190 new of 206 responses total.
Ah, a convert!
convert?
A convert to Bill Clintonism.
((Much as it pains me to recognize it, our general approval of Clinton's presidency is one of the few things jerryr, rcurl and krj would all admit to agreeing on. But we digress...)) Back to the topic: a slogan from a recent news article about Napster, which of course I lost: "20 Million Pirates Can't Be Wrong"
<adjusts her eyepatch> Arrrrrrrr
bill clinton is my personal savior. has been since he became president. the only thing i ever faulted him for was his choice of sluts. i have been converted to nothing. sorry to disappoint.
I have never downloaded anything from napster and I didnt vote for Bill Clinton in the last election.
nice try, but he won anyway. (ok, i stole that line from the west wing, but it's a great line)
i thought monica was kind of cute
you would
Bill Clinton has always squicked me out. I never could understand how any woman could think him attractive or how anyone could believe his campaign promises the second time around.
I'm not sure that anyone *did* believe his campaign promises the second time around. The problem is, many people *did* believe Bob Dole would do what he said, and they apparently didn't like it..
I am giddly upon seeing the phrase "squicked me out". :)
Does anyone want to talk about Napster?
Here's a topic which came up in party today. The process of taking a CD and turning its tracks into MP3 files is known as "ripping." (A question for the resident Grammar Bitches, if they are still here: Do you say, "I'm going to rip a few CDs?" or "I'm going to rip a few MP3's?") I've always assumed that the derivation of the term "ripping" was from the 1960s slang "rip off," meaning to steal, and this would imply that the people who coined the term had some perspective on intellectual property rights. Is "rip off" the correct etymology, or is there another derivation for "ripping?"
Not sure. I don't think it matters :)
Hypothetically I have a 'cd' of 'Shanghai Noon' that I paid good money for (about 1.25$US and I paid much more than I should have as I am 'rich') in Hefei, An Wei, PRC. Its not a DVD, its a VCD that plays equally well in a DVD as well as the CD of my PC. The DVD of the VCD has not been 'released' as it is still playing in the theatres in the US and has not been released foreign. In addition to the English dialog, and the subtitled mandarin the VCD also has subtitled fukienese and malay and 'dubbed mandarin' for the english as options. My only gripe is that it is not 'letterboxed', but whaddayah expect for one dollar and two bits. Now, just between you and me this flik is not exactly on the top of the list of whats-her-name will allow me to spend 50 bucks US$ to go see in a US theater on a 'date night'. (instead we save money and go see 'art' shit.) Granted this is not 'revenue' that the original studio might have collected in any of its traditional distribution channels, but is it really 'stealing'? Its not even in the same market format the the studio is gonna release 'legitimate' copies of/in. Oh, and I don't even own a DVD. (I don't even have cable.) As near as I can figure there is no way that in controlled/traditional distribution methods the studio has a chance in hell of collecting $ from me, thus it has no 'damages'. I might even mention to friends/co-workers that it is a pretty good flik and thus the studio benefits from the 'buzz' in that filk that I don't dupe copies of the VCD to might actually go pay the 50 bucks for a 'night on the town' or at least view it on TV whenever it is released if it is. No foul, no harm?
I read somewhere--I think in the AA News--that someone did a study of how well recent presidents did keeping their campaign promises. Surprise! Clinton topped the list at something like 69%. Reagan was near the bottom; I forget his score, though.
i'd love to read that.
re #33: So your argument is that it's not stealing because you were never going to buy it anyway? Out of curiosity, how much of that $1.25 do you think went to the studio?
Here's a great example of why Napster should be allowed: I just ordered a Captain Tractor cd. Without Napster, I'd have probably never heard any Captain Tractor songs, and I would not be buying the CD. In this case, after stealing the music (actually only one song), I'm paying for it.
Thats an argument for why it might be in the best interests of record companies to tolerate the stealing that goes on on Napster. I am sure they have considered it but have decided that the costs outweigh the benefits.
"Mp3 is radio" is one argument I've heard, but the record companies are pretty much going after anything at all. The real issue is precendent, not fairness.
Definitely read the Atlantic Monthly article on this. It's online at the Atlantic website, and it has some fascinating data and historical precedent that I'd never heard before. Pirating of music is nothing new, just in a new format.
You can listen to any CD in a record store before buying - to preview it. I'd think record companies might allow this over the web, if it is done once, and not recorded. (You can't make a copy of the CD in a record store!). Then, ea could have sampled Captain Tractor, and bought the CD because he wanted a copy. So, would you agree that it would be OK if all downloaded music automatically expired after one listening, and could not be saved or copied?
"You can listen to any CD in a record store before buying - to preview it." Where???? The last CD shop in Michigan which I know allowed unlimited previewing was CD Emporium in East Lansing, and they closed a decade ago.
No. Using your logic, a person can spend a fair amount of time in the record store, just listening to the same CD over and over. You can go back the next day and still listen some more if you want to. (as long as the manager doesn't kick you out) Yes, you have to spend time driving to the store, but generally, that would not be nearly as long as it takes to download a file.
(Ken slipped in)
I guess I've been spoiled by my T1 connection. When I've d'loaded music before, from sites which WERE legal (mp3.com artist's sites, the virtual filksing, and Dougie's, etc.), it's taken maybe five minutes when I've done mass d'loads. I think the mp3 site's idea is good -- at least the one I've used -- which is to allow various artists to put songs on line so people can hear them, or download them, and to sell DAM cd's by those artists for a small amount of money. That way, they get exposure, and those people who LIKE their stuff will buy it. At least, the honest ones. (I've gotten one DAM cd from there, from a Welsh singer named Jodee James, and it's *very* excellent.)
I'm going to put my little copyright essay here. No slight intended to willard's other excellent Napster item, it just seems to fit better here now. ------- Consider: Copyrights have no moral force in our culture. The right to tangible property goes back to the roots of Western culture: "Thou Shalt Not Steal" is in the Ten Commandments. And even a child sees that if I take something from you, you don't have it any more, and this is a wrong. But copying is different. If I copy something from you, you still have it. The Lord did not say, "Thou shalt not copy thy neighbors' scrolls." Copyright has never been an "absolute" right, in the sense that most property rights are absolute. (Let's wave off land-use regulations, OK?) In the US, copyright law has balanced ownership incentives to creators with access and "fair use" by the public, and the scope of copyrights has been subject to adjustment through the years. The Constitutional language which gives Congress control over copyright law says that the purpose of copyright is public benefit -- *not* the maximum profit to copyright holders. Copyright is an economic regulation which only goes back a couple of hundred years, and it was designed to regulate the behavior of businesses. It's only worked this long because until now copying machines, in the most general sense, were big expensive things which only businesses could own, and business are (1) relatively limited in number, and (2) cost-sensitive to things like civil lawsuits. So the civil court system was sufficient to keep the businesses in line. In the 20th century, the ownership of copying machines has spilled down into the general population. And I had a flash of blinding insight last night: so far, "Society" has refused to use the big guns of copyright law against the public at large. As the public's copying activity has expanded, copyrights have been rolled back. Legally, the first step was with the VCR. In the Betamax case, the appeals court held Sony liable for infringement; we came very close, as a society, to banning the VCR. However, the Supreme Court made some new law out of whole cloth: they arbitrarily decided to declare that "timeshifting" a TV show was not an infringement; and then they ruled that because the VCR had newly-declared non-infringing uses, it could not be sued out of existence. Copyright rolled back in the face of public copying activity. Though audio copying came first -- the music industry got really panicky in the heyday of cassette recorders, with a campaign about how "Home Taping Is Killing Music." -- the legal situation didn't resolve until later. Widespread home cassette copying was tolerated for years -- I am unaware of anyone ever being prosecuted for it.. Eventually in 1992, the Audio Home Recording Act defined a clear legal zone for private users to make copies without fear of being sued. Again, copyright was rolled back. I honestly don't know how the current struggle will turn out. Congress gave the copyright industry and the courts a Great Big Gun to use against the public in the Digital Millenium Copyright Act. $1000 worth of illicit copies is now a felony charge; by the standards of the law before 1995, this is draconian. It's so draconian that the law has hardly been used yet. Of the guesstimated 20 million Napster users, most must have $1000 worth of illicit songs, and so they would be slam-dunk prosecutions under the law. But the number of prosecutions under this section of the DCMA is one: one poor student at the U. Oregon who had MP3 files on his web site. And that prosecution was two years ago.
The RIAA has some interesting interpretations of copyright law. For example, if I dub a CD onto tape to keep in the car, they're forced to consider that legal by the home recording act. If I dub the CD onto a CD-R data blank for the same use, it's illegal. If I dub it onto a CD-R audio blank, suddenly it's legal. The only difference between audio and data blanks is the price and the fact that the audio blanks have a serial number identifying them as audio blanks.
((I'm sorry, it was the No Electronic Theft Act which set a felony charge for non-commercial copyright infringements of $1000, not the DMCA. I keep getting those two mixed up.))
gull in resp:47 :: that's not an "interpretation" of the law, that *is* the law. A CD-R audio blank costs more because of the royalty paid on it, and in exchange for that royalty the user is immunized for copyright violation involving the recording put onto that disc. Trying to separate out computer data from audio data in the AHRA gets contorted and wacky.
Re #49: Yeah. What gets me is that putting audio on a data blank is apparently *always* an act of piracy, even if it'd otherwise be considered fair home use.
...such as backing up expensive music CDs in case they get stolen/lost/damaged on a trip? That's what I've been doing, anyway.
Re #46: Ken apparently has a set of "absolute" laws that he follows, while he facily ignores human laws. That is mighty convenient, to make your own arbitrary laws. Thieves really love that theory. All of his smoke and mirrors about "tangible" (property) and "intangible" (ideas, concepts, inventions, compositions) are a lot of hypocracy and demagogery. In all of human history, what is right and wrong; what is ethical and not ethical; have been decided by humans adopting laws in one form or another. So called "property rights" are a human construct adopted millenia ago, and which are now a serious problem as humans become more crowded on the globe. Copyright laws are a human construct adopted centuries ago, because prior to then there was little value to individuals of their thoughts and inventions, as they could not be defended. So "property rights" are fading, and "copyrights" are becoming more important, as we shift from a culture of stuff to a culture of ideas and information.
After four attempts to compose a response to Rane, I think I shall just quit for now. I could not have imagined a more non-sequiturish response to my essay; I can only suggest that Rane is a copyright fundamentalist who has never owned a tape recorder or a VCR.
((I'm also quite peeved that Rane has decided to attack my own personal ethics, which he knows nothing about, based solely on my arguments and social observations in resp:46. Rane, with regard to the topic currently under discussion: I have *never* downloaded an unauthorized piece of music from the net. You'll have to explain to me the "hypocrisy and demagogery" in my essay. Line by line, please.))
I am Napstering as I type. Was able to download a song I had not heard in ages, and now I want to go out and get the CD. (Tanita Tikaram).
I'm a little surprised no one has brought up all the laws that people have deliberately broken, such as the apartheid laws in South Africa, the various laws pertaining to fugitive slaves in this country, laws that kept the Jews under in Nazi Germany, debtor laws in England, anti- abortion laws in the US, and so on and on and on. Would Rane sneer that it was "mighty convenient" that the heroic men and women who broke these laws were "making their own arbitrary laws"?
Well, I was hoping not to go into the subject of just and unjust laws, and I was *really* hoping not to bring up Nazi Germany. But on reflection, Rane's response to my essay puzzles me even more, because while his hostile response to me extols the virtues of law, a good deal of my essay documents how copyright laws have been curbed, under Congress and under the Supreme Court, in response to the technological changes of the last 50 years. I do suspect that Rane is sticking to some absolutist point of view on copyright, though, rather than a legal one. In the other Napster item, resp:550,22 , Rane says about taping music from the radio, "Honest people would not do it." Legally however, Congress granted full permission for this in the Audio Home Recording Act, to the best of my non-lawyerly understanding.
