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Easterbrook Rejects Peer-to-Peer Fair Use Defense:
In an opinion released yesterday authored by Judge Frank Easterbrook, the Seventh Circuit rejected the fair use defense asserted by a defendant who had used KaZaA to download copyrighted music files. The entire opinion in BMG Music v. Gonzalez is worth reading, but here is an excerpt:
  Copyright law lets authors make their own decisions about how best to promote their works; copiers such as [the defendant] cannot ask courts (and juries) to second-guess the market and call wholesale copying "fair use" if they think that authors err in understanding their own economic interests or that Congress erred in granting authors the rights in the copyright statute. Nor can she defend by observing that other persons were greater offenders; [the defendant]'s theme that she obtained "only 30" (or "only 1,300") copyrighted songs is no more relevant than a thief's contention that he shoplifted "only 30" compact discs, planning to listen to them at home and pay later for any he liked.
  Thanks to Eric Goldman for the link.
Anderson (mail) (www):
The right decision. Theft doesn't cease to become theft because it's easy.

Presumably, if I store my gold bars on my front lawn, that doesn't make it anything other than theft if people take them, however imprudent I've been.

That said, I do think the music companies are going to have to move to some new business model, because they are not going to win the tech wars.
12.10.2005 12:58pm
Dnagamoose Coward:
Actually, based only on the quoted paragraph, I'd say that the reasoning could not be more wrong. First, copyright does not allow authors absolute control over how to promote their works. Search engines, for instance, are allowed to make copies of Web pages for the purposes of building a searchable index, even if the content owners do not want them to. Fair use is precisely the means by which courts (and Congress, for that matter) attempt to alleviate some of the dead-weight loss that the author's monopoly leads to.

Secondly, you can certainly argue that "wholesale copying" is not included in fair use, but then you can't turn around and say that the amount of copying is not a factor, since the amount of copying is, in that case, directly related to whether the copying was wholesale.
12.10.2005 1:21pm
Kate1999 (mail):
Dnagamoose Coward,

Why don't you read the opinion before criticizing it based on a 2-sentence excerpt? As you might guess, it addresses your concerns.
12.10.2005 1:35pm
Bigger Coward:
I would just like to add that copyright infringement is not "theft." It has never been "theft" -- and the justifications and reasoning for any civil penalities associated with copyright infringment are different than theft.

Copying is not stealing, only sometimes "infringing" -- and copying is not always "infringing." To declare infringing is theft tries to make that is often a shade of grey and very difficult to determine clear cut and black and white when its not.
12.10.2005 1:52pm
Kate1999 (mail):
Of course, theft is not really theft. Sometimes theft is a good thing, kind of like a fair use. After all, rich people have lots of things; taking from them is more like sharing with the world, a la Robin Hood.
12.10.2005 2:14pm
Wintermute (www):
Actually, the AFP is agitating against Google to pay it for excerpts of its articles on the News page. AFP receives such payment form another major aggregator.

Closing the file-"sharing" escape valve may be drawing attention to the current concentration and business methods of the music industry, a la the NY AG's payola consent orders.
12.10.2005 2:37pm
Roger (mail):
Easterbrook is a liberal judicial activist, right ?
12.10.2005 3:33pm
Fern:
Roger--Easterbrook is considered to be a conservative judge.
12.10.2005 3:42pm
Splunge (mail):
I think one of the interesting facts about this arduous dispute is that it is taking place mostly between music producers and consumers, and the music artists seem to be fairly ambivalent, at best only weakly siding with the producers.

Isn't that odd? You'd think the people whose living really truly does depend on copyright of artistic work would be in the vanguard. The major job skill of the executives and lawyers at BMG isn't making music. Presumably if the present music business collapses, they can all make just as good a living in the plastics industry. But the artists are stuck -- the only way they can earn a good living is to use their major talent, and that's making music.

Why this weird silence? I don't know, of course, but one possibility is that the music producers have treated the artists so badly for so many decades that the artists just can't see being on their side now, even if it costs them, even if they have to find some other model for selling the fruits of their creativity. Karma can be a bitch.
12.10.2005 3:53pm
Fern:
Splunge--It is my understanding that most musicians don't make the majority of their income on CD sales. The record label advances the musician the money to make the CD. The musicians have to pay the record label back out of the earnings from the CD. Some albums don't make enough to pay back the record label. After the band has paid back the record label, the label still gets it's cut from whatever CD's are sold. I've been told that most musicians make the bulk of their money (if they make anything) off of radio stations playing their songs and selling merchandise. If that's true, it would explain why musicians aren't too keen about angering their fans over something that doesn't make the musician very much money.
12.10.2005 4:12pm
AnonLawStudent:
Splunge: The reason many artists are ambivalent is that their (very low) royalties are not really tied to sales. The music industry signs agreements with rising talent which locks them in to compensation that, in light of the sales of the artistic product, is quite low for the first several albums. Since many, if not most, bands are popular only for a brief period, they never reach the point where they can negotiate for a share of sales worth fighting for - thus only the long-lived major stars (think Madonna) need care.

For a different take on the music business: I spent nearly four months in Morocco last summer. Not once did I see a "legitimate" CD for sale. When someone wanted music, they visited a "music store" that would burn a custom CD or audiotape for about $2.50. The middleman expenses over which the music industry is tenaciously fighting were never a factor in the market. Musicians earned their pay from endorsing products (the image of one local female singer covered Coke signs everywhere) and through concerts. In that system, one can presume that rising artists earned pay from day one, much like local bands, but on a larger scale. As the artist became more consequential, pay rose with endorsements, culminating in commercials that were broadcast via satellite throughout the Middle East. Intellectual property was never an issue - the more popular (and hence wider-played) artist was compensated accordingly.
12.10.2005 4:17pm
Marcus1:
Kate1999,

Dnagamoose said outright his criticism was based on the excerpt. What's wrong with that? I can think of many reasons for commenting without reading the whole opinion.

In any case, I just read through the opinion, and I disagree that Easterbrook addressed those concerns. Seemed like a fairly poor opinion, actually, in which he really didn't address any of the hard issues. I don't know much about Easterbrook, other than that he's conservative and well-known, but I would have hoped for something more insightful than this. (Maybe he doesn't like dicta?)

First, as far as whether the courts can second-guess the economic harm, I think Easterbrook is out in left field. The fair use statute specifically inquires into the extent of the economic harm. And Easterbrook indeed engages in independent analysis on the issue (noting that sales are down). So where does it say that the copyright owner gets to decide, unexamined, what poses significant economic harm? Of course they're going to claim it does. They would probably get rid of fair use altogether if they could. The court can't simply take their word for it.

