the new model?
Nothing, except that most of those people won't actually be able to jump ship, since, if they're lucky, they'll be choosing between two providers who both have pay-as-you-go plans. Your idea assumes people can easily switch to a new provider, which when it comes to high speed internet in the U.S. isn't generally the case.
I think it probably depends on the person and the circumstances. I doubt various scene groups are as interested in altruism as in competition and credit. But on the other hand I'm reminded of an article I read about sheet music this summer:
I play the piano. Over the years, I have collected 15,000 piano scores in PDF form, covering about 400 years of classical keyboard works. It’s like lint in the drier of the Internet. Much of it is not available anywhere for purchase, or even findable in libraries for circulation. Max Reger’s arrangement for two pianos of Wagner’s overture, for instance? Well, the Max Reger Institute in Karlsruhe, Germany has a copy
At the Van Cliburn piano competition, a couple years ago, I gave tiny thumb drives to some of the winners and said, “Enjoy.” Each thumb drive was smaller than my pinky but contained was the whole 15 GB trove. It blew their minds. Basically, every significant piano piece is in the pile.
I don't know, maybe you can get an LCD screen and camera and associated circuitry, etc., for $20 in very large quantities, but that seems like an awfully low estimate. If you could, OLPC would sure like to know, huh? How much will it really cost, and how much will it add to basic models that lower income people may be buying? Will it be considered a device necessary to pass safety inspections, meaning if it breaks, you are obliged to repair it? Probably more costly to repair than replacing a taillight.
I'd think that stricter tests before allowing people to obtain licenses, along with periodic reevaluation of driving skills could do more to lessen accidents and injuries than throwing technology at one particular issue.
It is also worth noting that the CSS exemption only applies in three specific circumstances: " 1. Educational uses by college and university professors and by college and university film and media studies students;
2. Documentary filmmaking;
3. Noncommercial videos." This is in addition to the requirement the use be believed to be fair. The exemption isn't a blanket permission for a person to break CSS on DVDs he/she legally owns.
I always liked Asimov's Foundation series because the queen of the sciences in the future was "psychohistory," an awesome combination of political science, sociology, economics, statistics, etc.
Slashdot Mirror
He has himself stated that he would not be "shocked" if the courts agreed that ripping CDs is fair use, so why would his own personal opinion matter?
Yeah, by saying that he was basically saying he would not be shocked if, in his opinion, a court wrongly determined that issue. His own personal opinion mattered because he was head counsel for the copyright office, and thus had more effect on setting US copyright policy than you or I will ever have.
Citing common sense won't get you very far in a court, especially on IP issues. Also, what precisely is the previous case law you would point to? Betamax is inapposite, since Betamax was about one type of time-shifting, and had nothing to say about space-shifting.
I'm not saying I agree with him. Technically he is probably right, but I don't think there's every been a legal test of that specific issue, and I imagine record companies would be loathe to sue someone for ripping a CD, it would be terrible publicity. But on its face, ripping a CD in my view, while definitely "fair", ends up failing all four fair use factors. It's not transformative, it usually applies to creative works, it copies the whole work, and it affects the related market for digital copies. It also plainly violates the reproduction right.
BTW there's nothing illegal about ripping your CDs
Well, that depends on who you ask. E.g., if you asked the former General Counsel of the Copyright Office, he would say that ripping your own CDs is probably copyright infringement.
So, I had to really cut down that quote to get it to fit in my sig. Here is the full quote.
There are those who confidently claim that making a copy of music on your hard drive is an act of space shifting protected by the fair use privilege. I'm sure that some people engage in such space shifting, for example by copying music files from lawfully purchased CDs onto their computer hard drives. But anybody why thinks that that is fair use is going out on a limb... I am not saying that it is frivolous to argue that space shifting is fair use. I am not saying that I would be shocked if some court were to conclude that it is fair use. But I don't happen to believe that it is, and I do happen to believe that anyone who makes such a a copy on a hard drive without the consent of the copyright owner is probably engaging in copyright infringement.
The citation is David O. Carson (former General Counsel for the US Copyright Office), "Making the Making Available Right Available", 33 Colum. J. L. & Arts. 135, 138.
See my sig.
Based on the summary and linked article, it sounds like not only are they probably asking for the maximum statutory damages for each work (which varies considerably, from a minimum of $750, up to $150,000 in cases of willful infringement), but they are also asking for those damages in each instance of infringement between two users, or between Limewire and each user.
