copying videos
Kara
answers on Usenet...'If I purchased a videotape of Ghost World, how
can I make a copy of the tape? Is it legal to do this?'
Peter Seebach
Good luck!
Whether or not it's legal is subject to reasonable debate. In general, if
you were to make a digital duplicate of it for personal use, you'd probably
be legit. If you were to, say, duplicate it, and then sell the tape and
keep the digital copy, you would almost certainly be breaking the law, at
least in the U.S.
As to *how*, there are a number of ways, depending on the computer you want
to do it with, and what you have lying around. Or, you could just hook up
a pair of VCR's and see if you can copy it.
-s
--
Copyright 2002, all wrongs reversed. Peter Seebach / se...@plethora.net
$ chmod a+x /bin/laden Please do not feed or harbor the terrorists.
C/Unix wizard, Pro-commerce radical, Spam fighter. Boycott Spamazon!
Consulting, computers, web hosting, and shell access: http://www.plethora.net/
Edwin van Eck
having 2 VCRs attached to each other.
A workaround for this is to capture the video first to your PC using an
analog video capture card (like the Pinnacle
DC10+) and then transferring it back to the video recorder.
See for this a step-by-step process on: http://edwinvaneck.cjb.net
--
Edwin van Eck
http://edwinvaneck.cjb.net
"Peter Seebach" <se...@plethora.net> wrote in message
news:3c9a69cf$0$22477$3c09...@news.plethora.net...
Paul Tauger
"Kara" <geda...@hotmail.com> wrote in message
news:9eccb616.02032...@posting.google.com...
> Hey...I'm doing a lab for a computer literacy and we have to find
> answers on Usenet...'If I purchased a videotape of Ghost World, how
> can I make a copy of the tape? Is it legal to do this?'
Hard to say, without knowing a lot more about what you're doing. If you're
planning on copying the entire tape, though, the answer is probably "no."
Paul Tauger
"Peter Seebach" <se...@plethora.net> wrote in message
news:3c9a69cf$0$22477$3c09...@news.plethora.net...
> Kara <geda...@hotmail.com> wrote:
> >Hey...I'm doing a lab for a computer literacy and we have to find
> >answers on Usenet...'If I purchased a videotape of Ghost World, how
> >can I make a copy of the tape? Is it legal to do this?'
>
> Good luck!
>
> Whether or not it's legal is subject to reasonable debate. In general, if
> you were to make a digital duplicate of it for personal use, you'd
probably
> be legit.
This assumes US law:
Not so. There is no "personal use" exception for video duplication, as
there is for audio duplication.
> If you were to, say, duplicate it, and then sell the tape and
> keep the digital copy, you would almost certainly be breaking the law, at
> least in the U.S.
You'd break the law as soon as you made the copy.
Peter Seebach
Paul Tauger <ptauger...@earthlink.net> wrote:
>Not so. There is no "personal use" exception for video duplication, as
>there is for audio duplication.
So? Let's say I make a digital copy of a movie. Do you honestly think a
judge will find it to be a violation?
>> If you were to, say, duplicate it, and then sell the tape and
>> keep the digital copy, you would almost certainly be breaking the law, at
>> least in the U.S.
>You'd break the law as soon as you made the copy.
No, you'd merely be in the grey area where you'd need a court to find out
what happens. If you claim it's fair use, then it's going to get interesting.
After all, the complete lack of distribution certainly weighs in favor of a
finding of fair use, as does the non-commercial nature.
Paul Tauger
> In article <a7iecq$l2tcb$1...@ID-101118.news.dfncis.de>,
> Paul Tauger <ptauger...@earthlink.net> wrote:
> >Not so. There is no "personal use" exception for video duplication, as
> >there is for audio duplication.
>
> So? Let's say I make a digital copy of a movie. Do you honestly think a
> judge will find it to be a violation?
Yes, if you got caught and were sued. The statute is absolutely clear. A
more interesting question is, "what would be your damages liability?" If
the infringement were intentional, and the copyright registered, it could be
quite severe, as much as $250,000.
>
> >> If you were to, say, duplicate it, and then sell the tape and
> >> keep the digital copy, you would almost certainly be breaking the law,
at
> >> least in the U.S.
>
> >You'd break the law as soon as you made the copy.
>
> No, you'd merely be in the grey area where you'd need a court to find out
> what happens.
Sorry, but you haven't a clue what you're talking about. There is nothing
"grey" about it.
17 U.S.C. 501(a): "Anyone who violates any of the exclusive rights of the
copyright owner as provided by secontions 106 through 118 . . . is an
infringer of the copyright."
17 U.S. 106: "[T]he owner of copyright under this title has the exclusive
rights to do and to authorize any of the following: (1) to reproduce the
copyrighted work in copies or phonorecords."
There is nothing ambiguous or unclear about this.
> If you claim it's fair use, then it's going to get interesting.
Not that interesting. Here's the original post:
"Hey...I'm doing a lab for a computer literacy and we have to find answers
on Usenet...'If I purchased a videotape of Ghost World, how can I make a
copy of the tape? Is it legal to do this?'"
Educational fair use has a spontaneity requirement, which would seem to be
obviated by the fact that the poster had the time to ask question here. The
post also seems to imply that he was going to copy the entire thing, which
also mitigates against a finding of fair use.
> After all, the complete lack of distribution certainly weighs in favor of
a
> finding of fair use,
"Lack of distribution" isn't a fair use factor. Impact on the market is,
however, and depending on how many people are going to have access to this
copy, it would seem that there _is_ a detrimental market effect.
>as does the non-commercial nature.
He didn't say it was non-commercial, though this would favor a fair use
finding.
Peter Seebach
I'd disagree.
>The statute is absolutely clear.
Really? I wouldn't call it "absolutely" clear - but perhaps we're not talking
about the same law. I'm talking about copyright.
There's an explicit exception for noncommercial use of audio by individuals,
yes, such that there is no *chance* of a judge finding for the plaintiff.
That doesn't mean that the existing fair use code wouldn't apply.
>A more interesting question is, "what would be your damages liability?" If
>the infringement were intentional, and the copyright registered, it could be
>quite severe, as much as $250,000.
This seems very unlikely. In general, if there's no distribution, and only
the person who bought the work is using it, courts will laugh at claims
of "infringement".
>> No, you'd merely be in the grey area where you'd need a court to find out
>> what happens.
>Sorry, but you haven't a clue what you're talking about. There is nothing
>"grey" about it.
>17 U.S.C. 501(a): "Anyone who violates any of the exclusive rights of the
>copyright owner as provided by secontions 106 through 118 . . . is an
>infringer of the copyright."
Yes.
>17 U.S. 106: "[T]he owner of copyright under this title has the exclusive
>rights to do and to authorize any of the following: (1) to reproduce the
>copyrighted work in copies or phonorecords."
Uh-huh.
>There is nothing ambiguous or unclear about this.
But there's something very dishonest about the way you failed to quote
the most relevant section, S107, which says that things which would
*otherwise* be infringements may *not* be infringements, depending on
use.
>Educational fair use has a spontaneity requirement,
Where's your citation for this? All I see is:
---
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
---
Let's look closely. Purpose 1: It's not "educational", but it's also
clearly not "commercial". Probably a wash. The complete copy probably
argues against fair use... But then we get to the interesting one, which
is effect of the use upon the potential market. That would be *NO EFFECT
AT ALL*, because (if you read my post) I was talking only about making a
copy of a thing *you actually own*.
>"Lack of distribution" isn't a fair use factor. Impact on the market is,
>however, and depending on how many people are going to have access to this
>copy, it would seem that there _is_ a detrimental market effect.
Read my post more carefully. I said it was probably legitimate to copy it
*as long as you kept the original*. In other words, if I buy a copy of
some movie, on VHS, and dub it to my computer through firewire, and watch
the dubbed copy, I haven't affected the market *at all*.
Now, if I then go ahead and sell one copy and keep the other, *then* the
court will likely bust me.
>He didn't say it was non-commercial, though this would favor a fair use
>finding.
Right. My point is, if you are making a copy for your own use, especially
one that is used only to change the medium, there's essentially no chance that
a court will do anything but smack plaintiff up for wasting the court's time.
That is, *assuming* you legitimately buy the thing in question, and don't try
to keep a duplicate after selling your original. That would be scummy.
Paul Tauger
> In article <a7j16v$luf9q$1...@ID-101118.news.dfncis.de>,
> Paul Tauger <ptauger...@earthlink.net> wrote:
> >Yes, if you got caught and were sued.
>
> I'd disagree.
