Not legal to copy cds to your computer? [Archive]

allenhopkins

Jan-01-2008, 1:08pm

The music industry sometimes reminds me of the legendary King Canute, standing on the beach trying to assert his royal power against the oncoming tide. #If I purchase a book, make a copy of one of the pages and send it in a letter to a friend of mine, am I violating the law? #If I purchase a CD, copy one of the cuts and attach it to an e-mail to the same friend, am I violating the law? #Does it make a difference if the song is "public domain" or not? #If I go on YouTube, and I find a video of a musician playing a song that's under copyright, should I inquire if that musician has paid royalties to the songwriter? #Would YouTube pull a video of me singing Blowing In the Wind if I hadn't paid Bob Dylan and his publishing company broadcast royalties? #(By the way, I love the name "royalties": doesn't it seem to suggest a monarchist past?)

Technology moves very fast, and the law struggles to keep up. #Once you put your music out there in recorded or broadcast form, many things can happen to it. #If you can keep others from making money by duplicating and circulating it, without paying you the compensation you deserve, that's one thing –– and a necessary and positive thing too. #But I think you're emulating Canute when you try to keep anyone from copying it from one format to another, sharing it with friends, etc. #People buy CD's, and presumably the artist, songwriter, publisher and manufacturer each gets what he/she has coming. #But people want to put the album into their iPods, burn a compilation CD, load music into their laptops to enjoy on the airplane, etc. etc., and whatever the music trade thinks, there aren't enough enforcement resources in the country to prevent them.

Just my 2¢.

Jan-02-2008, 7:58am

<< If I go on YouTube, and I find a video of a musician playing a song that's under copyright, should I inquire if that musician has paid royalties to the songwriter? >>

That would certainly be a nice thing to do. You would inquire with the copyright owner, not the person who posted the video.

<< Would YouTube pull a video of me singing Blowing In the Wind if I hadn't paid Bob Dylan and his publishing company broadcast royalties? >>

In a heartbeat. Dylan most likely has "people" who take care of that stuff for him and they are almost certainly registered with youtube's Content Verification Program. Youtube will pull your video as soon as the infringement is reported.

youtube copyright infringement rules (http://www.youtube.com/t/dmca_policy)

Jan-02-2008, 8:05am

<< But, making a backup or archival copy, or converting to another form for my own use, is just part of my use of the product for my own personal benefit. >>

Nope, not true.

Straight from the US Copyright Office:

Can I backup my computer software?
Yes, under certain conditions as provided by section 117 of the Copyright Act. Although the precise term used under section 117 is “archival” copy, not “backup” copy, these terms today are used interchangeably. This privilege extends only to computer programs and not to other types of works.

Under section 117, you or someone you authorize may make a copy of an original computer program if:

the new copy is being made for archival (i.e., backup) purposes only;
you are the legal owner of the copy; and
any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.
You are not permitted under section 117 to make a backup copy of other material on a computer's hard drive, such as other copyrighted works that have been downloaded (e.g., music, films).

It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy. There is no other provision in the Copyright Act that specifically authorizes the making of backup copies of works other than computer programs even if those works are distributed as digital copies.

AlanN

Jan-02-2008, 8:13am

So, under the letter of the law, if I do this:

Buy a CD from Border's Books and rip that CD onto my computer to listen to it, I must do this:

Remove it from my hard drive prior to doing a full C:\ backup.

Gee http://www.mandolincafe.net/iB_html/non-cgi/emoticons/blues.gif

Or maybe I cannot even do the rip, under the letter of the law. The only place I can enjoy that CD is if I insert it into a player.

That's it, I'm giving up music.

first string

Jan-02-2008, 8:59am

It seems there are two different arguments going on here, though they certainly connect. That is, what is legal vs what is right. As I'm sure we all know, they aren't always the same thing. On the whole I'm inclined to agree with Allen. Copyright laws were intended to keep individuals from unfairly profiting off of the work of others. I can understand the recording industry doing their best to fend off file sharing (though suing a parent for thousands upon thousands of dollars because their child illegally downloaded a few tracks without their knowledge, is crossing a line in my opinion), but this stuff about preventing people from ripping their own CDs for their own use, or posting a video of a cover on YouTube, or whatever, seems over the top. Aside from which it will probably prove to be a losing battle. Even if the courts and lawmakers continue to pay more attention to what big industries like RIAA want rather than what is just (it's sad, but we live in a country where the courts have held that you can copyright organisms, so I have little faith that they will rule in the favor of the public on this issue either), the advances in the technology will continue to favor consumers, and the behaviors that RIAA objects to will continue on a scale such that policing them will be impossible.

swampstomper

Jan-02-2008, 9:18am

Neptune,

Thank you for taking the trouble to quote the source. Wow is this depressing. I do think that if this would be challenged, personal privacy might enter in. After all, not every law passed is constitutional. I am not a lawyer, have never played one on TV, so will just hunker down and enjoy my legally-purchased music on my computer (ripped), iPod (transferred), as well as the original CD, and hope Scott would shop me to the feds :-)

JimD

Jan-02-2008, 9:40am

The part that really ticks me off is that the argument is always framed as the rights of the RIAA (and or record labels) vs. the rights of the public.

No one seems too concerned about the rights of the artists and composers.

rohan

Jan-02-2008, 9:58am

Yea, like everyone backs up their hard disk. Continue breathing. I like the phrase "original copy". Either it's an orginonal or a copy, not both. I'd be interested in the defininiton of a "program" and "data" too. There both one's and zero's. When these laws were created the primary concern was the copying of Bill's software and other execuitable code. But, since the inception of magnetic tape/wire and the radio, the issue of illegal use of "original" material has been an issue. I see no end to this problem until the meaning of "Fair Use" is determined and accepted by the general public and the publishers. Creating laws that are routinely broken only breeds comtempt for the law and the system(s) that create/enforce it. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/wink.gif

swampstomper

Jan-02-2008, 10:56am

JimD, I am *very* concerned about the rights of the artists and composers. I buy direct if possible (e.g. from Acoustic Disc on line, or from the artists at a concert). I want to see artists make a living. I do not share. But it seems to me that I have consumer rights also. And.... sometimes the law is protecting "rights" that are not really due to the creative effort, the first person who copyrighted a traditional song, for example. The law enforces a power structure -- it is a tool of the "haves". In a "fair" society the "haves" get their "possessions" by morally justifiable means and the law just protects equality of opportunity. But don't confuse the law as it is written with what's "right".

JimD

Jan-02-2008, 11:06am

JimD, I am *very* concerned about the rights of the artists and composers. I buy direct if possible (e.g. from Acoustic Disc on line, or from the artists at a concert). #I want to see artists make a living. I do not share. But it seems to me that I have consumer rights also. And.... sometimes the law is protecting "rights" that are not really due to the creative effort, the first person who copyrighted a traditional song, for example. The law enforces a power structure -- it is a tool of the "haves". #In a "fair" society the "haves" get their "possessions" by morally justifiable means and the law just protects equality of opportunity. #But don't confuse the law as it is written with what's "right".
Don't get me started on the "haves and have-nots".

I have stated a number of times that I am no friend of the RIAA.

It always seems though that everyone else's rights trump those of the creative people.

and please keep that BS about the copyrighting of traditional songs out of the discourse -- it only serves to confuse matters.

steve in tampa

Jan-02-2008, 11:14am

I hope they don't find out about that crate full of cassette tapes in my shed. : 0

Jan-02-2008, 11:18am

None of this is new. Nor is it unique to the computer age.

Back a few years ago it was a common practice to purchase a new LP (yup, those vinyl ones), record the LP to reel-to-reel tape, and play the tape instead of the LP in order to avoid wearing out the vinyl. Though this was a very common practice it was NEVER legal. A few years later we were recording to cassette tape. BUT, now we were making an extra copy of the tape to play on our car stereos. This was NEVER legal. Some people even gave cassette copies of their LPs to their friends. This was also NOT legal.

So why didn't anybody get sued for making these copies? Because we weren't STUPID enough to tell anyone, especially not the copyright owners whose rights we were violating, that we were doing it!

So if your personal beliefs allow you to rip your CD and play it from your computer and your mp3 player you will be just fine unless somebody finds out what you are doing. The only person who can rat on you is YOU. If you give someone a bootleg copy of your CD now there are two people who can rat on you. If you put those MP3s on the web for just anyone to share one of those "anyones" will almost surely be someone you didn't want to tell.

arbarnhart

Jan-02-2008, 12:16pm

There is another angle to this that I do understand their concern about, but I think they are going about trying to solve it the wrong way. There are a lot of people buying and selling "like new" used CDs on eBay and elsewhere. I would be willing to bet a lot of the slightly used CDs got their "slight use" being ripped on a computer and the music is till being listened to by the seller. I have had people offer to loan me CDs they have already downloaded to an MP3 player.

Jan-02-2008, 2:55pm

The upshot of this whole situation is sooner or later there won't be any more CDs. No reason to waste a lot of money on all that equipment just to lose money and the big companies will simply stop doing it.

You will buy your music in digital format and it will be keyed to your playback device. You will be able to back up your music but it won't play on any other device than the one to which it is keyed. It is even possible that your license to play the music will be of a limited-time or limited-number-of-replays nature.

This technology has been available for a while now but the industry has avoided using it due to market resistance.

JEStanek

Jan-02-2008, 4:25pm

"It is even possible that your license to play the music will be of a limited-time or limited-number-of-replays nature." Just like Disney preventing DVD copies from being made...

People will always figure out ways around technological blocks - right or wrong... I rather like CDs for the inserts. I could do without the jewel cases, though.

Jamie

cooper4205

Jan-02-2008, 4:44pm

The Old Sarge

Jan-02-2008, 5:44pm

It is even possible that your license to play the music will be of a limited-time or limited-number-of-replays nature.
I think that would be another example of the industry shooting itself in the foot. Too, if you could only use archived music on the original system it came from, how would one go about listen to the music in the car or other places away from the PC?
I seem to remember that there was a company a few years ago in the DVD "rental" business by mail. The DVD they sent would "expire" in a set time after you opened it. So you didn't return it. I don't remember anything about them beyond their original announcement of this "revolutionary technology". Funny thing, the more they try to protect things, the more effort people make to defeat the schemes. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/smile.gif

entau

Jan-02-2008, 6:06pm

Quote "That's it, I'm giving up music. " AlanN

ah but at least the thought police can't fine us for playing a tune on the 8 string in our kitchens - or humming it in our heads

or can they ?