I said nothing about Ken's ethics in #52: I was only responding to his "absolutist" stance, that ethics of "property rights" somehow have an origin other than humans at some time deciding predominantly that that was useful (to them). The "hypocrisy and demagogery" lie in using an absolutist stance for which there is no evidence to further his arguments. (But I'll settle for it being just one of the two... 8^}). I think md gets a little carried away in #56 in making a comparison between copyright laws, and laws that intimidate, oppress, or make criminal, basic human rights. Is copying of copyrighted material a "basic human right"? Laws concerning *property*, tangible or intellectual, are the proper sphere for debate and amendment. There are no *absolutely correct laws* in all matters of property, but only laws arrived at by disputation and democratic processes. Society is in jeopardy when laws arrived at by these processes are ignored or violated, when there are means to redress errors in laws by said processes. How many here that think nothing of violating laws on copyright - whatever they may be - also drive through stop signs without stopping?
seems to me many folks only obey the laws they like.
Yes - they tend to obey the laws they think *others* should obey - but probably not very consistently. (I bet almost all drivers that run red lights get furious when someone else runs a red light and almost hits them.)
Tell us about these "basic human rights" of yours, Rane, the ones that override the law. Who sez?
I have mixed feelings about intellectual property law. I think people who create intellectual property are certainly entitled to some sort of protection. However, that doesn't seem to be how such laws are usually used today. Instead they're used as weapons by corporations, to hoard ideas and stifle competition. Take the recent "Disney Amendment" to copyright law. It does the creator of an idea no good to have his copyright stay in effect 75 years after his death, and I doubt many people are producing more material because they know the protection will extend that long. It does help corporations, though. It particularly galls me that even after a company has made a decision to take an item out of print, it's still illegal to copy it. This is pure hoarding. Ideally companies would release such items to the public domain, but they rarely do. (Some Borland software being an exception.) This is one case where copying is illegal, but I don't feel it's immoral. "Look and feel" copyrights are another really hazy area. Where would we be today if someone had copyrighted the look and feel of the "steering wheel and pedals" interface to cars? :>
In resp:58 Rane writes:
> I think md gets a little carried away in #56 in making a comparison
> between copyright laws, and laws that intimidate, oppress, or make
> criminal, basic human rights.
You might not feel that way if you'd followed the long-running battle
between the Church of Scientology and its critics on the net.
A debate with a Scientologist runs something like this:
critic: "Scientologists believe we are infested with the spirits of
murdered space aliens."
Scientologist: "This is simply untrue. Scientology is an advanced
philosophy devoted to benefitting humans, blah blah blah."
critic: "Here, I will prove it. Here is a document in which Scientology's
founder lays out the belief in murdered space aliens"
And at this point Scientology responds with legal action for the critic
violating the copyright on the Secret Space Scriptures. Side effects
of these legal actions have included raids by armed federal marshals
on critics' homes and the seizures of their computers and papers
(happened at least three times, courts seem to have decided not to allow
that any more) and the bankruptcy of the critics.
The right to freely exchange information and engage in robust public
debate might trump copyright laws. John Hockenberry had a great essay
on msnbc.com in which he concluded that the defense of the current
copyright system would require "a Stalinist-style licensing system
for the transfer of information."
re #54, 57: If you're genuinely puzzled by Rane's response, I think you can better understand it by considering it a "Serdar Argic"-like reaction to your mention of the Ten Commandments..
Re#61: read the Bill of Rights, md. They are the law, too.
Mike, resp:64 :: Ah. *Lightbulb goes off.* Perhaps Rane is reading the intro to my essay as stating that tangible property rights have a divine or supernatural origin, and thus are superior to intellectual property rights created by mere men, and thus I have triggered his anti-religion thing. When I used the example of The Ten Commandments, I meant to express that "Thou shalt not steal" was embedded in the roots of our culture, not that it carried divine sanction. The reference to the Lord's views on scroll copying was, um, humorous. A simplified and less entertaining way of writing my introduction: Tangible property rights are rooted in 4000 years of our culture and they are learned in childhood. They thus become almost instinctual to normal adults; this is what I mean by saying they carry "moral force." Intellectual property rights are only around 300 years old and they are not taught to children. They are not instinctual to normal adults; they are almost INCOMPREHENSIBLE to normal adults. This is what I mean by saying that they do not carry moral force. The rest of the essay goes on to argue that it is probable that copyright is not meant to apply to "normal adults," any more than anti-trust applies to the average citizen.
(I left out the last line: the essay argues that copyright is meant to apply to businesses.)
Re 46. Ken, excellent points and historical summary. Actually, though, even leaving aside land-use regulations, NO property rights are absolute. If a law is passed which, say, makes something you own illegal to possess, forcing you to choose between getting rid of it and breaking the law, you are not owed any compensation by the government.
(Re #16: if you want to refer to my "anti-religion thing", I will have to refer to your "pro-superstition thing".) I agree that the tangible property "laws" go very far back in human history. That is because life was often dependent upon tangible property (food, shelter, weapons, and the mean to sustain these), while the idea of intellectual property did not arise until a society developed in which it was possible to support oneself with intellectual property. This was certainly not easily done, and was retricted to those few that could obtain a patron's support for their artistry, "magic", inventiveness, etc. However, today, industries large and small have been built upon intellectual properties. They have become essential for the maintenance and development of our society. In my opinion, they take an equal standing with tangible property rights. They have been encoded into law with patents and copyright. The main difference, however, is that it is much easier to steal intellecutal property than to steal tangible property. The fact that they are easier to steal does not change the equivalence of the ownership of the two. Saying the equivalance is "not instinctual" is a tautology: of course respect for intellectual property rights is not "instinctual" - because it is so easy to violate the right.
Taking a physical object deprives someone else of its use, but
there is no such harm from making one's own copy of an object.
Ownership of the object is a natural right (*somebody* has it),
ownership of the idea of the object is not. IP is a construct.
Intellectual property rights are a compromise, authorized by the
Constitution "to promote progress in the useful arts". They are
limited monopolies, and are supposed to compensate inventors and
authors for making their creations public ("patent" is synonymous
with "obvious"); after a time, things go into the public domain
and everyone can make free use of them. 75-year copyright terms
burden the public with the court costs for defending them, and
return nothing to the public. It's time to chop them back. The
copyright term of the original US law was 17 years; that'll do.
Rane, feel free to refer to my "pro-superstition" thing. I'm an atheist. However, I'm also a student of religion, particularly of Judaism and Christianity, because I believe it's impossible to get a good grasp on Western culture and history without studying them. Rane, please discuss your concept of intellectual property in the light of the Betamax decision and the Audio Home Recording Act. :)
Re #70: making a copy deprives the author/inventor of the legal right to compensation. I'd not holding to any particular patent/copyright law. I agree that 75 year terms are excessive. I'm only maintaining that there should be patent/coppright protection with reasonable terms and allowances for special cases *that also further the interests of society* (such as personal use for educational and scientific purposes).
Legal right to compensation? That's interesting. You can ask to be compensated, but you can't force people.
Well, that's the whole problem. The current terms are, on the whole, neither reasonable nor good for society. And they're steadily getting worse, not better. I unfortunately don't see this situation improving any time soon, because the people who have the money are the ones with a vested interest in having information be restricted as much as possible. And it's the people with the money who write the laws.
I wonder about a society that feels entitled to be compensated for everything rather than sharing anything. People are so worried about being screwed out of money or recognition, they don't care about people enjoying the friuts of their labor.
I can't think of a single society where people produced just because
other people might think their work is cool. I mean, "labour" is the right
term. How would you feel if your employer decided paying you was optional?
(I just wrote a similar response to Sunny because I leapt before I looked at #76 - really nice of all these generous people to refuse compensation from their employers because they want to feel good about sharing....). The inventors/artists should form their own cartel (that's what it would be) and seek maximum return to themselves and not to the record companies - they could even form their own "coop" record companies. Of course, they would want to strictly enforce copyright laws to prevent theft of their creations, as that is their due as well as their means of living.
There are a few artists who've done just that - Ringley from the
Toasters formed the Moon Ska label, and Alain Jorgensen from Ministry formed
the Wax Trax label. Both of which have been accused of perpetuating the
exact same kind of nonsense the major labels have, but they're at least more
broad-minded about who they'll pick up.
If I could afford to live without income, yes I'd work for free. I LIKE what I am doing, that is the importnat thing.
So do most inventors/artists, I expect - but they don't like having thier stuff stolen, which seems pretty rational to me. If they want to give it away, they will. That's their decisions, not the decision for the thieves to make.
And, if I'm selling something that's mine, whose business is it to
tell me what I should charge, or whether I should give it away.
That's what I said. Did I slip in?
They're different tacks on the same idea - #80 asserts the creator's
right to their product, #81 disclaims anyone else's.
Has nothing to do with "thieves" rights. Take for instance, an art gallery that shows an artists work, but charges no admission. Are they stealing the work of the artist for not paying to get in, but however are viewing their work, and can in turn share the experience with others?
That's a flawed analogy.
You can make a good comparison between viewing art in a museum, and
listening to a song on the radio - it's actually cheaper to listen to a song
on the radio, and everyone gets to enjoy it, once. The selection is limited
in both cases to what the museum curators and radio station operators believe
their membership would enjoy or value, and what they can get.
A better comparison might be of photocopying an artist's print to
avoid paying a royalty fee to the artist and poster company. Is that
stealing?
Okay. Suppose I am a museum. I buy the artist's work. Whatever it is. Then I start making copies of that work and selling them to the public in my museum store, without paying the artist anything for the privilege. Is this theft, considering that most museums are non-profit organizations and that they do own the work?
Depends what you mean by "Copies"
Since Napster copies aren't sold, I'd assume you mean giving away
copies (or at least selling at print cost).
But is an mp3 really a "copy"?
Is a print of an artwork really a "copy"? Is a photocopy really a "copy"?
I guess "close" counts in more than just horseshoes and hand grenades.
re #86: When you bought the artist's work, did you buy the right to reproduce
and distribute copies? Maybe not.
well, was that defined in the contract, or when you buy a piece, are you in charge of how you distribute it, and able to account for such
Museums pay a great deal of money to estates of artists for the privilege to show their works. Of course, the copyrights have expired on a great deal of art. I am sure that all the reproductions of art works, especially of current artists, are done with royalties and other contractual terms with the artists or their agents. Re #85: if an artist sells a work of art to a museum, this may or may not include an exclusive license or a nonexclusive license to make copies, or even a restriction that reproductions may not be made. Any object of property, tangible or intangible, has many possible "rights" associated with it, each of which can be independently marketed or reserved. For example, for real estate, there is the right to own the land, a right to own the minerals on the land, a right to cross the land with vehicles or utility lines, a right to build a house, etc. All of these rights are separable and can be owned by different persons. The same is true of any work of art, with rights to display, to make reproductions, to *own*, etc, all separable.
It's one thing to own the right to display an artpiece, but it's another thing to reproduce it.
That's what I said..... :)
((( Summer Agora #537 now linked as Music #279.
I hope the music cf readers figured out how to skip
reading it a second time. )))
I'm terrified. I never thought this day would come: I agree with Rane and disagree with Ashke. Listen. theft is theft. Justify it all you want, but theft is theft. People have said things about the RIAA's pricing scheme. I know that when I'm hungry, I sure don't like the "pricing scheme" in the snackshop in the building where I work. I don't use that as justification to steal food. I continue to think that people who defend Napster to the death are a bunch of spoiled, arrogant, American brats who are not just stealing, they're justifying the current religious right argument that shoving Xian morals down our throats is justified because we really HAVE lost our sense of moral direction. As a side note, every piece of music created in the last 80 years or so is copyrighted. The relevant distinction is what rights have been released to the public. There are certainly tracks available on Napster which have been totally or partially released to the public domain.
Re 96. No, copyright infringement is copyright infringement. "Theft" in
this context is merely spin. Theft requires that you are depriving the
legal owner of the physical object that you are stealing. Sorry, but that
is the law.
