Kazaa sues movie and music industries (1 Viewer)

[TyC]

http://msn.com.com/2100-1106-982344.html

The "legal consequences" Sharman is seeking are potentially severe. Sharman is asking the judge to declare the copyright holders guilty of antitrust and related violations, and to bar them from enforcing any of their copyrights.

I sincerely doubt that they will win, but I think it should be interesting to observe.

 

[Glenn Overholt]

Agreed. I do hope that they have at least one more ace up their sleeve. I would have sued the RIAA too.

Never been on their site, but they could charge for legal copies, but I thought that they ran peer to peer, which would mean that they really couldn't stop any illegal distribution of anything, and it would be up to the studios to persue their own movies.

I think that would be the best solution. Since there are just a few of the major record labels, (and not too many more studios) it should be up to them to police their own problems.

After all, if you put Mickey Mouse up on your website, the feds won't be beating down your door, Disney will.

Glenn

 

[Joe McKeown]

What I fail to understand is how in one court they can be convicted of pricefixing, while in the next they're hammering about copyright protections. Either they want laws or they don't.

I feel music piracy in particular is a case of two wrongs not making a right; but no one in the DRM camps will acknowledge that there are two wrongs being perpretrated here.

A big concern I have is that there is nothing being done to enable my leagal uses of copyrighted material. Wheras they are so bent on preventing other's illegal use that they are willing to curtail my legal access. Why is that acceptable?

 

[Jeff Ulmer]

Price fixing and copyrights have nothing to do with one another, and just because the labels have been convicted of one does not mean that their other rights are thrown aside.

A very large part of the problem is that the vast majority of people do not know what they are really legally entitled to, and make extrapolations with no basis in law for determining what they can and can not do with music or movie software.

Fair use is not a right to copy, it is an exclusion from prosecution for copying, based on a set of weighted parameters. The AHRA allows specific uses of material, but again these are misrepresented most of the time, and in some cases don't have case law to back them up.

If the myths about usage "rights" were actually made clear, the legality of various common practices on the net would be much clearer.

 

[Ryan Wright]

Fair use is not a right to copy, it is an exclusion from prosecution for copying, based on a set of weighted parameters.

Here's my take: I don't give a damn what the law says. If I buy a CD, I'm going to copy it to my computer whether it's legal or not. Likewise for DVDs, just as soon as I have enough disk space to archive my collection. If a time comes where people are knocking down my door to arrest me for this, I will simply stop buying media. I don't share my files with the world, they're for the personal use of myself and my family. I like being able to access every song I own from a touchscreen in my living room. If this makes me a criminal, then the appropriate systems of government need to be torn down and rebuilt.

In fact, I've already stopped buying some media. I've only bought one CD in the last several years (the motion picture industry hasn't been so aggressive in attacking it's customers as the music industry has - when they do, I'll stop buying movies, too). I couldn't tell you which groups are popular today: I quit caring when Napster was shut down. About that time I also quit listening to the radio and instead scour the net for legally free music, or listen to Internet radio stations that offer good music beyond the industry sponsered bullshit that is broadcast today. It's not right that a single corporation owns 90% of the radio stations in my market and gets to dictate what the people hear.

Of course, they're doing their part to shut down Internet radio, too, because that means they lose their stranglehold on the music. Insane fees have put countless webcasters out of business. Internet radio stations should be treated no differently than other radio stations, yet they're being forced to pay a fee per listener. Imagine if your typical big radio station had to pay by the listener. They'd go out of business - just like many webcasters are today.

A hundred years ago people made music for the love of music. There weren't millions of dollars to be had, there was just the music. I hope the current system falls apart soon and we revert back to what once was. Unfortunately, I feel we're moving further away from that and closer to a police state in regards to copyright law. Something has to give.