I'm glad happy birthday is in the public domian

mandolirius

Jan-02-2008, 6:15pm

<ah but at least the thought police can't fine us for playing a tune on the 8 string in our kitchens - or humming it in our heads
or can they?>

depends on whether it's "bluegrass" or not. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif

mario515

Jan-02-2008, 7:31pm

Heres one for you, I was recently given a copy of a rather well known musician and I enjoyed it very much thank you. I went to this artists website for info about upcoming shows that may be in my area. While I was there surfing around I saw a plea for not copying or distributing copies of the new cd. I felt bad. I struggled with it for a moment then procedeed to where he might be playing and lo and behold he s' playing in my area. So here's my chance to come through for one of my favorite artists right? WRONGO,, tickets were 150 a piece so for me and my wife thats 300 bucks and I havent even bought a drink yet. I'm not too sure where I'm going with this but after that all I can say is,, whatever,,,smoke em if you got em http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mandosmiley.gif

JimD

Jan-02-2008, 7:35pm

Heres one for you, I was recently given a copy of a rather well known musician and I enjoyed it very much thank you. I went to this artists website for info about upcoming shows that may be in my area. While I was there surfing around I saw a plea for not copying or distributing copies of the new cd. I felt bad. I struggled with it for a moment then procedeed to where he might be playing and lo and behold he s' playing in my area. So here's my chance to come through for one of my favorite artists right? WRONGO,, tickets were 150 a piece so for me and my wife thats 300 bucks and I havent even bought a drink yet. I'm not too sure where I'm going with this but after that all I can say is,, whatever,,,smoke em if you got em # # # http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mandosmiley.gif
Maybe the ticket prices wouldn't be so high if he was able to earn anything from selling recordings.

JeffD

Jan-02-2008, 7:43pm

People will always figure out ways around technological blocks - right or wrong...
Like they say, locks are for honest people, the dishonest will always figure out a way around.

That doesn't mean we give up on the idea of property, or locks.

Avi Ziv

Jan-02-2008, 7:47pm

JeffD

Jan-02-2008, 7:48pm

ah but at least the thought police can't fine us for playing a tune on the 8 string in our kitchens - or humming it in our heads

or can they ?

I'm glad happy birthday #is in the public domian
Nahh they can't, unless you try to make money off of someone elses song.

And I think I read that the rights to happy birthday expire in 2030.

JimD

Jan-02-2008, 7:55pm

Jim - I read a piece on the music business some time ago. They said that for certain "major acts", the recordings are now the means to promote the concerts. That's where the money is for some of the big rock acts, at least. Of course this does not apply to the rest of the music world. Still, the trend was interesting. it used to be that concerts were put on to promote the sales of records.

Avi
Much of the rest of the music world finds themselves (ourselves) trying to count on various different streams of income (including recordings) as part of their livelihood.

The costs of touring eat away at the profits. We can't afford to be "giving away" recordings as well.

mario515

Jan-02-2008, 9:19pm

Maybe the ticket prices wouldn't be so high if he was able to earn anything from selling recordings.

--------------
Jim Dalton
Somehow I think there is more in play here rather than the artists ability to make a living off of cd sales. perhaps the cost of a gallon of milk or a loaf of bread has more to do with it. I dont fault the artist for asking that kind of money for a show. Most of us are quite happy and grateful with our open mic nites and friday/saturday night gigs(as long as we dont do any covers,,,ASCAP you know?)Do you realize that if you cant transfer your tunes to your 80 gb ipod and you just bought movies and songs from itunes, that your ipod would probably have over $10,000 worth of "stuff" I didn't create this beast I'm just riding on it. As Captain Jack Sparrow(which is on my ipod) would say "what says you matey http://www.mandolincafe.net/iB_html/non-cgi/emoticons/laugh.gif

buddyellis

Jan-02-2008, 9:45pm

If I, as the media companies want to have it, am only buying a license to listen to the media, then when/if the media gets damaged, I should be able to get a replacement. Call up EMI and see how well that works next time your 3 year old scratches a brand new CD.

Salty Dog

Jan-02-2008, 11:21pm

I am quite sure that the courts ruled during the LP vs tape era that "personal use" copies were ok, which freed the copyright purchase from format (this is from memory, which isn't so good these days and I am not a lawyer). #Civil courts deal with money, so one must ask who I am depriving of income when I copy my legitimately purchased CD to my computer so that I can copy it to my MP3 player so that I can enjoy my legitimately purchased music while I take my daily walk, since my legimately purchased music isn't available in MP3 format?

Ivan Kelsall

Jan-03-2008, 1:43am

Ultimately,this all come down to $$$$$$'s. I think that unless a person is making profit out of another person's work ie.music,in which case he is defrauding that person of a financial reward,he should be allowed to do anything at all with his purchased CD's etc. I copy CD's on my PC for use in my wife's car,i do NOT copy CD's for use by other people & i make no money by copying CD's. As for iPods,the companies selling the
music tracks for download from the Internet,know only too well where the vast majority will end up,on the tens (if not hundreds) of millions of portable music devices being sold by other companies. Who is to blame for all this proliferation ??,the music companies themselves who agree to SELL the music on-line for download. Are these companies now saying that the 'copying' of these music tracks are now illegal ?. Unless you COPY the tracks,how can you get them onto an iPod or anything else ?!.
IMHO,the whole argument is fraught with contradictions. It would be easier to monitor
if the RIAA & similar authorities simply monitored PROFITEERING, ie.is some one making money in an un-authorised way or not ?. If they are,take action against them,if not,then they should be left alone.
All told,it's just greed showing it's ugly head in yet another way,almost similar to that which treatened to wipe out some of the On-Line radio stations. I'd better stop here, i feel a real RANT coming on !!!,
Saska

JimD

Jan-03-2008, 6:31am

Some of you really need to read the original article a bit more carefully.

The fact is that the guy is being sued for illegal file sharing -- not for personal copies made for different media.

The writer of the original article has deliberately written it in such a way as to give the wrong impression. Frankly, it isn't good journalism at all -- to put it mildly. It is a blatant attempt to mislead.

Evidently, it worked.

JEStanek

Jan-03-2008, 6:53am

Mario,
If you really like the CD you were given a copy of buy a copy of it. I won't afford a $150 show either. Honestly, if someone is playing a venue and commanding (rightly so it would seem) $150 a head, I'm guessing they're not starving artists. I agree that artists should get paid for their work.

What about a family computer that has purchased CDs ripped to a library. Those tracks may be loaded onto only 1 playing device, any in the family? I think purchased I-Tunes songs can go onto 3-5 devices per track and you need the account password? Should I purchase 1 copy of the CD for each mp3 player it may be loaded onto?

Jamie

Jan-03-2008, 7:03am

It wasn't until 1992 when The Audio Home Recording Act (AHRA) was passed that there was an explicit exemption for cassette backups of music. That act didn't cover, and still doesn't, ripping a song to your computer, uploading a song from a CD to your portable player or copying a CD.

There really is no basis in law, other than the above, for "personal use." Many copyright owners and music distibutors do indeed allow "personal use" copies but that is a right they are granting, not a law that gives you a right. Most copyright owners and their reps simply choose to ignore the issue of personal use because they know it is unlikely that anyone would be willing to purchase separate copies of the same music for home, car, and personal player.

groveland

Jan-03-2008, 7:10am

(JimD) Some of you really need to read the original article a bit more carefully
Absolutely, Jim. #As an example, the article cites the case of the lady here in Minnesota who was fined $220,000 for 'sharing 24 songs', but the article fails to mention she had 1,700 songs and got off easy with the 24 - This lady was distributing the copied files illegally on the KaZaA file sharing service.

Turns out, that's exactly what the Arizona man is being accused of - sharing the files on the KaZaA file sharing network, not for putting the material on his PC.

Yellow journalism?

(Sources: The legal brief (http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_howell_071207RIAA SupplementalBrief) and the Star Trib article (http://pd.startribune.com/sp?eId=92&gcId=392023030&rNum=7&url=http%3A%2F%2Fwww.startribune.com%2Flocal%2F115 52886.html&siteIdType=2))

Mark Robertson-Tessi

Jan-03-2008, 7:22am

It would be easier to monitor if the RIAA & similar authorities simply monitored PROFITEERING, ie.is some one making money in an un-authorised way or not ?. If they are,take action against them,if not,then they should be left alone.
Profiteering is not enough. Most people who share songs online with file sharing programs are not profiteering. If they downloaded the songs, then one could argue that they are "making money" since they didn't pay for the music. But usually the RIAA goes after the people who are sharing the songs, and technically they are not making any money by doing so.

Enabling profiteering, maybe.

Cheers
MRT

Stephen Perry

Jan-03-2008, 8:11am

Someone taking and using something that normally requires a license is taking something away from the person granting the license. Someone driving without required insurance is enjoying use of a vehicle while passing costs onto others in the form of higher uninsured motorist insurance costs. Someone using photocopies of copyrighted music or text for their students is reducing the income of the entity owning those rights. Someone using my copyrighted text and images from my web pages is using my work and labor for their own benefit without compensating me. Someone having 200 songs not paid for in any way on their iPod is reducing the overall profit for everyone in the distribution chain and putting all the operating, overhead, profit, and distribution costs on a smaller body of users, increasing the cost to non-infringing users.

Pretty difficult situation. Something making the issue more complex is the international aspect, both from a philosophical perspective and from an inforcement viewpoint.

In the philosophical area, the US was founded by folks who didn't like a monopoly. They favored the free flow of ideas, but understood that unless someone was going to be rewarded for work they wouldn't do it. See US Constitution: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The "limited times" were probably thought of as being rather short by today's standards. The goal was to enrich the public by allowing very limited exclusivity. Copyright and patent were not intended to enrich individuals and did not recognize any natural right to one's works.

In contrast, the European world tends to recognize a "natural rights" approach. You made it, it's yours.

Both systems generate a tension. Because entities making money tend to be larger and more powerful, copyright and patent protections have been expanded a great deal over time. I think they've expanded too much. Congress should only grant enough protection in time and reach to encourage the creation of new works. However, if copyright is to mean anything, then some rights should be able to be enforced. I'm OK with a 20 year patent term. Takes a long time to develop and bring to market expensive products. Given the incredible investments made to bring things into patent coverage, I'm imagining that the 20 year term is sufficient. In contrast, current copyright protections seem to extend far too long, well beyond any credible benefit to the individuals actually producing works. The goal seems to be to enrich business entities and heirs. I'd be entirely OK with a 20 year copyright term, especially if coupled with some kind of abandonment provision (if you don't sell or publish for 2 years, it's public domain) and considerable limits on enforcement rights. But I would still consider using unauthorized copies by individuals as actionable. Everybody is listening to my song, but I don't get paid. That's not fair.

A similar problem shuts down Internet based image sites. Misty Bluetoes has a modeling site with membership. She specializes in frostbite images for folks who are into that thing. Some fans get together, one purchases a membership, and then the site is "ripped" and available on usenet as .rar files or as a torrent swarm. Misty's business collapses. Of course this should be actionable!

Whether someone is making money isn't the touchstone. It's whether someone is interfering with someone's legitimate rights in a work. Although I don't have a problem with the criteria for infringement including "preventing the copyright owner from making as much money."

As to minor infringement of minor players; don't be too complacent. I have had mandolincafe members point me to infringement of my stuff and I've gone after the infringers successfully. Happens all too often.

JimD

Jan-03-2008, 8:20am

Jan-03-2008, 8:23am

If a person steals my car and gives it away has he profited? No.

Have I lost? Yes.