You can disagree, but you'd be wrong. Federal courts have exclusive
jurisdiction over copyright infringement actions. Federal Rule of Civil
Procedure 12(b) provides the various bases under which a judge can dismiss
an action. These include failure to state a claim, and lack of personal or
subject matter jurisdiction. They don't include "I don't like this case,"
or "Peter Seebach disagrees."
>
> >The statute is absolutely clear.
>
> Really? I wouldn't call it "absolutely" clear - but perhaps we're not
talking
> about the same law. I'm talking about copyright.
No you're not. You're talking about your understanding of copyright, which
is simply wrong.
What do you think the statute means? There are no statutory exceptions for
copying video. There are no compulsory licenses for copying video. There
is fair use doctrine, which may or may not apply to the original poster's
situation, but fair use is a _defense_ to infringement, not insulation from
liability like the AHRA.
>
> There's an explicit exception for noncommercial use of audio by
individuals,
That's the AHRA. Read it. It ONLY applies to copying audio, not video.
> yes, such that there is no *chance* of a judge finding for the plaintiff.
You don't know what you are talking about. Do you know the elements of
proof of a copyright infringement action? At its most basic, there are only
two: ownership of a valid copyright and copying. If the plaintiff can prove
these two elements, he wins. Period. Copying is proven by showing access
and substantial similarity. The latter is a term of art, which comprises
two distinct prongs: subjective and objective smiilarity. Subjective
similarity means, "would a reasonable person think the accused copy was
substantially similar to the original?" Objective similarity is what it
sounds like -- comparing the accused copy to the original for similarities.
If, by a preponderance of the evidence, the plaintiff proves substantial
similarity and access to the original, then there is copying. If, by a
preponderance of the evidence, the plaintiff proves ownership of a valid
copyright, then the plaintiff has proven copyright infringement.
Damages for copyright infringement actions are specified in 17 U.S.C. 504.
Paragraph c of Section 504 provides that the plaintiff can elect statutory
damages in a minimum amount of $500.
You, like many laypeople, think that federal court judges make decisions
like the judges you see on television shows. They don't. It is an abuse of
discretion, and reversible error, to render a decision contrary to the
evidence (assuming it is a bench trial and not a jury trial, in which case
the jury, and not the judge, is the trier of fact).
> That doesn't mean that the existing fair use code wouldn't apply.
See what I wrote about that.
>
> >A more interesting question is, "what would be your damages liability?"
If
> >the infringement were intentional, and the copyright registered, it could
be
> >quite severe, as much as $250,000.
>
> This seems very unlikely.
Well, it depends, doesn't it? If a plaintiff elects statutory damages, the
judge has _no_ discretion, but must award at least the statutory minimum.
When infringement is willful, the upper limit of statutory damages
increases, and the judge may also award attorneys fees.
>n general, if there's no distribution,
The distribution right is only one right reserved to the copyright owner.
The right to prepare copies is another, and has nothing to do with
distribtuion. See 17 U.S.C. 106.
>and only
> the person who bought the work is using it, courts will laugh at claims
> of "infringement".
Again, you haven't a clue what you're talking about. See above. Courts
don't "laugh" at anything.
>
> >> No, you'd merely be in the grey area where you'd need a court to find
out
> >> what happens.
>
> >Sorry, but you haven't a clue what you're talking about. There is
nothing
> >"grey" about it.
>
> >17 U.S.C. 501(a): "Anyone who violates any of the exclusive rights of the
> >copyright owner as provided by secontions 106 through 118 . . . is an
> >infringer of the copyright."
>
> Yes.
>
> >17 U.S. 106: "[T]he owner of copyright under this title has the exclusive
> >rights to do and to authorize any of the following: (1) to reproduce the
> >copyrighted work in copies or phonorecords."
>
> Uh-huh.
>
> >There is nothing ambiguous or unclear about this.
>
> But there's something very dishonest about the way you failed to quote
> the most relevant section, S107, which says that things which would
> *otherwise* be infringements may *not* be infringements, depending on
> use.
That's not what Section 107 says. Fair Use doctrine is an equitable doctrine
that has been codified by that section. First, it is _defense_ to
infringement, meaning it can not be raised under FRCP 12(b) to get a suit
dismissed on its face. Second, the four factors listed in Section 107 are
(1) not dispositive of fair use (meaning all four factors may be present and
the use will STILL be found infringing), and (2) the factors are not
anywhere near as broad as you seem to think. For example, the OP mentioned
that he wanted to copy a protected work to use for a computer literacy
project. I'm not sure what that means. It _might_ be considered
educational fair use, but there are a lot of specific criteria that must be
met before it will be so found (remember when I said it was an _equitable_
doctrine?). Some of the criteria include a spontaneity requirement, i.e.
use of the copy can't be part of a regular curiculum or lesson plan, a
limitation on the number of students who will have access to the copy, etc.
Merely saying, "Oh, I'm using this for educational purposes," is entirely
insufficient to support a finding of educational fair use.
>
> >Educational fair use has a spontaneity requirement,
>
> Where's your citation for this? All I see is:
>
> ---
> (1) the purpose and character of the use, including whether such use is of
a
> commercial nature or is for nonprofit educational purposes;
>
> (2) the nature of the copyrighted work;
>
> (3) the amount and substantiality of the portion used in relation to the
> copyrighted work as a whole; and
>
> (4) the effect of the use upon the potential market for or value of the
> copyrighted work.
I already told you, fair use is an _equitable doctrine_ that has been
codified at Sec. 107. It remains, however, an equitable doctrine, meaning
that judges will apply the common law criteria which has evolved since the
Statute of Anne for evaluating fair use. The statute merely acknowledges
the existence of the equitable doctrine, it does not replace it.
As for getting you a cite, I generally don't do this for internet
discussions, but I've sandbagged you -- you didn't know that I was an
intellectual property attorney who litigates copyright infringement actions
for a living. So, just this once, I'll do it, but next time you can retain
me or do your own legal research. I'm handicapped tonight in that I only
have Westlaw access via Westmate's website, and that interface is
particularly awkware and slow. You'll have to be satisifed with these:
National Republican Congressional Committee v. Legi-Tech, 795 F.2d 190
(C.A.D.C.1986) (Fair use is an equitable doctrine).
For some discussion of the various criteria for supporting a finding of
educational fair use see:
Encyslopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156
(D.C.N.Y. 1982) which discusses, inter alia, the spontaneity requirement.
> ---
>
> Let's look closely. Purpose 1: It's not "educational", but it's also
> clearly not "commercial". Probably a wash. The complete copy probably
> argues against fair use... But then we get to the interesting one, which
> is effect of the use upon the potential market. That would be *NO EFFECT
> AT ALL*, because (if you read my post) I was talking only about making a
> copy of a thing *you actually own*.
Your analysis is meaningless, because you are trying to argue from the
statute when, as I've explained, fair use is an equitable doctrine, the
criteria for which must be found by looking at the case law.
>
> >"Lack of distribution" isn't a fair use factor. Impact on the market is,
> >however, and depending on how many people are going to have access to
this
> >copy, it would seem that there _is_ a detrimental market effect.
>
> Read my post more carefully. I said it was probably legitimate to copy it
> *as long as you kept the original*.
It's not. Period. Copyright law does not permit you to make copies "as
long as you kept the original." The only exception is the archiving
provision of 17 U.S.C. 117, but this applies only to "computer programs."
>In other words, if I buy a copy of
> some movie, on VHS, and dub it to my computer through firewire, and watch
> the dubbed copy, I haven't affected the market *at all*.
So what? If you watch it real time, or create a temporary file in the form
of a cache, you're okay. If you dub the copy to DV, you've infringed the
copyright. As I've explained, the fair use factors are _non-dispositive_ of
fair use.
Another thing which you don't seem to understand is the fundamental nature
of the specific rights protected under copyright law. Article I, Section 8
of the U.S. Constitution reserves to authors _exclusive_ rights to their
creations. This means that they can sell it if they choose, give it away if
they choose, or keep it locked away in their dresser drawer and not give
anyone access if they choose. Copyright is an incentive to creation, and
not an economic right per se. Even if there is no impact on the potential
market, a given use will still constitute infringement and may not come
within fair use.
>
> Now, if I then go ahead and sell one copy and keep the other, *then* the
> court will likely bust me.
Whether you sell it or not, you're still busted.
>
> >He didn't say it was non-commercial, though this would favor a fair use
> >finding.
>
> Right. My point is, if you are making a copy for your own use, especially
> one that is used only to change the medium,
Medium shifting is an interesting argument, as it has a corrollary in the
time-shifting which was approved in Sony v. Universal. You should know,
though, that one of the primary rationales relied upon by the U.S. Supreme
Court in Sony was that no one would use VCRs to amass a personal library of
copyright-protected material (remember when this case was decided). Of
course, that is exactly what has happened, and I've always been curious
whether this case would come out the same way if brought today.