To repeat, I have never downloaded any unauthorized music, and I have
never used Napster or Gnutella. However, I am *deeply* frightened by the
way RIAA, MPAA and others have twisted the copyright laws to their
benefit, very much in defiance of the public interest.
Before 1976, you could be sure than anything which had been published at
least 56 years earlier was in the public domain. By 1976, that would be
about 1920. For the last quarter of a century, that date has been frozen,
as Congress and the entertainment industry have extended the length of
copyrights again and again. Not only is this bad public policy and a
corruption of our political system, it is contrary to the U.S.
Constitution, which gives Congress 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.
Congress has been acting, since 1976, as if the word "limited" were
"unlimited". Moreover, the rights of "authors" have been largely
disregarded in favor of the rights of publishers, music companies, etc.
And the international copyright treaties (written by the entertainment
industry) provide that once the right of copyright owners are extended, we
are not allowed ever to take them back. For example, the atrocity which
was passed under the cover of the impeachment hearings (transferring
copyrights from musicians to record companies, a huge grab of intellectual
property) CANNOT BE REPEALED unless the U.S. abrogates those treaties.
See the recent Atlantic Monthly article about this for many details.
I checked the Home Audio Recording Act and this is one interpretation I found:
RIAA Clarifies the Legality of Home Audio Recording
The following is a part of a reply from http://www.soundbyting.com (a
Recording Industry Association of America site) to those who enquired
whether non-commercial copying of CDs to MD constituted copyright
infringement.
Personal use copying was considered by Congress when it enacted the Audio
Home Recording Act of 1992 (AHRA). The AHRA was a legislative compromise
to deal with certain, specifically defined, categories of digital audio
copying. Attempting to balance the various competing interests, among
other things, the AHRA required the manufacturers of covered devices to
(1) register with the Copyright Office; (2) pay a statutory royalty on
each device and piece of media sold; and (3) implement what is known as
a
serial copyright management system (or SCMS) which prevents all but first
generation copies. In exchange for this, the manufacturers of the
devices, which might have otherwise found themselves subject to liability
for contributory copyright infringement (among other things), received a
statutory immunity from suit.
Consumers also received something. As long as the copying is done for
noncommericial use, the AHRA gives consumers immunity from suit for all
analog music copying, and for digital music copying with AHRA covered
devices. It is important to note that the AHRA does not say that such
copying is lawful; it simply provides an immunity from suit.
The difference between copying to cassette (for instance) as opposed to
a
computer hard drive is that audio cassette players (as well as Minidisc
and DAT players) are devices covered by the AHRA and a computer is not.
The specific reasons are technical but boil down to this: The AHRA covers
devices that are designed or marketed for the primary purpose of making
digital musical recordings. Multipurpose devices, such as general
computer or a CD-R drive, are not covered by the AHRA. This means that
they do not pay royalties or incorporate SCMS protections. It also means
that neither the devices nor the consumers who use them receive immunity
from suit for copyright infringement.
In summary: You cannot be prosecuted for making non-commercial copies
with AHRA covered devices (e.g. MD and DAT recorders).
Further information on the Home Recording Rights Act is available from
the
Home Recording Rights Coalition
While I haven't been able to find the actual act (so far), this is an
interesting interpretation. So I can record all I want on a cassette, or
an MD, but burning a CD is infringement, according to this!
Here's some more from the RIAA web site -- riaa / copyright basics Digital Music Laws The Audio Home Recording Act of 1992 (AHRA) This 1992 legislation exempts consumers from lawsuits for copyright violations when they record music for private, noncommercial use; eases access to advanced digital audio recording technologies; provides for the payment of modest royalties to songwriters and recording artists and companies; and mandates the inclusion of serial copying management technology in all consumer digital audio recorders to limit multi-generation audio copying (i.e., making copies of copies). In general, the AHRA covers devices that are designed or marketed for the primary purpose of making digital musical recordings. Digital audio cassette players, minidiscs, and DAT players are devices covered by the AHRA. This law will also apply to all future digital audio recording technologies, so Congress will not be forced to revisit the issue as each new product becomes available. The AHRA provides that manufacturers (not consumers) of covered devices must: (1) register with the Copyright Office; (2) pay a statutory royalty on each device and piece of media sold; and (3) implement serial copyright management technology (such as SCMS) which prevents copies of copies. In exchange for this, the manufacturers of the devices receive statutory immunity from infringement based on the use of those devices by consumers. To learn more about the administration of the royalties paid on recording devices and media, see the section on AARC. Multipurpose devices, such as a general computer or a CD-ROM drive, are not covered by the AHRA. This means that they are not required to pay royalties or incorporate SCMS protections. It also means, however, that neither manufacturers of the devices, nor the consumers who use them, receive immunity from suit for copyright infringement. For additional information go to http://www4.law.cornell.edu/uscode/17/ch10.text.html The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) For more nearly 30 years, the RIAA has been fighting to give copyright owners of sound recordings the right to authorize public performances of their work. Before the passage of the Digital Performance Right in Sound Recordings Act of 1995, sound recordings were the only U.S. copyrighted work denied the right of public performance. All that has now changed. This law allows copyright owners of sound recordings the right to authorize certain digital transmissions of their works, including interactive digital audio transmissions, and to be compensated for others. As amended by the Digital Millennium Copyright Act in 1998, the right now covers cable and satellite digital audio services, webcasters, and future forms of digital transmission. Most non-interactive transmissions are subject to statutory licensing at rates to be negotiated or, if necessary, arbitrated. Exempt from this bill are traditional radio and television broadcasts and transmissions to business establishments. The Digital Millennium Copyright Act (DMCA) This landmark legislation has its origins in the 1996 World Intellectual Property Organization's Diplomatic conference in Geneva, attended by more than 160 nations. There, two new treaties were negotiated (see International Law section) that represent the most important overhaul of international copyright law in the last quarter century. The treaties raise the minimum standards for copyright protection worldwide and make it easier to fight piracy of American products overseas. Although U.S. copyright law already met the treaties’ standards, legislation was needed to meet the treaties’ prohibition of devices used to undermine electronic "locks." The Digital Millennium Copyright Act (DMCA) (among other things) does just that, among other things, by prohibiting the manufacture and distribution of devices. The DMCA law also delineates the responsibilities of Internet service providers (ISPs) in cases of infringement online. For example, the law formalizes a notice and takedown procedure between ISPs and copyright owners. It is now clear that when an ISP is aware it is posting or transmitting infringing content, the ISP must act to remove the infringing works or it may be liable for any resulting damages. The DMCA also contains the key agreement reached between the RIAA and a coalition of webcasters and satellite audio delivery services. This section provides for a simplified licensing system for digital performances of sound recordings, such as those on the Internet and through satellite delivery. This part of the DMCA provides a statutory license for non-interactive non-subscription digital audio services with the primary purpose of entertainment, if terms of the license are met. Such a statutory licensing scheme guarantees webcasters and satellite services access to music without obtaining permission from each and every sound recording copyright owner individually and assures record companies an efficient means to receive compensation for sound recordings. For information on the specifics of offering DMCA-compliant digital broadcasts and the terms of the statutory license, see the Webcasting FAQ section. For information on obtaining a statutory license, see the Licensing section. The greatest gains from the DMCA will be realized internationally. This law is a model for ratification and implementation of the WIPO treaties in other countries, where protection of sound recordings online is not sufficient. Formal U.S. ratification of the treaty package moves the worldwide ratification effort closer to the 30 countries that must ratify the treaties for them to take legal effect. For additional information go to http://lcweb.loc.gov/copyright/legislation/dmca.pdf No Electronic Theft Law (NET Act) The No Electronic Theft law (the NET Act) is significant because now sound recording infringements (including by digital means) can be criminally prosecuted even where no monetary profit or commercial gain is derived from the infringing activity. Punishment in such instances includes up to 3 years in prison and/or $250,000 fines. The NET Act also extends the criminal statute of limitations for copyright infringement from 3 to 5 years. Additionally, the NET Act amended the definition of "commercial advantage or private financial gain" to include the receipt (or expectation of receipt) of anything of value, including receipt of other copyrighted works (as in MP3 trading). Punishment in such instances includes up to 5 years in prison and/or $250,000 fines. Individuals may also be civilly liable, regardless of whether the activity is for profit, for actual damages or lost profits, or for statutory damages up to $150,000 per work infringed. For additional information go to http://thomas.loc.gov/cgi-bin/bdquery/z?d105:HR02265:@@@L
Since I have a library of feild recorded filk music, I have made
up compilation tapes. Some became very excellent gifts to freinds.
I had heard early on that if one makes more than 50 copies, you
can be considered a commercial venture, regardless of the intent to
spread the word of some good music going around.
Theft is theft, polygon. You're spinning in the other direction. Or are you willing to come forward as a licenced lawyer giving free legal advice?
I can't help but think about what a well stocked music selection of CD's are at the A2 library and ponder if folks tape them on cassette or burn copies on their computers at home. Does someone really take out a CD for only 2 weeks from the library?
Well, we have. I've never taped a CD from the library.
I'll admit to both practices. I've checked stuff out of the library and decided I didn't care much for it, and then checked other stuff out and made a tape or MD. Never burned a CD from a library copy. I guess my ethics need calibrating. ;)
Never made an MD from a library copy either. (Don't have a CD burner, so can't say if I'd do that, but it's not likely.) With music, the whole thing is that I prefer owning a "real" copy when at all possible. Hmmm. Same with books... I mean, yeah, I *can* photocopy a book from the library (if I wanted to, given the access at work and all) but most of the time, I'd prefer to just go to the bookstore and *buy* it. (Notable exceptions being one textbook which an editor here had as a photocopy from his medieval Welsh course at Harvard, and which I am reasonably sure was unavailable for purchase even then, and which he allowed me to copy... As I recall, it was most likely public domain, given the pub. year.)
Re 101. No, Paul, "theft" for copyright infringement (as I said in the other item) is a POLITICAL use of the word. It is precisely like the use of the word "murder" for legal abortion. It has no legal meaning, only shock value. Yes, as a licensed lawyer (since you asked), I advise you to stop saying "theft" to mean copyright infringement if you want me to take you and your argument seriously.
It's a shame fewer artists haven't decided to sell MP3s. There's
nothing inherently wrong with the technology; it's like any other
recordable media, including Sony's MiniDisc and DAT, and has a plethora of
legal and legitimate uses.
Does anyone know to whom the "royalty" tax assessed on blank media is distributed and by what formula it is apportioned?
#106> I answered that questionin the other item. And I don't honestly care if you take my argument seriously. Theft is theft.
Anyone know where I can get a media tax refund for the MDs and cassettes (quite a few over the years) I've used for my own recordings?
Speaking of the media royalty: CNN.com ran a story which reports that Germany is planning to put a similar tax, but a more whopping one, on computers, modems, CD burners, and presumably other items. The article says they were thinking about a 30% levy. This would be handed over to the copyright industry.
I too, would like to know how the blanket royalties from blank
media sales are paid. It probably benefits the biggest record companies
the most.
I could see where a small time artist, suddenly hot, could have
more copies made onto blank media than 'e first published.