Intellectual Property is PROPERTY. If someone steals my property I lose. I don't really care whether that thief profited or not, I want to be compensated for my LOSS.

Jan-03-2008, 8:32am

I'd be entirely OK with a 20 year copyright term, especially if coupled with some kind of abandonment provision (if you don't sell or publish for 2 years, it's public domain) and considerable limits on enforcement rights.

As a composer, I have a big problem with this. Use it or lose it?

???

Sell it to whom? Does the "public domain" have more rights than the creator of the work?
I have a problem with a use it or lose it deal too. If somebody hears my song it has been used. If somebody reads my book it has been used.

The time limit on a copyright affects the amount of money an author will be able to sell his works for. A publisher isn't going to pay as much for a shorter term. A 20 year limit would make everthing written before 1988 in the public domain. There is still a lot of money being made on works that were created before 1988, why shouldn't the author continue to benefit from his work?

I think the term should be 60 years with no extensions and no reductions.

JimD

Jan-03-2008, 8:35am

I think it should be the lifetime of the composer/author/artist.

Stephen Perry

Jan-03-2008, 8:45am

Sell it to whom? Does the "public domain" have more rights than the creator of the work?
Short answer: yes.

Congress doesn't have to grant ANY copyright at all. Entirely discretionary. Whereas the public has the right to use anything not otherwise protected.

I don't have a problem with the lifetime copyright for original holder, in the case of individuals, with a more limited right for institutional holders.

I like the "use it or lose it" aspect. Keeps orphaned things from being protected. I consider an income stream still arriving as "using." That protects active works. Or prosecution of infringers by a holder. That shows activity.

So much stuff that is technically "protected" is abandoned, especially in software and other stuff of time limited value.

One of the problems of a wide blunt tool applied to many different areas.

farmerjones

Jan-03-2008, 9:30am

Yes i did read it. And it iz all about the big record labels scrambling. i remember when a gold record was a big deal. Now it's all double and triple platinum. That's a big chunk of cash. It's hard to see even a part of that slip away, if you were used to it. #

It's a new age. It's not just the kids and their ipods. It's also the fact we can make our own (original) CDs in our basements. Are there fewer guitar toating kids getting off the bus in Nashville? The months ahead are going to be very interesting. i don't think i'd buy sony-tree stock.

JimD

Jan-03-2008, 9:49am

Sell it to whom? Does the "public domain" have more rights than the creator of the work?
Short answer: yes.

Congress doesn't have to grant ANY copyright at all. #Entirely discretionary. #Whereas the public has the right to use anything not otherwise protected.

I don't have a problem with the lifetime copyright for original holder, in the case of individuals, with a more limited right for institutional holders. #

I like the "use it or lose it" aspect. #Keeps orphaned things from being protected. #I consider an income stream still arriving as "using." #That protects active works. #Or prosecution of infringers by a holder. #That shows activity.

So much stuff that is technically "protected" is abandoned, especially in software and other stuff of time limited value.

One of the problems of a wide blunt tool applied to many different areas.

But in the realm of musical composition for instance, there is a long history of having things "in the trunk" as it were:

--Tunes that are saved for lyrics that are written later (or vice versa)

--single movements that had the other movements which complete the work added later

--works for which the public was not yet ready being published many years later

--works that, for one reason or another, the composer was not yet ready to send "out into the world"

I could go on.

I don't believe the "public domain" should have rights to works in these situations-- or, rather, I don't believe that the composer should lose his/her rights to these works.

Frankly, I think it is presumptuous for Congress to need to "grant rights" to a creative person for their own works, anyway.

Stephen Perry

Jan-03-2008, 11:10am

Frankly, I think it is presumptuous for Congress to need to "grant rights" to a creative person for their own works, anyway.
Well, the alternative to Congress granting rights is for there to be no protection. You seem to be arguing for protection. Have to choose one. Either Congress grants rights under their Constitutional authority or they don't and copyright doesn't exist. Congress chose to grant quite sweeping rights. They could have chosen to have a completely open intellectual market place with no protection. Dynamic, but little incentive to create.

JimD

Jan-03-2008, 11:18am

I said "presumptuous to GRANT rights" -- the rights to the product of ones own intellect and creativity should be protected and presumed inviolable-- not granted to us by anyone.

P.S. You didn't address my other statements about "use it or lose it".

buddyellis

Jan-03-2008, 11:40am

JimD, what part about the following quote from BMG counsel is misleading?

[Judge] Gabriel asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. [Sony BMG ’s attorney] replied, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ’steals just one copy’,” she said.

I think its pretty clear that counsel in this case is CERTAINLY arguing that copying a cd that you own for your own use is stealing.

As I said before, if I am purchasing a use license for the content (which is what the media companies generally argue), then the media should be replaceable if damaged, and the content should be transferable wherever I want it, into whatever format I need it in to be able to use said license.

JimD

Jan-03-2008, 11:45am

JimD, what part about the following quote from BMG counsel is misleading?

[Judge] Gabriel asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. [Sony BMG ’s attorney] replied, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ’steals just one copy’,” she said.

I think its pretty clear that counsel in this case is CERTAINLY arguing that copying a cd that you own for your own use is stealing. #

As I said before, if I am purchasing a use license for the content (which is what the media companies generally argue), then the media should be replaceable if damaged, and the content should be transferable wherever I want it, into whatever format I need it in to be able to use said license.
I'm not arguing that you shouldn't have a right to make copies for yourself to other media.

The thing that is misleading is the article -- the so-called "journalism" -- the guy is being sued for illegal file sharing -- not for having copies on his hard drive.

As I said before, the intent of the article seems to be to mislead and it has evidently done so.

buddyellis

Jan-03-2008, 11:55am

Sure, but the fact stands that what the article was positing, is what the counsel for BMG is arguing. I'll agree, that like the 'single mom has to pay $200k' story a while back, this dude was busted for filesharing, but in this example, we also see the media companies taking the argument even further: Even copying a CD for your own use to your MP3 player is 'stealing'.

JimD

Jan-03-2008, 12:01pm

Sure the counsel is arguing that -- do you think he has a snowball's chance in hell?

What bothers me is that the article as it stands should never have gone to print and wouldn't have if the editor was doing his/her job.

The whole debate is even more convoluted than ever because of it. It's quite obvious that the writer has an axe to grind and a political agenda. Unfortunately, people fall for this kind of BS.

Stephen Perry

Jan-03-2008, 12:05pm

Well, maybe they should be. I'm not sure why or who would dictate. Where would these rights come from?

First, what's a right? Concerning property, it's the right to direct others. To leave, to pay, whatever. The fundamental right to exclude or control comes from physical power. Administrative and legal systems developed to direct the absolute power of strong individuals, eventually becoming institutionalized in hereditary monarchies. The monarch owns everything. Everything anyone else has they have by permission of the monarch.

A group of folks here in the colonies and in many other places through history didn't like this, developing methods of putting power in the hands of the people. Here in the US, we adopted a constitution giving the government powers and reserving other powers to the states, and eventually guaranteeing certain rights to individuals. That's the structure we're working with. Not my opinions or yours.

I can't see anything in the US Constitution about "the rights to the product of ones own intellect" being reserved to the individual. That's conspicuously absent. The framers were rather in favor of the free intellectual marketplace, and against monopoly. But they acknowledged your concern - that folks should have some right to benefit from their intellectual efforts. Thus Art. 1, Sec. 8, Cl. 8 (if I recall correctly) giving Congress the authority to grant limited exclusive rights.

Say Congress didn't have this power. Where would the protection you seek come from? Someone uses your lyrics.

"Hey Sparky, stop singing that stuff, I wrote it."

Yeah, why should I stop? I like it and I put them words to my little ditty. So there!"

And you do what? There's no cause of action in court. You're prohibited from hitting Sparky without suffering civil and criminal consequences. You can go around saying "I wrote those lyrics" and folks will respond "so what?"

That's why I think the grant is a good thing. The ability to grant was made to encourage creativity and the dissemination of works into the public. As far as "use it or lose it" - makes sense to me. If you're not using your works, then society isn't benefiting and there's no reason for Congress to allow exclusivity. If you don't use something and someone else can use it, then that other should be allowed to use it, benefiting society. That's the power of Congress. Looking at the power: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" I see the "promotion" aspect to be very important. For example, if an inventor sits on his invention, doesn't tell anyone, just hides it, the ticker is still running. Doesn't file and someone demonstrates the delay, then the patent won't issue or won't be found valid.

But that's not a big deal. The fact that the US IP foundation is Congressional power rather than natural rights is the crucial thing.

I think the differences in analysis here come from different assumptions. I'm simply looking at the context - the framers of the Constitution and all derived and related administrative and legal systems in the US (pretty much everything) didn't accept any natural right to the "product of one's own intellect." Those products aren't physical things that someone can take and the owner can take back. They're just stuff you wrote. You own the paper, but if someone copies the words onto another piece of paper they own, then there's nothing that makes their piece of paper yours.

In contrast, many US citizens assume that some inherent right to "product of one's own intellect" must exist. I can't find this right called out in the Constitution.

Thus either Congress grants rights in intellectual property under the Constitution or they don't. Those rights only spring from the Constitution. That's why I think the Congressional grant of rights in intellectual property is a good thing. The incentive to creative and invent mostly dry up without some protection. The writer's monopoly only exists until someone else can set the book in type and get it into the distribution channel. Then it's simple competition on quality and price.

I don't think any of us would like that very much. Although the various file sharing systems online threaten to move IP in that direction.

TeleMark

Jan-03-2008, 12:10pm

FWIW, they will be discussing this topic (and this very article) on Talk of the Nation on NPR this afternoon...

Check your local listings for broadcast times, or download the podcast (but for PETE'S sake, don't save it to your computer!!!).

JimD

Jan-03-2008, 12:16pm

Well, I think we might be, to an extent, arguing semantics on the "granting rights vs. protecting rights" issue.

I still have a big problem with the "use it or lose it" issue in terms of the points that I made above.

As for your last point--This is where we have the biggest danger to our rights. There are those who say "the cat is out of the bag -- now everything has to change". Frankly, I think their biggest motivation is to get something for nothing.

Our rights as creative people are more in peril now than they have been in a long time.

Stephen Perry

Jan-03-2008, 12:37pm

I don't see that everything has to change. Holders of rights still have to enforce those rights themselves. The venues for and nature of infringement change, but the basic tension remains. As infringers adapt, so to enforcers. The RIAA is an enforcer and those infringing may be stepping into a fight. The courts will work it out. Inefficient in some ways, efficient in others. I think protection has gone too far myself. The courts have thought so in the past - look at the development of the doctrine of "fair use" in copyright and "experimental use" in patent.

As to "grant" versus "protect" - protect assumes a right exists already. This simply isn't the case. In fact, Congress may only "secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The framers didn't write "shall protect the inherent rights of Authors and Inventors to their respective Writings and Discoveries." Could have, but didn't. Congress has to reach out and "secure" the exclusive rights through laws. Very different. Hey, not my opinion, just a pretty standard view on the matter. I'm rusty in IP, but not that rusty!