 

[Joe McKeown]

Ryan, perfect example about the hard drive; so long as you don't share your archive there should be no problem, Right? However that copy-protection scheme out there prevents disks from playing on PC's. So now, not only are they attempting to prevent you from archiving the songs on your harddrive, they are trying to prevent you from even playing the disk itself on a PC. Regardless of if the "jukebox" you describe is OK, simply playing a disk on a PC is legit. This copy-protection scheme prevents legitmite playback in computers. (And please, no one reply with the description of the workaround for this -- Forum rules)

 

[Jeff Ulmer]

Here's my take: I don't give a damn what the law says.

This is exactly why the copy protection measures will get stronger and more intrusive. You are not alone, but you also aren't abiding the law. If your "rights" start to diminish, you have no one bu yourself to blame.

 

[Ryan Wright]

This is exactly why the copy protection measures will get stronger and more intrusive. You are not alone, but you also aren't abiding the law. If your "rights" start to diminish, you have no one bu yourself to blame.

I abided by the law until the law (or rather, the enforcement of the law) became unrealistic. Nobody ever raised a stink about copying CDs to cassette tape back when in-car CD players cost a fortune. I did this all the time. When MP3 technology first came out, plenty of people copied their CD collections to their computers. Again, nobody raised a stink. Did this copying hurt the industry? Absolutely not. By contrast, without the ability to do this, I never would have bought their products.

Now that they're taking away the ability to do this, a lot of people aren't buying their products. Profits are way down and they seem to think piracy is to blame. They're deluded. The problem is not piracy, it's overpriced media and insane restrictions. My entire CD budget was shifted to DVD when they came out. Whether true or not, most people perceive a DVD as a better value, and the fact that they're priced the same as (sometimes lower than) CDs just reinforces the fact that CDs are overpriced. And now that we're unable to play many discs in PCs (and many standalone players), what do you expect people to do? They quit buying the product.

Peer to peer file sharing services have thrown this issue into the playing field. This is a real threat to the industry's business model, and rightly so. P2P and the Internet in general give power back to the people. It's like the pirate radio stations of the 80s - we're no longer limited to the trash put out by the industry, and we're happy about it. At least, most of us are.

Back to having no one but myself to blame - on the contrary, I have the industry (and the people who are trading the music via P2P) to blame. What I do in the privacy of my own home is nobody else's concern insomuch as it does not hurt others. My MP3 archive has absolutely nothing to do with the diminishment of my rights.

 

[Jeff Ulmer]

Again, you are not comprehending the nature of the fair use and AHRA provisions. Neither grant you any right to copy material. Both provide freedom from prosecution under specific terms for copyright infringement. There is a difference.

See: http://www4.law.cornell.edu/uscode/17/index.html for the copyright law.

As for recording to hard drive, according to article 5Bii of the AHRA, computers are not in the definition of a digital recording device, and are therefore not subject to any provisions of the AHRA. (http://www.virtualrecordings.com/ahra.htm) Rio challeneged this, but as yet there is no legislation AFAIK that includes computers in the definitions covered by the AHRA.

 

[Thomas Newton]

Fair use is not a right to copy, it is an exclusion from prosecution for copying, based on a set of weighted parameters.

Let's provide a little more context, shall we?

1. The public holds all rights to published works that Congress does not explicitly give away.

2. Congress can only give the bundles of rights that constitute copyrights for "limited Times", as a means towards a public purpose, and with further constraints imposed by other parts of the Constitution (the First Amendment).

3. Fair Use is by definition not copyright infringement. (See the text of the copyright law.) The "exclusion from prosecution for copying" is based on the fact that Fair Use copying is neither immoral or illegal. ("Exclusion from prosecution for copying" sounds much worse than the short, accurate "lawful copying".)

4. The right to engage in activities that constitute Fair Use is by definition a right that was never given away to copyright holders in the first place.

So in a narrow sense, Fair Use (a term denoting a specific section of the copyright laws) is not a right. It is merely an affirmation of the Government's unwillingness (or Constitutionally-grounded inability) to take away rights that the public already has.