At any rate, with respect to medium-shifting, it's a nice argument, but it's
not the law. Perhaps a court would find medium-shifting fair use, perhaps
not. You might have a shot with this argument in the 9th Circuit, but I'd
be surprised if our current Supreme Court accept it.
>there's essentially no chance that
> a court will do anything but smack plaintiff up for wasting the court's
time.
And, again, you don't have a clue what you're talking about. I routinely
bring trademark infringement actions on behalf of my clients against fairly
minor defendants because (1) if we don't police our trademarks, our rights
can be compromised, and (2) my clients frequently wish to make an example.
The same concerns apply to copyright. I wouldn't necessarily recommend that
a client prosecute the OP -- I don't know enough about the situation.
However, the danger of these supposed "trivial" infringements is that, when
multiplied by all the trivial infringers out there, the actual damages
incurred can be quite substantial, hence the need to make an example.
Andrew Lloyd Weber once sued a high school in New Jersey for an unauthorized
performance of Jesus Christ Superstar. I recall a case in which a minister
made copies of a hymn that was given to the choir of his church. He was
sued for infringment and lost.
You have absolutely no basis, either in fact or law, for your contention
that a court would throw out an infringement suit that included the facts
provided by the OP. I see by your sig line that you do computer consulting.
You'd be well advised to stick to your area of expertise, and leave
copyright infringement analysis to others who do have this expertise.
Peter Seebach
We can't say that until a court makes a ruling.
>Federal courts have exclusive
>jurisdiction over copyright infringement actions. Federal Rule of Civil
>Procedure 12(b) provides the various bases under which a judge can dismiss
>an action. These include failure to state a claim, and lack of personal or
>subject matter jurisdiction. They don't include "I don't like this case,"
>or "Peter Seebach disagrees."
But they *do* include a finding of fair use.
>What do you think the statute means?
Exactly what it says - but I think that the fair use clause is relevant.
>There are no statutory exceptions for
>copying video. There are no compulsory licenses for copying video. There
>is fair use doctrine, which may or may not apply to the original poster's
>situation, but fair use is a _defense_ to infringement, not insulation from
>liability like the AHRA.
But, *if* your usage is found to be "fair use", then *no infringement
occurred*.
Liability only comes in if you infringe; if you are not infringing, you
have no liability.
>You don't know what you are talking about. Do you know the elements of
>proof of a copyright infringement action? At its most basic, there are only
>two: ownership of a valid copyright and copying. If the plaintiff can prove
>these two elements, he wins. Period.
Except, of course, for fair use, which you seem to have a strong committment
to avoiding any reference to.
>If, by a preponderance of the evidence, the plaintiff proves substantial
>similarity and access to the original, then there is copying. If, by a
>preponderance of the evidence, the plaintiff proves ownership of a valid
>copyright, then the plaintiff has proven copyright infringement.
Unless it's fair use.
>Again, you haven't a clue what you're talking about. See above. Courts
>don't "laugh" at anything.
Yes, they do. Read the court's judgement in the "Pretty Woman" case, where
the court said that, while 2 Live Crew's defense had failed to present a
defense, that the defense still existed, and found for the defendant.
>That's not what Section 107 says. Fair Use doctrine is an equitable doctrine
>that has been codified by that section. First, it is _defense_ to
>infringement, meaning it can not be raised under FRCP 12(b) to get a suit
>dismissed on its face.
True enough.
>Second, the four factors listed in Section 107 are
>(1) not dispositive of fair use (meaning all four factors may be present and
>the use will STILL be found infringing), and (2) the factors are not
>anywhere near as broad as you seem to think.
At the same time, even *one* of the factors *may* be enough to show fair
use.
>For example, the OP mentioned
>that he wanted to copy a protected work to use for a computer literacy
>project. I'm not sure what that means.
No, he said he was doing research for a computer literacy project, and
he wanted to know if he *could* copy a tape. My assumption was that the
project was to find out whether or not this was allowed. I may have horribly
misread him.
>It _might_ be considered
>educational fair use, but there are a lot of specific criteria that must be
>met before it will be so found (remember when I said it was an _equitable_
>doctrine?).
Okay.
>Some of the criteria include a spontaneity requirement, i.e.
>use of the copy can't be part of a regular curiculum or lesson plan, a
>limitation on the number of students who will have access to the copy, etc.
>Merely saying, "Oh, I'm using this for educational purposes," is entirely
>insufficient to support a finding of educational fair use.
Can you cite this "spontaneity requirement" in the statute? I can't seem
to find it.
>As for getting you a cite, I generally don't do this for internet
>discussions, but I've sandbagged you -- you didn't know that I was an
>intellectual property attorney who litigates copyright infringement actions
>for a living.
No, but I had very strong suspicions. :)
[snip quotes]
Okay, I'll take your word for it; this is something I hadn't run into.
>Your analysis is meaningless, because you are trying to argue from the
>statute when, as I've explained, fair use is an equitable doctrine, the
>criteria for which must be found by looking at the case law.
*sigh*. That's depressing, because it makes it virtually impossible for
J. Random Person to find out what he can or can't legally do - which, I
would argue, is about as far from the common-language use of "equitable"
as one can get.
>> Read my post more carefully. I said it was probably legitimate to copy it
>> *as long as you kept the original*.
>It's not. Period. Copyright law does not permit you to make copies "as
>long as you kept the original." The only exception is the archiving
>provision of 17 U.S.C. 117, but this applies only to "computer programs."
Hmm. Really? I've been told, on numerous occasions, by numerous people,
that you're welcome to wallpaper your room with copies of copyrighted works.
This leads to a secondary question: All theoretical results aside, can you
name a single instance of a court finding that a purely personal copy
constitutes an "infringement"?
>> Now, if I then go ahead and sell one copy and keep the other, *then* the
>> court will likely bust me.
>Whether you sell it or not, you're still busted.
I would bet you'll find a *LOT* more cases where courts bust people for
selling copies than you do cases where courts bust people for merely making
them for personal use, or for the purposes of testing DV equipment.
>> Right. My point is, if you are making a copy for your own use, especially
>> one that is used only to change the medium,
>Medium shifting is an interesting argument, as it has a corrollary in the
>time-shifting which was approved in Sony v. Universal. You should know,
>though, that one of the primary rationales relied upon by the U.S. Supreme
>Court in Sony was that no one would use VCRs to amass a personal library of
>copyright-protected material (remember when this case was decided).
It's so comforting to know that the courts can guess wrong too. :)
>Of course, that is exactly what has happened, and I've always been curious
>whether this case would come out the same way if brought today.
It'd be interesting; after all, the time-shifting usage probably *is*
legitimate, which raises the interesting question of how you'd enforce the
restriction that time-shifting is allowed, but collection isn't.
>At any rate, with respect to medium-shifting, it's a nice argument, but it's
>not the law. Perhaps a court would find medium-shifting fair use, perhaps
>not. You might have a shot with this argument in the 9th Circuit, but I'd
>be surprised if our current Supreme Court accept it.
I have no idea.
I do, of course, offer the secondary additional defense: No one will ever
brother bringing such a case to court.
>And, again, you don't have a clue what you're talking about. I routinely
>bring trademark infringement actions on behalf of my clients against fairly
>minor defendants because (1) if we don't police our trademarks, our rights
>can be compromised, and (2) my clients frequently wish to make an example.
>The same concerns apply to copyright.
Are you *sure* you're an IP lawyer? Copyright isn't subject to "police it or
lose it", except insofar as you can lose the right to stop a *specific*
infringement.
>You have absolutely no basis, either in fact or law, for your contention
>that a court would throw out an infringement suit that included the facts
>provided by the OP.
Fair enough. However, I do suspect that, depending on the exact facts, they
might well find it to be fair use.
>I see by your sig line that you do computer consulting.
>You'd be well advised to stick to your area of expertise, and leave
>copyright infringement analysis to others who do have this expertise.
Well, out of the last thirty or so times I've seen copyright debates, I've
seen IP lawyers show up once, at most. I do try to warn people away from the
fussy issues; it's a nightmarishly complicated field, made dramatically worse
by the constant reinvention of strange myths about copyright.
Ole Hansen
news:a7jkg6$lbk2g$1...@ID-101118.news.dfncis.de...
>
> [...]