Secondly, as to whether downloading only 30 songs is "no more relevant" than a thief stealing only 30 CDs, he's also glossing over an awful lot. Stealing CDs renders them unsellable when they are opened and played. Such a thief obviously is not going to return them or pay for them. A fair use claim is thus a joke, which is why we intuitively know that the number stollen is irrelevant. So is the same true of a person downloading songs on the internet? She, on the other hand, could very well buy those songs she likes, and discard those she doesn't want to pay for, with no damage at all to the copyright holder. But, of course, only if it is a relatively modest number of songs.

Thus, what she's essentially saying is, "Hey, your inclination may be right that a lot of down-loaders are just free-loading, with no legitimate claim of fair use. But that's not me -- look, I only have 30 songs here that got left on my computer. Maybe it was an accident that I didn't delete them. Maybe I never even listened to them. In any case, you may have real culprits out there, but I'm not one of them. I really do fall under fair use." That is where the number of downloads matters.

Easterbrook's main analytical error is in taking her failure to delete a particular song as proof that she wasn't just sampling it. He mentions this repeatedly. I mean, Easterbrook should see my email account. It's at least 90% trash that I haven't thrown away. Just because the songs remain on her computer doesn't mean her fair-use claim was bogus. I would really like to know what these 30 songs were. I'd be willing to bet it was a bunch of weird songs that she downloaded on accident and never listened to more than once, or even half-way through. I think that is where the application of the current copyright law to downloading is quite awkward.

The most shocking thing to me here is the amount of the fine. $750 per song? $22,500 she's going to have to pay for these thirty songs. I would bet that she never would have bought more than one or two of them, at most. It just doesn't seem like a sensible resolution.
12.10.2005 4:39pm
Just Visiting (mail):

the music artists seem to be fairly ambivalent, at best only weakly siding with the producers.

The key word here is "seem." Many pop artists, cognizant of their audience demographics, are publicly sympathetic to the P2P contingent. In private, however, they're among the most vehement anti-infringement figures you'll encounter. In my experience as a staff critic at a major periodical, I can say this rule has generally applied across the board -- from the huge multiplatinum acts to the scrappiest indie artists -- since the dawn of Napster.

And recording artists most certainly do bank on royalties from sales of their work, contrary to the speculation of the poster "Fern." Songwriters, in particular, typically derive the bulk of their incomes from such monies (along with, yes, public performance fees from radio, etc.).

"Fern" is correct that many recording artists don't sell enough records to cover contract advances; in fact, most don't. But it's a big stretch to assume that the typical act is therefore content to cede potential earnings out of the gate.

At any rate, none of that is relevant to the right-and-wrong of P2P downloading. It's nice to see a judge cut through all the noisy clutter that has gathered around this debate the past few years -- thanks to an entire Internet full of people spouting BS off the tops of their heads as they whip up various justifications for infringement.
12.10.2005 5:00pm
Fishbane (mail):
Kate: Of course, theft is not really theft. Sometimes theft is a good thing, kind of like a fair use. After all, rich people have lots of things; taking from them is more like sharing with the world, a la Robin Hood.


I appreciate attempts at humor, but look at facts: person A communicates a set of bits (or a different set of bits that can be reasonably called substantially similar) to person B. The originator of said bits is not involved, and is not losing any tangible thing. At best, they're suffering the potential loss of a sale. There is no theft.

What is happening is that a government granted fiat monopoly is being infringed. One can reasonably argue about the scope and reasonable reach of that fiat monopoly.

But there is no theft going on.
12.10.2005 5:32pm
logner:
The oral argument in this case is well worth checking out. Easterbrook gets exasperated fast

oral argument
12.10.2005 5:35pm
billb:
The biggest problem is that with our now essentially unlimited copyright terms the part of the copyright bargain that benefited the public doamin is gone. I'd have no problem with these sort of decisions (specious logic notwithstanding) if copyright terms were more reasonable (like 14 years with a single 14 year extension). A vibrant public domain is important to our culture.
12.10.2005 5:41pm
Fred (mail):
Here's a site that anyone interested in this issue should review:

http://www.baen.com/library/defaultTitles.htm

According to Janis Ian:

"....The premise of all this ballyhoo is that the industry (and its artists) are being harmed by free downloading.

Nonsense. Let's take it from my personal experience. My site (www.janisian.com ) gets an average of 75,000 hits a year. Not bad for someone whose last hit record was in 1975. When Napster was running full-tilt, we received about 100 hits a month from people who'd downloaded Society's Child or At Seventeen for free, then decided they wanted more information. Of those 100 people (and these are only the ones who let us know how they'd found the site), 15 bought CDs. Not huge sales, right? No record company is interested in 180 extra sales a year. But… that translates into $2700, which is a lot of money in my book. And that doesn't include the ones who bought the CDs in stores, or who came to my shows...."

".... One other major point: in the hysteria of the moment, everyone is forgetting the main way an artist becomes successful – exposure. Without exposure, no one comes to shows, no one buys CDs, no one enables you to earn a living doing what you love. Again, from personal experience: in 37 years as a recording artist, I've created 25+ albums for major labels, and I've never once received a royalty check that didn't show I owed them money. So I make the bulk of my living from live touring, playing for 80-1500 people a night, doing my own show. I spend hours each week doing press, writing articles, making sure my website tour information is up to date. Why? Because all of that gives me exposure to an audience that might not come otherwise. So when someone writes and tells me they came to my show because they'd downloaded a song and gotten curious, I am thrilled!

Who gets hurt by free downloads? Save a handful of super-successes like Celine Dion, none of us. We only get helped...."
12.10.2005 5:47pm
Fishbane (mail):
The oral argument in this case is well worth checking out. Easterbrook gets exasperated fast

Thanks for that link!

Easterbrook does huff and puff a lot. And completely misses the point, and demonstrates his lack of understanding of copyright. (Not that the attorney does a very good job of arguing...)
12.10.2005 6:11pm
WB:
The entire opinion is an interesting read. Despite Easterbrook's scolding tone in the excerpt, I think he gets the law right.

I think that the law is stupid and that many of the recent copyright laws show that Congress has effectively been bought by the music/film industry. I would have liked to see the defendant walk free, either through jury nullification or otherwise.