In the same sense, the First Amendment does not grant you any rights to freedom of speech, freedom of the press, freedom of religion, or freedom of assembly. These are rights that the public already has, rights that no Government has a right to take away.

 

[Ryan Wright]

Neither grant you any right to copy material.

Again -- and this seems to be lost on most people -- I don't need a law to tell me what my rights are. The fact that no specific right is granted to me under U.S. law does not mean I don't have that right, nor does it mean I cannot perform the activity. To take that one step further, the fact that a law exists does not mean I am obligated to adhere to it. An intelligent society does not follow the letter of the law, but rather chooses for themselves what is right and what isn't. Afterall, law (and government) is supposed to be for the benefit of the population as a whole.

Now let's not drag this out to extremes; the first person who compares me to a murderer or a rapist or otherwise insinuates I've claimed mass chaos is OK is going to get slapped on my ignore list. Choosing to disobey flawed laws does not mean this person would like to break them all and in doing so harm others. However, the public has an obligation to stand up against unjust laws, and one method of doing so is refusing to abide by them. Granted, potential consequences have to be taken into account, but in my case (copying CDs to my computer for personal use) those consequences are nil. I pity the poor fool who attempts to prosecute anyone for doing so.

I hope I have provided at least a little more clarity into my line of thinking here.

 

[Jeff Ulmer]

considering the debate about what the law really means

I don't know that there is much debate on what the law means, but there is certainly a lot of complexity in defining what does and does not constitute fair use, which is where a lot of the arguments over format shifting and sharing come into play.

The law is very clear about what rights are protected under copyright, and what damages can be assessed for various infringements, both criminal and civil. There is no black and white when it comes to fair use, as each individual case has to be judged on its own merits and circumstances.

It is clear that file sharing material protected by copyright is illegal, and case law backs this up, and while private, personal use may be covered by fair use, what many people fail to realise is that obtaining the material, even if it is owned in another format, is not the same under law as making your own personal copy, even if the end result is the same.

I don't agree that assessing damages is impossible, difficult perhaps, but not impossible. A simple way is by determining how many copies of a given work were diseminated illegally, and afixing a mechanical royalty rate to each transfer as is done when legally replicating a product. The end use is immaterial, only the number of impressions made. The law limits this, however, to a maximum award per instance, with provision for repeated offences.

Kazaa doesn't stand much of a chance with its arguments, but it will be interesting to see how the case proceeds.

 

[Glenn Overholt]

Jeff, Wasn't the price of CD-R/RW raised to provide royalties to musicians? They knew what we were going to do with them, and covered their butts from the get-go.

Glenn

 

[Jeff Ulmer]

Wasn't the price of CD-R/RW raised to provide royalties to musicians?

Technically, no. The levy was put in place to compensate copyright holders - lyricists, composers and publishers for mechanical royalties. Unless the musician falls into one of those categories, they don't qualify.

The record industry isn't stupid, they know full well that whatever the law says, people will take what they can without paying. That isn't to say there aren't legitimate uses, but I don't think it can be argued that the crux of the whole file sharing situation is mass unauthorised distribution and aquisition of people's work.

However, like most things in big business, the distribution of collected royalties will be limited to the top eschelon of the industry, regardless of how widespread illegal copying is. Just like the performance royalty distribution system, it is geared to the big money makers, to the virtual exclusion of everyone else.

 

[Thomas Newton]

The price of all consumer digital audio recorders and all blank media for such recorders includes a royalty tax. Computers and professional digital audio recorders are exempt from the tax and the associated SCMS copy protection.

Thus MiniDiscs and CDs sold as "music" CDs are taxed. CDs sold as "data" CDs aren't. Computers can record on either type of CD, but home stereo CD burners will only record on the taxed ones.

 

[Ryan Wright]

The price of all consumer digital audio recorders and all blank media for such recorders includes a royalty tax.