>
> As for getting you a cite, I generally don't do this for internet
> discussions, but I've sandbagged you -- you didn't know that I was an
> intellectual property attorney who litigates copyright infringement
actions
> for a living. So, just this once, I'll do it, but next time you can
retain
> me or do your own legal research. I'm handicapped tonight in that I only
> have Westlaw access via Westmate's website, and that interface is
> particularly awkware and slow. You'll have to be satisifed with these:
>
>
> And, again, you don't have a clue what you're talking about. I routinely
> bring trademark infringement actions on behalf of my clients against
fairly
> minor defendants because (1) if we don't police our trademarks, our rights
> can be compromised, and (2) my clients frequently wish to make an example.
>
>
> I see by your sig line that you do computer consulting.
> You'd be well advised to stick to your area of expertise, and leave
> copyright infringement analysis to others who do have this expertise.
>
While I find your discursions certainly interesting and well-argued, I
cannot help but wonder what you are doing in this newsgroup. As you may
know, this group focuses on the discussion of technical, not legal, aspects
of desktop video. Why not take your views to a legal group. If you do wish
to engage in legal discussions with people of whom you should know that they
are not experts, then you would be well advised to tone down your attitude.
Frankly, you come across as arrogant.
You statements also could lead some to believe that your purpose here might
be to "snoop" - that is, to find possible copyright infringers, whom you
might feel worthwhile bringing to the attention of your clients.
Regarding the subject matter, perhaps Peter's gut instincts regarding
personal, non-commercial use are not as ridiculous as you portray them. Such
an exemption can be routinely found in foreign copyright law; for instance,
in German law (§53 Abs. 1 UrhG). For that reason, VCRs were never a legal
issue in Germany.
That only audio works are excepted in US law is likely the result of audio
recorders being widely available at the time. Not excepting audio works
would not only massively have harmed business, but would have been utterly
unrealistic. Now that digital video technology is making its way into
mainstream society, the laws ought to be revised to reflect the new
realities. (Industry has long understood this and lobbied, regrettably but
not surprisingly, for legal changes not in the consumer's interest.)
Qualitatively, there is no difference between "medium-shifting" one's own
audio cassette to a CD and own's video cassette to a DVD, so why should the
legal treatment differ. (Cynics whisper: Because there are so much more
profits to be made with video.)
Ole
Hal Lowe
I find it absolutely amazing how people will argue with you, when it's clear
they have no idea what they're talking about. Perhaps you should start
discussions with them letting them know that you're a lawyer that
specializes in these types of cases, although I suppose they'd probably
argue anyway.
(please forgive the top post folks, but Paul really doesn't need any
assistance from me with this discussion and certainly not with respect to
the law).
Anyway, always enlightened and always learn something new about the law from
you. Keep up the good work. Even if the 'hard-heads' don't get it, many of
us find it interesting and enlightening.
Take care,
Hal Lowe
www.halowe-graphics.com/photo.html
(digital photography resources)
remove *NO*SPAM* and "NO"SPAM" to email
Paul Tauger
<snip>
> *sigh*. That's depressing, because it makes it virtually impossible for
> J. Random Person to find out what he can or can't legally do - which, I
> would argue, is about as far from the common-language use of "equitable"
> as one can get.
Exactly right. "Equitable" is a term of art that has a specific meaning
which is not necessarily obvious. I see this in newsgroups all the time --
people look up statutes and then try to use common sense to construe them.
The problem is, the American legal system (as well as the British and
Australian legal systems) doesn't work this way.
Anyone whose livelihood could depend on the answer would do very well to
consult a lawyer. The good news is, most lawyers (at least beyond the
personal injury and divorce level) don't charge for an initial consultation,
and that may be all that's needed to get a specific answer. If a little
research is needed, the cost can be quite nominal, i.e. a very, very small
fraction of the cost of defending a law suit.
If the OP is affiliated with a university, then the university almost
certainly has its own in-house legal counsel who will be able to provide the
OP with an answer he can rely on.
>
> >> Read my post more carefully. I said it was probably legitimate to copy
it
> >> *as long as you kept the original*.
>
> >It's not. Period. Copyright law does not permit you to make copies "as
> >long as you kept the original." The only exception is the archiving
> >provision of 17 U.S.C. 117, but this applies only to "computer programs."
>
> Hmm. Really? I've been told, on numerous occasions, by numerous people,
> that you're welcome to wallpaper your room with copies of copyrighted
works.
You've been told wrong. Of course, in the above example, the likelihood of
being is quite small, and the likelihood of being sued even smaller, as most
copyright owners won't sue to recover only the statutory minimum. There are
exceptions, however. Microsoft is notorious for "zealously protecting" its
intellectual property. So is Mattel.
>
> This leads to a secondary question: All theoretical results aside, can
you
> name a single instance of a court finding that a purely personal copy
> constitutes an "infringement"?
It depends on what you mean by "purely personal copy." I already mentioned
the church choir example. It's extremely unlikely that there is a
_reported_ case, i..e. one that has been published and can be found in
either the bound volumes of decisions or in an unline database like Westlaw
or Lexis. The reason for this is decisions at the district (trial) court
level are reported only if they would be of interest for some reason, and
it's unlikely that a di minimus and straightforward infringement action
would be of interest to anyone. Many (but not all) appellate decisions are
published, but it's unlikely that a "personal use" defendant would have the
means to pursue an appeal.
>
> >> Now, if I then go ahead and sell one copy and keep the other, *then*
the
> >> court will likely bust me.
>
> >Whether you sell it or not, you're still busted.
>
> I would bet you'll find a *LOT* more cases where courts bust people for
> selling copies than you do cases where courts bust people for merely
making
> them for personal use, or for the purposes of testing DV equipment.
We have to clarify some terminology: civil infringement actions (as opposed
to criminal infringement) are brought by plaintiffs with standing to sue,
meaning either the copyright owner or his exclusive licensee. Courts don't
initiate actions on their own. The one who will do the "busting" is the
plaintiff, not the court. As I said in an earlier post, a court has no
choice but to hear a matter as long as it can survive a challenge under FRCP
12(b).
>
> >> Right. My point is, if you are making a copy for your own use,
especially
> >> one that is used only to change the medium,
>
> >Medium shifting is an interesting argument, as it has a corrollary in the
> >time-shifting which was approved in Sony v. Universal. You should know,
> >though, that one of the primary rationales relied upon by the U.S.
Supreme
> >Court in Sony was that no one would use VCRs to amass a personal library
of
> >copyright-protected material (remember when this case was decided).
>
> It's so comforting to know that the courts can guess wrong too. :)
When it comes to technology cases, the courts often guess wrong. This is
one of the frustrating aspects of my particular specialty -- frequently,
courts simply don't "get" new technology. Of course, in Sony v. Universal,
society is a lot better off because the court did guess wrong. If the
decision went the other way, there would never have been VCRs and, very
likely, the whole idea of watching movies in their theatrical form at home
would never have happened (or would have been substantially delayed), and we
wouldn't have big screen TVs, DVD players, DTS and all the other
accoutrements of home theater.
>
> >Of course, that is exactly what has happened, and I've always been
curious
> >whether this case would come out the same way if brought today.
>
> It'd be interesting; after all, the time-shifting usage probably *is*
> legitimate, which raises the interesting question of how you'd enforce the
> restriction that time-shifting is allowed, but collection isn't.
The Sony court found time-shifting fair use for a number of reasons, which
included the fact that the broadcaster's audience (both for product and
commercials) was actually expanded -- again, the court didn't anticipate
commercial-skipping technology. Collection, on the other hand, negatively
impacts the market for broadcast product -- if you already have a program on
tape, you won't watch the re-run, which deprives the broadcaster of
additional advertising revenue.
Moving forward in time, if I can rent a movie at Blockbusters for $4, and
make a high-quality copy for the cost of a blank tape which costs another
$4, I have very little incentive to buy a legal copy for $19.95.
Personally, I'd like to see Congress expand the AHRA to so that it covers
the following:
1. Copying a legitimate copy of an audio CD to video tape that will not be
distributed commercially or performed publicly, e.g. allowing wedding
videographers to use their clients' favorite CDs for background music.
2. True medium shifting, e.g. when my wife and I fly internationally for
vacation, I'll copy a couple of movies to miniDV, so that we can watch them
on the plane.
>
> >At any rate, with respect to medium-shifting, it's a nice argument, but
it's
> >not the law. Perhaps a court would find medium-shifting fair use,
perhaps
> >not. You might have a shot with this argument in the 9th Circuit, but
I'd
> >be surprised if our current Supreme Court accept it.
>
> I have no idea.
The current Supreme Court is extremely conservative and very pro-business.
Add to that a clear Congressional imperative to protect the rights of
copyright owners in the form of the DMCA (which, in my opinion, contains
some very bad law), and I think it would be an up-hill battle.