That aside, however, Judge Easterbrook reads the statute and applies it correctly. It's unfortunate for Gonzalez, but the law pretty much says she's screwed.
12.10.2005 6:19pm
WB:
Listening to the oral argument, I think Easterbrook "gets" copyright. I think that the theft analogy is troubling, though. Copyright infringement and theft aren't the same thing, and fair use just isn't a defense to theft.

Easterbrook rightly nails the lawyer on the amount of damages issue, though. The harping on Roberts is pretty annoying.
12.10.2005 6:23pm
WB:
Can't resist one more comment.... I totally second the recommendation to listen to the oral argument.

Pretty much everyone who talks in the argument is annoying. Easterbrook sighs into the microphone about every 20 seconds. Gonzalez's lawyer keeps trying to bring jury arguments into the picture. It doesn't matter that Gonzalez has 5 children, that Roberts made a particular argument to the Supreme Court, that she actually buys some of the CDs containing files that she downloads. And the music industry's lawyer sounds like he's hopped up on caffeine and dodges the questions...

I'm constantly amazed in watching oral arguments at how seldom the lawyers try to address the judges' concerns.
12.10.2005 6:31pm
Fishbane (mail):
Just to clarify, I have to agree with WB; I find Easterbrook to be missing the point and (ahem) difficult, but correct on points of law. That the law needs to change is a different question. His complete inability to discern between theft and infringment is very troubling.

The other problem is the distinction (very capably blurred by the attorneys for the RIAA) between downloading and uploading - that is, taking, and publishing. Gonzolez's attorney was a bit weak, though. Easterbrook is also factually incorrect about how Kazaa work(s?ed), right at the end.

Eatserbrook's constant groaning is a bit offputting, everything else aside.
12.10.2005 6:44pm
Fishbane (mail):
Listening to the oral argument, I think Easterbrook "gets" copyright. I think that the theft analogy is troubling, though. Copyright infringement and theft aren't the same thing, and fair use just isn't a defense to theft.

Sorry to keep posting, but in case it is interesting: um, what? Fair use is an affirmative defense against infringement of copyright, with a particular, if vague, test. Failing to distinguish between theft and infringment, and somehow finding commonality between fair use and theft strike me as "not getting it."
12.10.2005 8:40pm
David Berke:
I'm not a big fan of his analysis on the first element of a defense for fair use.

When did noncommercial use come to mean "only those uses which are for an educational or charitable purpose?" A fair reading of the statute would imply a continuum between blatantly commercial (ripping, burning, and selling en masse) and the preferred educational use. The only reading under which this person's use was "for profit" (i.e., avoided paying) would apply equally to charitable or educational uses (they avoided paying.)

Does anyone else think that $750 for infringing a single song for personal use is ludicrous? With the market rate being about $1, getting a minimum of 750x that amount, and up to 30,000x that amount, seems excessive.
12.10.2005 10:17pm
Jerry (mail):
Looks better than Hill v. Gateway.
12.10.2005 11:29pm
Bill (mail):
Public libraries loan music CDs that you can copy. Ever since there were photocopiers, copyrighted books could be copied (just not as fast as music MP3s). These cases are really mostly about the practicalities of copyright enforcement in light of new technologies.

Is it that (1) The music industry is hit harder by file sharing than book publishers by libraries (2) partly because its easier to copy music than books and (3) partly because there is more demand for copies of musical works? Are these notthe main considerations?

But where are they in the legal analysis? They're there, of course, but not as prominently as I for one would like.
12.10.2005 11:40pm
Cornellian (mail):
Is it that (1) The music industry is hit harder by file sharing than book publishers by libraries (2) partly because its easier to copy music than books and (3) partly because there is more demand for copies of musical works? Are these notthe main considerations?

I'd guess that's because the medium doesn't matter for music. It's the same whether you hear it from CD or MP3. In contrast, computer display quality isn't as good as paper, not as portable as a book, and people like carrying books around. Even if you could get an electronic copy of a book, lots of people would still buy it (at least in paperback) since no one wants to read a 300 page book on a computer screen, or print it out on 8 x 11 copier paper to read it.
12.11.2005 12:15am
Bruce Hayden (mail) (www):
I am not an Easterbrook fan, and had some problems with the decision, but, overall, I think it was correct.

One thing that I did find interesting, and that I will make sure I have properly noted, is that a jury trial was not required when BMG went for minimum statutory damages. If they had asked for more, then a jury trial would have been in order.

The importance here is that in some cases, as with this one, the statutory damages are significantly greater than the actual damages ($15 per CD?), but the plaintiff can make up for low ($750) statutory damages with quantity. Just think of where she would have been if all of the record companies had gotten together to sue her over 1,000 songs @ $750 / song is $ 3/4 Million. All on summary judgement.

But back to the big finding in the case - that file sharing like this is not Fair Use. While sympathetic with those sharing such, I have never been able to buy into the Fair Use argument. As Easterbrook points out, this is a far cry from the time shifting in Sony - where those making the copies had access to legitimate copies. Here, they didn't. In Sony, the Supreme Court was merely expanding the copyright license a little bit. Here, it would have meant essentialy creating a copyright license out of thin air. The defendant admitted to never having had legitimate copies of these songs.

The other thing is that, even though Easterbrook may have gone overboard with the fourth element, Fair Use is a balancing test, and the defendant clearly failed on prongs 2 and 3. It is hard for me to see how she could win on prong 1. That leaves all her chips on prong 4, and with Fair Use balancing, that would have to significantly lean in her direction for her to win, not be even or a draw, which is the best I can see.

Yes, this was summary judgement, so a higher standard applies. But I still don't see any reasonable interpretations of the facts I have seen resulting in a significant advantage to her for prong 4, and thus, without that, she is going to lose the balancing test, which she did. Easterbrook just pushed things a bit, as appears to be his wont.

Finally, I think it would have been hard for him to rule in the defendant's favor (except maybe that more fact finding was necessary), given Grokster.
12.11.2005 12:36am
Bruce Hayden (mail) (www):
David Berke

With a clear loss for the defendant on prongs 2 and 3, it was up to her to convince the court that she would win big on prongs 1 and 4. She didn't, and, arguably, couldn't. I don't see anything wrong with the court figuring that a lot of CDs are sold and that there was a distinct possibility that she would have paid for at least some of them if she hadn't downloaded them. I think that it is easier to characterize her use as economic than nonprofit educational. And that is all it takes here - with a tie on prongs 1 and 4, she loses.
12.11.2005 12:50am
Marcus1:
I second Billb. I still think there's a factual question beyond just the fact that something was downloaded though. A person doesn't always know what he/she is downloading. He may listen to a couple seconds, realize it wasn't what he wanted, and move on to something else. Having to pay 750 dollars for each one of those is rather absurd, whether or not it fits the fair use statute.