Let me clarify my position; I forget that these are linked items, and so not everyone has read my posts on the subject already. Plus, I'm not sure I've specifically addressed the law issue. I rarely debate law. I debate ethics. As far as I'm concerned, the laws in this country are so confusing and overbearingly anal-retentive that it's pointless to discuss them. Therefore, the "lega" definitions of words are not the most relevant to me. (er, legal) Copyright infringement is theft, asthe term "theft" is defined in common parlance; I provided that definition elsewhere. Napster encourages copyright infringement. Actually, I have no particular opinion about whether Napster and like companies should operate; my thesis has and will continue to be: People who use Napster or any other system to infringe on legal copyrights are committing an immoral act. I call this immoral act "theft", as do many others. I have no particular problem with copyright infringement per se; I personally find it excessive that the RIAA would get so irate about it. As immoral acts go, stealing from the rich is fairly low on the burn-in-hell scale, especially if yo're taking a copy, and you wouldn't normally have purchased it anyway. I also agree with the argument that distributing "samples" for free encourages sales, and so in the long run the benefit to the company probably outweighs theallegedly lost sales. The crux of my thesis doesnt concern all that. It concerns the simple fact that people who infringe on copyrights are committing an immoral act, and all the justifying in the world isn't going to change that. It's a principle issue: If your opinion is that it's all right to rip Lars off because Lars and co are ripping you off, then say so. You're doing a bad thing in response to a worse thing. Groovy. It's this sanctimonious "we have a right to this music, and the RIAA is depriving us" attitude that I find distasteful. I have home copies of things. Big whoop. It was inappropriate of me. Big whoop. Ya know what else? I do 90 on the freeway. I'm rude to people now and then. I yell at my cat when I'm in a bad mood. Those are all roughly the same as macking some track from some superstar. And if I were scolded for any of them, I'd say, yeah, I ain't perfect, but I try. I wouldn't say, "Hey, I have a right because..." (well, maybe with the speeding, but that's because if you do the speed limit in some areas, youre more of a danger..). So whether you want to call it theft or infringement, polygon, the point is the same -- there's no clear legal or moral justification for making illegal copies of copyrighted materials.
Re #112: I'm curious about that, too. The royalties are interesting because they basically are saying, "we're assuming you'll pirate music using this stuff, so we're going to make you pay us now." The RIAA's position, then, is basically that audio burned on a CD-R data blank is an act of piracy you can be sued over, even if the same audio would be legal if you put it on a DAT tape. Well, not 'legal', maybe, but you're immune from suit. This also means there is *no* legal way to listen to copyrighted music on devices like the MP3Trip MP3 Discman; even if you own the CD, the act of MP3'ing the songs on it and putting them on a CD-R is illegal. This is utterly bizarre law.
re #113: When you say things like "I have no particular problem with copyright infringement" and then turn around and talk about it being "an immoral act" you send out some seriously mixed signals. What, if anything, is the distinction in your mind between "immoral" and "illegal"? re #114: The law on these matters is bizarre because it has essentially been written by the copyright holders. There are only a few small groups who lobby against copyright extensions, additional restrictions, etc, and their resources are dwarfed by the movie studios, record companies, and book publishers whose interests all lie in the opposite direction. If these laws seem strange compared to other laws, it's because other laws are usually written with some sort of consideration given to the public interest..
Re #96: So, in this "theft", what was taken? Look at the Constitution, Paul. Copyright is a legal fiction which is supposed to exist for the public good, as an incentive for authors and publishers to reveal their creations to the public. They are allowed to exercise a limited monopoly over copying for the term of the copyright, after which the work goes into the public domain and may be copied and used freely by the public. There are limits on copyright even during its term. Fair use is a label describing one set of limits. If you copy a work or part of a work, if that copying is done under fair use the copyright owner has no grounds for action against you. There are many non-infringing uses for copies. Distribution to strangers using Napster is probably an infringing use. Regardless, it is not theft, as nothing is stolen. Stealing a book on which the copyright is expired is theft. Copying a CD which is under copyright is copyright violation. Two very different things. Given the way that copyright law has been twisted to forsake the public good for the monied interests, I'd say that Napster isn't a bad thing at all. And I say this without having used or benefitted from it.
An act which is illegal violates public law. An act with is immoral violates moral law. What is stolen is the creator's right to control the distribution of their work. Copyright is temporary because, it is assumed, the creator's rights on distribution end shortly after their death. Copyright expiration is generally based on the life of the creator.
I like getting royalties everytime someone plays my songs in Europe.
everyone should buy all their entertainment media in the far east, for pennies on the dollar of u.s. prices.
Napster Copyright Policy
Napster is an integrated browser and
communications system provided by Napster, Inc.,
to enable musicians and music fans to locate
bands and music available in the MP3 music
format. The MP3 files that you locate using
Napster are not stored on Napster's servers.
Napster does not, and cannot, control what
content is available to you using the Napster
browser. Napster users decide what content to
make available to others using the Napster
browser, and what content to download. Users are
responsible for complying with all applicable
federal and state laws applicable to such
content, including copyright laws.
Napster respects copyright law and expects our
users to do the same. Unauthorized copying,
distribution, modification, public display, or
public performance of copyrighted works is an
infringement of the copyright holders' rights.
You should be aware that some MP3 files may have
been created or distributed without copyright
owner authorization. As a condition to your
account with Napster, you agree that you will not
use the Napster service to infringe the
intellectual property rights of others in any
way. Napster will terminate the accounts of users
who are repeat infringers of the copyrights, or
other intellectual property rights, of others. In
addition, Napster reserves the right to terminate
the account of a user and to block use of the
Napster service permanently upon any single
infringement of the rights of others in
conjunction with use of the Napster service, or
if Napster believes that user conduct is harmful
to the interests of Napster, its affiliates, or
other users, or for any other reason in Napster's
sole discretion, with or without cause.
In accordance with the Digital Millennium
Copyright Act of 1998 (the text of which may be
found on the U.S. Copyright Office web site at
http://lcweb.loc.gov/copyright/), Napster will
respond expeditiously to claims of copyright
infringement committed using the Napster service
that are reported to Napster's "Designated
Copyright Agent" identified below. If you are a
copyright owner, or authorized to act on behalf
of an owner of the copyright or of any exclusive
right under the copyright, please report your
notice of infringement by completing the
following notice form and delivering it to the
Designated Copyright Agent:
NOTICE OF ALLEGED INFRINGEMENT OF COPYRIGHT
1. Identity of the copyrighted work that you
claim has been infringed, or, if multiple
copyrighted works are covered by this
Notice, a representative list of the
copyrighted works that you claim have been
infringed using the Napster service:
2. Identification of the material that you
claim is infringing (including at a minimum
the user name under which such material is
available through the Napster service, and
the path and file name):
3. Your street or mailing address, telephone
number, and, if available, email address:
4. I hereby state that I have a good faith
belief that the disputed use of the
copyrighted material is not authorized by
the copyright owner, its agent, or the law
(e.g. fair use).
5. I hereby state that the above information in
this Notice is accurate and, under penalty
of perjury, that I am the copyright owner,
or authorized to act on behalf of the owner
of the copyright or of any exclusive right
under the copyright.
6. Electronic or physical signature of the
copyright owner or of a person authorized to
act on behalf of the owner of the copyright
or of any exclusive right under the
copyright:
Full legal
name:__________________________________
Napster user
name:__________________________________
All claims of copyright infringement should be
delivered to the following "Designated Copyright
Agent" of Napster:
Jonathan P. Earp
Napster, Inc.
1475 Veterans Boulevard
Redwood City, CA 94063
Voice: 650-482-9300 x8790
Fax: 650-482-9301
notice@napster.com
http://www.napster.com/terms/
Re #117: No, "right of control" is not what's 'stolen'; *compensation* is what's being taken. Infringing copyright means that the copyright holder is not compensated for the copy.
Not true. Infringement still takes place if the copyright holder distributes their work for free but does not release that work into the public domain. Unless the work has been released, it's illegal to copy work regardless of the compensation or lack thereof (except as it falls under "fair use").
So if I download a legal mp3 released on mp3.com, for example, it's illegal for me to put it on a disk and give it to a friend, even though they could download exactly the same thing themselves at no loss to anybody?
Depends on MP3's release policy. It could be. There are reasons why somebody would be willing to give something away for free, but still insist that they be the only ones to distribute it. For one thing, there may be elements of it that are necessary for the whole, that may not be effectively communicated in copies. That's hard to see in the case of music, but a short story may have been written with a specific font, links, or page breaks that may be lost when passed along; or, more importantly, the copier may decide to drop off the name of the author, either deliberately or through oversight. Also, companies may give something away as a promotion, taking the loss in order to track interest in that product. A record label may be letting MP3 distribute so that the label can see who's interested in the music. The loss in revenue is made up for a gain in market research. That benefit is lost if people send copies to friends rather than having friends go to MP3 to download. I'm sure there are other reasons, too.
Frankly, I think this is why the whole issue is confusing for people... we (Americans, especially, but capitalists in general) are taught to think of our morality vis-a-vis property strictly in terms of $$$. If you've ever been robbed, though, did you first fret about the money involved, or did you first fret about the sense of violation, the emotional value of the stolen objects, etc.? For many artists, and for those who first developped intellectual property law, the issue isn't (solely) about money, it's about creative pride, and the right to control what one has created. OF course, there's an element of, "Hey, this is what I do for a lliving, I need it for my livelihood" -- and effect on market value is a major factor for determining financial restitution in infringement cases. But there's also a sense of pride involved. Actually, there's an item in the Music conf (from which I'm reading this linked item) about "selling out," that is, when pop songs are used in commercials. That would be another reason for wanting to control a freely distributed work -- while the work is "free," it's not automatically the case that free works may be used freely; I may not mind if people circulate my writings free of charge, but I wouldn't want somebody gaining commecially off of something I provided free, even if it's not the whole of what they're doing.
The second half of #124 makes sense to me, but not the first. I was hypothesizing about making an exact copy of the original downloaded file, so any elements necessary for the whole in the original would also be present in the copy. I'm not sure about the "loss of control" argument of #125 either, but I'll refrain from commenting on that until I've thought about it a bit more.
re #106: The concept of "legal meaning" is different than the concept of "truth". The word "theft" implies that you're taking something that doesn't belong to you, and that you shouldn't take. Is it theft if you're taking a rowboat without permission, in order to save a child who is drowning? Of course not. "Murder" implies that you're killing someone (or something) that you shouldn't have killed. It isn't murder if you do it during a war, under the orders of a responsible officer, within the requirements of international law and your nation's military. These are legal, political meanings (the lines of legality are drawn by politicians and people working for politicians). They are *not* truth. A significant minority (some 40% of the U.S. population; more if the question is worded differently) believe abortion *is* murder; they can't be dismissed as irrelevant by anyone facing reality. (And they can't dismiss the opposing viewpoint represented by the law, either.) A less significant minority believes copyright violation is "theft". If they convince the state of Michigan to define it that way, the truth doesn't change, even if the legal meaning does. Killing of the king's deer used to be defined as a high crime; theft against the royal personage and therefore, treason. People were hanged, drawn and quartered for doing it. It's too convenient to dismiss opposing points of view just because the law right now happens to coincide with your preference. You appeared to be doing that.
You should have included abortion (in the first two trimesters, etc) in your original list of killing that is not "murder". Your subsequent qualification of that is probably correct.
Is it theft to take a rowbnoat you shouldn't take in order to save a drowning child? YES. Which universe are you living in, John? If you give it back, and your intentions were good, like as not either the owner of the boat or the court system won't punish you, but it's still theft. Theft carries no implication of intent. Theft is easy: You possess something. You don't have the right to possess it. You must have stolen it. The sticking point, as I see it, is whether theft includes the component of taking something from someone else, or if it can also include making a copy of something you don't have the right to copy. Apparently, the legal definition doesn't apply to the latter, but I think the vernacular definition does. This isn't an issue of a "less significant minority" (show me polls supporting that, btw... you're surrounding by netizens, who seem overwhelmingly to approve of doing what they please with other people's creative works, so your view is tainted about what is "commonplace" in the mainstream), nor is it an issue of what qualifies as "theft." The law determines what is legal, and has already determined that copying a music file that you haven't paid for, but which is oonly available at a price, is theft. The issue is whether Napster can be held accountable for the actions of its users... that is, to what extent a system can encourage or tolerate an illicit behavior before it's held accountable for that behavior. I'm surprised that nobody's dragged in the CDA and Engler v. Cyberspace, because the core issue is similar. Napster isn't being taken to task for copying a bunch of illegal sound files and telling the world to have at it... they did no such thing. Napster is being taken to task for creating an environment in which illegal behavior is encouraged, or at least not actively discouraged. The main difference between Napster and, say, Grex is that, while people do illegal things with Grex as the medium, Grex was not designed for the chief purpose of creating a climate which would lead to illegal behavior. While Napster nominally warns about copyright infringement, their soul raison d'etre is the exchange of copyrighted files, SOME of which may have been partially or fully released into the public domain. Napster itself has admitted (or, better said, alleged) that it has no control over the files that are traded. (soul=sole, a few lines back. Damn homophones.)