>
> I do, of course, offer the secondary additional defense: No one will ever
> brother bringing such a case to court.
Practically speaking, you're quite right.
>
> >And, again, you don't have a clue what you're talking about. I routinely
> >bring trademark infringement actions on behalf of my clients against
fairly
> >minor defendants because (1) if we don't police our trademarks, our
rights
> >can be compromised, and (2) my clients frequently wish to make an
example.
> >The same concerns apply to copyright.
>
> Are you *sure* you're an IP lawyer? Copyright isn't subject to "police it
or
> lose it", except insofar as you can lose the right to stop a *specific*
> infringement.
I was speaking from a business perspective, not a legal one. Microsoft
routinely sues small "mom and pop" operations for what Microsoft alleges as
"copyright infringement" (I disagree, but that's another thread). It does
so to ensure that casual infringers will think twice.
>
> >You have absolutely no basis, either in fact or law, for your contention
> >that a court would throw out an infringement suit that included the facts
> >provided by the OP.
>
> Fair enough. However, I do suspect that, depending on the exact facts,
they
> might well find it to be fair use.
No one can say whether they will or they won't -- the OP didn't provide
anything close to sufficient information to make a determination.
>
> >I see by your sig line that you do computer consulting.
> >You'd be well advised to stick to your area of expertise, and leave
> >copyright infringement analysis to others who do have this expertise.
>
> Well, out of the last thirty or so times I've seen copyright debates, I've
> seen IP lawyers show up once, at most. I do try to warn people away from
the
> fussy issues; it's a nightmarishly complicated field, made dramatically
worse
> by the constant reinvention of strange myths about copyright.
Agreed.
Paul Tauger
"Ole Hansen" <o...@REMVETHISredvw.com> wrote in message
news:sLjn8.16294$DX6.4...@news2.east.cox.net...
Looking for tips on editing video on my computer. I have a Pinnacle ProOne
system and edit in Premiere. Prior to getting the ProOne, I was editing in
Studio 7 (with Pinnacle's 1394 card).
> As you may
> know, this group focuses on the discussion of technical, not legal,
aspects
> of desktop video. Why not take your views to a legal group.
When posters ask legal questions and other posters provide (inaccurate)
legal answers, I'll jump in. As a rule, I don't give legal advice over the
internet (my firm's malpractice carrier would get very upset if I did).
You'll note that _I_ didn't answer the OP's question. However, I view it as
part of my obligation as an attorney to correct "urban myths" about law when
I encounter them, particularly in the context of someone else offering
advice.
>If you do wish
> to engage in legal discussions with people of whom you should know that
they
> are not experts, then you would be well advised to tone down your
attitude.
You're right about that -- I was considerably more blunt than I should have
been, and for that I apologize, but I had a migraine last night and it
colored my response.
> Frankly, you come across as arrogant.
Yep.
>
> You statements also could lead some to believe that your purpose here
might
> be to "snoop" - that is, to find possible copyright infringers, whom you
> might feel worthwhile bringing to the attention of your clients.
My clients wouldn't prosecute the kind of infringement that gets discussed
in these newsgroups. However, though I'm not here to snoop, I would
certainly bring significant illegal activity to the attention of my clients
if I encountered it.
>
> Regarding the subject matter, perhaps Peter's gut instincts regarding
> personal, non-commercial use are not as ridiculous as you portray them.
Such
> an exemption can be routinely found in foreign copyright law; for
instance,
> in German law (§53 Abs. 1 UrhG). For that reason, VCRs were never a legal
> issue in Germany.
Since I'm completely unqualified to discuss German copyright law (except in
the context of the Berne Convention), I'll defer to your greater knowledge.
>
> That only audio works are excepted in US law is likely the result of audio
> recorders being widely available at the time.
I don't think so. The AHRA is relatively recent introduction -- 1992. VCRs
were certainly common then, too. However, the language of the statute
clearly limits the exemption to audio, only. I've never looked at the
legislative history of the statute, so I don't know what Congress had in
mind.
> Not excepting audio works
> would not only massively have harmed business, but would have been utterly
> unrealistic.
I'm not sure about the former, but I certainly agree with the latter.
However, the same came also be said about video copying in the same context.
> Now that digital video technology is making its way into
> mainstream society, the laws ought to be revised to reflect the new
> realities.
I agree completely. Unfortunately, the law always seem to lag behind
technology.
>(Industry has long understood this and lobbied, regrettably but
> not surprisingly, for legal changes not in the consumer's interest.)
Again, I agree.
> Qualitatively, there is no difference between "medium-shifting" one's own
> audio cassette to a CD and own's video cassette to a DVD, so why should
the
> legal treatment differ. (Cynics whisper: Because there are so much more
> profits to be made with video.)
Right on both counts.
>
> Ole
>
>
>
Paul Tauger
posts (and he was qutie the gentleman for overlooking it).
"Hal Lowe" <hal*NO*SPAM*@"NO"SPAM"halowe-graphics.com> wrote in message
news:qkkn8.4819$n8....@nwrddc02.gnilink.net...
Peter Seebach
Paul Tauger <ptauger...@earthlink.net> wrote:
>We have to clarify some terminology: civil infringement actions (as opposed
>to criminal infringement) are brought by plaintiffs with standing to sue,
>meaning either the copyright owner or his exclusive licensee. Courts don't
>initiate actions on their own. The one who will do the "busting" is the
>plaintiff, not the court. As I said in an earlier post, a court has no
>choice but to hear a matter as long as it can survive a challenge under FRCP
>12(b).
Right. But the court has a fair amount of room for interpretation of, e.g.,
the fair use section of the statute.
>When it comes to technology cases, the courts often guess wrong. This is
>one of the frustrating aspects of my particular specialty -- frequently,
>courts simply don't "get" new technology. Of course, in Sony v. Universal,
>society is a lot better off because the court did guess wrong. If the
>decision went the other way, there would never have been VCRs and, very
>likely, the whole idea of watching movies in their theatrical form at home
>would never have happened (or would have been substantially delayed), and we
>wouldn't have big screen TVs, DVD players, DTS and all the other
>accoutrements of home theater.
One of the things I've seen in some copyright judgements is courts making
a decision based on the observation that a given finding, though arguably
strictly within the law, would result in substantial harm to society's
interests in the handling of copyright.
>Moving forward in time, if I can rent a movie at Blockbusters for $4, and
>make a high-quality copy for the cost of a blank tape which costs another
>$4, I have very little incentive to buy a legal copy for $19.95.
Agreed.
>2. True medium shifting, e.g. when my wife and I fly internationally for
>vacation, I'll copy a couple of movies to miniDV, so that we can watch them
>on the plane.
Yeah. That would be a very good example. I tend to medium-shift heavily;
I listen to almost all of my CD's only as MP3's. (I admit, grudgingly, to
having one CD's worth of MP3's with no corresponding CD; it's a recording of
a broadway show that appears to be out of print. I will find it some day.)
>The current Supreme Court is extremely conservative and very pro-business.
>Add to that a clear Congressional imperative to protect the rights of
>copyright owners in the form of the DMCA (which, in my opinion, contains
>some very bad law), and I think it would be an up-hill battle.
The DMCA strikes me as one of the top five bad laws in history. Read
strictly, it prohibits color copiers, since they can be used to circumvent
at least some copy protection mechanisms. :)
>> I do, of course, offer the secondary additional defense: No one will ever
>> brother bringing such a case to court.
>Practically speaking, you're quite right.
Yup. Unfortunately, that defense probably also applies to all sorts of stuff
that probably *shuoldn't* be dfone.
>I was speaking from a business perspective, not a legal one. Microsoft
>routinely sues small "mom and pop" operations for what Microsoft alleges as
>"copyright infringement" (I disagree, but that's another thread). It does
>so to ensure that casual infringers will think twice.
Ahh. I see your point; it's the making an example thing, not a legal
requirement.
>No one can say whether they will or they won't -- the OP didn't provide
>anything close to sufficient information to make a determination.
Agreed. I would be willing to bet a small amount of money that, whatever
happens, this won't result in a successful civil suit against him. :)
Peter Seebach
Paul Tauger <ptauger...@earthlink.net> wrote:
>When posters ask legal questions and other posters provide (inaccurate)
>legal answers, I'll jump in.
And I, for one, appreciate it. It is somewhat relevant to many of us.
>You're right about that -- I was considerably more blunt than I should have
>been, and for that I apologize, but I had a migraine last night and it
>colored my response.