I'd also like to know what the songs were. Were they current music being marketed where she lives? Or was it older stuff that she would have had a hard time finding otherwise? That should make a huge difference.

It doesn't seem to me that Easterbrook gets it at all. I think file-sharing is a phenomenal technology that is currently being squelched simply to protect the record industry's current business model. I think the idea that a person in Japan can share his entire music collection with a person in Germany is pretty darned cool.

I don't know that file-sharing should be limitless -- perhaps for the most recent music it could be limited, but for the vast majority of music, I think it's a great thing that should be encouraged. I don't feel like Easterbrook or those like him appreciate the cost of simply criminalizing the technology wholesale.
12.11.2005 1:13am
Michael Eisenberg (mail):
I agree with many of the points made here so far:

Music downloading as done by Gonzalez is not, "theft", rather, it's copyright infringement. Just as one would not call the fair use of some copyrighted educational material theft, one should not call copyright infringement in the file sharing context in Gonzalez, "theft" either, just because the copyright owner is not being compensated. Downloading from some anonymous source on a network that makes instantly available virtually any work you desire is probably not the type of non-actionable copying we want call "fair use", without Congress first speaking on the issue. To hold otherwise, would eviserate the way an entire industry has done business for at least the past 100 years without any debate in the legislature. On the other hand, sharing and copying music between and among our close personal network of friends and family, or from the library, is not actionable.

Does anyone know of any cases that hold this last point?

Somehow, I don’t think the Congress would have agreed that 750 per song is an appropriate penalty for the acts Gonzalez perpetrated, and I think the courts failed in this instance to render justice. For example, even if I agree that downloading is "theft", one does not incur that kind of civil penalty ($22,500), for shoplifting 30 CD's from a music store, criminal penalties aside, let alone 30 songs.

This just reaffirms my belief, that if a judge believes you've done something bad or wrong, they will find a way to make you lose. The music industry has done a good job at its media campaign to make everyone think, judges, and even some good copyright attorneys, that music downloading is theft or piracy, rather than thinking in terms of infringement.
12.11.2005 2:49am
Beerslurpy (mail) (www):
I am not a lawyer yet, but I follow copyright and piracy related laws. I respond here to the oral arguments.

If I sit down in a book store and memorize a book (as I often do) and this deprives the book of a sale, is this infringement? By the judge's reasoning, yes it is- because the book sale is a commercial activity affected by my unpaid posession of the contents of the book. Through common sense, we see that there is no commercial activity because unless I type out the book from memory and try to sell it as my own, there is no actual commercial activity.

The NET act was intended (by its wording) to apply to ratio FTP sites. It changed "commercial use" to apply to people who exchange files for other files. Congress said that the file recepit was a commercial benefit and that such sharing in kind was commercial activity.

However, this is a very different kettle of fish than simply sharing without requiring any sort of upload (as all file sharing programs now operate). If the sharing is done without requiring payment in money or trade, then there is simply no commercial activity. This is very straightforward, and indistinguishable from tape and floppy trading that has taken place for decades. The sharing is non-commercial and the copyright is not infringed. The internet just makes it more efficient and makes it easier to catch people.
12.11.2005 2:52am
Beerslurpy (mail) (www):
I'd like to add that I dont think any of the lawyers or judges there understood that "files" dont physically exist and are merely an abstraction to simplify the organization of data.

You cant steal a file. You can delete a file. You can copy a file. You can intrude into a system and gain unauthorized access to a file. But you cannot steal a file. Stealing is something that can only take place with regard to physical objects. It represents the physical transfer of custody from one entity to another without the original entity's consent. Since any file contains nothing but information, it is literally impossible to deny a person of anything by copying his file.

You can no more steal a music file than you can steal the concept of fire or the design of a machine publically available in the patent office. You are infringing upon a government granted monopoly, but you are not engaging in theft. Not in a legal sense, not in a biblical sense.
12.11.2005 2:59am
Michael Eisenberg (mail):
Beerslurpy

I agree with you that there are problems with the opinion. But, the problem with your analysis is that you have to first commit one of the 6 acts reserved exclusively for the copyright owner under 17 USC 106, for example, create a copy. Then, under the judge's reasoning, your memorizing the book and then writing it down (the fore, getting the value out of it) would not be a fair use, because, partly, it's a commercial use. To quote the judge:

Gonzalez was not engaged in a nonprofit use;
she downloaded (and kept) whole copyrighted songs (for
which, as with poetry, copying of more than a couplet or two is deemed excessive); and she did this despite the fact that these works often are sold per song as well as per album.


To call that use commercial or "not ... nonprofit use" is ludicrous.

But, note that the Judge them mostly focuses on the 4th factor of fair use, the effect on the market. And as I pointed out above, I think there are substantial arguments that this kind of use, anonymous sharing of music that can be done instantly with absolutely no loss fidelity, would wipe out the way business has been done for years if held to be legal and everyone started doing it. The matter should at least be taken up in Congress before we decide to do something drastic like that. Also note that I do not agree with the punishment in this case. See my post above.
12.11.2005 3:17am
David Berke:
Bruce,

Your comment would be much more convincing if there were any real exploration of the first factor in the case. Calling it economic is not the same as calling it commercial; every user of material protected by copyright claiming fair use makes economic use. Why? Because they always save the money which would have been otherwise spent. Under THAT definition, everything is commercial and the first factor serves no purpose.
12.11.2005 3:28am
Anderson (mail) (www):
Off topic, at least Gonzalez didn't run afoul of any secret laws:
The Bush administration...claims that the ID requirement [for boarding a jetliner] is necessary for security but has refused to identify any actual regulation requiring it.

A three-judge panel of the 9th Circuit Court of Appeals seemed skeptical of the Bush administration's defense of secret laws and regulations but stopped short of suggesting that such a rule would be necessarily unconstitutional.

"How do we know there's an order?" Judge Thomas Nelson asked. "Because you said there was?"

....The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.
12.11.2005 8:39am
Chris V.:
I'm really confused by the number of commenters here who seem to think that Easterbrook called, or implied, that the infringement here was theft, or that he somehow doesn't know the difference between the two. My reading of that excerpt (the only one where the word "thief" appears) is almost exactly the opposite. By saying the argument was "no more relevant than a thief's contention," he is making a comparison, but in doing so he is only saying that the particular arguments about the number of copies and the intent to return are equally wrong in both cases. But you wouldn't say it like that ("a thief's contention") if you thought the person was actually a thief.