Obviously that multiplies out to a huge number, but I can't really fault the lawyers for pressing the argument. They are just asking for as much as they possibly can, it doesn't mean they will receive it. So they ask the court both for maximum statutory damages, and ask the court to accept a way of counting infringements that maximizes the number of infringements. What, do we expect them to ask for less than they can, out of the goodness of their hearts, or some sense of "fairness"? For all they know, the court could have accepted their method of counting infringements, but only allowed a minimal level of statutory damages.
we would stop having writers like José Saramago, Vargas Llosa, Orwell, Huxley, Edgar Alan Poe, etc.
Considering Poe had serious gambling debts and long struggled to make any living off his work, then essentially died in a gutter in Baltimore, I'm not sure he's the best example for you to choose. He clearly wasn't in the business to get rich.
In principle, though I agree with you. Quality isn't measured by quantity. J. K. Rowling's or Stephanie Meyer's works might not have artistic merit commensurate with the money they're making. I think the point being made here, though, is that cutting the price has the potential to drive up volume and increase overall profits, especially with purchases of unknown quality. Really good quality stuff can still be priced higher... as long as word gets out that it's worth it, people should recognize the quality difference and be willing to pay a higher price.
It's really tough to convince me why Kindle editions typically run only a few dollars cheaper than real editions... and in the case of used books, often the Kindle edition is several dollars more. The whole "publisher is taking on risk by publishing" doesn't work as well when you're talking about digital goods.
Every application, game, song, movie, image, story, or whatever that is stored in digital form is just a number - a really big number, but still just a number. You can argue that some numbers are too small to be copyrighted, but I don't think it's reasonable to say no numbers are copyrightable.
Size matters. Words and short phrases, slogans, titles, etc. are ineligible for copyright, despite the fact that they are combinations of words just like a book or play. It is irrelevant that anything can be represented numerically. I cannot possibly see how the encryption key can be protected by copyright. It is functional, it is an extremely short sequence, it is arbitrary and required no creative effort... in short, it is everything that copyright is not. If it truly is protected by copyright, I would like to see them try to register it. Good luck with that.
A better question is whether the flag is a circumvention device, and that is nearly as hard to argue.
That's not right. While I fail to see how the key itself, as a short sequence of arbitrary numbers, can be copyrighted, the flag is a creative work and is just as eligible for copyright as anything else. The wiki page lists an author who released the image into the public domain.
What about antiretroviral treatments and vaccines? Or books? Are those luxuries, too?
If you drop the price of your goods by 80% but sales go up by 400%, you're now making the same money but with a lot higher market penetration, right? Is my math wrong? (Likely wrong -- I attended Louisiana public schools. :P)
The problem is that because of income inequality in a lot of developing countries, it is often more profitable to sell to a small but wealthy portion of the population, rather than to drop the price to a level that expands affordability and access.
To be fair, the report has much more than just the info about prices... I just had to condense something down for the summary. There's also a lot of information about the effectiveness (or lack thereof) of the various IP and anti-piracy "education" (propaganda) attempts, empirical data on the failure of enforcement activities to make any dent in piracy, and findings about what does in fact drive prices down to more affordable levels (competition from domestic creative industries). There are six detailed country studies involving local researchers, etc.
Yes, there is some price differentiation going on with pharmaceutical products and other IP-heavy goods... however, it's not as much as you might think. A large part of the problem has to do with high income inequality in many developing countries. This has the perverse effect of actually making it more profitable to sell to a tiny sliver of the wealthy elite, than to sell in large volumes at lower prices. For more on this, see Flynn, Sean, Aidan Hollis, and Mike Palmedo. “Economic Justification for Open Access to Essential Medicine Patents in Developing Countries, An.” Journal of Law, Medicine and Ethics 37 (2009): 185.
The various collecting societies have data and estimates about how often songs and artists are playing, and royalties are distributed accordingly. This has been going on for years, it's nothing new. When it comes to downloading, they'll figure out a way to estimate whose work is being downloaded, and how often. It won't be exact, but it'll probably be good enough for them. Also, it's usually not the government, it's a private organization, albeit often with special privileges.
A better question about this proposal is whether it only prevents suits from songwriters... or are the performers and producers going to each want another $10/mo. as well? Royalties are split between a lot of different people, and they'll all need to be on board with any agreement like this.
Yeah, I was thinking the same thing... I think a tour guide at my alma mater told us this story, and it was not Iowa State. I'm beginning to think it's an urban legend :-)
Just FYI, the order of the parties does not necessarily tell you who is the defendant. In federal courts of appeal and the Supreme Court, the name of the appealing party, which could be either plaintiff or defendant, is listed first.