I'd complain more, but someone would drag up old Google posts of me talking
to people about C. :)
Paul Tauger
> In article <a7kolr$l9d9q$1...@ID-101118.news.dfncis.de>,
> Paul Tauger <ptauger...@earthlink.net> wrote:
> >We have to clarify some terminology: civil infringement actions (as
opposed
> >to criminal infringement) are brought by plaintiffs with standing to sue,
> >meaning either the copyright owner or his exclusive licensee. Courts
don't
> >initiate actions on their own. The one who will do the "busting" is the
> >plaintiff, not the court. As I said in an earlier post, a court has no
> >choice but to hear a matter as long as it can survive a challenge under
FRCP
> >12(b).
>
> Right. But the court has a fair amount of room for interpretation of,
e.g.,
> the fair use section of the statute.
Actually, the fair use statute is really the only place where the court's
discretion comes into play. Equity is the exclusive province of the court.
However, fair use is strictly fact-dependent. Because of that, it can never
be raised in the context of a 12(b) motion.
>
> >When it comes to technology cases, the courts often guess wrong. This is
> >one of the frustrating aspects of my particular specialty -- frequently,
> >courts simply don't "get" new technology. Of course, in Sony v.
Universal,
> >society is a lot better off because the court did guess wrong. If the
> >decision went the other way, there would never have been VCRs and, very
> >likely, the whole idea of watching movies in their theatrical form at
home
> >would never have happened (or would have been substantially delayed), and
we
> >wouldn't have big screen TVs, DVD players, DTS and all the other
> >accoutrements of home theater.
>
> One of the things I've seen in some copyright judgements is courts making
> a decision based on the observation that a given finding, though arguably
> strictly within the law, would result in substantial harm to society's
> interests in the handling of copyright.
That's part and parcel of the concept of equity.
> >2. True medium shifting, e.g. when my wife and I fly internationally for
> >vacation, I'll copy a couple of movies to miniDV, so that we can watch
them
> >on the plane.
>
> Yeah. That would be a very good example. I tend to medium-shift heavily;
> I listen to almost all of my CD's only as MP3's.
Me, too. I carry an MP3 player with me when I fly. I carry six data CDs
which have about 70 albums on them.
There's a new technology being marketed to the record producers that is
supposed prevent "ripping" a CD. I assume that it won't take much for
someone to write some software that will circumvent it. However, doing so
would violate the DMCA which, at that point, would be in direct conflict
with the AHRA. I'm tempted to litigate the inevitable lawsuit which will
result on a pro bono basis.
> (I admit, grudgingly, to
> having one CD's worth of MP3's with no corresponding CD; it's a recording
of
> a broadway show that appears to be out of print. I will find it some
day.)
>
> >The current Supreme Court is extremely conservative and very
pro-business.
> >Add to that a clear Congressional imperative to protect the rights of
> >copyright owners in the form of the DMCA (which, in my opinion, contains
> >some very bad law), and I think it would be an up-hill battle.
>
> The DMCA strikes me as one of the top five bad laws in history. Read
> strictly, it prohibits color copiers, since they can be used to circumvent
> at least some copy protection mechanisms. :)
Interesting point. The DMCA uses a bright line rule which is in conflict
with prior contributory infringement analysis which recognized a
"substantially non-infringing use" defense. This, too, was part of the Sony
v. Universal rationale.
>
> >> I do, of course, offer the secondary additional defense: No one will
ever
> >> brother bringing such a case to court.
>
> >Practically speaking, you're quite right.
>
> Yup. Unfortunately, that defense probably also applies to all sorts of
stuff
> that probably *shuoldn't* be dfone.
>
> >I was speaking from a business perspective, not a legal one. Microsoft
> >routinely sues small "mom and pop" operations for what Microsoft alleges
as
> >"copyright infringement" (I disagree, but that's another thread). It
does
> >so to ensure that casual infringers will think twice.
>
> Ahh. I see your point; it's the making an example thing, not a legal
> requirement.
Right. I'm doing a couple of suits like that right now. The defendants
aren't too happy, but I understand (and agree with) my clients' motivation
in bringing them.
Hal Lowe
"Paul Tauger" <ptauger...@earthlink.net> wrote in message
news:a7kpgv$m8ve9$1...@ID-101118.news.dfncis.de...
Peter Seebach
Paul Tauger <ptauger...@earthlink.net> wrote:
>There's a new technology being marketed to the record producers that is
>supposed prevent "ripping" a CD. I assume that it won't take much for
>someone to write some software that will circumvent it. However, doing so
>would violate the DMCA which, at that point, would be in direct conflict
>with the AHRA. I'm tempted to litigate the inevitable lawsuit which will
>result on a pro bono basis.
I am very interested in cases like that. I am very bothered by the
implications of the DMCA. What about debuggers? I would be willing to bet
that I have the technical ability to bypass copy protection using a debugger.
Should debuggers be totally illegal for sale in the US?
>> The DMCA strikes me as one of the top five bad laws in history. Read
>> strictly, it prohibits color copiers, since they can be used to circumvent
>> at least some copy protection mechanisms. :)
>Interesting point. The DMCA uses a bright line rule which is in conflict
>with prior contributory infringement analysis which recognized a
>"substantially non-infringing use" defense. This, too, was part of the Sony
>v. Universal rationale.
This is exactly the problem. As an interesting example, I am very interested
in the ROM flashing gizmos which supposedly allow the user to put multiple
Game Boy games on a single cartridge. I only have about six games for my
Game Boy Advance, and I'd love to be able to carry them all with me in a
single physical piece of plastic. Backup? Personal use? Fair use?
I'm not sure what it is *legally*, but it seems to me to be fairly clear
that, as long as I'm the legitimate owner of the games in question, it's
*morally* clear.
>Right. I'm doing a couple of suits like that right now. The defendants
>aren't too happy, but I understand (and agree with) my clients' motivation
>in bringing them.
I wonder sometimes. I suspect that society would get 95% of the benefits of
copyright with about 10% of the enforcement and restrictions we have now.
This is changing with digital media. I have no solution to that, but in the
long run, I think copyright as we know it may be economically stupid. I have
spent a lot of time trying to think of business models that *would* work, but
I can't find any.
Paul Tauger
> In article <a7lb16$ltdst$1...@ID-101118.news.dfncis.de>,
> Paul Tauger <ptauger...@earthlink.net> wrote:
> >There's a new technology being marketed to the record producers that is
> >supposed prevent "ripping" a CD. I assume that it won't take much for
> >someone to write some software that will circumvent it. However, doing
so
> >would violate the DMCA which, at that point, would be in direct conflict
> >with the AHRA. I'm tempted to litigate the inevitable lawsuit which will
> >result on a pro bono basis.
>
> I am very interested in cases like that. I am very bothered by the
> implications of the DMCA. What about debuggers? I would be willing to
bet
> that I have the technical ability to bypass copy protection using a
debugger.
> Should debuggers be totally illegal for sale in the US?
What about TBCs? I can eliminate macrovision that way.
>
> >> The DMCA strikes me as one of the top five bad laws in history. Read
> >> strictly, it prohibits color copiers, since they can be used to
circumvent
> >> at least some copy protection mechanisms. :)
>
> >Interesting point. The DMCA uses a bright line rule which is in conflict
> >with prior contributory infringement analysis which recognized a
> >"substantially non-infringing use" defense. This, too, was part of the
Sony
> >v. Universal rationale.
>
> This is exactly the problem. As an interesting example, I am very
interested
> in the ROM flashing gizmos which supposedly allow the user to put multiple
> Game Boy games on a single cartridge. I only have about six games for my
> Game Boy Advance, and I'd love to be able to carry them all with me in a
> single physical piece of plastic. Backup? Personal use? Fair use?
Hmmm. Speaking strictly hypothetically, I'd argue that what you are
proposing is an "essential step," which constitutes an exception to
infringement for computer programs. Otherwise, we'd all be violating
copyright everytime we run a program and it is copied from the hard disk to
RAM.
>
> I'm not sure what it is *legally*, but it seems to me to be fairly clear
> that, as long as I'm the legitimate owner of the games in question, it's
> *morally* clear.
>
> >Right. I'm doing a couple of suits like that right now. The defendants
> >aren't too happy, but I understand (and agree with) my clients'
motivation
> >in bringing them.
>
> I wonder sometimes. I suspect that society would get 95% of the benefits
of
> copyright with about 10% of the enforcement and restrictions we have now.
I'm not completely sure that I'd agree. Copyright actions tend to take one
of two forms: either the defendant is an out-and-out pirate who got caught,
or else the defendant is attempting to push the legal envelope without
crossing the legal line (to mix a metaphor). I have respect for the latter
(and have represented them from time to time), but no great love for the
former (whom I've also represented.)
>
> This is changing with digital media. I have no solution to that, but in
the
> long run, I think copyright as we know it may be economically stupid. I
have
> spent a lot of time trying to think of business models that *would* work,
but
> I can't find any.