Now, people may disagree with Easterbrook's sentiments there, in that maybe those arguments make more sense in the case of file sharing (I disagree, but I can understand it). But it isn't really calling the infringement theft, is it?
12.11.2005 10:00am
Brett Bellmore (mail):

One thing that I did find interesting, and that I will make sure I have properly noted, is that a jury trial was not required when BMG went for minimum statutory damages. If they had asked for more, then a jury trial would have been in order.

The importance here is that in some cases, as with this one, the statutory damages are significantly greater than the actual damages ... All on summary judgement.


Am I the only one here who thinks this represents a blatent evasion of the guarantee of a right to a jury trial? $750... Sounds like it's more than the Constitutionally mandated $20 to me!
12.11.2005 10:05am
WB:
I'm sure that most of you understand this, but it seems to me that it should be said anyway.

My best guess at the $750 figure is the proliferation of downloaded files. Gonzalez has 1000+ songs that she could have downloaded for $1 each. If you don't look beyond that, then the logical response is to charge her $1 per song, or maybe $2 per song for punitive effect.

The problem isn't that she has the files, though. It's that she shares them on Kazaa. Her downloading the files deprives the RIAA of $1 each, but her making them available to others potentially deprives the RIAA of hundreds of dollars more per song. I don't think that everyone who shares files has each song downloaded by others an average of 750 times each, but maybe $750 per song is a little closer to the real damage than $1 per song.

Chris V., I think we all realize that Easterbrook is merely making a comparison, but his comparison glosses over meaningful differences between copyright infringement and theft, and Gonzalez's "contention" is at least a little bit more relevant than a thief's contention. I wish Easterbrook had stuck to the law instead of ranting about theft. Everyone with a computer understands what Gonzalez did. The law pretty clearly subjects her to punishment for it. And her "fair use" arguments were clearly wrong and/or irrelevant. A more liberal-minded judge could have written a solid opinion that reached the exact same result, while scolding Congress for being bought by the RIAA, lamenting the degree of the damage awards, and commenting on the RIAA's Machiavellian (perhaps in a good way) strategy of going after just enough small fish like Gonzalez to give others the impression that no one's safe, while being careful not to inflict so much pain (seeking damages for 30 songs rather than 1300) that they inspire a backlash. The bottom line is that Gonzalez had no case because Congress gave her none.
12.11.2005 10:45am
Chris C.:
If Gonzales had stolen 30 cds she would've been better off. If BMG had sued for conversion her liability would only have been $20 per CD. If BMG had sued on that basis for these songs, her liability would've only been $30, assuming that the songs were availible on services like itunes. I don't understand how copyright infringement damages are automatically punitive. Is this common in infringement cases?
12.11.2005 11:16am
dwa:
You cant steal a file. You can delete a file. You can copy a file. You can intrude into a system and gain unauthorized access to a file. But you cannot steal a file. Stealing is something that can only take place with regard to physical objects. It represents the physical transfer of custody from one entity to another without the original entity's consent. Since any file contains nothing but information, it is literally impossible to deny a person of anything by copying his file.

Assuming I have physical access to the storage system (generally a pc), I can:
-Insert storage medium (floppy, burnable cd, etc) into writable drive (floppy drive, writable dc-drive, etc)
-ctrl + x (in windows, other os's also have this function)
-ctrl + v in writable drive (again, in windows, other os's have this function)

That file has now been stolen as per your terms in regards to "transfer of custody. It will no longer exist on the original owner's device, only the storage medium I transfered it to, until such time as I choose to transfer that data elsewhere. Furthermore, Easterbrook's remarks regarding "...or any intent to return it" make the theft analogy rather apt; the creator of the work has every right to determine who has access to it, and at what terms, and as such we can reasonably argue that circumventing those terms for our own personal use constitutes theft.

As a side note, I am rather puzzled by the intrinsic assumption many of you have regarding fair use, i.e. it's a-okay for the government to tell someone that at some point in the future, they no longer have the right to profit of their ideas. It would seem to me that the assumption would be that the copyright holder would always maintain exploitive rights and that only in certain, limited, circumstances would the government be able to strip the copyright holder of his claims to the material.
12.11.2005 12:51pm
WB:
To respond to Chris C., if I understand the law and RIAA's arguments correctly, the damages are tied to a conservative estimate of the RIAA's losses due to Gonzalez making the files available to others.

If Gonzalez had stolen the CDs and kept them to herself, then yes, $20 per CD is about what BMG's damages would have been. But if she had bought the CDs and then made the tracks available to everyone else on Kazaa, she would potentially facilitate the "theft" by thousands of others. There's no way to track how many others downloaded her files, so the statute just takes a conservative estimate and says "we presume that each track was downloaded 250 times. Therefore damages are $250 per song." And, since Gonzalez had notice of the copyright on the songs, it's tripled to $750 per song.

This is my guess at the rationale behind the statute. In patent cases at least, you can get treble damages when the infringement is willful. That same rationale seems to be at work here. I don't know if the $250 figure is a conservative estimate of the ripple effect, a number adopted for punitive purposes, or a number meant to deter others because the RIAA can't possibly catch everyone.

Other than tripling damages for willfulness, I don't think that IP infringement laws generally are punitive as opposed to compensatory, but in the past few years I think that the copyright infringement laws have added a punitive dimension. If I remember correctly, the DMCA has criminal sanctions as well as civil, and it's hardly surprising that the civil penalties are stiffer than they were before.
12.11.2005 12:55pm
WB:
2 more random thoughts on this.

1. I don't have Kazaa. I've used other file sharing programs in the past, though (before I got scared and deleted them all), and if I remember correctly, it is possible to use them "selfishly," i.e. where you can download files from others without sharing any of your own. From the oral argument--a brief exchange between Gonzalez's lawyer and Judges Williams and Easterbrook--it seemed less than clear whether Gonzalez did this or not and whether it was possible for Kazaa to operate this way. If the record didn't clear this up, and the issue had actually been raised below, then I think that might have been a disputed issue of fact.

2. I'm not sure what I think of the RIAA's strategy of only asking for damages on the 30 songs. In the oral argument, Easterbrook pressed the lawyer on this issue and said that he might have had an easier time asking for damages for 1000+ songs rather than the 30. What would the RIAA's explanation be? Some possibilities come to mind.

One is that they want to go after Gonzalez to deter others and send a message, but they don't want to wreck the life of a woman with five children to the tune of $750,000 for fear of inspiring a legislative backlash.