I'd thought that the chief purpose of Napster was to exchange MP3
format music. Now MP3 format music doesn't have to be illegally acquired.
A number of artists legally give out their music for free. And Napster was
more than willing to work with the RIAA on creating an encrypted standard to
ensure that people wouldn't steal copyrighted works.
Re 129. "Theft carries no implication of intent. Theft is easy: You possess something. You don't have the right to possess it. You must have stolen it." <polygon rolls his eyes> I realize that you don't give a damn about what words mean, but I don't even know where to begin explaining how completely wrong that is. Just for starters, theft *does* require intent. Depending on the circumstances, posession of a stolen item may be *evidence* that you are the one who stole it, e.g., if you're caught with dozens of stolen jewels running away from the scene of a smash-and-grab at a jewelry shop. However, you might be the "fence" who bought the item from a burglar -- that is a whole different crime. You might not know that you don't have the right to possess it. Circumstances matter. Intent matters.
So if I stole something and gave it away, the person I gave it to would be a thief, Paul? No. They recieved stolen goods, yes, but unknowingly. Thus may be the case with Napster, as well. In many cases, an artist may have given the music away, in order to gain publicity or for whatever other reason... In others, it has been recorded illegally. Should I have to check every single song that I download to be sure it's okay? How would I do this? Is it my responsibility to assume the worst with every gift I'm given (if I don't see a receipt, you stole it, therefore this is stolen merchandise...) or every song I might download? Now, I happen not to use Napster, and most of the songs I have downloaded have been from legally and morally fine sources, which I can verify as having the artists' imprimateur. How-so-ever, what about the ones which I can't verify? Should I assume that they're pirates? Or what? Seems a little cynical to me.
I'd also wonder how many, for example, used CD stores stop to verify
that the CDs they buy and sell are not stolen from the artists in question.
I'm sure many people use used CD stores to fence what is in essence stolen
merchandise in much the same way (though with more impact to the party stolen
from) as Napster was used. Wherein lies the difference?
This response has been erased.
This response has been erased.
This response has been erased.
This response has been erased.
Let me rephrase my point from 129. I spoke incorrectly.
When you take something that you know does not belong to you, your reason for
taking it is moot to the debate as to whether or not you've committed a theft.
It will probably be relevant to the legal system's decision about how, and
how much, to punish you. Likewise, if you return the object after you're done
using it, that will probably also be taken into account.
That doesn't change the fact that taking a rowboat which does not belong to
you is theft, both legally and morally.
In the vernacular, "theft" is not defined in terms of the intent that the
individual had when taking or copying an item; theft is defined solely in
terms of perceived rights to ownership and use ("perceived" only to the extent
that if I have no reason to believe that the person who's offering something
for exchange, sale, or gift doesn't have the legal right to do so, I'm not
party to the crime involved). The primarylegal distinction between theft and
infringement is whether a tangible object is being illegally obtained (thus
depriving the rightful owner of use), which is "theft", or whether a copy of
something is being illegally produced and/or distributed (thus depriving the
owner of the right to copy as he/she sees fit -- hency "copyright"), which
is "infringement."
While there are many vagaries in intellectual property law when it concerns
portions of a copyrighted work, ideas inspired by a copyrighted work, and so
forth, there are no substantial vagaries when it comes to copying whole
copyrighted works. It should be noted that "copyrighted creatve works" is a
redundancy by American law -- all works of creative origin created in the past
75 years or so are legally protected by copyright law, and it is up to the
creator to decide to what extent the rights to copy shall be made available
to the general public, and for what compensation. Copyright holders are free
to sell those rights, to release works into the public domain, to give away
copies of their work but retain control over them, and so forth.
With regard to stolen goods and the purchase thereof, there are settings in
which one might suppose that the grand majority of items for sale or
distribution are illegally obtained, and settings in which one might suppose
that the grand majority of items for sale are legally optioned. For instance,
I would be less surprised to learn that the pawn shop on the corner is fencing
stolen goods than to learn that the Wards at the mall was, and even less
surprised to find out that the man in the trenchcoat on the corner offering
me brand new in the box Trinitrons for $100/pop was fencing.
The same goes for Napster. Yes, it would be cynical to assume that all MP3s
available via Napster were illegal. But, given that there are in fact websites
that do have legitimate contracts with artists and record companies to
distribute MP3s free of charge, there are more reliable ways to get copies
of less suspicious legality.
I don't think it would be economically feasible to fence CDs through used
record stores. I would assume that used CD stores of any reputation would be
suspicious if someone showed up with more than one, and certainly more than
three, copies of the same title, or with more than a dozen or so total CDs
less than a year old. It wouldn't be worth the risk.
Radio stations do sometimes dum their promotional copies into the used music
system, and that's technically illegal. I have quite a few "promotional
copies," and I'm prepared to hand them back if the record companies ever come
calling. Which they won't.
At any rate, though, it goes back to the issue of scale. There's no real
difference, legally speaking, between somebody making a Metallica MP3
available via Napster or somebody making a CD copy of a Metallica song for
all his friends. It's an issue of scale, though... it's much easier to make
many more illegal copies via Napster than via the Friends' Network or via
shoplifting/fencing.
Re #129: Oh, geez. brighn, get off your high horse. Theft ABSOLUTELY requires intent. Intent to deprive someone else of the item stolen, to be specific. If you are taking a rowboat to save a drowning child, IT IS NOT THEFT because THERE IS NO INTENT TO DEPRIVE THE OWNER OF THE BOAT. You could only be accused of theft if you didn't bring the boat back after you had dealt with the drowning situation. In the case of Napster, there is no theft. Nobody is being deprived of any goods; people are actually manufacturing more goods. What is happening is that the current artificial system of "intellectual property" is obsolete. It originated in an era of printing presses and bound paper volumes, and now it's proving unsuited to a medium where the cost of reproduction is measured in pennies, if that. What we need is something like mandatory licensing or the Street Performer Protocol or cryptographic digital cash for micropayments. We'll eventually come to something, but the RIAA will have to fall before we do. The RIAA's system is based on exclusive distribution rights and expensive media, and that foundation just washed away.
Are you not depriving the owner of the boat of that boat for the time period during which you are saving the drowning child? Is this deprivation not non-consensual? And, one more time, slowly for the reading impaired: When you infringe upon a copyright, you are depriving the owner of that copyrighted material of the right to decide how that material is to be distributed. The purpose of intellectual property law -- to provide a system for stimulating original creative thought by rewarding that thought through social recognition, fiscal compensation, and other means -- has not changed. Do you suggest we abandon intellectual property law altogether? There was a social experiment under which the concept of personal accomplishment was abrogated in favor of making the "society" the owner of creative works. The result? Creative production went down, and became fossilized while the rest of the world moved forward. IT was one of many components of the USSR's grand plans. "Mandatory licensing" is one step towards that -- where it's the government, not the creator, which dictates how a creative work is to be distributed. NOTHING prevents an artist from distributing an item for free. NOTHING. If an artist signs their soul away to the RIAA, that's THEIR choice, not the RIAA's. If an artist decides they never want to release another piece of music to the public, and instead keep it in a vault private from everyone, that's THEIR choice. The choice MUST remain with the artist, or with the RIAA acting as an agent of the artist. As non-sensical as those choices may seem to anyone else, we've seen what happens when we go the other route. Y'all think "great music" is being squealched by the RIAA? Let's go to socialized music (which is the direction Russ is ultimately suggesting) and see what happens.
I think the expression that applies to those that want something for nothing (or to set their standard on how little) is "self serving".
All healthy entities are self-serving. It should be society's function to mitigate that innate egoism enough that we build society without losing that egoism. It is my opinion that the intent (if not the letter) of current intellectual property law is to find such a balance between the good of the individual and the good of the society. It is my opinion that those who complain about the unfairness of the RIAA would be best served finding something more constructive to do with their time than bitch about not being able to get free music.
Brighn, this is a discussion of theft as a legal term, and as such it has a pretty precise legal definition. Taking a boat without permisison to save somebody who is drowning, and then putting it back where you found it, is presumably covered by some emergency exception in the theft laws.
I would think not. It would go hard on you if you stole an ambulance even to help the victims of an accident. I think the issues would be handled separately, in fact. You would have to answer to the theft. Whatever you did as a "good Samaratin" would probably be considered in the proceedings. It also depends on whether the owner of the property you stole (boat, ambulance) wishes to prosecute. I don't think that the law can punish someone for a theft unless the property owner wishes to prosecute.
Rane gave my response (which I'd already given, btw). I leave it to polygon to verify #143 v. #144, as I am not a lawyer. As a general comment (something the gist of which I beleive Rane has already said): The prisons are filled with people who think they were doing justified and even well-intentioned things that were nonetheless illegal.
I will suggest abandoning the current concept of "intellectual property". Not because I don't think that creators of cool music or a Mr. Fusion home reactor shouldn't be rewarded. But because enforcing it to any degree sufficient that it not be a joke would require *huge* government - to which I am vehemently opposed. Russ in #139, second paragraph made most of my thesis.
The creators of Mr. Fusion aren't rewarded, they'll've all signed
intellectual property agreements.
I had to sign one of those when I started working at the University. Until I quit, patent rights to any ideas I come up with belong to them. It doesn't matter whether I'm at work or on my own time when I come up with them. I understand this is pretty standard with a lot of companies, to the point where you'd have a hard time getting employed if you didn't want to sign away those rights.
Queries for reality-check purpose: If you steal a car for joyriding purposes and put it back unharmed, while the owner is out of town (and you know this), you haven't deprived the owner of its use. Is this not theft? There's a line in "Othello" about "who steals my purse steals trash ... but he who filches from me my good name takes that which enriches not him but makes me poor indeed." Is Shakespeare violating the language by comparing slander to physical theft?
Yes.
#146> A history teacher of mine once said that the difference between a successful revolution and an unsuccessful one is that the successful one suggests a viable replacement for the thing it's tearing down. He was comparing the hippies (unsuccessful) to the American forefathers (successful). So, be a successful revolutionary. Offer a viable replacement, instead of just saying, "The current system stinks!" Nobody (well, except maybe David Geffen) would suggest that the current system is perfect, but it accomplishes its goals better than any other system that's been profferred. Don't whine, proffer. #147> They're rewarded by making $60K with a golden parachute, without having to worry about sales and distribution. Damn fine reward. Really, it's unfortuante that many engineering positions are generally tied to patent agreements such as those in #148 (Val's father, for instance, did much of the development of the "kneeling bus", busses for handicappers with hydraulics in the axle to make it easier to enter and exit, but got no real credit for it), but the company also offers something -- worry-free distribution. I've resented my boss when our company has done flush, but now that our company is having serious money problems, it's a nice feeling to know that I'll still get that biweekly check, no matter what. And maybe that's one solution to the creative/intellectual property issue in general. There was a time when movie scriptwriters worked the same way as everyone else -- they got paid a salary, and wrote scripts. Didn't matter if the movie starred Garbo or Schliminsky, if it sold 5,000,000 tix or 5. Sure, write enough crappers and you get fired, but one or two clinkers and you're ok. Some creative jobs are still like that. Copywriters and technical writers get paid salary more often than commission, as do graphic designers. Convince companies to "hire" a cadre of bands who would tour, release music, etc., on salary. don't know how far that would fly, but frankly, that's what the Boy Bands have already drifted towards (and that tradition is at least forty years ago... The Monkees, The Jackson Five, The Osmonds, Banarama, Menudo, N'Sync). #149> That's a wonderful line from Shakespeare. Over the weekend, some punk kid snuck into our garage while Val was doing yardwork and took her bike (the door was open for access). She chased him, and he abandoned it a few blocks away. The police had already been called by the time we got the bike back. Do you think they said, "Oh, well, you got the bike back, no harm done, we won't look for him"? After all, at no point had Valerie been deprived of the use of the bike... no theft, right? Nope. The cops looked for about 20 minutes, and told us that the kid had a history of making trouble and would probably be caught for something else, and did Valerie think she could identify him if they caught him (she said she couldn't)? Sure, it would be a royal bastard who would press charges against someone who, in a panic and emergency, "borrowed" a boat to save some drowning child. But I do believe (and polygon can correct me) that it would be within their rights to do so, even if the goods were returned in perfect condition.