And in my opinion - I know, the law doesn't agree - that gives buyers of this taxed media the right to pirate. Afterall, they've already paid for it. Might as well get the benefits.

The joke of it is that very few of these taxed CDRs are really being used to pirate music. They're being used by budding musicians, or people making compilation CDs for use in their cars. So millions of people are paying extra for their media and being falsly accused of piracy at the same time.

Giving the industry a cut of the sales of blank media to offset piracy only legitimizes it in my mind.

EDIT: Oh, and one more thing. Software is pirated just as often as music on the Internet. Microsoft software in particular is available everywhere. If I wanted a copy of XP, I could download it from Kazaa right now. But guess what? Microsoft has done just fine in spite of this. They're worth billions. Has the piracy cost them something? Sure - can't say how much, but there's no doubt it has cost them some large amount of money. Do you see Microsoft running to the federal government, bitching and moaning and demanding new laws and new taxes on CDR drives and broadband Internet connections? No? How about other software companies - are they doing this? No?

Then why is it that a huge, huge industry - many times bigger than Microsoft and thus more capable of sustaining losses - has to resort to these tactics? Hmmm?

And this isn't new. The motion picture industry fought the VCR bitterly. They claimed it would be the end of civilization as we know it. And was it? Of course not. The VCR opened up highly profitable sales channels for the industry. MP3s and online file sharing could do the same, if only the recording industry would adapt. Of course, their solution is a service where you pay every time you listen to a song. And if you ever cancel your $10 per month membership, every song you've bought from them in the past instantly expires and is no longer accessible. Funny how I don't see people beating a path to their door... I thought for sure consumers liked to be ripped off.

 

[Glenn Overholt]

That's why I'm hoping they have something new to feed the court, so to speak.

While reading the last two posts I thought of how I used to record songs right off of the air - and it was mine to listen to over and over again, just like VHS tapes later with movies on TV. Taking it off of a site today is just the technology making its presence known.

The data vrs. music/movie brings up more points too. I know that Australia had a court ruling for the data/on DVD's and rentals there.

And last but not least, (Just to confuse everybody even more) you go to see TTT. You pay $8.50 (or whatever) to see it one time, and one time only, yet we don't have self-distructing DVD's that come out on the market 6 months later. Hoy can they explain that one away?

Glenn

 

[Jeff Ulmer]

Then why is it that a huge, huge industry - many times bigger than Microsoft and thus more capable of sustaining losses - has to resort to these tactics?

Excuse me? Microsoft is number 17 on Forbes' list of the top 500 companies in America, its market value is number 2 at over $300 billion, and profits of over $6 billion in 2002. I couldn't find a single record company on that list, no Sony, no Universal, including the parent companies, not even Vivendi or Seagrams. The record inductry is no where near the leagues of Microsoft, especially one company.

Sony's (worldwide) 2002 annual report lists only $115 million in net earnings - that includes every subsiduary, including music, film and electronics.

 

[Joe McKeown]

And in my opinion - I know, the law doesn't agree - that gives buyers of this taxed media the right to pirate. Afterall, they've already paid for it. Might as well get the benefits.

Interesting piece of logic. I wonder how the numbers work out. how much royalty is there on a "music cd-r"? how much royalty is there on a pre-recorded CD?

Here's another thought, I had a package of CD-R's I had made stolen from my car. They were copies of music I had at home. I considered the loss nothing. I even told the police the value was less than $10 including the case "because I could always re-burn them." Now those copies were fair for me to make, but is the little bastard who stole them in trouble with the RIAA too? Could they claim a loss of say $250 because they were denied a legitimate sale of the disks in my collection?

 

[Chris Derby]

Ryan, you've summed up my feelings on this subject perfectly...

Jeff, i'm impressed with your interpretation and understanding of the laws surrounding this issue. however, it is quite obvious that media companies (especially the music industry) need to "get with the times" and quit trying to apply "old thinking" to new technologies.