Will be fun to listen to the NPR podcast.

JimD

Jan-03-2008, 12:42pm

another article of interest (http://www.news.com/8301-10784_3-9839170-7.html?tag=nefd.top)

Stephen Perry

Jan-03-2008, 12:57pm

"This new rhetoric of 'everything anyone does without (RIAA) permission is stealing' is well worth noting and well worth challenging at every occasion," Patry wrote. "It is the rhetoric of copyright as an ancient property right, permitting copyright owners to control all uses as a natural right; the converse is that everyone else is an immoral thief."

Indeed, well worth challenging! That's not the underpinnings of our copyright system, but rather flies in the face of framers' viewpoint.

I would tend to think copying to a computer for one's own use would be a "fair use" whether or not RIAA agrees. Suspect they just go along with what they can't stop and what would eventually be held a "fair use." The concept of "fair use" very much springs from the anti-monopolistic underpinnings of the Constitution.

Should be fun. Maybe we'll get a rewrite of copyright law out of the whole mess. Although allowing Congress to actually do anything can be dangerous. They're the least threat when they're all tied up in knots!

JimD

Jan-03-2008, 2:07pm

I listened to the Talk of the Nation piece. A few observations.

They had the author of the original Washington post article, Marc Fisher and Cary Sherman, president of the Recording Industry Association of America (RIAA).

Despite the fact that Fisher has made it look like people are being sued for simply making personal copies, this isn't true. He left off a phrase "and uploaded them to a file for sharing" (probably not the exact quote -- I don't write very fast).

The only person he quotes in the article is a lawyer named Ray Beckerman (http://www.vanfeliu.com/attorneyProfile-Beckerman.htm) who, among other things, defends people in illegal file sharing cases and has a blog called Recording Industry vs. the People (http://recordingindustryvspeople.blogspot.com/) -- not exactly an unbiased observer.

Sherman (RIAA) kept saying that they are only suing for illegal file sharing and that the industry maintains a webpage (http://www.musicunited.org/) that explains this issue. This is apparently true: see their faqs. (http://www.musicunited.org/7_faq.html)

buddyellis

Jan-03-2008, 2:56pm

More likely they are just backing down from a position they tend to view internally, but know would never fly externally. In other words, they let the 'cat out of the bag' so to speak about the RIAA's true views on their 'copyright' i.e. 'one license per device' which is what they've been trying to sell for years.

The quote from counsel is not out of context. It is in the court documents in perfect context. What she said was “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.”

An amended brief it is also implied that simply having a copy is illegal "It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer." While it goes on to mention sharing, it is initially talking about simple possession of 'unauthorized copies' (mp3s) of copyrighted sound recordings. In fact they have argued before that there is no 'fair use' but rather they are just allowing the license (http://copywrite.files.wordpress.com/2007/10/11metalitz_aap.pdf) to do so -- For now (from the Grokster case):

"Nor does the fact that permission to make a copy in particular circumstances is often or even “routinely” granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use."

Point is, I think they are 'fishing' this theory and hoping to get some sort of precedent established.

swampstomper

Jan-03-2008, 2:58pm

Thanks for taking the time to research this. The most relevant part of the FAQ to this discussion is:

Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:

-- The copy is made from an authorized original CD that you legitimately own

-- The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

This seems pretty clear. It's technically not legal to copy for personal use, but MusicUnited.org is not particularly bothered by these uses. They are clearly after uses that take away sales.

A relevant point as a read this thread: some computer software is restricted either by number of computers it can be used on, or even by time. It can be licensed to you, rather than sold. No reason why music couldn't be restricted the same way, if the owner thought that business model was valid.

JimD

Jan-03-2008, 3:18pm

The quote from counsel is not out of context. #It is in the court documents in perfect context. #What she said was “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.”

An amended brief it is also implied that simply having a copy is illegal "It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer." #While it goes on to mention sharing, it is initially talking about simple possession of 'unauthorized copies' (mp3s) of copyrighted sound recordings. #In fact they have argued before that there is no 'fair use' but rather they are just allowing the license (http://copywrite.files.wordpress.com/2007/10/11metalitz_aap.pdf) to do so -- For now (from the Grokster case):

"Nor does the fact that permission to make a copy in particular circumstances is often or even “routinely” granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use."
.

The quote is out of context in that it was incomplete. The context is that he was sued for illegal file sharing not for having personal copies.

Oh, this is from the site grokster.com:

The United States Supreme Court unanimously confirmed
that using this service to trade copyrighted material is illegal.
Copying copyrighted motion picture and music files
using unauthorized peer-to-peer services is illegal and is
prosecuted by copyright owners.

NumbersAndNoise

Jan-03-2008, 3:19pm

The RIAA is just trying to delay the inevitable demise of their organization as it becomes more and more obsolete. Before the home studio was a viable option for the average person the recording industry was relevant because they could provide one. Before internet distribution was a viable option to sell or share your music the recording industry was relevant because they could provide such distribution. But now the major record labels no longer are needed to provide these services. They are no longer relevant, and just thrashing about while they lay down and die. As it is, musicians get very small royalties from recordings themselves, the majority of money coming from touring, merchandise, and so forth. It is only a small step now to cut out the label entirely and either sell for a very low price and clean up (Radiohead made about three times what it would have in royalties on their internet release In Rainbows, which was released with the option for fans to buy it for any price they chose, even free.) or to turn music into a promotional tool, distributing it for free and making money the same way it is done now anyway. Computers have changed everything for music production and have created a situation where everyone involved must either adapt or die. Artists like Radiohead and Nine Inch Nails are choosing the former, while the RIAA has clearly chosen the latter.

Edit for relevance: This is just yet another way for the RIAA to try to deal as much damage as it can before it collapses. They are not pressing charges for ripping CDs, but they are launching yet another campaign of misinformation in a doomed attempt to stop progress.

JimD

Jan-03-2008, 3:25pm

Computers have changed everything for music production and have created a situation where everyone involved must either adapt or die.

The old "adapt or die" defense. This is usually followed by the phrase "come into the 21st century, oldtimer".

It's a tired argument already.

...oh, and let's not forget that Radiohead was already well-known when they "opted out".

mandocrucian

Jan-03-2008, 4:01pm

I guess the RIAA is like "Big Brother". #Some folks just love Big Brother.

Reminds me of trailer park yahoos who are so vehemently against the (so-called) "death tax", (as if they could ever accumulate more than the minimum $2,000,000 estate before it would ever apply) that they support the right-wing candidates of the "haves" and "have-mores". #

Yeah boy... "I'm gonna be a wheel someday, I'm gonna be somebody."

http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif

JimD

Jan-03-2008, 4:12pm

If you are referring to me (and I can't really tell because your metaphor is a bit over the top anyway), I'll simply repeat that I have no love for the RIAA -- I do however despise articles that cloud the truth in order to make their points.

I do, however, stand by my defense of the rights of creative people.

buddyellis

Jan-03-2008, 4:17pm

Jim:

See the FAQ swampstomper quoted (and you linked to) above. The RIAA Patently DOES hold the position that you do not have a fair use right to copy your CD's for personal use (i.e. any copying is technically illegal). That was the position in the Grokster lawsuit, and is the current position on their website:

Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:

-- The copy is made from an authorized original CD that you legitimately own

-- The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

JimD

Jan-03-2008, 4:24pm

"Holding the position" and suing someone are 2 different things.

Which is the point I have been trying to make for 4 pages.

mario515

Jan-03-2008, 5:55pm

Praise the Lord,,, I was getting tired of all the backhanded remarks

Ivan Kelsall

Jan-04-2008, 3:42am

'File sharing','copying' etc. all means the same thing,you are DUPLICATING another's work,whether it's for profit or not !.If any COPY is made,as long as it's for PERSONAL use ie.,by the owner of the original purchased CD /LP, or by members of his family,then IMHO that should be allowed. As it is at the moment,to be able to do that seems to be a 'concession' to the purchaser granted by the 'owners' of the music.
However,i do aknowledge the distinction between copying for one's own use & 'file sharing'. File sharing even though NOT for profit,allows almost unlimited duplication & use of music files & can therefor be seen as depriving the 'owners' of the original music of income,
Saska

Jan-04-2008, 6:50am

The peer-to-peer sharing issue isn't even a gray area. Here's a quote from the US copyright office:

"Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so?
Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights.

Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law.

Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks. To avoid these risks, there are currently many "authorized" services on the Internet that allow consumers to purchase copyrighted works online, whether music, ebooks, or motion pictures. By purchasing works through authorized services, consumers can avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware."

Jan-04-2008, 7:22am

The right to make copies of works you have purchased for your own use is not granted under any law in the US. With the exception of archive copies of software, the right to make copies of copyrighted works is exclusively reserved for the copyright owner. An archive copy would be safely stored away and not used unless the original copy is destroyed.

Again from the US Copyright Office:

"Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

To reproduce the work in copies or phonorecords;

To prepare derivative works based upon the work;

To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

In the case of sound recordings*, to perform the work publicly by means of a digital audio transmission.

In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, request Circular 40, Copyright Registration for Works of the Visual Arts.

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office."

Jan-04-2008, 7:30am

The "fair use" provisions do not grant one the right to reproduce an entire work and do not grant the right to reproduce any of a work for entertainment purposes. In the case of music there are situations where it is OK to reproduce a few notes but not the entire song. The allowance of use for teaching requires face to face instruction between teacher and pupil.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

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

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Jan-04-2008, 7:38am

The upshot of all that legal stuff is you do not have the right under US law to copy CDs that you own for your personal use.

The reality is it is quite unlikely that anyone would know you had copied a CD for personal use unless you tell someone that you have done it. If you take "personal use" to mean one single individual then it is also highly unlikely that you would use the original and the copy both at the same time. The copyright owners will not bother chasing after you because it is highly unlikely that you would purchase two copies of the same CD so you could have one at home and one in the car. You would in fact simply carry your CD collection from home to car and back. In the case of music you downloaded for your iPod, you probably only have one iPod anyway so you already carry it around with you.

Neil Gladd

Jan-04-2008, 9:05am

Neptune, many thanks for your last three posts. I WOULD have posted that same information, but I'm currently on vacation and just wasn't in the mood!

lgc

Jan-04-2008, 10:00am

Administrative and legal systems developed to direct the absolute power of strong individuals, eventually becoming institutionalized in hereditary monarchies.

I don't see how that is much different here. The legitimacy of intellectual property rights is an arbitrary set of rules created to protect those who already control the most resources. From an artistic standpoint, why don't artists have to pay the people from whom they were influenced or learned. Why is the recording of a track more legitimate than the creation of a lick. Shouldn't the Monroe estate be able to collect every time a Monroe lick was played?

My point is is that all artist owe a lot to the collective. Not only do they owe most of their creative output, which is generally derived from a collection of previously discovered ideas, to society but they owe the entire privilege of being a professional musician to society. This entire discussion has come from the position that the laws that govern intellectual property are objectively legitimate. That validity seems to be derived from the logic that "I thought it up all by my self and therefor I should get as much as I can form it." That just doesn't fit with the way knowledge and ideas are propagated. Music should be freer than not.