Another--and a bit more disturbing--is that they feared that a judge's "equitable sensibilities" or general squeamishness might take over and cause him/her to read a really broad fair use exception into the statute to save Gonzalez's hide. The statute--I think--pretty clearly makes file sharing illegal and subject to damages, regardless of whether Gonzalez owned the CDs. Easterbrook sees this, but maybe the RIAA folks feared that others wouldn't? Not to revive the old "judicial activism" canard, but this is interesting and I'm not sure what I think of it.
12.11.2005 1:04pm
Automatic Caution Door:
<i>"2. I'm not sure what I think of the RIAA's strategy of only asking for damages on the 30 songs."</i>

Wouldn't it be the fact that the plaintiff was BMG Music, not the Recording Industry Association of America? And that BMG does not own the copyrights to works whose copyrights are owned by Sony, Universal, Joe Amateur Musician, etc.?
12.11.2005 1:09pm
WB:
No. The case is actually BMG et al. BMG is the lead plaintiff, but it looks like there were several. They didn't sue under the umbrella of the RIAA, so maybe it's more correct and less confusing to refer to them as "the plaintiffs" or "the record companies" rather than the RIAA, but as I understand it, the 30 songs were selected because Gonzalez didn't own the corresponding CDs, not because BMG had the copyright.
12.11.2005 2:04pm
WB:
No. The case is actually BMG et al. v. Gonzalez BMG is the lead plaintiff, but it looks like there were several. They didn't sue under the umbrella of the RIAA, so maybe it's more correct and less confusing to refer to them as "the plaintiffs" or "the record companies" rather than the RIAA, but as I understand it, the 30 songs were selected because Gonzalez didn't own the corresponding CDs, not because BMG had the copyright.
12.11.2005 2:04pm
Chris C.:
WB -- thanks for your response.
On a side note, I don't think its unreasonable to have to make the music companies prove that the music was in fact uploaded. If they can find out anyone's IP address and the amount of music they've downloaded, they should have to prove that the music was uploaded at least once since the statutory damages operates on that presumption de facto. The 250 figure appears to have been plucked out of thin air here to give the music companies leverage to get these people to settle for $2 or $3k instead of going to trial mistakenly thinking they have a chance but instead getting severe summary judgments, assuming the plaintiffs have done their homework.
12.11.2005 2:31pm
Marcus1:
dwa,

>As a side note, I am rather puzzled by the intrinsic assumption many of you have regarding fair use, i.e. it's a-okay for the government to tell someone that at some point in the future, they no longer have the right to profit of their ideas. It would seem to me that the assumption would be that the copyright holder would always maintain exploitive rights and that only in certain, limited, circumstances would the government be able to strip the copyright holder of his claims to the material.<

I'm not sure that's a more natural way to look at it. Is there some natural law that says every time I play a Chopin nocturne, I should have to pay him or his relatives? Should Verizon be able to charge my family per person for watching tv? A person may have a moral right to keep his work private, but the idea that he has a right to be paid for any future use of his work seems like a social invention to me.

Government grants copyrights; it doesn't strip them. It grants them for the important reason that we want to incentivize creative work. To some extent we also believe that an individual who creates something profitable should benefit from that. The idea that an author should have absolute control at every level at any time in the future over what happens to his work, though, strikes me as unnatural, especially when it ends up benefiting corporations more than the authors.
12.11.2005 2:41pm
David M. Nieporent (www):

It doesn't seem to me that Easterbrook gets it at all. I think file-sharing is a phenomenal technology that is currently being squelched simply to protect the record industry's current business model
It doesn't seem that you get it at all, Marcus. That's a policy question for Congress, not one for Easterbrook. This, incidentally, was not a case about "technology." This was about Gonzalez's chosen use of that technology.

Somehow, I don’t think the Congress would have agreed that 750 per song is an appropriate penalty for the acts Gonzalez perpetrated, and I think the courts failed in this instance to render justice.
Congress did "agree" when it passed this law. Don't like it? Talk to Congress, not the courts. Courts are out there to render law, not "justice."

If I sit down in a book store and memorize a book (as I often do) and this deprives the book of a sale, is this infringement? By the judge's reasoning, yes it is- because the book sale is a commercial activity
By the court's reasoning, no, it isn't, because "memorizing" isn't one of the acts prohibited by the Copyright Act. Whether it's a "commercial activity" is relevant to the issue of fair use, which is a defense. We only get to that issue if there's activity that would otherwise be infringement.
If the sharing is done without requiring payment in money or trade, then there is simply no commercial activity. This is very straightforward, and indistinguishable from tape and floppy trading that has taken place for decades. The sharing is non-commercial and the copyright is not infringed.
You're not interpreting the phrase "commercial" correctly -- if you check the statute, you'll see that commercial is contrasted with "nonprofit educational," not with any non-compensated infringement. But even if you were, the last statement would not follow; that is merely one of the factors that goes into the fair use test.

Your comment would be much more convincing if there were any real exploration of the first factor in the case. Calling it economic is not the same as calling it commercial; every user of material protected by copyright claiming fair use makes economic use. Why? Because they always save the money which would have been otherwise spent. Under THAT definition, everything is commercial and the first factor serves no purpose.
David, what your comment ignores is that fair use is supposed to be a limited exception to the copyright law, not a general license to copy. Again, commercial is contrasted with "nonprofit educational" in the statute, which shows what Congress was thinking about: a narrow exception.

Am I the only one here who thinks this represents a blatent evasion of the guarantee of a right to a jury trial? $750... Sounds like it's more than the Constitutionally mandated $20 to me!
No, Brett, it's not an "evasion" of anything. As Easterbrook patiently (somewhat) but fruitlessly tried to explain to Gonzalez's lawyer, you're only entitled to a jury trial to decide factual questions. There's no factual question here.
12.11.2005 2:43pm
Fishbane (mail):
That file has now been stolen as per your terms in regards to "transfer of custody. It will no longer exist on the original owner's device, only the storage medium I transfered it to, until such time as I choose to transfer that data elsewhere.

This is actually technically incorrect. Your description of actions involves unauthorized access, a copy, and a deletion. In fact, unless you use a specialized application to wipe the disk, the file is still present until overwritten, and can be recovered (Windows NTFS and FAT32, like most file systems, only delete metadata relating to files upon deletes, not the actual contents of the files).

