Re: Copyright


"lenny fackler" <trux.royale@xxxxxxxxx> wrote in message
news:1125597133.061900.81640@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
>
> PTravel wrote:
> > "lenny fackler" <trux.royale@xxxxxxxxx> wrote in message
> > news:1125589397.182781.228290@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
> >
> >
> > > This point is interesting. Here's a theoretical example with more
> > > detail: I'm sharing a collection of music on a peer to peer network
> > > and at least some of the material can be distributed by me legally.
> > > The software that interfaces with the network allows users to set up a
> > > profile of themselves, where they can provide additional personal
> > > information if they wish. Using that profile I provide explicit
> > > instructions to other users not to download any file from my
collection
> > > that would be a violation of copyright law.
> > > Just in case someone doesn't check my profile I put a warning and
> > > instructions to download a text file as part of the folder name where
> > > the files are stored. Any users who download from me can see the
> > > folder name with this instruction. The text file repeats the message
> > > that users are not allowed to download anything from me which would
> > > violate copyright law.
> > > If I'm monitoring the software I can see what files are being
> > > downloaded. If I notice someone violating my policy I can end the
> > > transfer and ban that person from having access to my collection.
> > > However, most of the time I'm not near my computer and have no way to
> > > watch or control which of my files are being transferred. While I'm
> > > gone someone downloads a hot new single by the Black Eyed Peas (which
I
> > > duly purchased at Tower records and later copied to my hard drive) and
> > > I get sued by the RIAA. Have I given myself a shot at fighting the
> > > lawsuit?
> >
> > No. Did you make the files available to the P2P network? Yes? Then
you've
> > contributorily infringed.
> >
>
> But wait! You cut out your previous reply. I suggested a scenario
> where I invite a friend over to check out my cd's and provide either
> explicit or implicit instructions about what he can or cannot copy.
>
> I said:
> > > Or to complicate things, some of my collection is public domain and
> > > some is not. I tell him he can only copy what is not copyrighted.
>
> To which you replied:
> > Then you're not a contributory infringer. If he goes ahead and copies
the
> > protected works, then he is. BTW, all of this disregards, for the
moment,
> > the AHRA, which authorizes some kinds of copying of protected audio
works.
>
> How is this different from posting an electronic message tied to my p2p
> identity and the file location which tells users not to download any
> copyrighted material?

This is what I used to refer to in law school as an "international date
line" question, as in, "If the statute of limitations expires and I cross
the international date line, can I validly file my complaint from the other
side because it's now one day earlier?"

P2P file-sharing programs require that you "expose" specific directories
containing specific files to other people using the software. Putting up a
notice that says, "don't take the files that I've put in here where you can
take them," isn't going to cut it.


> > > A subpoena to obtain a name from an ISP makes sense. But was the IP
> > > adress obtained legally? This could be an angle of defense.
> >
> > Um, no, it couldn't. A subpoena duces tecum is, in effect, a court
order
> > requiring the recipient to produce documents. As long as the documents
are
> > reasonably calculated to lead to the production of admissible evidence,
and
> > the subpoena isn't issued to harass, the recipient has to produce them.
The
> > IP addresses were legally obtained.
>
> The RIAA hires people to monitor p2p activity and sniff out IP
> addresses of people they suspect of sharing certain files. Why
> shouldn't a warrant be required for this?

A warrant is a device which ensures that the government doesn't violate the
4th and 5th Amendments, both of which are limitations on _government_
action, not private action. No warrant is necessary because no government
action is involved.

> > Nope, I won't speculate about Canadian. I know nothing about it, and
I'm
> > not qualified to comment on it.
>
> But it's interesting.

It may be, but it is irrelevant to US law and something I know nothing
about. I'm not going to speculate, in ignorance, about the basis for a
Canadian decision that, in any event, has no application to US law.

> > Perhaps, perhaps not. I'm a lawyer, not a VP of Marketing. The
decision
> > whether to sue fans or not is a business decision. I can only comment
on
> > whether such a suit has legal viability -- it does.
>
> You asked why I think the RIAA is on the wrong side. I'm not trying to
> speak in terms of legality, just what I think is right.

Fair enough.

> > > I think copyright laws (applied to
> > > music) that restrict the cost-free distribution (sharing) of
electronic
> > > copies are too stringent and designed to protect the largest companies
> > > and within them only the profits from records that sell in the
> > > multi-millions.
> >
> > Copyright law, in its present form, has been around has been around
since
> > 1710 and the Statute of Anne. Clearly, it predates record companies.
>
> But the laws change, don't they?

Sure, when there's a good reason for it.

> For example, hasn't the length of
> time before a work becomes public domain increased substantially in the
> past few decades? Didn't the DMCA make substantial changes in
> copyright law?

It did, but there wasn't a good reason for the DMCA. I think the DMCA is
very bad law that was passed because Congress is primarily interested in
ensuring a steady flow of contributions from lobbyists. The DMCA is a prime
example of why you shouldn't change the law too often, and without an
extremely compelling reason.


> > > There is by no means consensus in the
> > > music industry that file sharing equates to a decrease in product
> > > sales.
> >
> > Yes, so? The right protected by copyright is the right to make copies,
not
> > the right to make as many sales as possible.
>
> I can see how an intellectual property lawyer would view it this way,
> but I don't believe that your clients pay you to protect an esoteric
> concept of 'copying' or 'property'.