AlanN

Jan-04-2008, 10:07am

Gee, I bought a USB turntable recently, under the auspices of "Ever want to listen to those old LPs again on your computer?". Wonder if I should send it back?

And although it can be used expressly for 'listening', it came packaged with software specifically developed for 'copying' the LP to the hard drive (ironically enough, called 'Audacity') http://www.mandolincafe.net/iB_html/non-cgi/emoticons/laugh.gif

JimD

Jan-04-2008, 10:09am

My point is is that all artist owe a lot to the collective. #Not only do they owe most of their creative output, which is generally derived from a collection of previously discovered ideas, to society but they owe the entire privilege of being a professional musician to society. #This entire discussion has come from the position that the laws that govern intellectual property are objectively legitimate. #That validity seems to be derived from the logic that "I thought it up all by my self and therefor I should get as much as I can form it." #That just doesn't fit with the way knowledge and ideas are propagated. #Music should be freer than not.
and your suggestion is?

We've a number of people who are concerned about the obvious power position of the RIAA and things like that but it seems like you are against the individual's right to their creative or intellectual property.

I have a big problem with this way of thinking.

farmerjones

Jan-04-2008, 10:11am

lgc - are you saying givers won't/don't give unless there is recognition or reciprosity?

Jan-04-2008, 10:44am

The RIAA, ASCAP, BMI and the other groups were created in order to try to protect people from having their property stolen. How can one single artist combat the thousands of people who see nothing wrong with stealing his work and money from his pocket?

Jan-04-2008, 10:47am

The US is not a commune.

hip

Jan-04-2008, 10:48am

and your suggestion is?

Mine is to do away with all copyrights, patents, and other monopolistic laws. With over 6 billion living beings in this world, and the untold billions that came before us, this idea that what you do or even what you think is somehow original or unique, and should be exclusive to you, is rather absurd.

But then again, I'm either a dreamer or a bit touched in the head.

JimD

Jan-04-2008, 10:56am

and your suggestion is?

Mine is to do away with all copyrights, patents, and other monopolistic laws. #With over 6 billion living beings in this world, and the untold billions that came before us, this idea that what you do or even what you think is somehow original or unique, and should be exclusive to you, is rather absurd.

But then again, I'm either a dreamer or a bit touched in the head.
So, why would anyone bother to create anything.

This is a pretty dismal world view.

If you want the products of creative peoples work for free -- then the only logical way to make this work is to give artists free food and housing.

and vehicles, computers...

lgc

Jan-04-2008, 10:56am

"The US is not a commune."

Doesn't mean it couldn't be.

hip

Jan-04-2008, 10:58am

stealing his work and money from his pocket

You're assuming if they didn't download it for free, they would've purchased it. Maybe they would. Maybe they wouldn't. You just don't know.

JimD

Jan-04-2008, 11:02am

stealing his work and money from his pocket

You're assuming if they didn't download it for free, they would've purchased it. #Maybe they would. Maybe they wouldn't. You just don't know.
Stealing is still stealing.

hip

Jan-04-2008, 11:04am

So, why would anyone bother to create anything.

Not being paid has never stopped me from creating.

hip

Jan-04-2008, 11:05am

Stealing is still stealing.

And you still have the product, so how did you lose money?

JimD

Jan-04-2008, 11:06am

So, why would anyone bother to create anything.

Not being paid has never stopped me from creating.
For some of us, it is the way we make our living. Why do you think we defend our rights so vigorously.

I have never understood why so many fell an antipathy or downright antagonism to that idea.

JimD

Jan-04-2008, 11:08am

Stealing is still stealing.

And you still have the product, so how did you lose money?
You lose money because someone is taking what doesn't belong to them -- plain and simple.

hip

Jan-04-2008, 11:48am

You lose money because someone is taking what doesn't belong to them -- plain and simple.

No, they made a copy and infringed upon your copyright. You're trying to equate this to the same as stealing a chair. Both are illegal, but not in the same way. In the first case you still have the original product, in the second case you don't. In the first case did you lose a sale? There is no way to say for sure.

it is the way we make our living. Why do you think we defend our rights so vigorously.

Professional cooks and cookbook authors seem to make a living with very limited, if any, copyright protection, why not everyone else.

Keith Erickson

Jan-04-2008, 11:49am

I've bit tounge for 5 pages...
...and I'm now going to jump in and take some arrows.

Regardless if the musician is rich or poor, stealing from them is just plain wrong. #Nobody has a right to take something that is not their work and copy it. #...and it doesn't have a dang thing to do about RIAA!!!

This is one of the reason's why I've been staying from posting and just lurking around the Theory Threads.

Prevailing attitudes like these do not make this a pleasant place to be. #I just watched the gang bang on Jim and it's just appalling to think that stealing someone's creativity is acceptable as breathing and drinking water to most of the posters on this thread #http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mad.gif

If you're too cheap to pay the US$15 or US$18 bucks for a CD, that's not my problem. #Just have the common courtesy to do what's right!!!

JimD

Jan-04-2008, 12:03pm

Thanks Keith.

But it's obvious that those who don't respect the property of others are not willing to understand either facts or morals.

There are many ways to try to justify stealing and we've seen many here and will doubtless see more.

The method du jour seems to be denying that we have intellectual or creative property at all.

JimD

Jan-04-2008, 12:21pm

But if the "genie is out of the bottle" for creative work, why isn't it for other things as well?

I mean, in many stores one can walk out the door with the merchandise. Do I have the right to go in and take what I want because "the genie is out of the bottle"?

EdSherry

Jan-04-2008, 12:55pm

In addition to being a semi-pro musician, I'm also an attorney and economist who has been involved in the whole "digital duplication" issue for several years. #Basic points:

(a) #Making unauthorized copies of entire works (e.g., entire songs) is not, and has never been, legal in the US, whether for yourself or for friends, even though you "bought" the original and thus "own" it. #You did NOT buy the right to make unlimited copies.

(b) #That said, to my knowledge (and I'm quite familiar with the lawsuits the RIAA has brought), the RIAA and others have not tried to legally prevent people from making archival copies (e.g., a backup tape of an LP) of material they legitimately purchased. #They HAVE sued people who make music available for unauthorized copying by others.

© #The "fair use" doctrine has a number of limitations; in particular, it is limited to copying portions of a work (e.g., a couple of paragraphs out of a book or article).

(d) #However, there are efforts afoot to instal (technological) copy-protection mechanisms to limit the number of copies (and copies-of-copies) that you can make. #Such mechanisms, if successful, will limit what you can do with music you "own." #And in the Digital Millenium Copyright Act, Congress made it illegal to attempt to defeat industry-standard copy protection mechanisms. #

(e) #The "fair use" doctrine does not apply to commercial use (e.g., if you sample somebody's recording and want to use it in your own album project, you need their permission).

(f) The RIAA and other interested parties (songwriter associations, music publishers, etc.) are trying (not always successfully) to deal with a technological development (the ability to make just-as-good-as-the-original digital copies and to disseminate them widely over the Internet) that has challenged their historical ways of marketing their products (e.g., sales of physical LPs and CDs). #I know first-hand (from consulting projects I've worked on for the RIAA) that they are struggling to deal with these issues. #

(g) Some have argued that the industry should have done more to embrace the new technology, but it's not simple or easy to change a $14 billion global industry based on one historical paradigm (physical sales) to embrace an opportunity (authorized digital downloading) whose commercial success, even today, is relatively small by comparison. #(Apple says they sold 3 billion downloads as of mid-2007, over a four-year period since the iTunes store was launched. #That's a lot of money, but it hasn't fully compensated for the dramatic reduction in physical CD sales.)

(h) #As noted above, music is different from physical goods such as chairs. #It is true that making a copy of a recording does not deprive the songwriter/performer/record company of the music. #But it does deprive them of the opportunity to sell you a copy. #

(i) #It is true that many of the people who make unauthorized copies would not buy the music if they had to pay for it. #So what? #All that indicates is that the volume of sales that unauthorized copying deprives the songwriter/artist/record company of is less than the number of unauthorized copies made. #It does not establish that no one is hurt.

(j) #It is clearly true that music is a labor of love for many people; I'd make music even if I didn't get paid for it (and I do regularly play for free). #But others are trying to make a living at their music, or at least to get some compensation for the time/effort associated with playing. #Taking their music without compensating them for it takes money out of their pockets. #

(k) You may think that music is overpriced ("why should I pay 99 cents for a download that doesn't cost them anything?"), but people are entitled to set a price on their services. #

(l) #Artists voluntarily sign record deals. #Having done so, they have given up control over their recordings, in exchange for an advance and future royalties. #The record company, not the artist, owns the rights to the recordings. (Songwriters and composers have a different relationship with record companies. #But they get paid for authorized copies of recordings of their songs; they don't get paid for unauthorized copies.) #Because the artists have given the record company control over their recordings (in exchange for money), the record company, not the artist, is the entity that has the right to decide what others do with the music. #Consequently, arguments along the lines of "I'm willing to pay something to the artist, but I don't see why I should pay the record company" ignore the fact that the artist has ceded his/her rights in this regard to the record company.

(m) That said, I know plenty of artists who have decided that they prefer to record and release their own music, without any "record company" (RIAA) involvement. #Some of them are willing to have (some or all of) their music copied and disseminated. ##(Often an artist will make a track or two available for free download, but try to charge those who want to listen to the entire album.) #But others are not.

(n) #It may well be the case that the new technology will render the old business model obsolete, and that artists/songwriters will be able to bypass the record companies and sell their music directly to the public. #The explosion in independent recording, fueled by the advent of high-quality low-cost digital recording capabilities, the ability to make small numbers of copies, and the availability of distribution systems such as CD Baby, is having a significant impact on the industry already. #

(o) #But that does not mean that it is OK, or right, or legal for others to decide for themselves to make unauthorized copies of recorded music. #

(p) #If you as an artist want to make your music and give it away, and encourage others to give it away, that's up to you. #But that doesn't mean that others should feel free to make that decision for you. #

(q) I'm currently in the process of spending thousands of dollars of my hard-earned money to record and press a CD of the music I've been playing for years. #I'll probably give a lot of copies away to friends and family. #I'll probably end up losing money on the project. #That's my prerogative. #But it's not my prerogative to give away rights belonging to others (e.g., I'll pay royalties to the songwriters whose music I record, and their publishers, even for the copies I give away). #And it is certainly not others' right to decide that I won't be hurt if they make an unauthorized copy of the music I'm spending good money to record.

My more-than-two-cents.

sgarrity

Jan-04-2008, 1:00pm

I wonder how much brain power has been used to discuss this topic on various forums? All with the same result, aggravated people and no problem solved.....

hip

Jan-04-2008, 1:08pm

I don't steal cars, televisions, or chairs. I've never used a file sharing service, and I don't download mp3s or other files that aren't explicitly marked free. If I like your music, I'll support you by buying your CD, if the price is right and you don't gouge me on shipping, otherwise I'll do without. I like reading the CD inserts to see who is playing with whom. I don't knowingly break the law and I don't encourage others to break the law either. Change it, yes!

