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From: is...@latveria.castledoom.org (Isaac)
Newsgroups: gnu.misc.discuss,misc.int-property,rec.music.collecting.cd,comp.os.linux.advocacy
Subject: Re: Day of action against the new corrupted CDs
References: <u669obw68.fsf@synopsys.com> <3BC34062.4BCD1 <9q09rk$mvj$1@coward.ks.cc.utah.edu> <o9Pw7.3433$qm.527392922@twister2.starband.net> <slrn9s7hdq.4li.isaac@latveria.castledoom.org> <48Qw7.4675$uK4.1263326338@twister1.starband.net>
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Date: Wed, 10 Oct 2001 06:15:51 GMT
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On Wed, 10 Oct 2001 04:28:48 GMT, Roger Schlafly <roger_95...@my-dejanews.com> 
wrote:
>"Isaac" <is...@latveria.castledoom.org> wrote
>> Here's an excerpt from section 1001 of Title 17.
>>         (3) A ''digital audio recording device'' is any machine or
>>       device of a type commonly distributed to individuals for use by
>>       individuals, whether or not included with or as part of some
>>       other machine or device, the digital recording function of which
>>       is designed or marketed for the primary purpose of, and that is
>>       capable of, making a digital audio copied recording for private
>>       use, except for -
>> So it's the manufacturing and marketing purpose and not the buyers
>> purpose that are determinative.
>> >ISTM that these conditions will vary from user to user. A lot use a
>> >CD-RW drive exclusively for music and with no programs on the disk.
>> Do you think very many people operate computers with no programs
>> on their hard drive other than the OS and some recording software?
>
>Remember, the definition says, "whether or not included with or as part
>of some other machine or device". It doesn't matter how much stuff is
>in the box, if some component can be regarded as a ''digital audio
>recording device''.

I think this makes the problem harder for the copier.  It isn't just
some component that matters, it's the component used to make the
copy.  
>
>> >Apple, Sony, and others even market whole computers for primary
>> >use with music. The Napster program itself might be considered (by
>> >the user) to be a digital audio recording device.
>> Digital audio recording device are not defined in terms of
>> what the purchaser chooses.  Essentially, if the hardware manufacturer
>> can make a case that he doesn't owe AHRA royalties, then the device
>> isn't a "digital audio recording device" under the act.
>
>The definition of a "digital audio recording device" is not contingent
>on the maker having agreed to pay royalties. (They could have done
>it that way, but didn't.) There are huge gray areas in the definition,
>and the consumer is not responsible to figuring out if royalties were
>paid.

I suggested that the question was whether royalties were owed, and
not whether they were paid.  I think it's clear that royalties are
owed on every "digital audio recording device"

I deliberately avoided the definition you argue against.  I believe
we've had this discussion before.

>
>If a consumer were charged with copyright infringement, he could use
>a defense that he bought a piece of music equipment, based on
>marketing literature that it was useful for music, and then used it for
>music, and didn't know whether royalties were paid or not.

I wouldn't want to rely on that defense.  One piece of marketing
literature does not make a primary purpose.  You've described
literature that doesn't really say whether the music copying
function is primary or secondary.  It's just useful.

If the music in question is in mp3 format, every computer storage
device is as equally adept at saving and retrieving music as it is
at storing word 97 documents. Mp3s are just data.
>
>I don't know whether royalties were paid on my equipment, and I
>don't even know how to find out. The AHRA says it doesn't matter
>to me, so there is no need to find out.

It doesn't really say that.  It's silent on the issue.  IMO you have
some responsibility to make sure the device is one which Congress
intended the AHRA to cover.  I'm not sure you can plead any level
of ignorance about Congress' intent and court decisions that are
contrary to what you think the plain meaning of the words says.

>
>>  The intent
>> of the law is that people who make components for general purpose
>> computers don't owe the RIAA any royalties, and their devices are
>> not intended by Congress to trigger a shield for infringement.
>
>I think that the intent of the law was also to give the music industry
>and incentive to develop digital music formats and equipment that
>is superior to generic computer equipment. Instead it did its best
>to kill DAT and complain about MP3s.

No argument there.  On the other hand, consumers weren't being
sued for making copies before the AHRA. The immunity to infringement 
action doesn't really serve the consumer directly.  The freedom from being
sued is really for the computer peripheral and music recording
equipment manufacturers.

Isaac