That's the problem. "Incentive to creation by grant of limited monopoly" is
a theory in support of copyright has been around for nearly 500 years, and
no one has yet improved upon it.
Peter Seebach
Paul Tauger <ptauger...@earthlink.net> wrote:
>Hmmm. Speaking strictly hypothetically, I'd argue that what you are
>proposing is an "essential step," which constitutes an exception to
>infringement for computer programs. Otherwise, we'd all be violating
>copyright everytime we run a program and it is copied from the hard disk to
>RAM.
But this isn't essential at all - it's quite clearly possible for me to
play my game boy games from the original carts. It's just *more convenient*
if I can have them all in one.
>I'm not completely sure that I'd agree. Copyright actions tend to take one
>of two forms: either the defendant is an out-and-out pirate who got caught,
>or else the defendant is attempting to push the legal envelope without
>crossing the legal line (to mix a metaphor). I have respect for the latter
>(and have represented them from time to time), but no great love for the
>former (whom I've also represented.)
Ahh, but most of the stuff in question doesn't come into copyright actions.
In other words, if the law said you could do anything you damn well please
for personal use only, I doubt we'd see substantial, or even *measurable*,
harm to content creators - but we'd have a lot less trouble with whether the
AHRA applies to a given usage.
Depending, of course, on a sufficiently clear concept of "personal" use.
>That's the problem. "Incentive to creation by grant of limited monopoly" is
>a theory in support of copyright has been around for nearly 500 years, and
>no one has yet improved upon it.
Unfortunately, it's becoming increasingly difficult to match to our
technological capabilities. (I also think the never-ending increase in
duration of copyright harms society as a whole quite a bit).
Ole Hansen
> In article <a7kpf7$loat5$1...@ID-101118.news.dfncis.de>,
> Paul Tauger <ptauger...@earthlink.net> wrote:
> >When posters ask legal questions and other posters provide (inaccurate)
> >legal answers, I'll jump in.
>
> And I, for one, appreciate it. It is somewhat relevant to many of us.
>
Actually, I am following this discussion with interest, too. It was just the
tone of Paul's message that didn't seem right under the circumstances
(newsgroup not primarily for legal topics).
Ole
Hal Lowe
"Ole Hansen" <o...@REMVETHISredvw.com> wrote in message
Understood.
> (newsgroup not primarily for legal topics).
True, but that doesn't preclude relevant discussions of video-related
copyright. It's a very large part of the video/photography world whether we
like it or not. I'd much rather learn about the details here versus
learning them in court.
Regards,
Gary Croll
make a copy is to first bypass, (get around), the copy protection. As
soon as you do that, you have violated Federal law under the Digital
Millenium Copyright Act. This is true even in an educational setting
when done strictly for research. This is why there has been such a
push to have the act modified since it tends to make criminals out of
researchers working on encryption techniques.
se...@plethora.net (Peter Seebach) wrote in message news:<3c9ce9d7$0$79553$3c09...@news.plethora.net>...
Peter Seebach
Gary Croll <gary....@ucr.edu> wrote:
>All commercially produced videos are copy protected. The only way to
>make a copy is to first bypass, (get around), the copy protection. As
>soon as you do that, you have violated Federal law under the Digital
>Millenium Copyright Act. This is true even in an educational setting
>when done strictly for research. This is why there has been such a
>push to have the act modified since it tends to make criminals out of
>researchers working on encryption techniques.
It has all sorts of awful implications. For instance, what if you simply
never notice the copy protection? I have watched videos without effort on
the video input of an old Mac. Am I "bypassing copy protection", or am
I simply watching a movie?
bill van dyk
However, there are a lot of people with amazing expertise who still might be
wrong. People of expertise routinely disagree on medical, scientific, and
political issues. Why should the law be any different? In fact, a casual
browse through the New York Time's coverage of Supreme Court cases shows that
something as universally accepted as fingerprint identification can be
intelligently disputed by people with great expertise. How points of similarity
are decisive? 9? 12? 27? The FBI doesn't even give a number. Yet our courts
act as if all fingerprint evidence has the status of absolute scientific
exactitude.
The Supreme Court has accepted a court case which challenges some recent
legislation on copyright. As I understand it-- Paul could probably explain more
clearly-- the issue does relate to Disney's aggressive promotion of legislation
to extend it's copyright protection of Mr. Mouse beyond the 2003 expiry date.
After making generous campaign contributions to the appropriate members of
congress, Disney prevailed and copyright protection of Mickey was extended by --
sorry, I don't remember how many years.
It is a separate issue of whether this is a good way to make law.
This is being challenged and it apparently surprised many that the Supreme Court
accepted the case. What's to dispute? Well, I understand it relates to the
intent of copyright which, as Paul acknowledged, is actually to ensure that
intellectual property is made available to the public by ensuring that the
creator and owner of the copyright has a period of exclusivity. But that
purpose also means that copyright should expire at some point, and that is what
the issue is-- did Congress have the right to extend the copyright period
(unreasonably) and did it have the right to impose the new period on existing
intellectual property.
In a nutshell, some copyright law-- and here I respectfully disagree with Paul--
is disputable.
Now, if the people who are fighting the copyright extension had listened to
Paul, they would have taken his word for it and dropped their objections.
Instead, they have decided to fight the new law. The fact that the Supreme
Court accepted the case shows that there is at least some merit to the case.
I say, Bravo. I am completely in favor of the general purpose of copyright,
but, in my view, the claims made, largely by wealthy and resourceful commercial
industries, have grown excessive and onerous, and are beginning to inhibit free
expression and reasonable -- "fair" use of intellectual property. Nobody
creates out of nothing in the first place, and all of our endeavours become part
of the body of culture and should, at some point, be freely available.
Isn't it more than a little ironic that sales of video tapes now make up a huge
proportion of profits for the very same film industry that fought against them
when Sony introduced it?
And I find it ridiculous that any law would claim to prevent any person from
making a personal archival copy of a valued DVD or video tape. It's a bit
contradictory when copyright holders claim that it is intellectual-- not
physical-- property that they own, but then try to prevent a legally licensed
customer from protecting their purchase. In the same way, isn't the new copy
protection schemes on CDs a violation of the users right to make a personal copy
of music that is legally purchased? Where are the lawyers when you want one....
It might be helpful-- my last point here (sorry to be long-winded)-- to
disinquish also between what Paul has eloquently described as what the law says,
and what actually happens, or what is "reasonable". It is still illegal in some
states to perform oral sex or sodomy but nobody gets busted for it. Would
anyone say, well, if you do it, you're going to get busted? The law is very
clear. It exists. It's there in black and white and you have no excuse for not
obeying it. But, does anyone believe that a reasonable judge would uphold
that law, if the cops actually hauled someone into court for it? "Your honor,
on the 27th of March, 2002, I did witness the accused performing fellatio
on.... " In the same way, "I saw the accused print out copies of Mickey Mouse
and wallpaper a bedroom with them...." ?
In the same way, there is nothing righteous or noble or valuable about a law
that says you can't plaster pictures of Mickey Mouse on your six-year-old's
bedroom walls. I'm not sure if Paul would insist that it is a good law that
says you could be busted by Disney for doing so. I know I believe that laws
like that do more damage than good, to the cause of copyright, and I think
Disney knows it too-- though sometimes I'm not to sure (I remember a day-care
centre getting busted).
Anyway, we had a long discussion about this before that was highlighted by
Paul's very articulate and knowledgable comments on copyright and trademark
protection, so I'll leave it at that.
Paul Tauger
The act provides that, "Nothing in this section shall affect rights,
remedies, limitations, or defenses to copyright infringement, including fair
use, uunder this title."
What does this mean? God only knows, but, arguably, it means that the
traditional defenses might apply. If you want to remove macrovision, and
use a TBC, that is a device that has substantial non-infringing purposes,
and using a TBC in-line has other benefits besides regenerating the sync
pulses that are messed up by macrovision.
"Gary Croll" <gary....@ucr.edu> wrote in message
news:d22f8aff.02032...@posting.google.com...
Paul Tauger
"bill van dyk" <bvand...@rogers.com> wrote in message
news:3CA01B61...@rogers.com...
> Hal, I agree that Paul has profound expertise in his field.
>
> However, there are a lot of people with amazing expertise who still might
be
> wrong. People of expertise routinely disagree on medical, scientific, and
> political issues. Why should the law be any different? In fact, a casual
> browse through the New York Time's coverage of Supreme Court cases shows
that
> something as universally accepted as fingerprint identification can be
> intelligently disputed by people with great expertise. How points of
similarity
> are decisive? 9? 12? 27? The FBI doesn't even give a number. Yet our
courts
> act as if all fingerprint evidence has the status of absolute scientific
> exactitude.