All in all, I'm a very responsibly and respectful law abiding citizen, who happens not to agree with a lot of your positions and analogies. That in no way makes me, or anyone else who might hold a similar position, disrespectful, immoral, or ignorant of the facts.

lgc

Jan-04-2008, 1:47pm

I think what might be being missed here is that it's not that people are OK with stealing, but rather think that the concept of stealing is poorly defined in our legal and cultural discourse. It is more that the idea of ownership is faulty and therefore the idea of stealing is as well.

Record companies have their position of increased leverage because they stole the rights to many ignorant, poor and substance addicted artists in generations past. Their catalogues, which provide them the capital they need to lobby and litigate, were built partially on the backs of many many disempowered artists. Most money in music goes to suites and they use thier resources to keep it that way. No one is suggesting starving artists but rather constructing a new model that provides a better distribution of resources.

mandolirius

Jan-04-2008, 1:54pm

There's lots of interest in this, clearly, but there's a simple reality that hasn't been brought up. One, the music industry was greedy and guilty of gouging for many years. CD prices were too high long after most people had drawn that conclusion for themselves. It was gouging and it brought them nothing but ill-will.

The other thing is, some people will always take a free offer. Your friend will burn you a copy of so-and-so's greatest hits for free. Or you could buy it for 10-15 bucks. That's a case of beer or whatever. Why not take the free CD? It doesn't feel like crime to most people. I appreciate that it's important to understand the law and to look at all sides of the issue. But it's also important to understand what motivates people and what the reality is "on the ground".

To me, it only makes sense to make it legal to copy but not to distribute. Some distribution deals will be impossible to ferret out, like the buddy who burns you a disc. But others, like online file sharing, will be prosecutable. At some point, you have to yield to the practicality of an issue. It's like smoking. All kinds of restrictive laws starting to be passed, control of sales to minors, health risks. A perfectly reasonable conclusion to draw would be that smoking should be against the law. Totally illegal. Can't grow or process tobacco, sell it, smoke it...nothing. Clearly this would be impossible, so compromise is necessary. Same thing here. A compromise solution is called for.

buddyellis

Jan-04-2008, 2:13pm

Ed:

I don't know at ALL that it is that clear cut. That is how the RIAA wants it, but there are quite clear analogs between the betamax case and CD copying. The points to be considered are:

* the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
* the nature of the copyrighted work
* the amount and substantiality of the portion used in relation to the copyrighted work as a whole
* the effect of the use upon the potential market for or value of the copyrighted work.

In the betamax case, it was found that even though a whole work was copied, it was still fair use (time shifting), so just because a whole work is copied does not exclude a fair use exception for (specifically) time shifting, and possibly for archival, format shifting, and personal convenience, provided it is for personal use, and not transfer to another individual.

Fact is, it is a gray area, but one that has several good analogs to previous cases, but no definitive legal solution (which is why the RIAA has been trying to play like it's illegal to make copies, they want there to be a definitive legal solution -- in their favor)

That is not to mention that a CD is arguably software, and we have a plaincut provision for making archival copies of 'software' (although the DMCA obviously limits that somewhat, if it contains a copy protection algorithm).

See also RIAA v Diamond Multimedia (http://cyber.law.harvard.edu/property00/MP3/rio.html) and 17 USC 1008 (http://www.law.cornell.edu/uscode/17/1008.html)

first string

Jan-04-2008, 2:16pm

OK, without getting too bogged down in all the moral outrage and counter outrage I'd like to say that as with many things, I think this is an area where there is a happy medium. Obviously the idea of intellectual property can be a very good thing and allow creative people to make a living at whatever their craft might be, and thus to devote themselves solely to that particular pursuit. That said it is very easy to take things too far. Think about this, Shakespeare was a product of the absence of copyright law (he stole plots wholesale left and right). This was the norm at the time. I think the same lack of legal constraints probably effected the way that traditional/folk music has evolved in this country and throughout the world.

On the extreme side of the spectrum was that record company (I can't remember which one it was) that owned the rights to the Credence Clearwater Revival catalogue, suing John Fogerty for sounding too much like himself. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/rock.gif

Tom C

Jan-04-2008, 2:23pm

I say do not loose any sleep over this. Keep doing what you are doing. -As long as you are not file sharing. If you are going to burn a friend a CD, make sure it's something new they have not heard before. Maybe they will like it enough to buy other CDs from the same artist and create new revenues. As we all know, bluegrass and mando related music is a tough music market so do not take away from these artists but try to promote their music by introducing it to others. -and sometimes that means burning them a Grisman CD(For example).

Jan-04-2008, 4:06pm

Professional cooks and cookbook authors seem to make a living with very limited, if any, copyright protection, why not everyone else.
What in the world makes you think that cookbooks aren't covered by copyright protection? They most certainly are.

Professional cooks don't share their recipes. They don't need copyright protection, you can't copy their recipe anyway.

Jan-04-2008, 4:08pm

If any of you guys who don't think there should be copyrights and patents are old enough to have actual jobs you should take a close look at what you do. Somebody had an idea that ended up providing you with a job. Without that somebody and his creativity you would starve.

lgc

Jan-04-2008, 5:12pm

Just like music, people who are immersed in food could tell what is in a dish and how much.

I agree with the prohibition analogy. The copywrite laws, with regards to file sharing, are unenforceable and therefore are a least somewhat illegitamate.

What baffles me is the idea that it is a right to be a professional musician. There maybe have been pros for a very long time but it is only now that they live so comfortably. What seems to be being argued is that is is a right to live comfortably and be a musician. It seems to me that if people don;t value music as a commercially viable commodity then it ceases to be. That does not mean that mucic goes away. It may even get better.

TeleMark

Jan-04-2008, 5:29pm

© The "fair use" doctrine has a number of limitations; in particular, it is limited to copying portions of a work (e.g., a couple of paragraphs out of a book or article).
Ed,

Thanks for this very nice summation. I'm involved in patent analytics, and seldom delve into copyright. This is great info. I do have to ask, though... Did you intend for point C to show up as copyrighted?

hip

Jan-04-2008, 5:31pm

What in the world makes you think that cookbooks aren't covered by copyright protection? They most certainly are.

The collection as a whole, not the individual recipes.

If any of you guys who don't think there should be copyrights and patents are old enough to have actual jobs you should take a close look at what you do. Somebody had an idea that ended up providing you with a job. Without that somebody and his creativity you would starve.

What makes you think I'm young or unemployed? Because I don't follow your logic asserting without copyrights or patents there would be no creativity?

I'm a case where that's just not true. In my little niche of the world there are thousands of people using some of my work for which I don't hold a patent or copyright. Plus I've have never received a dime for it (never asked for one), and I haven't starve. Quite the contrary, I'm a hefty old man.

JimD

Jan-04-2008, 5:34pm

Just like music, people who are immersed in food could tell what is in a dish and how much. #

I agree with the prohibition analogy. #The copywrite laws, with regards to file sharing, are unenforceable and therefore are a least somewhat illegitamate. #

What baffles me is the idea that it is a right to be a professional musician. #There maybe have been pros for a very long time but it is only now that they live so comfortably. #What seems to be being argued is that is is a right to live comfortably and be a musician. #It seems to me that if people don;t value music as a commercially viable commodity then it ceases to be. #That does not mean that mucic goes away. #It may even get better.
What baffles me is the idea that some of you have that to be a professional musician is to have a comfortable life.

Many of you seem to be laboring under the impression that the only true success in music is enormous fame. There are many of us that are quite happy to be working, professional musicians but are likely making significantly less money than you are. I do not care about making piles of money. However, we still have to pay the rent (or mortgage), utilities, insurance, child care, medical expenses, car payments, gas (!) etc., etc.

But because you or one of your friends spent $18 on a cd, you think you should have the right to copy and distribute it as many times as you want. I'm sick and tired of hearing your bloody whining about how copyright (this is the correct spelling) laws are illegitimate (correct spelling, too) and how there should be a free exchange of ideas -- you'd all be singing a different tune if someone was going to take YOUR work and not pay for it.

Until you are ready to offer to do your work for free, you don't have the right to take my work or the work of any of my colleagues in the music business without paying for it.

mario515

Jan-04-2008, 5:53pm

too many high horses in this field, I have to go mix a dance party disc for a friends party( oh well looks like some poor DJ will be out of a job). I like doing this and people(correct spelling of people) seem to like it also. It makes me feel creative(correct spelling of creative) http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mandosmiley.gif

JimD

Jan-04-2008, 6:01pm

I just read an email from a friend who suggested that my time might be better spent composing then wasting my time arguing with the intransigent.

He is right.

mario515

Jan-04-2008, 6:30pm

I agree,, I do appreiciate all the work that everyone did to shed some light on this,, but I must confess I felt more outrage at the condescending attitudes of others and the Holier Than Thou rhetoric that seemed to be rampant. After all for such a large problem(illegal downloading) we are certainly a rightous group. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/laugh.gif Thats it for me,,,

EdSherry

Jan-04-2008, 6:56pm

Buddy -- I'm quite familiar with the Betamax and Diamond cases you cite. #In the Betamax case, the content owners were paid by broadcasters for the right to broadcast the content, with the clear understanding that people would be allowed to watch it. #Taping for "time-shifting" purposes allowed people to watch the show when they wanted to, rather than when it was broadcast. #The Supreme Court found that this was within the intended uses allowed by the broadcasters. #The SupCt concluded that, because there were "substantial non-infringing uses" for VCRs (namely, to allow people to time-shift), Sony could not be prevented from selling VCRs.

What that has to do with unauthorized duplication of CDs is beyond me. #If you want to listen to a CD, you can do so at your convenience -- it's not as though you'd otherwise be limited to watching a TV show when the show is broadcast.

I agree that the law governing making "archival" copies of software FOR YOUR OWN USE of what you've "bought" (technically, licensed) is somewhat murky, muddled by lots of debates about the legality of "shrinkwrap license" terms. #

But Buddy's argument that, if what you have "bought" when you buy a CD is a license, then the record company has an obligation to provide a replacement copy of the media (presumably, without charge) if it gets damaged simply does not follow. #If I buy a book, and I drop it in the water and it becomes damaged, I don't have the right to go to the publisher and demand that I be given another copy. #Many software firms are willing to provide a second copy (for a very low replacement fee) if your original is damaged; but that's their choice. #(Others don't.)

But the tacit assumption is that you will only access one copy at a time -- and that the purpose of making a back-up is to protect you against the prospect that the original will become corrupted and unusable. # As I see it, that has nothing to do with making a copy of music for your kids, or your brother, or your friends.

TelMark -- No © intended; that's what the site did to my effort to have a ( c). #(MS Word "fixes" things that way.)