Re 145. Leaving aside everything else, I want to take issue with one
specific comment:
> The prisons are filled with people who think they were doing justified
> and even well-intentioned things that were nonetheless illegal.
I suppose this is metaphor, but it's not even vaguely, hand-wavingly close
to being true or valid in any sense of the word. In fact, it is totally
ludicrous.
The prisons are full of armed robbers and drug users, murderers, rapists,
burglars, and other such conventional bad actors.
I don't know how many people are in prison for copyright infringement, but
I would guess it's fewer than 50 -- out of over a million in U.S. prisons
and jails. Maybe it's in single digits. But anyone who actually ends up
being imprisoned for infringement has done something egregious beyond
belief, and probably committed other crimes in the process.
Contrary to the impression given in the nearby zero-tolerance item, the
criminal justice system is capable of exercising a certain amount of
judgement. The police have a certain amount of discretion to arrest or
not, the prosecutor has a certain amount of discretion whether to charge
or not (and with what), the judge and jury also play an important role.
Police and prosecutors and judges are very accustomed to seeing the same
kinds of predators and hard-luck cases day in and day out. Armed robbers
and murderers and drug dealers and burglars and all the rest, people who
often seem to start behaving badly at a young age and escalate into repeat
criminal activity in their teens and 20s. They never finished school, may
indeed be illiterate, are unable or unwilling to defer gratification,
place a shockingly low value on their own and others' lives, and don't
care about the impact of their actions on other people.
People who "do well-intentioned things which were nonetheless illegal" are
probably going to look very different from the typical offender. As a
metter of practical reality, the system (already overburdened with plenty
of REALLY bad guys) is not going to be very interested in wasting its time
on them.
If someone took a rowboat in order to rescue a person from drowning, then
returned it, there are many reasons why he will not end up in prison:
1. The police are not going to arrest him.
2. The prosecutors are not going to charge him.
3. The judge is likely to throw out the charges.
4. The jury is likely to find him not guilty.
5. The judge is unlikely to sentence him to any jail time.
(Yes, I would argue that taking and returning the rowboat is not theft, but since I've been bashed for using legal definitions, I left that out.)
Not to be picky, but a huge % of those people in jail are indeed there on drug related charges, & most of them probably probably would agree that they were doing "justified and even well-intentioned things that were nonetheless illegal". I can imagine the drug users would say things like "I just wanted to have a good time", and "I wasn't going to hurt anybody". Even the drug dealers may be able to say things like "I couldn't find a job doing anything else" and "I needed the the money for my sick aunt". There's also an additional filtering process for people who are educated, rich, or at least pretty -- they can often command resources to get themselves out of bad situations that someone who is stupid, poor, and ugly won't be able to escape. So a disproportionate % of the people in jail are poor, stupid, & ugly, which of course trains everyone involved in the process to expect the worst of such people. Nevertheless, you are still right that everyone involved in the process is exercising lots of discretion - drugs are a "bad" thing, borrowing rowboats to save drowning people is a good thing.
about 150: I just wanted to have the shortest response in this item.
Re 154. Of course, this goes back to the organized hysteria that I pointed to in that other item. No kidding that the "war on drugs" has distorted the picture. But in any case, (1) it's hard to believe that many users, buyers, sellers, etc., of illegal drugs in the U.S. are unaware that they are breaking the law, and (2) it's a stretch to call more than a handful of them "well-intentioned." Granted that people with more skills and resources have more options when they get into trouble. It is also a fact that, due to those same skills and resources, they are much less likely to commit the kinds of stupid, predatory, violent crimes that police see week in and week out. Middle-class and upper-middle-class types may get into drug problems, may engage in embezzlement, insider trading, tax evasion, etc., but you don't often see them robbing convenience stores. And just due to the sheer numbers (aside from the War on Drugs, which I am not here to defend), robberies of convenience stores the type of crimes that the criminal justice system has to spend the bulk of its time and resources dealing with.
I guess it all depends on how you define "well-intentioned". (I'd hate to think there's a legal definition of *that*!)
Ed Meese is supposed to have said, "If they weren't guilty, they wouldn't have been arrested." I smell a whiff of that attitude here.
Polygon, answer the question with one word: Is it illegal for a private citizen to take an object which does not belong to them, such as a boat, if they return it afterwards undamaged? The acceptable answers are "yes" and "No." No, there are no copyright infringers in prison (assuming that's their only crime). What I meant, and what others clearly understood, is that there is a sizable component of the prison population who are of the opinion that the crimes which landed them there were not worthy to get them there (drug users and date rapers being among them; also among them, "righteous" terrorists such as those who blow up abortion clinics). There is also a sizable component of the prison population who understand why they're there, and agree fully.
Actually, let me close some of theloopholes out of that last question: As a member of the bar, Polygon, would you advise me that it is fully legal for me, a private citizen, to take an object of some worth, such as a rowboat, and use it without the prior consent of the rightful owner, and with the knowledge that I lack that consent, and use it, returning it after I'm done using it, not having at any moment damaging the object or depriving the owner of that object? That question should be answered with a "Yes" (meaning that you would so advise me) or "No" (meaning you would not so advise me). If the answer is, "No," I would like a serious treatment of why such an act is not fully legal but is nonetheless not legal theft.
I can't imagine the answer is yes - that would make much car theft legal.
re #159, 160: The best answer to just about any sort of legal question is usually "it depends." Our system takes into account many factors which are not mentioned in your hypothetical. The matter of intent is an important element in many crimes. Anyway, you're demanding an answer to an irrelevant question. Implicitly what you're asking by demanding a single yes or no answer to your question is that Polygon admit that it is generally not legally permissible to take another's property without their permission. Well, duh! Now that we've got that settled, why not address the very real issues that have been raised about whether "intellectual property" is (or should be) treated the same way as physical property, in what ways copying is different from taking, etc..
I wish I had posted right after I heard the news reports, because I've forgotten important detains (such as the university in question) but there were a couple of news stories last week about a college student whose computer and other belongings had been seized after his university, acting on a tip from the RIAA, notified local police that he was illegally sharing files through Napster. I think we can expect things to go badly for the unlucky few who get singled out as test cases -- even if there's no judgment against them the cost of putting up a legal defense against an RIAA determined to set a precedent will be well beyond the means of most Napster users or their families..
#162> Let Polygon answer his own questions. I would also reiterate the earlier request that you, polygon, provide a documented definition of theft, vs. larceny on the one hand and infringement on the other.
Incidentally, polygon should tell the US Department of Justice that infringement isn't "theft." The text of the "No Electronic Theft" act, which is entirely about copyright infringement, can be found on the DOJ's government website at http://www.usdoj.gov/criminal/cybercrime/17-18red.htm Of course, that link wouldnt actually yield anything, since infringement isn't theft, and the DOJ would know that... right? Doing some research of my own, it seems that definitions of "theft" vary by area, while "larceny" has a stricter definition, and is actually what polygon's been calling theft, and that "property" can in fact include intellectual property. I'm curious as to how polygon responds to the DOJ's even informal use of "theft" to include copyright infringement... your move, sir. Or, should I say, "Better luck next time"?
Re 159. Sorry, but I don't have a yes or no answer. I'm not sure whether Michigan has a general purpose criminal law that covers that case. There IS a specific law against "joyriding," i.e., borrowing a car without permission. And, separate from the criminal justice system, the owner of property may have recourse to a civil lawsuit against the borrower, but that would be more successful if the temporary absence of the item caused the owner some kind of tangible harm. Sure, lots of people in prison don't feel that they belong there, but in most of those cases, they deny the charge against them rather than denying the validity or their knowledge of the law that made their behavior a crime. I guess drug crimes might be an exception, but consider that most people in prison for drug crimes were convicted of selling or smuggling, not using. I further don't agree at all that "date rapers" and terrorists are "well intentioned," but in any case their numbers are tiny. I am very much of the point of view that we are putting too many people in prison for too long. The prison population is doubling every ten years, and the U.S. now leads the world in the percentage of its population which is imprisoned. A lot of that is the War on Drugs, but it's also the trend toward harsher sentences for everything in general, a political reation to the huge increase in crime which occurred between 1960 and 1975. All that being said, however, few of the people in prison at any given time are intelligent, thoughtful, well-intentioned nice guys. Re 160. Of course I would advise you not to mess around with other people's stuff. That doesn't mean it would be larceny to do so. Just because something is a bad idea doesn't mean it's illegal. See below for more details. Re 164. I don't have any documents here to cite, but I did look it up in Black's Law Dictionary the other day, and if I recall correctly, larceny, a.k.a. theft, is the taking of personal property with the intent to deprive the rightful owner. PERSONAL property, specifically, not intangibles like intellectual property. Re 165. No, this is not the Department of Justice, this is the "popular name" of a statute passed by U.S. Congress at the behest of the entertainment industry. Note that the spinning word "theft" appears only in the title, not in any of the provisions. Further, theft or larceny is a state crime, not a federal matter. This law and its title is PRECISELY an example of the way the use of propaganda like the word "theft" is used to cover some awful changes in copyright law, disregarding the public interest (and the interests of, say, songwriters) in favor of certain well-heeled corporations including Universal and Disney. Promoting the loose use of terms like "theft" is one goal of the propaganda machine that successfully promoted this and other bad laws. You have bought into this; I have not.