Finger print evidence is just that -- evidence. Reasonable minds can
disagree as to the weight they should be given. There isn't a "fingerprint
law" that must be construed.
The question is not so much whether Congress had the right to extend the
copyright period -- Congress is the designated body for passing legislation,
and the Commerce Clause ensures that they are the appropriate body for
passing copyright legislation. The question before the Supremes is: is such
an extension of term constitutional?
>
> In a nutshell, some copyright law-- and here I respectfully disagree with
Paul--
> is disputable.
Apples and oranges. What Congress had done may not pass constitutional
muster. That has nothing to do with how the fair use statute is construed
(and fair use _has_ passed constitutional muster). Saying, "some copyright
law is disputable," is like saying "some foods are bad for you." What is
disputable is the constitutional validity of extending the copyright term
far in excess of what was originally contemplated. The construction
afforded the majority of the statutes which comprise Title 17 (the Copyright
Act) is not disputable, but has been clearly established in thousands of
court decisions.
>
> Now, if the people who are fighting the copyright extension had listened
to
> Paul, they would have taken his word for it and dropped their objections.
Nonsense. The "people who are fighting the copyright extension" are
_lawyers_ testing the constitutionality of a specific provision of the
statute, not lay people with a general and vague understanding of the law.
> Instead, they have decided to fight the new law. The fact that the
Supreme
> Court accepted the case shows that there is at least some merit to the
case.
As a matter of law, it doesn't., i.e. you cannot conclude anything based on
whether the SC grants or denies cert. All it means when a case is accepted
is that enough judges think it raises interesting questions to justify its
inclusion on the court's calendar.
>
> I say, Bravo. I am completely in favor of the general purpose of
copyright,
> but, in my view, the claims made, largely by wealthy and resourceful
commercial
> industries,
Oh, please. Yes, Disney forced through a change to the law that reflected
its own agenda. That's an exception, not the rule -- I can count the times
something like this has happened on one hand.
> have grown excessive and onerous, and are beginning to inhibit free
> expression and reasonable -- "fair" use of intellectual property. Nobody
> creates out of nothing in the first place, and all of our endeavours
become part
> of the body of culture and should, at some point, be freely available.
>
> Isn't it more than a little ironic that sales of video tapes now make up a
huge
> proportion of profits for the very same film industry that fought against
them
> when Sony introduced it?
Yep. And its an irony not lost on the film industry. You can thank them
for DVD (and for not going along with Circuit City's DIVX scheme).
>
> And I find it ridiculous that any law would claim to prevent any person
from
> making a personal archival copy of a valued DVD or video tape.
You can find it ridiculous. Nonetheless, it remains the law.
>t's a bit
> contradictory when copyright holders claim that it is intellectual-- not
> physical-- property that they own, but then try to prevent a legally
licensed
> customer from protecting their purchase.
Why? When you buy a legal copy of protected intellectual property, you can
do whatever you want with the copy as long as it doesn't violate the rights
reserved to the copyright owner. One of those rights is the right to
prepare copies. If, for example, your kids wear out that copy of Lion King,
Disney wants to sell you another one. And it's their absolute right to do
so.
>n the same way, isn't the new copy
> protection schemes on CDs a violation of the users right to make a
personal copy
> of music that is legally purchased?
I guess you haven't read this thread very closely, because we've discussed
that. First of all, you don't have a "right" to make a personal copy.
Congress has merely insured that, if you do make such a copy, you won't be
liable for copyright infringement.
Next, the DMCA seems to be in direct conflict with the AHRA in this regard.
However, the section that I cited at the beginning of this post suggests
that the AHRA may "trump" the DMCA. So if the record labels come out with a
copy protection scheme, it _may_ be legal to use software to circumvent it.
>here are the lawyers when you want one....
>
> It might be helpful-- my last point here (sorry to be long-winded)-- to
> disinquish also between what Paul has eloquently described as what the law
says,
> and what actually happens, or what is "reasonable". It is still illegal
in some
> states to perform oral sex or sodomy but nobody gets busted for it.
Wanna bet? Bowers v. Hardwick, a case that went to the Supreme Court,
upheld a conviction for sodomy.
> Would
> anyone say, well, if you do it, you're going to get busted? The law is
very
> clear. It exists. It's there in black and white and you have no excuse
for not
> obeying it. But, does anyone believe that a reasonable judge would
uphold
> that law, if the cops actually hauled someone into court for it?
I'm getting tired of explaining this: the judge has NO discretion as to
whether to enforce the law or not. I'll say it again: the judge has NO
discretion -- the judge WILL uphold the law. Believe me, you don't want a
legal system in which judges pick and choose which laws they want to uphold.
> "Your honor,
> on the 27th of March, 2002, I did witness the accused performing fellatio
> on.... " In the same way, "I saw the accused print out copies of Mickey
Mouse
> and wallpaper a bedroom with them...." ?
>
> In the same way, there is nothing righteous or noble or valuable about a
law
> that says you can't plaster pictures of Mickey Mouse on your
six-year-old's
> bedroom walls. I'm not sure if Paul would insist that it is a good law
that
> says you could be busted by Disney for doing so.
I'm repeating myself, here, and I'm finding it frustrating. Normally,
Disney would not "bust" you for putting up copies of Mickey Mouse on your
kid's walls. However, copyright law is VERY good law -- without it, there
would be no such thing as a professional writer, or a professional artist,
or a professional composer, and so on and so on.
> I know I believe that laws
> like that do more damage than good, to the cause of copyright, and I think
> Disney knows it too-- though sometimes I'm not to sure (I remember a
day-care
> centre getting busted).
Laws like what? Specifically, which section of the copyright act do you
object to? I want to know the exact language you disagree with.
As for the day-care center "bust", they were sued for trademark infringement
(there may have been an additional cause of action for copyright
infringement, but that was not the primary grievance). Unauthorized
commerical use of the Disney characters diilutes their value as source
identifiers, and suggests sponsorship, affiliation or endorsement by Disney.
Hal Lowe
Great! Since we agree, I'll let Paul's responses speak for themselves.
Bill Van Dyk
> Wanna bet? Bowers v. Hardwick, a case that went to the Supreme Court,
> upheld a conviction for sodomy.
That's astounding! Paul, you're destroying my faith in common sense and
reason. (That is, you are not destroying my faith in common sense and reason
but you're pointing me to people who do!)
"Even if the conduct at issue here is not a fundamental right, respondent
asserts that there must be a rational basis for the law, and that there is none
in this case other than the presumed belief of a majority of the electorate in
Georgia that homosexual sodomy is immoral and unacceptable. This is said to be
an inadequate rationale to support the law. The law, however, is constantly
based on notions of morality, and if all laws representing essentially moral
choices are to be invalidated under the Due Process Clause, the courts will be
very busy indeed. Even respondent makes no such claim, but insists that majority
sentiments about the morality of homosexuality should be declared inadequate. We
do not agree, and are unpersuaded that the sodomy laws of some 25 States should
be invalidated on this basis. " (From the majority).
In dissent: (Stevens, with Brennan and Marshall)
"Indeed, the right of an individual to conduct intimate relationships in the
intimacy of his or her own home seems to me to be the heart of the
Constitution's protection of privacy."
Paul, I almost hate to ask this, but have any witches been arrested lately?
Anyone laughing? Do a search on Gerald Amirault.
Paul Tauger
"Bill Van Dyk" <bva...@christian-horizons.org> wrote in message
news:3CA08A25...@christian-horizons.org...
This country has always taken an extremely parochial approach to the subject
of sexuality and perceived immorality. There's a whole line of cases in the
intellectual property area that stand for the proposition that "dirty"
(_not_ obscene, which is a legal standard, but just "dirty") material will
not come within fair use with respect to either copyright or trademark
(there is an uncodified fair use analog for trademark law). Accordingly,
Saturday Night Live's "I Love Sodom" parody of the the "I Love New York"
song was found to be fair use, while Rick Dee's "When Sunny Sniffs Glue"
parody of "When Sunny Gets Blue" was not. Artistically-posed Barbie Dolls
were recently held to be fair use, whereas a comic book depicting Mickey and
Minnie Mouse engaged in pornographic acts was not (the case, Walt Disney v.
Air Pirates is fascinating, as, supposedly, the content of the comic did not
influence the decision).
Given the makeup of the current Supreme Court, and the likelihood that
George Bush will appoint at least one new justice, I think it is only a
matter of time until there are anti-witchcraft statutes on the books (most
likely in Kansas).