As a side note, I am rather puzzled by the intrinsic assumption many of you have regarding fair use, i.e. it's a-okay for the government to tell someone that at some point in the future, they no longer have the right to profit of their ideas. It would seem to me that the assumption would be that the copyright holder would always maintain exploitive rights and that only in certain, limited, circumstances would the government be able to strip the copyright holder of his claims to the material.

Unless I'm misreading you, this is very wrong. The government is in no way "telling someone... they no longer have the right to profit from their ideas". What they are doing is limiting a grant of a fiat monopoly - saying they will no longer forcibly stop others from having a "right to profit" as well. What you are describing sounds more like an Imprimatur law. I don't think any current nation state recognizes such a law anymore, but I could be wrong on that.
12.11.2005 3:06pm
Frankman (mail):
WB:

First of all, your completely wrong about the $750 damages approximating actual damages. These are statutory damages that have no necessary relation to actual damages. It is clear that even if she was sharing her files, that $750 per file would be much more than actual damages since most file downloaders would have simply used other people's shared files instead of hers to get whatever songs they downloaded. In any case, whatever the actual damages would be for distribution, the $750 has NO relation to those damages.

The real problem here is that Easterbrook did not award enough in damages. He found 1,370 instances of copyright infringement. Damages should be 1,370 * $750 = $1,027,500. It is true that plaintiffs may not have asked for this amount, but then they did not realize that fair use would not cover those other songs. It is not fair to punish them for not asking for more. Judge's like Easterbrook need to stop tolerating criminal behavior like that exhibited by Cecilia Gonzales. This society is moving dangerously close to becoming a Kleptocracy.

The U.S. Attorny needs to get its act together and prosecute Cecilia Gonzales for her willful criminal behavior and send her to prison. The statute that would enable them to do that is here:

--------------------------------------------------------
17 § 506. Criminal offenses
(a) Criminal Infringement.— Any person who infringes a copyright willfully ... (2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18, United States Code.

--------------------------------------------------------

What kind of punishment would be appropriate here? 1 to 3 years in prison depending on the retail value of songs distributed. The statute which lays out the punishment is here: (Either 2319(c)(1) or 2319(c)(3) is relevant depending on the retail value of the songs.)

--------------------------------------------------------

18 § 2319. Criminal infringement of a copyright

(c) Any person who commits an offense under section 506 (a)(2) of title 17, United States Code—

(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;

...
[OR]

(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.

---------------------------------------------------------

The necessity of sending Gonzales to prison is increased by fact that she has 5 children. Children should not be raised by a criminal; they will only pick up such lawless criminal tendencies themselves. We serve them by punishing her.

Of course, the the executive branch is shirking its duty is not under the control of Judge Easterbrook. But at the very least, he should have held her responsible for the full $1,027,500 in civil damages that the law specifies as appropriate in a case of willful (and criminal) copyright infringement. What kind of society are we going to have otherwise. It seems we are moving closer to living in a Kleptocracy everyday.
12.11.2005 3:30pm
Fishbane (mail):
The necessity of sending Gonzales to prison is increased by fact that she has 5 children. Children should not be raised by a criminal; they will only pick up such lawless criminal tendencies themselves. We serve them by punishing her.

That's hilarious. I can't tell if it is meant to be or not, but that makes it even better. My hat's off to you, either way.
12.11.2005 4:01pm
David Berke:
"David, what your comment ignores is that fair use is supposed to be a limited exception to the copyright law, not a general license to copy. Again, commercial is contrasted with "nonprofit educational" in the statute, which shows what Congress was thinking about: a narrow exception."

This is essentially nonresponsive. Limited exception? All exceptions are limited. Meaningless. Commercial is contrasted with "nonprofit educational"? Absolutely. The comparison, however, is meant to suggest a continuum of uses which are more or less favorable. Otherwise, it would simply say "nonprofit educational" uses are favored in determining whether there is fair use. Until recently, Copyright and IP law were seen as granting relatively limited protection, they were not treated as identical to other property in all respects. So, while I agree that this is not meant to provide for an exception for everyone, I disagree with your implicit assertion that the exception is so narrow as to require the careful threading of the use through the eye of the needle of the exception.
12.11.2005 4:16pm
WB:

First of all, your completely wrong about the $750 damages approximating actual damages. These are statutory damages that have no necessary relation to actual damages. It is clear that even if she was sharing her files, that $750 per file would be much more than actual damages since most file downloaders would have simply used other people's shared files instead of hers to get whatever songs they downloaded. In any case, whatever the actual damages would be for distribution, the $750 has NO relation to those damages.


I said that it was just a guess, anyway. I'm well aware of the fact that statutory damages have "no relation to actual damages." I was speculating as to where Congress might have gotten the number, not suggesting that the court got it anywhere other than from the statute.
12.11.2005 4:37pm
Frankman (mail):
WB:

Well, your speculation concerning where Congress got the number does not make sense. The statute in question was passed before file sharing became an issue. It applies generally to copyright infringement, not just copyright infringement involving file sharing. So, frankly, I don't think your speculations are educated or make sense.

Whatever. This is a side issue.

The bigger issue, in my mind, is why aren't file sharers going to prison? Those who share more than $1,000 worth of files should spend a year in prison thinking about the consequences of their advancement of kleptocracy. It truly is outrageous that we have so many criminals acting with impunity. The law is clear; it just needs to be enforced.
12.11.2005 4:48pm
Visitor Again:
Theft laws have been used to protect intangibles like commercially valuable information, including trade secrets (before the enactment of special trade secrets laws). There are many state cases in which defendants' convictions for theft of commercially valuable information were upheld. So the tangible-intangible distinction is not a reason for discounting an analogy to theft. There may be other distinctions, though, which render the analogy imperfect.

I haven't read the Easterbrook opinion and am not going to. But were it accepted that Gonzales downloaded only songs she was interested in buying, bought those she wanted after listening to them and deleted those she did not buy, would she still be liable for copyright infringement? I gather she would. But how is what she did in this scenario different than the old days when a prospective buyer would go into a record store, take records or tapes in which she was interested into a sound-proof booth, listen to all of them, then buy only those she wanted. Doesn't Easterbrook's opinion make buying by Internet uninformed buying or at least inconvenient buying? Perhaps the thought is that people cannot be trusted to download and delete if they do not buy. Couldn't that be solved technologically?

It seems to me Congress has not thought through this whole area and needs to do so. Or perhaps not, since it's already made a complete hash of copyright law with respect to books.
12.11.2005 5:27pm
dwa:
Re: Fishbane
This is actually technically incorrect. Your description of actions involves unauthorized access, a copy, and a deletion. In fact, unless you use a specialized application to wipe the disk, the file is still present until overwritten, and can be recovered (Windows NTFS and FAT32, like most file systems, only delete metadata relating to files upon deletes, not the actual contents of the files).