You're right -- they don't. They pay me to protect their business
interests, but I can't do so if the law says, "this is an interest that
society does not protect." As I've explained, it is not a defense to
copyright infringement to say, "the plaintiff benefitted by virtue of my
infringement." I don't recall if I mentioned it in this thread, but you
won't find a movie version of Catcher in the Rye. The reason why is that
the Salinger estate (who owns the copyright) won't permit it. Now, a movie
version of what is arguably one of the greatest pieces of 20th century
American literature could create hundreds of millions of dollars of revenue,
a substantial portion of which would go to the estate. They don't want it,
though, which means that anyone who made such a film would incur substantial
liablity.

> They are trying to protect the
> profits they can generate from this property.

That's the business reason for suing. It's not the legal theory for the
suit.

> If p2p online trading
> proves to actually stimulate sales of product (maybe it does, maybe it
> doesn't) then what sense does it make to sue the people who make it
> possible?

Then go ahead and convince the copyright owner that you're correct. For all
I know you _are_ correct. Maybe they won't sue. However, it's still not a
defense to copyright infringement, and the court won't consider it in
determining whether you are liable.

> > How does it harm those who use the network legitimately? If you don't
> > download unauthorized copies of protected expression, you won't get junk
> > files. If you don't download unauthorized copies of protected
expression,
> > you won't get sued by the RIAA.
>
> The harm is caused by the overall degredation of the network. Fewer
> overall users and less available material, legal or not.

Oh, come on. You don't really believe that, do you? Your argument is:
Unless you allow illegal activity, then I can't conduct legal activity.

> Confusion
> exists because people don't know what they are allowed to share and
> what they are not, so they opt out entirely.

Do you really think most p2p users are confused about whether what they are
downloading is authorized or not? I'll give you points for a creative
argument, but it has no legal relevance because it ignores the fundamental
nature of the copy right.

> But in the end it's futile. There are several solid networks each with
> millions of users sharing billions of files crossing international
> boundaries. All being done with no profit motive and serving to
> stimulate interest and potential sales.

If you say so. I spend time on some of those networks. They don't seem to
exist for the purpose of stimulating potential sales. And they most
certainly do exist with a profit motive -- they save participants the cost
of having to pay for the music.

> Meanwhile in flea markets and
> street corners all over the world the real criminals are profiting by
> duping consumers into buying crappy bootleg copies of anything under
> the sun.

I'm not clear on what basis you differentiate between the street-corner
bootleg and the unauthorized distribution of protected material on a p2p
network. They both constitute infringement. If it's any consolation, the
real criminals, i.e. those importing the bootleg copies in quantity, are
prosecuted as criminals, not just civilly.

> Obviously, I'm not trying to make legal arguments with any of these
> statements. I think the law is wrong. I have an interest in art and
> music and would like to see the broadest range as possible disseminated
> as widely as possible.

Article I, Section 8 of the U.S. Constitution defines the purpose of
copyright, i.e. as an incentive to creation, granting to authors exclusive
rights in the expressive works. How do you square free and uncontrolled
distribution of expressive works with the underlying purpose of copyright?

> Electronic copies of music, mp3's or whatever
> format, increasingly cannot be viewed as product to be sold. Or at
> least the value is nominal. Maybe a tax on internet service to
> compensate record companies would be a better model.

Hey, I don't download unauthorized copies of music! Why should I pay an
internet tax? Most of the music that I like to listen to isn't available
on-line -- I buy my CDs.

This is the scheme that taxed DVD and CD blanks. I use CD blanks to store
my digital photos. I create my own videos which I burn to DVD. Why should
I pay a tax so that some kid can copy movies he rents at Blockbusters?
Sorry, I'm not interested in subsidizing the listening habits of p2p network
users. There is already a viable business model for distributing music to
those who want their music via the internet -- iTunes seems to fill that
need just fine.

>


.

Relevant Pages

  • Re: Copyright
    ... I'm sharing a collection of music on a peer to peer network ... >> that would be a violation of copyright law. ... addresses of people they suspect of sharing certain files. ... The point is to protect the intellectual property -- if the ...
    (misc.legal)
  • Re: Copyright
    ... >>> infringement. ... I'm sharing a collection of music on a peer to peer network ... instructions to other users not to download any file from my collection ... that would be a violation of copyright law. ...
    (misc.legal)
  • Re: Copyright
    ... I'm sharing a collection of music on a peer to peer network ... > instructions to other users not to download any file from my collection ... > that would be a violation of copyright law. ... > music) that restrict the cost-free distribution (sharing) of electronic ...
    (misc.legal)
  • Re: A very different Gaelic song
    ... 'advertising the singer' wouldn't hold much hope in a court of law. ... Canada operates under a unique legal judgement which resolves the ... up a nice handful of change at the expense of people who download ... legal in Canada, although uploading files is not, Canadian copyright ...
    (soc.culture.scottish)
  • Re: Whaddya Guys Think Of This?
    ... Actually you get into a very complex area of the law here,, ... Copyright does not protect facts, ideas, systems, or methods of operation, ... >>> Packages will be geared specifically to different regions and will ... >>> times simply trying to fill out the forms required to get assistance ...
    (alt.med.fibromyalgia)