Tell ya what, polygon. Since you're prepared to dismiss all of my sources and unwilling to provide anything beyond an "If I recall correctly...", I'll make you a deal: Let's stop using the word "theft" entirely, both of us. As far as I can tell, there's universal acceptance of "larceny" and "infringement," while legal sources differ as to whether "larceny" is a synonym of "theft" or a subset of "theft." So I'll take back all of my comments about "theft" if you'll stop making snarky comments about me being indifferent about the meanings of words and buying into the propaganda machine. I am suggesting a bilateral cessation of ad hominems in favor of mature discussion, and will practice a unilateral cessation. The distinction with the boat makes sense now that I think about it. The relevant issue, as I understand it, is that the person who takes the boat returns it without ever having inconvenienced the rightful owner (or any agent thereof). So that's what makes it not larceny, yes? I'm not sure about the relevance of the example. It's not like Napsterites are planning on deleting the tracks from their HDs once they're done listening to them (and, in listening to them, somehow saving the life of a drowning child). The example was provided, I suppose, to give an example of an act of taking someone else's property that wasn't, properly speaking, larceny. Granted, then. Meant to question my claim that intent is irrelevant to the act of larceny (and, by extension, infringement). Not granted, because the element that makes taking the boat not larceny is because the boat is put back... if the boat were taken to save the drowning child, and then never returned, then (by my understanding, and polygon, do correct me if I'm wrong), the act is still larceny. That is, is a mugger not guilty of larceny if he mugs in order to feed his starving children? What makes the act larceny is that there is no intention to return the object that's taken... and that's where "intent" is relevant. What I meant earlier when I said that intent is irrelevant to [larceny and infringement] is that the person's INTENT -- that is, reason -- for taking the object doesn't mitigate whether it's illegal (although it obviously mitigates the extent of the punishment that's meted out). I was in a debate on software piracy in which one person argued that he wasn't guilty of infringement per se when he used a technically illegal copy of software if he fully intended to either delete the software after a self-imposed trial of 30 days or pay for the software in full. I suppose the same argument could be made by some users of Napster, as well... I've had friends borrow my CDs to test drive them while they decide whether to buy their own copy (by my understanding, a fully legal act, so long as it's a legal copy). Personally, I still feel that infringement is infringement is infringement, and if there's anywhere the analogy between larceny and infringement breaks down, it's in the direction of making infringement a worse crime, because if you abscond with someone's boat, you can make reparations later by returning the boat, but if you allow 500,000 Napsterites to copy your Metallica MP3, it's much harder to track down all of those people and make them delete their copies (and many of them have probably already given a dozen friends copies, and so on). The only reparation that can be made easily is to pay royalties (which is what the RIAA really wants anyway, money money money). Also, with the "test drive" issue (both for software and music), there are enough resources out there that if a company seriously wants to allow users to "test drive" their software or music, they will. If they choose not to allow that to happen, that's their moral (and currently, legal) right, since they came up with it in the first place. Issues like mandatory licensing and Napster go against the philosophy this country was founded on. Mandatory licensing, for instance, says that, while the creator of art should be compensated for that art, the art itself belongs to the culture, not the creator. That's simply not true. The spirit of intellectual property law (at least, before the lawyers mucked it up in all directions) is that the creator can decide whether to give the art to the culture, or to hoard it. While the most moral course is to release it for sufficient compensation to make a decent living (or for no compensation when a decent living can be made elsewhere), it's a personal moral choice, and as immoral as it may be to hoard cultural artifacts and demand excessive compensation for them, it's also immoral to force your own morality upon someone else by acting in a way that's indifferent to them. There, that's my flag-waving, tear-jerking, anthem-playing, high horse stance. I've already admitted that I have plenty of infringed-upon copies of things, and will probably continue to have. Consider the academic: Most journal articles are copyrighted by the publisher, not the author (in contrast to most magazine articles and books), and so many professors can't distribute their own articles to their own classes because it infringes upon the journal's copyright. Regardless of where intellectual property started out, it's mucked up now, no debates. So I'm not looking for some grand return and deletion of all things infringed. My beef is with people who freely infringe upon copyrights and show no remorse at all. I infringe; it's legally and morally wrong; in graduate school, it was necessary for survival, and in the real world, well, I'm a pampered American who's convinced he needs a ton of shit to survive. My beef is with Napsterites (and anyone else, for that matter) who decry the evil RIAA and the evil Metallica and act like it's perfectly ok to do what they do (infringe), and even a Good and Righteous thing, the same that people who bomb abortion clinics because abortion is murder (in their view) cry foul when they're arrested for it (which is what I meant by the prison comment, and I wasn't the first person to make such a comment). (And *NO* I'm not saying that macking a Metallica track off Napster is anywhere near as immoral as blowing up an abortion clinic.) I hope that's clear enough now.
Re #151: > I've resented my boss when our company has done flush, but now that our > company is having serious money problems, it's a nice feeling to know that > I'll still get that biweekly check, no matter what. --> That used to be the case, anyway. Nowadays it seems that the trend is to start firing employees at the first hint of money trouble, then get rewarded when Wall Street drives up your stock price on the news that you've "downsized." Employees are a commodity to use and abuse; corporations get rich off their backs, then toss them away. Re #165: > Incidentally, polygon should tell the US Department of Justice that > infringement isn't "theft." The text of the "No Electronic Theft" act, > which is entirely about copyright infringement, can be found on the DOJ's > government website at > http://www.usdoj.gov/criminal/cybercrime/17-18red.htm --> That's assuming that the titles of acts of Congress have some basis in reality. They don't. They're all about political spin.
#168, part 1> Getting fired and getting swallowed up in debt are two different things. You get fired, you move on. You don't have a chapter 11 company around your neck. #168, part 2> Any use of a word that somebody doesn't agree with has become "spin." Further discussion on this topic really doesn't belong here. Feel free to start a linguistics item and tell me where it is. Otherwise, I'm done.
(I am really going to have to pay the shareware fee for GraphicConverter....)
re #167: you paint with a pretty broad brush..
I have a large collection (1300-1500, I stopped counting years ago..)
of legal CDs and a grand total of THREE unauthorized copies of works
which I do not otherwise own, both of which are recordings which can no
longer be purchased (at least not new) in this country..
I have never, even once, used Napster.
I will admit to having a fair number of CDs (100-200) duplicated
onto CD-R; after a theft from my car I am no longer willing to carry
my sometimes irreplacable originals around with me.. According to
what has been posted recently these duplicates, made for my own use,
may be technically illegal -- I thought at the time I made them that
I was entitled to make and keep copies of legally purchased works for
archival purposes.
My objections to the behavior we see from the RIAA and the record
companies are not founded on a desire to listen to all of the music
I want for free, nor on any nonsensical anti-capitalist conviction
that property is theft (there's that word again..) or any other such
foolishness.. I'm upset with them because:
a) they are not responsive to the desires of consumers,
b) their hypocritical posturings about "artists' rights" are
extremely distasteful to me,
c) they are engaged in a methodical campaign to use leverage
the money and influence they already have to get the government
to give them even MORE control over the way customers may use
their products and they have far overstepped the traditional
compromise position between author's/publisher's rights and
consumer's rights.
> Tell ya what, polygon. Since you're prepared to dismiss all of my > sources and unwilling to provide anything beyond an "If I recall > correctly...", For crying out loud, I don't work in a law library, and I'm not interested in always waiting to make a response until I have all kinds of reference books handy. I *did* look up that definition earlier, and I'm sorry that I had to use weasel words because I didn't have it word for word in front of me. Now I do. Larceny: Fenonious stealing, taking and carrying, leading, riding, or driving away another's personal property, with intent to convert it or to deprive owner thereof. The unlawful taking and carrying away of property of another with intent to appropriate it to use inconsistent with the latter's rights. Black's Law Dictionary, citing U.S. v. Johnson, 433 F.2nd 1160. There's more, but it refers constantly to "carrying away" and "personal property". The definition of Theft, admittedly, raises the possibility that meaning is somewhat broader. It starts out by calling theft "A popular name for larceny," but follows up with numerous legal definitions similar to the above. It goes on to discuss things like swindling, embezzlement, obtaining unauthorized control over property, and even "obtaining control over property knowing the property to have been stolen by another," which would cover my fencing example. And after the end of the main entry, there is a separate subheading for "theft of services," which does suggest that the word can be used in an intangible context. > I'll make you a deal: > Let's stop using the word "theft" entirely, both of us. As far as I can > tell, there's universal acceptance of "larceny" and "infringement," > while legal sources differ as to whether "larceny" is a synonym of > "theft" or a subset of "theft." Agreed. That makes sense. You have a deal. I should point out that, as far as I'm concerned, "infringement" is still a pretty heavy-duty word. See the anecdote I posted a couple months ago in Agora. > So I'll take back all of my comments about "theft" if you'll stop making > snarky comments about me being indifferent about the meanings of words > and buying into the propaganda machine. I am suggesting a bilateral > cessation of ad hominems in favor of mature discussion, and will > practice a unilateral cessation. That is also sensible. Agreed. > The distinction with the boat makes sense now that I think about it. The > relevant issue, as I understand it, is that the person who takes the > boat returns it without ever having inconvenienced the rightful owner > (or any sgent thereof). So that's what makes it not larceny, yes? Right -- larceny involves the intent to deprive. > I'm not sure about the relevance of the example. It's not like > Napsterites are planning on deleting the tracks from their HDs once > they're done listening to them (and, in listening to them, somehow > saving the life of a drowning child). Agreed here, too. > The example was provided, I suppose, to give an example of an act of > taking someone else's property that wasn't, properly speaking, larceny. > Granted, then. Meant to question my claim that intent is irrelevant to > the act of larceny (and, by extension, infringement). Not granted, > because the element that makes taking the boat not larceny is because > the boat is put back... if the boat were taken to save the drowning > child, and then never returned, then (by my understanding, and polygon, > do correct me if I'm wrong), the act is still larceny. Technically the issue would be intent at the time of taking, but I won't quibble. Even if there wasn't intent at the time of taking, the decision to keep it would presumably be the requisite intent. > That is, is a mugger not guilty of larceny if he mugs in order to feed > his starving children? What makes the act larceny is that there is no > intention to return the object that's taken... and that's where "intent" > is relevant. What I meant earlier when I said that intent is irrelevant > to [larceny and infringement] is that the person's INTENT -- that is, > reason -- for taking the object doesn't mitigate whether it's illegal > (although it obviously mitigates the extent of the punishment that's > meted out). Right, exactly -- intent matters, but motive doesn't. > I was in a debate on software piracy in which one person argued that he > wasn't guilty of infringement per se when he used a technically illegal > copy of software if he fully intended to either delete the software > after a self- imposed trial of 30 days or pay for the software in full. > I suppose the same argument could be made by some users of Napster, as > well... I've had friends borrow my CDs to test drive them while they > decide whether to buy their own copy (by my understanding, a fully legal > act, so long as it's a legal copy). I'm not sure about that. That scenario may not even be technically legal, but I can't say for sure. > Personally, I still feel that infringement is infringement is > infringement, and if there's anywhere the analogy between larceny and > infringement breaks down, it's in the direction of making infringement a > worse crime, because if you abscond with someone's boat, you can make > reparations later by returning the boat, but if you allow 500,000 > Napsterites to copy your Metallica MP3, it's much harder to track down > all of those people and make them delete their copies (and many of them > have probably already given a dozen friends copies, and so on). The only > reparation that can be made easily is to pay royalties (which is what > the RIAA really wants anyway, money money money). The only trouble with infringement being infringement being infringement is that the law is complex and keeps changing (as does the market). A Napsterite downloading a Metallica song is guilty of copyright infringement, sure, but I'm a little troubled by some of the implications. For example, I can go to the library and make a photocopy from a book for my own use, take home the copy, use it to my heart's content, and that's not infringement, it's fair use. Indeed, I could copy an entire book, and indeed, I have done so, and if it's for me to use at home, it's still fair use. If the RIAA manages to "get" Napster, might that have implications for personal-use library photocopying? What's the difference between making a copy of a song from a public source, and making a copy of a book from a public library, that one should be punishable, and the other protected? On the other hand, if I take just a few chapters of the same book, make ten copies, and distribute it to my class, without permission, then I would probably be infringing (though some argue that it makes a difference whether someone is making a profit on the deal). This is more or less the case that Kinko's lost. > Also, with the "test drive" issue (both for software and music), there > are enough resources out there that if a company seriously wants to > allow users to "test drive" their software or music, they will. If they > choose not to allow that to happen, that's their moral (and currently, > legal) right, since they came up with it in the first place. Right, I think. I admit that I'm not very interested in the "test drive" issue. > Issues like mandatory licensing and Napster go against the philosophy > this country was founded on. Mandatory licensing, for instance, says > that, while the creator of art should be compensated for that art, the > art itself belongs to the culture, not the creator. That's simply not > true. I'm not sure I agree with that fully. Not that I'm advocating any mandatory anything. > The spirit of intellectual property law (at least, before the lawyers > mucked it up in all directions) is that the creator can decide whether > to give the art to the culture, or to hoard it. The pre-1976 U.S. copyright law was that if you published it, it reverted to the public domain in either 28 or 56 years depending on whether you renewed the copyright. If you didn't publish it, the copyright was yours forever. So, sure, you could create something and hoard it, but you couldn't publish it and then withdraw it and hold it back forever. The new copyright law covers both published and unpublished work. Though at any given time, copyrights are scheduled to expire, as soon as that date approaches for any works, WIPO and Congress extend the term of copyrights to prevent anything from slipping into the public domain. This is contrary to the Constitution, which gives Congress the power "To promote the Progress of Science and useful Arts, by securing for LIMITED TIMES (emphasis added) to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." > While the most moral course is to release it for sufficient compensation > to make a decent living (or for no compensation when a decent living can > be made elsewhere), it's a personal moral choice, and as immoral as it > may be to hoard cultural artifacts and demand excessive compensation for > them, it's also immoral to force your own morality upon someone else by > acting in a way that's indifferent to them. But society makes moral judgements all the time, and enacts them into law. Not everybody agrees. Too bad. I do kind of sympathize with your riff on the unrepetant Napsterites, and I suppose it serves them right if they're arrested. However, my contempt for them is blunted by my view that the RIAA and its allies are advocating (and have already successfully enacted some) subtle but far-reaching legal changes that will be a disaster for society and the culture. In other words, the RIAA really is, if not literally evil, certainly bad enough that I won't be cheering for their legal victories.