Stephen -- I agree that the issue of the appropriate duration of copyright protection is an interesting (and controversial) one. #However, Congress has already decided this issue in recent years by passing statutes (the "Sonny Bono Copyright Term Extension Act") extending the length of copyright (currently life-of-the-author-plus-70-years, or 120 years for works-for-hire). #

Whether that was a good thing or a bad thing (and lots of scholars argued it was a bad thing, especially for content that was created in the past), Congress did it.

Stephen Perry

Jan-04-2008, 6:56pm

It is interesting how the underlying structure often gets pushed aside by various "shoulds" and the like.

1. The tack taken by the framers of the US Constitution concerning IP is worth discussing as a background to this issue. That the framers did not choose a "natural rights" approach seems pretty clear. This defuses pretty all the "I wrote it so naturally it's mine in all ways" arguments.

2. The clear areas covered by current copyright law seem generally teased out above. But there are probably gray areas worth discussing.

3. Current approach to "fair use" and what future "fair use" might be bears consideration.

4. Enforcement is always interesting - only a few get tagged for what many do. Is this equitable? Can anything be done about it? Does it matter?

5. We haven't really covered the clear shift in morality that's occurred. Many people, especially young people, think lying is necessary. They do it regularly in the work world and are extremely surprised when misrepresentations on resumes or "borrowed" text gets them in trouble. The most difficult cases I've seen are where a person preparing government reports gets used to using other government reports for text. Which is an excellent idea. Then throws big chunks of copyrighted text in. This morality problem comes in with the whole copying music thing. Most young people see no problem in just copying music - folks trying to make them pay are obviously bad! I see adults my age copying music, attempting to get software to bypass protections, buying gray market software, etc. A topic worthy of discussion.

Something I notice is a tendency to confuse observations on facts - such as the limits of copyright law - with the opinions or beliefs of the folks presenting those facts. That's even less useful than putting out "shoulds" or "shouldn'ts."

My personal interest lies more in the framers' decision to avoid a natural rights approach and favor the free market in ideas, with only limited protection provided as Congress sees fit. That's an interesting subject.

EdSherry

Jan-04-2008, 7:54pm

Stephen -- I agree that a lot of the discussion conflates three things:

(a) what the law allows people to do (and what it prohibits them from doing);

(b) what the law should be -- a topic clearly worth discussing, but one generally directed toward Congress; and

(c ) what is moral/right/ethical (just because something is not illegal doesn't mean that it is right).

I also appreciate your point about

(d) the ethics of trying to deter widespread behavior by singling out a few people and "making examples" of them.

That said, I'm aware that the RIAA repeatedly and publicly announced that it would sue those who made unauthorized downloads available, and that (given the sheer number of people who have done so) as a pragmatic matter it couldn't sue everyone. #

Other posts have focused on

(e) the pragmatic limitations on the ability of copyright holders to enforce the law (e.g., it may be "illegal" to make unauthorized copies for your own use, but it is both impracticable and counterproductive for the record companies to try to sue people to prevent it).

I fully agree that Congress (and the Constitution) did not adopt a "natural rights" or "moral rights" approach to copyright ("I created it, therefore it's mine!"). #Instead, the current system seeks a balance (party Congress-made, partly court-made as the courts try to interpret and apply the law to new factual situations) between the interests of creative artists/composers/etc. and the interests of the public as a whole.

Unfortunately, technology moves so rapidly that, even when Congress does act to amend the copyright laws (as when it passed the Digital Millenium Copyright Act in 1998), within a few years we're facing new issues (e.g., the advent of "peer-to-peer" "file-sharing" services such as Napster) that Congress didn't address, whether because the issues hadn't even arisen at the time the statute was amended or because the issues were too controversial for resolution.

Stephen Perry

Jan-04-2008, 8:05pm

I find the dynamic rather exciting. Unfortunately I have to think that the slow and cumbersome nature of new legislation is a good thing. A rapidly acting Congress would likely be all over the map and we'd have even more junk laws to work around!

Zapping a relatively small number of people quite hard for doing something that probably didn't appear to be any more "illegal" than doing 58 in a 55 mph zone seems unreasonable. But that's the way we do things!

As I understand things, Congress couldn't adopt a "natural rights" approach. The decision to go with free exchange was made in the Constitution and to flip things around would take a Constitutional amendment. I'm pretty much amazed at how much protection Congress has given folks. Shows how much power the mouse has, among other things.

Stephen Perry

Jan-04-2008, 8:21pm

http://digitalmusic.weblogsinc.com/2006/08/07/the-riaa-vs-john-doe-a-laypersons-guide-to-filesharing-lawsui/ might prove interesting.

EdSherry

Jan-04-2008, 8:32pm

Stephen -- Amen to your point that a fast-acting Congress would probably be worse than our current system.

As for your speeding analogy, try telling the cop that he shouldn't "single you out" for a speeding ticket because everyone else is speeding too! #As it is, the law routinely penalizes only a tiny fraction of those who break the law.

I'm not sure it would take a constitutional amendment to have Congress change the current system to be more like the European "moral rights" system. #Congress has wide latitude in changing the copyright law. #The relevant constitutional language is in Article 1, Section 8, Clause 8 of the Constitution, which provides that Congress has the authority (though NOT the duty!) "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." #

The debates in recent years have focused on what the "exclusive Right" consists of and on what "limited Times" means. #The Supreme Court, in rejecting a constitutional challenge to the Sonny Bono Copyright Term Extension Act, basically said that, so long as Congress does not extend copyright term into perpetuity, it is free to extend it (even for already-existing works). #

And, as Stephen says, it is quite interesting to see how broadly the "exclusive Right ... to their ... Writings" can be interpreted.

What I personally find fascinating is the interplay between the legal system and legal protection (whether contractual or statutory) and technological progress, and in particular technological changes that make it easier (or more difficult! -- e.g., technological copy protection mechanisms) to make copies. #

I fully agree about "the power of the mouse." #For those not familiar with the reference, it is widely said that the copyright term extension was driven in large part by Disney's lobbying efforts, which in turn were driven by Disney's desire to keep the Disney copyright in the early Mickey Mouse cartoons from expiring (as it was about to do before Congress intervened).

hip

Jan-04-2008, 8:33pm

Shows how much power the mouse has, among other things.

As in Mickey Mouse and how fast Congress moved to extend copyright protection when he was about to enter the public domain?

buddyellis

Jan-04-2008, 8:37pm

Ed, dont put words in my mouth, I never argued that distribution was allowable, rather that I have the right to 'media shift' my 'licensed' material to whatever device I wish to play it on, as long as the original media does not have a copy protection scheme attached to it. Read back through my replies, I've never addressed 'distribution' other than saying it was wrong.

What I don't care for is being called a thief because I buy a cd, rip it to my computer, toss the CD up on the shelf for safekeeping, and then put the album on my current 'play rotation' cd to put in my MP3 cd player in my car. That is what RIAA counsel essentially called me when they er.. mispoke). 'If you make one copy, we can say you stole one copy'. I happen to believe I have a fair use right to media shift my licensed content, much like I do when I buy software in the business world. Of course, their lawyers 'mispoke'. Again. Cough.

And actually, I very, very rarely buy media CD for licensed software, anymore. I simply buy the paper that says I have the license to the product. In fact just the other day I bought 25 license copies for MS Terminal server, and what I got was the receipt from Dell with the licenses on it. If the paper gets damaged, I call dell, and they email them to me. I make legal 'copies' of install disks from images when I burn an OS to a PC.

On the other hand, the media companies are trying to have it both ways -- they want me to be buying a license for said IP, but disallow me to use that IP in the way I can most conveniently utilize it (which frankly is why the Betamax case remains relevant, it was significantly about convenience and personal use that 'complete copies of works' to be allowable under fair use).

Fact of the matter, there are two arguments here.

1) Distribution of IP should not be allowable. This is one the RIAA has and should win, IMO.
2) Simply making a copy of IP should not be allowable. This is probably a legal loser, but seems to be the argument they are floating (and seems to be the way the RIAA wants it to be)

Frankly, I think the media companies should just work on getting a surcharge on all PC's (edit) and mp3 players like they did with music cds and cd recorders, work on creating a viable, open internet distribution system, and quit suing people left and right, and/or filling my PC with DRM cr@p. It'd be a lot easier on them, in the long run, but right now, they are content with the bad will and such that these lawsuits generally generate for them.

I refuse buy music from any source that doesn't sell in an open format without DRM.

The folks who get caught distributing music illegally get what they deserve. However, don't call me a thief when I make a personal copy of my media so my three year old doesn't destroy my 'real' CD.

lgc

Jan-04-2008, 11:18pm

"The folks who get caught distributing music illegally get what they deserve. However, don't call me a thief when I make a personal copy of my media so my three year old doesn't destroy my 'real' CD. "

There does seem to be an arbitrary boundary set by many people on this thread and it seems to go like this: "It is OK to make personal copies even though it is not expressly legal because that seems right to me but anything beyond that is morally reprehensible." To be consistent shouldn't it be agreed that what the law says is either completely infallible or completely up for discussion without resorting to insults?

Joel Spaulding

Jan-04-2008, 11:38pm

Quote: . "#To be consistent shouldn't it be agreed that what the law says is either completely infallible or completely up for discussion without resorting to insults?"

Agree 100% regarding the insults. We don't really need them. You touched on the root of #all legal issues with the remainder of that sentence. Completely infallible ? The law? #http://www.mandolincafe.net/iB_html/non-cgi/emoticons/rock.gif #Completely up for discussion? - this is more likely. We have thousands of judges and barristers "discussing" just exactly how law should be interpreted and applied every minute of every day. It would be great if "for the sake of our discussion" we could hold to what the law actually says, but as evidenced by some very informative and scholarly previous posts, just what the law is - "ain't exactly clear" http://www.mandolincafe.net/iB_html/non-cgi/emoticons/smile.gif

Jan-05-2008, 8:48am

Interesting that someone who seems so opposed to the protection of Intellectual Property would have this at the bottom of his web site.

"The mandovoodoo™ process was invented by and is only performed by Stephen Perry of Gianna Violins, the world's premier seller of fine Eastman Mandolins. Copyright © 2005-7 Stephen K. Perry. No use without written permission. By viewing you agree to all site terms and conditions. mandovoodoo.com ™ is a division of Gianna Violins.

John Flynn

Jan-05-2008, 11:09am

I don't really "have a dog in this fight." I neither have anything copyrighted nor do I pirate anything. Here is what I see in these discussion as a fairly dispassionate observer:

1. People are accusing each other of extremes they are not guilty of. On one side, I don't believe that the people who question the current laws and legal actions are necessarily "opposed to intellectual property rights." I haven't seen anyone say all intellectual property rights should be thrown out. On the other side, I don't see people here who are strong IP advocates seriously proposing throwing people into jail for fair use. So the level of rhetoric here is completely out of proportion to the arguments.

2. I also don't see people here who are truly suffering either way. Is anyone here actually being sued for violating musical intellectual property rights right now? Is anyone here actually headed to the poorhouse right now because thier intellectual property is being stolen? If so, let's hear your story. My guess is there is no one in either situation. Again, the rhetoric is out of proportion.