The blog post is from 2011, but the article it discusses was published in 2008 (so the study itself was probably done in 2007 or so). (‘Not necessarily a bad thing ’: a study of online plagiarism amongst undergraduate students. Neil Selwyn, Assessment & Evaluation in Higher Education, 1469-297X, Volume 33, Issue 5, First published 2008, Pages 465 – 479.)
Betamax was more complicated than you make it out to be. The court didn't just rule that all recording from the air was fair use. Specifically, they said that time shifting was fair use:
Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use.
On the other hand, the opinion didn't clearly specify whether building a library of tapes that you would watch over and over would be non-infringing (it likely would be infringing, since it significantly affects the commercial value of the copyright holder's work... if you tape a showing for repeated viewing, you have no reason to go purchase the VHS/DVD version). Since this was a common use of audio taping, it's very likely that taping from the radio for repeated listening isn't fair use.
I'm not totally up to date on all of this, but I'd guess it's quite likely that using MythTV to archive television shows is not fair use. On the other hand, that doesn't make the technology itself illegal, since, like Betamax, it's capable of the same substantial non-infringing uses (time-shifting).
Essentially if this applies to individuals, it means you don't actually own anything. The whole point of Right of First Sale is it is your property. You can use it, loan it, sell it, or destroy it at will. I'm not even sure of how copyright applies here -- no copy is being made, and the manufacturer isn't being deprived of either rights or revenue.
This is what most people are missing. The whole reason this case invoked copyright law was because of a copyrighted design on the back of the watch. In theory, the discussion is only about the copyrighted design, not the watch that it just so happens to be on.
First sale doctrine is about copyright, not about goods in general. If what you're reselling doesn't have a copyrighted work emblazoned on it, then this case isn't relevant.
Of course, the policy problem here is that now everyone might start slapping copyrighted designs on their products solely to take advantage of this decision. If you could prove that was the reason it was being done, you might have an argument that the design was being used for a functional purpose, which as a big no-no in copyright.
FYI, copyright applies because copyright grants you more rights than just copying. In US law, it also grants you the exclusive right to import the work. I haven't been following this case closely, but IIRC the big question concerned whether the watches were "lawfully made under this title" (17 USC) and Omega had the sole right to import the design.
Come on, now. The obvious solution is to censor the publication of this article, so that the terrorists won't find out about the blind spots!
what is to stop an ISP from just doing things as SOP (flat-rate) and making hand over fist when all the streamers, gamers, downloaders jump ship of the ISPs bilking them from the new model?
Nothing, except that most of those people won't actually be able to jump ship, since, if they're lucky, they'll be choosing between two providers who both have pay-as-you-go plans. Your idea assumes people can easily switch to a new provider, which when it comes to high speed internet in the U.S. isn't generally the case.
Yeah, I also reassigned caps lock to escape... it's great for vi users..
I play the piano. Over the years, I have collected 15,000 piano scores in PDF form, covering about 400 years of classical keyboard works. It’s like lint in the drier of the Internet. Much of it is not available anywhere for purchase, or even findable in libraries for circulation. Max Reger’s arrangement for two pianos of Wagner’s overture, for instance? Well, the Max Reger Institute in Karlsruhe, Germany has a copy
At the Van Cliburn piano competition, a couple years ago, I gave tiny thumb drives to some of the winners and said, “Enjoy.” Each thumb drive was smaller than my pinky but contained was the whole 15 GB trove. It blew their minds. Basically, every significant piano piece is in the pile.
I don't know, maybe you can get an LCD screen and camera and associated circuitry, etc., for $20 in very large quantities, but that seems like an awfully low estimate. If you could, OLPC would sure like to know, huh? How much will it really cost, and how much will it add to basic models that lower income people may be buying? Will it be considered a device necessary to pass safety inspections, meaning if it breaks, you are obliged to repair it? Probably more costly to repair than replacing a taillight.
I'd think that stricter tests before allowing people to obtain licenses, along with periodic reevaluation of driving skills could do more to lessen accidents and injuries than throwing technology at one particular issue.
It is also worth noting that the CSS exemption only applies in three specific circumstances: " 1. Educational uses by college and university professors and by college and university film and media studies students; 2. Documentary filmmaking; 3. Noncommercial videos." This is in addition to the requirement the use be believed to be fair. The exemption isn't a blanket permission for a person to break CSS on DVDs he/she legally owns.
I always liked Asimov's Foundation series because the queen of the sciences in the future was "psychohistory," an awesome combination of political science, sociology, economics, statistics, etc.