But society makes moral judgements all the time, and enacts them into law. Not everybody agrees. Too bad. -- Which is why I prefer to talk about ethics rather than law. Too many laws are morally abhorrent to me. I follow them (for the most part) because I recognize it as a cost of living in a civil society. *shrug* And because there are enough laws in this country that *are* good, and because this country is one of the better ones on the planet right now. For the bit about the RIAA, I find it sad anytime one agency has so much power in an industry that it can dictate matters of law. The movies have the MPAA, the comics have the Code, music has the RIAA, and so on... if you're not "in" with the governing body, you can be leveraged out of serious distribution. And I don't question that the RIAA exploits its power... the speed of the spread of the Tipper Sticker is anexcellent example. (I also find it sad that every major entertainment industry has allowed the government to strong arm it into setting up "voluntary" rating systems that are now being enforced nearly with the force of law in increasing jurisdictions -- I understand that it's not technically *illegal* to let a 16 year old into an R-rated movie, but movie theaters act as if it is. (I find this especially sad because I think voluntary ratings ARE a good idea, but only if they remain as parental guides, rather than replacing parental judgment, which is what has happened.)) Anyway, all that aside. It's an issue of, Does the RIAA's amoral or immoral behavior justify infringing them, and in so doing injuring artist who are genuinely trying to protect their copyrights? I've said it before, I'll say it again -- Most of RIAA's biggest interests arent art, they're commercial tripe, and as such, the concept of protecting the artists and the creativity is bunk. An industry that gav us Samantha Fox, Milli Vanilli, and NSync isn't really all that interested in the foundations of artistry and creative growth. I'm not sure if photocopying an entire book from the library *is* entirely fair use. Legally, it may be (but I thought it wasn't). Morally, I don't feel it is, unless (and pay attention here, McNally) the work is otherwise unavailable (hear that, McNally?). Most of the photocopied books that I have are out-of-print (the rest were made at a time when I just couldn't afford another $50 academic press book). Other odds and ends -- Thank you for providing the source. As a lawyer, you demand precise use of words with precise legal definitions; as an academic, I stress the importance of actual citation. Not that I always do it myself. ;} Motive is clearly the word I meant. My mistake, and sorry it caused so much confusion.
I know I put the kabosh on linguistic arguments here, at least that I engage in, but I just had to comment: From McNally's 171 -- a grand total of THREE unauthorized copies of works which I do not otherwise own, both of which All right, I'll just clip, and not comment. ;} Heh heh. Personally, I don't consider making copies of works you legally own copies of for your own use to be "infringement," regardless of what the law says. I doodle by drawing pictures out of adult magazines. That's a form of copying, but I wouldn't sell those doodles. Of my four tattoos, two were taken directly from books, and another was a composite of several pictures from a book (only one was completely original)... also forms of copying. *shrug* I have absolutist moral stances. Unlike most absolutists I've come across, though, I don't believe it's possible to go through five minutes of your life without committing an act with some immoral component, and that's just the way it is. You do your best, that's it. If you're like most people, McNally, you're responding to my use of "immoral" as if it has the same judgmental scope that people wh bandy it about use. *shrug* Don't. I've made it clear enough what I mean, broad strokes and all.
Somewhere back there it was claimed that borrowing a boat without the owners permission but returning it is not larceny, however the definition of larceny included the phrase "...with intent to appropriate it to use inconsistent with the latter's rights'. The owner's rights include access to the boat at any time the owner wishes. Hence borrowing and returning is larceny if not specifically permitted by the owner.
Since the boat was mentioned again... I should also point out that the appropriation of the boat probably also involved trespass (unless the boat happened to be tethered in a public waterway, and it was just clear from the boat itself who the owner was). Not that that's relevant to anything other than another good reason not to take the boat. =}
Re 175. You could make a case for that. But if the hypothetical rowboat were returned undamaged, and you didn't notice its absence, my guess is that you would have a hard time convincing the police to take it seriously. Real life would add all kinds of wrinkles to this, of course. Most likely the item would suffer wear and tear, and even a brief unauthorized absence could create severe inconvenience or even loss. What if you needed the rowboat to save someone else's life? Or, someone borrowed your fire extinguisher just before you had a fire? Returning the fire extinguisher in perfect condition would not make up for its absence at the crucial moment of need.
Ok, so I borrow the boat with full intention of returning it when I'm done, save the drowning child (hooray!), but the boat gets away from me (so sad) and gets lost in the wilds of the Rouge River. What am I charged with, most likely? (For the sake of the scenario, I found the boat tethered in a public place with a placard that says, "This is John Smith's boat. Don't touch it!")
You would probably not be charged with anything, though it would be right for someone to buy a new boat for the owner. Coommitting larceny and being charged with it are two different things.
The question was more along the lines of: If the owner of the boat wanted to press charges, what charges could he press without causing the PD and the judges to fall over laughing? Not that it matters, I'm just nosey. =} I imagine this would fall under something like destruction of property or recklessness?
You three enjoying your item?
I am, now that we're playing nice. =}
Re #176: And how does the Riparian right to 'use of the entire surface' of a navigable body of water come into play? It might depend on whether you own some shoreline property yourself. ;> ---- I think, unfortunately, that our "fair use" rights are going to start disappearing. I base this on the fact that even if it's legally impossible to remove them, it's technically possible. Examples: - Digital audio encryption. The distribution schemes I've seen would tie a song to a player. You'd need to buy one copy for your home stereo, one for your portable, one for your car... Yeah, you could break the encryption and copy the song, but the DMCA says that kind of lock-picking is illegal regardless of what you do with the results. - With digital cable boxes, it would now be trivial to add a Macrovision circuit like the one in DVD players. If a cable channel is running, say, a movie, they command the box to turn on the Macrovision, and no one can tape a copy of it to watch later. Turn it on all the time, and the Home Recording Act becomes essentially irrelevent. Build a device to defeat the Macrovision encoding (which isn't hard) and you're probably running afoul of the DMCA again.
(scott keeps hoping for another big DIY punk movement to bypass all of that)
Re 178,180. If I was representing the boat owner, I would probably at least consider advising him to bring a civil suit against you for taking without permission -- and then carelessly losing -- his boat. I'm guessing that such a suit would have a high chance of success. Whether a judgement for the value of the boat could be realistically collected from the defendant is another matter. The boat owner's lawyer might ask to be paid up front. :-) By contrast, criminal charges for larceny would be problematic from several standpoints. If the defendant really saved a drowning child, the prosecutor and police are going to be wary of the political repercussions of prosecuting him. If the defendant's intent was consistently to save the child and return the boat, it's probably not larceny. Even if the case went to trial, it's hard to imagine a jury convicting him. If the charges weren't actually dismissed, the prosecutor might accept a guilty plea to something like "reckless boating," and a nominal fine. Net gain for the boat owner: nothing.
Out of curiosity, why is photocopying of an entire book considered "fair use"? What's fair the the copyright holder of the book? Instead of paying him for an additional copy, you either got off scot free, or paid money for use of the copy machine, which undoubtedly wasn't the copyright holder's machine.
My attitude as well. The only times I could see copying an entire book as fair (morally if not legally) would be: (a) It's your book (b) It's public domain (c) It's out of print and not attainable (new) (d) It's your copy of a book, and your reason for copying it is to preserve the original while you make notes, etc. Going to the library and copying an entire Stephen King novel, front to back, is as immoral (and should be as illegal) as dubbing an entire CD you borrow from a friend (that latter of which is apparently technically illegal, but immune from prosecution, according to posts placed here earlier). Not the "as immoral" in the context of my earlier posts. =} Definitely a "shame on you, naughty boy" level of offence, not a "burn in hell you impudent creature of evil" level of offense.
The boundaries of "fair use" have never been strictly defined in the law. There are four factors, including the effect of the copying on the market for the book (hardly relevant when the book is out of print). Naturally most of the discussion and litigation have been on activities that make and distribute multiple copies of copyrighted material. However, to quote from a document prepared for the University of Pennsylvania by its Office of General Counsel, quoted in the university Handbook: "The making of a single copy of copyrighted material for a teacher's personal use in teaching, scholarship, or research will almost always be a fair use."
This response has been erased.
To rephrase that: thinking of books which I have *copied* in their entirety, I can't think of a single one which is currently in print. And many of them are public domain.
If the book isn't in print, and there's no way to contact the copyright holder to provide you a copy of your own for a price, then OK, that seems reasonable that you should be able to make your own copy, if borrowing the library's copy doesn't work. But if the book *is* in print, if it's supposedly fair use to make one's personal copy via reproduction, why doesn't the instructor just tell the students to each go and make their own personal copies? That just couldn't be right, as the copyright holder would be shorted compensation many times over. (Of course, it's not a practical reality, as, at 10 cents a page, the cost and aggravation of making a photocopy of an entire book is not likely to be practical.)
Because there may only be one copy of the book in the library. I used a large part of an out-of-print book as one text in a class at UM. It is impractical for 25 students to coordinate borrowing the book and making copies, so we did it for them. However I first got permission from the publisher, which they granted.
Yes, as I said, OK if out of print. But I was referring to *in print*.
Creating multiple copies either directly or indirectly is not the same as making a single personal copy, regardless of the other circumstances. That Pennsylvania text I quoted goes on immediately -- in the next sentence -- to warn that making multiple copies for students can be problematic. I suppose if I copied a Stephen King novel to read at the beach, that might be seen differently than making copies in the course of research, which is what I do.
You also hit the nail on the head there, btw. Why copy a 200-page book which costs $25, when the copy would cost $10 (100 copies at 10c), in order to get a much worse copy? that's why, in grad school, I only copied the academic books, which run much more than $25... academic press runs can cost anywhere from $40 into the hundreds (of course, part of that is because of the limited market, which is further restricted by people making copies... hence the vicious cycle).
Copies at the U-M library are 7 cents with a copy card. Finding a specific book that was published 50 years ago is difficult and expensive. And I can mark up the copy.
Er, I should say, finding a specific old book is time-consuming, expensive, and often futile, even with Ebay and Bibliofind.
Precisely. Which is why it makes sense to copy entire out-of-print books and in-print academic books, and less sense to copy entire in-press mainstream books, economically speaking.
Now linked to cyber punk along with the other 2 mp3 items.
Prince appeared on The Tonight Show this evening. Leno said something about Napster, to which Prince replied, "The artists don't get paid anyway." So Leno asked for clarification, mentioning Mariah Carey's $20M contract. Prince pointed out that an album sells for $18 and asked how much of that would Leno give the artist. Leno said, "Half", so Prince said that 1 million copies would mean $10M to Mariah, 2 million would be $20M, and 3 million would be $30M: "I think Mariah got screwed." How long does it take to sell a million copies?
(it depends on the artist. for example, Janet Jackson's most recent album entered at #1 on the Billboard charts after selling over 600,000 copies in its first week of release. on the other hand, Dido's album has been out for nearly two years and is only triple-platinum, with a significant portion of those sales coming within the past few months.) (most artists don't "go platinum" [sell a million copies], but Mariah does so routinely. each of her first eight [!] albums sold over 3 million copies.)
Well, unless you're a boy band...don't forget them.
That's about what I thought. I'm reminded of a scene from _The Glenn Miller Story_. His prospective father-in-law is disparaging his profession and asks how much he makes per record. Miller answers, "Two or three cents." "And how many did you sell last year?" "Five hundred thousand," and starts to walk off. Father-in-law starts counting on his fingers, and starts, "But that's . . ." Miller looks back and says, "Yes, it is" and leaves. In the Thirties, $10,000 was a fair amount of money. Today, it's not so good.
not when you have to pay lawyers, studio time, other things related to the album and THEN you pay for your house, expenses...
But don't the artists get a bit more than 2 or 3 cents per copy now?
That depends entirely on what kind of deal they signed..
You have several choices: