RIAA impending lawsuits (1 Viewer)

[Rob Gardiner]

Jeff,

You're right, I misread your statement, even after quoting it. But the statement "Unlawfully {insert arbitrary activity here} is never legal" is redundant.



Here's some additional info relative to what has been discussed above, from EFF with my emphasis:

4. What's been recognized as fair use?
Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.

In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.)

Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:

Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, "ripping" an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)
Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.

5. Is Fair Use a Right or Merely a Defense?
Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.

 

[Steve Owen]

The RIAA is in no way attempting to relinquish fair use provisions by these lawsuits

There's absolutely no doubt in my mind that the RIAA (and MPAA) would LOVE to squish any and all "fair use" rights. The DMCA was a major step in that direction and there's more legislation pending. I'm not saying you're wrong in what you said, but there's no doubt that fair use is as much of a target as copyright infringement.

-Steve

 

[Ryan Wright]

Your analogy has NO MERIT.

I agree, Rob.

 

[Rob Gardiner]

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Steve,

When I burn a Metallica CD for a friend, or record it on tape, royalties are paid, are they not?

And even if they are not, does the copy I give to my friend have a significant effect on the potential market for the work? Or on the value of the work? Metallica routinely sells millions of copies. Does the copy I give to my friend mean that their album will only go double platinum instead of triple platinum?

And if the artist in question is not a multi-platinum overexposed superstar, then the distribution increases the potential market for the work rather than decreasing it. Please read Janis Ian's article linked to by another member a couple pages back.

 

[Rob Gardiner]

Here's some more support to back up my position:

From FindLaw:

com·mer·cial ( P ) Pronunciation Key (k-mûrshl)
adj.

* Of or relating to commerce: a commercial loan; a commercial attaché.

* Engaged in commerce: a commercial trucker.

* Involved in work that is intended for the mass market: a commercial artist.

* Of, relating to, or being goods, often unrefined, produced and distributed in large quantities for use by industry.

* Having profit as a chief aim: a commercial book, not a scholarly tome.

* Sponsored by an advertiser or supported by advertising: commercial television.

Edit for readability

 

[Carl Miller]

Technically and ethically, the law is no longer worth the paper it's printed on. Why? Billions of people are blatently ignoring copyright law. If a few break a law, they are criminals. If a large majority does so, then the law is wrong, and needs to be changed or removed alltogether.

Or the law needs to be enforced. Which is exactly what the RIAA is attempting to do. Even if they are going about it in the most half-assed way imaginable.

I do think that you're right in this case though. The music industry is pretending we're still living in 1979, when technology didn't permit what it does today. All you could to back then was dub a cassette..Something the music industry didn't like, but learned to live with because cassette sales boomed despite the ability to dub tapes.

But this is 2003...Technology is what it is. Sony the record label doesn't want anyone sharing a file or copying a disc. But Sony the electronics company is more than happy to sell you every tool imaginable to make copying or sharing easy.

The definition of fair use needs to change so that it is more realistic and in step with the times. It's absolutely ridiculous for the RIAA to say that you can't copy a CD and lend or give it to a friend on a CD-R when one of it's largest members and contributors (Sony) is making the equipment to make that possible..And profiting from it greatly in the process.

 

[Steve Owen]

And if the artist in question is not a multi-platinum overexposed superstar, then the distribution increases the potential market for the work rather than decreasing it. Please read Janis Ian's article linked to by another member a couple pages back.

I did read it. And for the most part, I agree.

Don't get me wrong here. I think we're basically on the same side. Do I download copyrighted works? You bet. It's how I find new music. Radio is useless, so I read the boards like this one, see what people with similar tastes are listening to, and I download it to see if I like it. If I like it, I'll buy it. Am I violating copyright law? Absolutely. I get to hear artists that are not well known instead of the few that the music industry wants to spoon feed to us.

My problem with your line of reasoning is that you're justifying your actions by saying "but it IS legal!" or when that breaks down, "OK, so if it's not legal, at least it's not significant".

Am I justified in violating the letter of copyright law? The RIAA might not think so, but I'm OK with myself. Do I make copies of CDs for my friends? Yes, with the hopes that maybe I might turn them onto some band that I like and that they'll go pick it up themselves. But I'm not going to claim that it's technically "fair use". In reading the letter of the law, I don't believe that it is. But ultimately, despite the RIAA's objections, I think I'm doing them more good than bad. So morally I'm OK with it.

The law has a tough time with judging "intent". Did I copy that latest Metallica CD for my friend so that they didn't have to buy it themselves or so I might let them listen to something they wouldn't have ordinarily heard? Since it's hard to show intent in cases like this, the law blankets both of those things together. It's copyright infringement either way.

-Steve

 

[Chris Maynard]

 

[Steve Owen]

Here's 17 U.S.C. section 1008 with the good parts highlighted:

All that says is that the copyright violation is not covered "under this title". It does not mean that other parts of the copyright law are now invalid and that you can go forth with any and all non-commercial copying.

-Steve

 

[Rob Gardiner]

Steve,

As far as I know, Music CD-Rs, DATs, and regular audio cassettes have royalties built into the purchase price. As always, please correct me if I'm wrong on this.

The law doesn't use the word "significant". You're justifying the action because the effect is small.

You said yourself that you give copies to your friends with the hope of turning them on to something that they wish to buy themselves. How can an outside party conclude that giving a copy to a friend will result in a lost sale rather than a gained one?

Besides, I think 17 USC 1008 quoted above, as well as comments by the former RIAA president, and Orrin Hatch (the most rabid copyright-nazi in the Senate) all support the idea that burning a CD for a friend is indeed legal.

 

[Ryan Wright]

Only on DAT's and special MUSIC CD-R's I think.

And cassette tapes.

 

[Jeff Ulmer]

And even if they are not, does the copy I give to my friend have a significant effect on the potential market for the work? Or on the value of the work?

Yes it does. It reduces the potential by one. You don't have much of an argument there. There is nothing fair use about this. Whether an artist is successful or not has no bearing on whether you are violating their rights.

Since it is apparent that the advice to actually read the laws is being ignored, I will end my part in the discussion here, but would close by saying that ignorance or blatent flaunting of the law is not a effective defence in court.

And Chris, I completely agree.

 

[Ryan Wright]

What uses, in particular, are fair? The answer is closely linked to First Amendment principles.

Critical commentary that employs part of the original — including, for example, book reviews, parodies, and satires — is one type of fair use. Another type of fair use is that which enhances the reader's experience of the original. Certainly, for instance, researchers' notecards that quote text verbatim make fair use of the text they quote.

Arguably within this latter type of fair use is a reader's choice to make a backup of an e-book so he can make sure not to lose it (the typical reason to back up computer files), or so she can transport the e-book from computer to computer to read it where she pleases (the modern equivalent of carrying around a paperback in your purse).

This choice is, of course, exactly what ElcomSoft's software enables when it disables the restrictions on Adobe's E-Book Reader. However, the software also, at the same time, enables copyright infringement in the form of the unauthorized copying and re-sale of a given e-book to other purchasers.

That means the software is a dual-use technology, susceptible to both infringing uses and fair uses. Other examples of dual-use technologies include the VCR and, as I argued in an earlier column, Napster's peer-to-peer file sharing.

Emphasis mine.

 

[Rob Gardiner]

I will end my part in the discussion here

This is the second time you've made this promise. I would not lose any sleep if you decided to keep it this time.

 

[Carl Miller]

No, sorry, that's not the way this sort of society is supposed to work. When the masses rebel, you cater to their wishes. You don't hand down consequences upon them all. That sort of action leads only to further rebellion and is how powerful governments fall. Either that, or the creation of a police state (where everyone except those in power are constantly in violation of some unjust law. If the vast majority of people disagree with a law, it is unjust.).

If the masses are violating the law, you don't just let them do it. 55% of America is driving 85mph on the highway, so let's just raise the speed limit to 85 and let the blood flow because the masses say it's ok?

If the majority of the people disagree with a law that prohibits rioting, does that make it an unjust law?

It doesn't work that way. This country is not ruled by the masses or the majority, and just because "everyone" is doing it doesn't make it right, legal or justifiable.

You're describing a country under mob rule, not America.

 

[Chris Lockwood]

> As far as I know, Music CD-Rs, DATs, and regular audio cassettes have royalties built into the purchase price

How do they decide how to distribute those royalties? (semi-rhetorical question) They can't possibly know which works are going to be copied (not to mention that not all of those units will be used to record someone else's work).

 

[Thomas Newton]

If the masses are violating the law, you don't just let them do it. 55% of America is driving 85mph on the highway, so let's just raise the speed limit to 85 and let the blood flow because the masses say it's ok?

Speed limits are often about protecting life and limb. That makes them different from copyright, which regulates speech (in the broad sense).

Copyright's mechanism is Government-enforced censorship and monopoly. Those things are directly at odds with American values of free speech and free markets. The subject of copyright is stuff that "cannot, in nature, be the subject of property", so it's not there to protect property rights, either.

The Constitution permits copyright for the same reason that doctors give measured doses of poison to some patients. Controlled doses, readjusted as conditions merit, may be beneficial. That doesn't mean that if limited copyright is good, the *AA wish list must be better. (Ask the patient who gulped down the whole contents of the medicine bottle how well that turned out ... oh wait, you can't!)

It's entirely appropriate for the public to ask Congress to change copyright to protect the public interest. That is, after all, what members who took the oath of office swore to uphold and defend.

 

[Thomas Newton]

I'm not familiar with the concept of a tainted copy. If I tape off the radio, am I obligated to ensure that the radio station is a licensed broadcaster? And if they are not, would my home taping then tainted, based on the illegal actions of the broadcaster? I have honestly never considered this.

Radio stations are licensed, the FCC actively hunts down rogue transmitters, and the music industry can find out where all the radio stations live. So it's a pretty safe bet that any domestic broadcaster is a legal broadcaster. Unless the guy comes on and says, "Arrrr, matey -- this is pirate radio, broadcasting from 30 miles offshore", I'd guess that a court would not expect you to suspect anything.

By constrast, it's a pretty safe bet that anyone offering major-label MP3s on a P2P network is NOT an authorized distributor. It would be a miracle to find a legal distributor, so the courts would be much, much more likely to say "you should have known."

 

[Karl_Luph]

I guess I'll ask the question again, does anyone know when the summons are going to be going out to the guilty parties and how many years of confinement should we expect? Certainly this will fill up the federal facilities correct?

 

[Carl Miller]

It's entirely appropriate for the public to ask Congress to change copyright to protect the public interest. That is, after all, what members who took the oath of office swore to uphold and defend.

Yes, the law exists to protect the rights of the individual, and through that it protects the public interest. Except in this case, you have no right to appropriate the property of someone else whether that is physical property or intellectual property.

If you want to use the property, pay for it. You have every right to pay for it, and every right to choose not to thanks to the very American free market that exists in this country.