3. I would hope that everyone could agree, because it is just obvious by this thread, that the current IP legal situation is not good in both directions. The technology has gotten ahead of our legal system once again and no one will be happy with this situation until a new legal framework gets worked out, which we can't do here and which may take years. Until then, maybe, just possibly, this is not the most important public policy issue in this country right now.

Just my two cents and worth every penny.

Copyright 2008 Mando Johnny. No use unless you just can't help yourself. By viewing, you have wasted time you could have been practicing.

Stephen Perry

Jan-05-2008, 11:13am

I'm not at all opposed to the protection of intellectual property. Where on earth did you get that idea? I simply look at what's out there. The framers of the Constitution chose to not embrace what we would now call a "natural rights" approach, instead promoting a free market in IP (although they didn't have that term). That's the water we all swim in. That I point this out doesn't make it my personal opinion or desire.

Instead, the Constitution got structured to allow limited exclusionary rights if and only if granted by Congress. The grants have been exceptionally broad in copyright. For example, even without the designation of copyright in the quoted text above it is covered by copyright and its reproduction here could be considered a violation of that copyright. Unless it falls under one of the fair use exceptions or I gave written permission.

No, I'm absolutely in favor of IP protection. I'm not in favor of making up what protection should exist or of protection that doesn't serve to promote creative activity, which was the Constitutional mandate to Congress. Copyright currently runs a very very long time, certainly outside of the useful period for promoting creation for some materials (e.g., computer programs) and likely outside the useful period for promoting creation by the original author. Instead it's become a means for non-human entities (e.g., corporations) to extend the period of time they can make money off the expression of an idea.

Why should copyright and patent have different periods? That's an interesting question.

Back to the original point. Neptune, what on earth could make you think I'm against IP protection? I'm actually rather more of a "natural rights" person, but that's not the context we operate in. I remain perfectly willing to point out when viewpoints come into conflict with reality. And those holding to a natural rights viewpoint are clearly in conflict with reality!

I'm also disturbed by the narrowness of fair use. But that's what it is.

I'm more disturbed by the eager willingness of otherwise law abiding adults to infringe others' copyright and patent. Why I don't patent things - just keep them trade secrets.

As to my disclaimer - nobody "borrowing" my text (which happens regularly) can really claim they didn't know I wrote and claim rights in it. I think that giving warning is fair. Or would it be better to simply blindside all infringers without warning?

Ah, and I note this is sort of a personal slam, which I don't appreciate. IP is just an interesting subject I wish I knew more about. I took a couple of courses on it, but I don't keep up with. Threads like this prove very interesting to me. Both in how IP protection evolves and in the interesting ways people think about it.

There's a bit of dissonance in many folks. I talked to someone just yesterday on the subject. Without any background in IP, this person assumed a "natural rights" approach to IP. That if you made it, it was yours and always had been throughout history. And still today in the US. Bit of puzzlement as to why we would need copyright and patent law if that was true. And then real puzzlement when I pointed out that the iPod associated with this person appeared to be full of ripped and pirated tunes. Sort of "If I make it, it is mine, if you made it, it is mine." That seems a prevalent approach.

I suggest prior to slinging arrows that you get your facts straight. I'm not now and have never been opposed to the protection of IP. I'm opposed to needlessly expansive protection, I can see good reasons not to have a natural right approach, and I'm perfectly happy putting disclaimers on all my web pages and other text. I'm also happily registering other work to give myself a leg up with statutory damages, should someone take a big and valuable chunk of something I've done.

If IP weren't protected, I certainly wouldn't have written and sold so much text. We certainly wouldn't have nearly as vibrant an R&D based technological civilization. And so on.

Hey, Neptune, how about an apology? Personal slam and copyright infringement in one post! That's pretty good.

Just funning you.

Jan-05-2008, 11:55am

OK, I will apologize for misreading your posts.

But no apology for the fair use of that tiny portion of your website. That is my right under the laws of the US. (just funning too - but perhaps a good example of what "fair use" really is).

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. "

Klaus Wutscher

Jan-05-2008, 12:07pm

I really hate to rain one your parade guys, but this train has long since left the station. I buy music online at emusic.com for quite some time now (works well for me - much, much better than iTunes) and when I raved about it and their selection and pricing, my colleague at work (25) almost fell from his chair, laughing. He couldn´t understand why anybody would PAY for music anymore. Obviousely, that´s not my point of view, but since the big boys killed Napster, the whole paradigm kind of shifted, for the younger generation anyway. It´s them against us all over again and they want to make us pay for the music....

My point? Codified law is one thing. If codified law runs against the moral standards of a society (lowly as they might have become)it becomes inefficent and finally has to be changed in order to avoid even more damage- just think of prohibition and the effect it had on the mafia. Didn´t work too well, did it?

What could be coming might be some form of flat rate for downloading music that comes with an internet access.

Jan-05-2008, 12:54pm

<< What could be coming might be some form of flat rate for downloading music that comes with an internet access. >>

Or what could come is no more recorded music for sale in any format at all. You will be limited to listening to the ads and whatever the DJ's playlist has on "free" broadcast radio or paying a monthly subscription to a music service.

The music industry has no intention of allowing what is currently happening to continue.

Klaus Wutscher

Jan-05-2008, 1:12pm

I´m sure that´s what they would want to happen, but I think it won´t because
a) indie artists would probably continue to sell CDs because this would increase their exposure and

b) DRM has flopped and therefore, subscription services will most likely offer non-protected formats, which in turn will be redistributed on the internet.

Maybe it dawns to the big labels that someone stopped payment on their reality checks!

John Flynn

Jan-05-2008, 2:11pm

Or what could come is no more recorded music for sale in any format at all.
The music industry has no intention of allowing what is currently happening to continue.
I'm sorry, but that's an outlandish prediction that is just not gonna happen and the industry is powerless to stop what is going on. The industry's goal is is to make money, not stop making money. That's would be like Levi's saying, "We are so upset about people copying our jeans, we're gonna stop making the real ones. With music, the subscription idea would have the same problem as the current system. Some people would subscribe and re-distribute to non-subscribers, sometimes for free, sometimes re-selling as pirates. That is happening now.

I think what is happening is that with digital technology, the traditional music industry is losing its contribution to the value chain. They no longer do anything that an artist cannot do for themselves. I also don't think they actually care much about artists. They say they do, but they are really just using that as a pretext to keep thier own nests feathered. I think the wave of the future is that distribution will have to be directly from artists to consumers. I don't know exactly how that will work, but whoever does work it out will make a fortune and both consumers and artists will be better off. The people who will suffer will be the traditional industry "suits." Some piracy will still happen. That is just unavoidable, but if the right people are still making money, it will be an acceptable loss.

BTW, the music industry is not the worst hit by this. If you look at the high tech industry that I'm in, or the high fashion industry that my wife is in, piracy is hitting much harder and intellectual property issues are even more complicated.

Jan-05-2008, 2:21pm

Indie artists even now don't use CDs to increase their exposure. They're using myspace and youtube for that. They cut CDs to sell and you don't want to start them on the bootleg subject.

Digitally delivered music can easily be keyed to a single playback device - there are so many different choices now it is a bit funny. The really neat thing about some of these technologies is that each download is keyed to the original purchaser and copies can be traced back.

In any case the industry is not going to keep giving away free music. If people won't pay for it then the industry won't make it or the profits will be so low that there won't be any musicians recording.

Jan-05-2008, 2:25pm

Why would anyone assume that a musician would spend thousands of dollars of his own money to cut a CD to give away? It just isn't going to happen.

If there isn't any money in the music business for the big guys then there for sure isn't going to be any money for the individual.

cooper4205

Jan-05-2008, 2:38pm

Stephen Perry

Jan-05-2008, 2:44pm

1. No money for big guys, money for little guys. I can see that direct distribution could work this way. With the Internet I can figure out very easily how to direct import things and sell retail at better prices than my big competitors while still making a better profit than I usually would. Everyone wins, but I'm doing something more complex and risky than before.

2. Production is much cheaper than it ever has been. Distribution is very cheap.

3. Rapid file sharing can probably defeat any of this and drive recording out of business. I download a file from an overseas server in .rar format with a password my buddy gave me. Who is going to know what's happened?

4. So, imposing a uniform fee on all devices and giving that money to the SSRIAA to distribute based on some formula or whatever would be a way for all the "suits" to keep driving the business. Should be interesting.

5. Fair use looks like a "defense" to me. So folks thinking they probably fall under fair use, but aren't sure, could be forced to demonstrate their use in court. Probably as a result of harassing suits filed by organizations like the SSRIAA (note the slander is used in commentary/sort of parody). One of the problems with having "factors to consider" and "balancing tests" rather than "bright line" types of law. Although most bright lines blur close up!

Should be very interesting.

Klaus Wutscher

Jan-05-2008, 3:49pm

Indie artists even now don't use CDs to increase their exposure. They're using myspace and youtube for that. They cut CDs to sell and you don't want to start them on the bootleg subject.
Been there done that. Certainly true.

But on the other hand, a big part of the costs esp. for indie CD production with smaller numbers of printed CDs are manufacturing costs - printing, artwork, CD cases. Once you record your music by yourself and go digital for distribution (no physical media, CD or otherwise) the costs for making an "album" drop significantly. Sell downloads and printable pfd files for the cover on your website et voila - a new business model is born.

If I was to record again I would go that way. Beats dragging around boxes of CDs!

kestrel

Jan-05-2008, 4:38pm

I think I have a solution to the problem. We make sure to get the Gumment’s attention. That one in Washington. They will appoint a committee to study the problem. That will cost us – the taxpayers – several million dollars. The Committee will appoint several sub-committees to study the details of the problem. A few more millions of dollars. The combined committees will submit several thousand pages of their findings to Congress for their consideration. The House will send it all back to committee for further study, and to do a poll of mandolin players. Several more millions of dollars. In eight or ten years, it will make it to the Senate, who will finally order that a Bureau of Undercover Music Investigators (BUM Checkers) be developed. Thousands will employed and trained; issued black, leather uniforms, with the word BUM, and lightening bolts on the high, rigid collars, knee-high black patent leather boots. Black vans, door rams, and automatic weapons will be issued to the BUM squads. Doors will be smashed in while erstwhile offenders sit quietly in their homes, listening to copies of music that were illegally transferred – in dark, hidden rooms in the basement, under cover of night - from purchased CDs, to IPODS. Cars will be forced off the highways, and whole families will be boot-heeled to the ground while seats are ripped from their vehicles, and specially trained Rotweilers are turned loose to sniff out hidden contraband electronic recordings. Small children will be sent to Guantanamo, in hope that they can be “induced” to rat out their parents, and older siblings. New jails will need to be built and staffed. Resistance will be futile. Evil, hardened, music copiers will be routed out and punished to the full extent of the law.

Many, many years, and trillions of dollars later, people will still be copying music for their own use, and some evil rascals will be putting bell-shaped truss-rod covers on their mandolins – and people will still be preaching to the choir.
http://www.mandolincafe.net/iB_html/non-cgi/emoticons/sleepy.gif