You would require a specialized application to retreive the lost data as well, and it's something most would not even realise is available. The other half of this argument is silly, like arguing that "2+2 does not equal 4, it equals 2+2, darnit!" The end result is that I now have possession of data and you do not (for nitpicking's sake, let's go ahead and assume that I did in fact bring along the necessary software to wipe the data after copying it); all you're arguing is semantics.

Re: Marcus 1 (and Fishbane's other comment)

I see nothing natural about assuming that society has the right to profit upon my, or anyone else's, creations, at the time of their choosing. Insofar as I'm concerned, it's acceptable to prevent total monopoply of an industry (the difference between a copyright on a piece of music as opposed to, say, the process of making an automobile should be obvious), but simply saying that after 14 years we all have a right to capitilize on an individual work of someone else does strike me as a violation of natural law. If I should choose to sell that right to a corporation, or any other entity, what does it matter? This smacks of an inate, and unhealthy, assumption that corporatism (and, by extention, the profit motice) is inherently evil. I don't see how "who benefits" enters into the equation.
12.11.2005 6:42pm
Colin:
dwa,

Fishbane is arguing, correctly in my opinion, that the act in question does not fit the definition of "theft." You say that "all you're arguing is semantics," but of course that's all he's arguing. What else would you call a debate over the meaning and applicability of a word?

As I said, I think Fishbane is correct. You make some interesting points, though, especially when you contend that the average user would not understand that a copy of the data remained. For all intents and purposes, User A sees that User B accessed A's system, and now B has A's file and A doesn't. It looks like theft... but looks can be deceiving. As Fishbane says, there are separate acts here, including an unauthorized copying and an unauthorized deletion. Each act is significant, and the interaction between them isn't present in physical theft. What if either the copying or the deletion was arguable authorized? What if the copy wasn't exact, or the deletion incomplete? There's a lot more going on with copyright violation than there is in theft, in this context.

There is a good argument to be made that the best word to use is "theft." But it's just one argument, and it's hardly persuasive to a great many people. The distiction matters, especially in a legal context. Your dismissal of the argument seems too, well, dismissive to me.
12.11.2005 7:10pm
David M. Nieporent (www):
Frankman:
The real problem here is that Easterbrook did not award enough in damages. He found 1,370 instances of copyright infringement. Damages should be 1,370 * $750 = $1,027,500. It is true that plaintiffs may not have asked for this amount, but then they did not realize that fair use would not cover those other songs. It is not fair to punish them for not asking for more.
Given the rest of your post(s), I can't tell whether this is satire (*), but of course it's not "punishing" them to give them what they ask for. Procedurally, Easterbrook couldn't have done any such thing. Only 30 acts were on the table.


(*) Which makes it either really great satire or really scary thinking.

V.A.:
But how is what she did in this scenario different than the old days when a prospective buyer would go into a record store, take records or tapes in which she was interested into a sound-proof booth, listen to all of them, then buy only those she wanted.
As a technical matter, it's "different" because the "old days" didn't involve copying and what she did does. As a practical matter, it's "different" because at the end of the day under the "old days" scenario, you either ponied up your money or you didn't have the song, while your hypothetical about her behavior involves the honor system.
Doesn't Easterbrook's opinion make buying by Internet uninformed buying or at least inconvenient buying?
No. The law might do so; Easterbrook's opinion doesn't. Of course, places like Amazon and iTunes allow one to hear clips (legally) before buying. And I hear there's such a thing as the radio.
12.11.2005 8:43pm
Marcus1:
David,

The radio may work if you're talking about Britney Spears. But what if it's something more obscure?

I use Itunes, which is pretty cool, but it only has so much. As far as classical music or jazz, services like Kazaa allow people to check out stuff they would never find elsewhere, because it's out of publication or not being marketed. The copyright law doesn't seem to account for this at all, though, which means people are afraid to put even that kind of stuff up. I think that's a serious problem.
12.12.2005 1:29am
Jeroen Wenting (mail):
If the defendant had only downloaded fragments of tracks, or maybe a single track per album even, I doubt the court would have ruled in favour of the industry in a case like this.
It's the wholesale theft of the content of entire albums that's at stake here.
Even under the most broad definition you could find of "fair use" that would not be covered.

Marcus, if something is out of publication that doesn't mean it's in the public domain.
I work in software engineering myself, and face the constant battering from people screaming that it's not fair that old versions of products are not released for free.
Never mind that we still sell those products (or replacement products with similar functionality) in a different version, just like music companies still sell music in the same genres as the tracks that are no longer on sale (and may at some future point be incorporated on a new album).

Unless and until an author releases his work into the public domain OR the copyright expires and is not renewed (if applicable) the work remains the sole posession of the copyright owner to do with as (s)he wishes. If that means it's not available publicly than that's the wish of the author, a wish everyone will have to accept.
Just because you want to own a painting in some museum doesn't give you the right to break in and steal it right?
12.12.2005 7:47am
Visitor Again:
"As a side note, I am rather puzzled by the intrinsic assumption many of you have regarding fair use, i.e. it's a-okay for the government to tell someone that at some point in the future, they no longer have the right to profit of their ideas. It would seem to me that the assumption would be that the copyright holder would always maintain exploitive rights and that only in certain, limited, circumstances would the government be able to strip the copyright holder of his claims to the material."
__________

I always thought the presumption was the other way round. For policy reasons as well as the values underlying the first amendment, no one owns information or ideas or even their arrangement in a particular form. However, as a matter of policy and to give creators the incentive to create, Congress, through the copyright laws, gives them a limited right to exclusive exploitation of their creations--limited because the right is subject to a time limiation and to the fair use exception. Copyright is a matter of legislative grace; it does not reflect ownership rights in property.

Since copyright is not my field, I'm quite ready to be corrected on this. But if it's not the way things are, it is the way they should be. All information and ideas should be free in my book, or at least as free as possible consistent with maintaining a reasonable level of incentive to create.
12.12.2005 8:45am
Marcus1:
Jeroen Wenting,

Are you saying that long copyrights are justified so that when I want an out-of-print Maria Callas CD, I'll have to just go buy some Pavarotti CD instead and thereby support the industry? Is that really good policy? I think the software industry is quite different from the music industry.

>Unless and until an author releases his work into the public domain OR the copyright expires and is not renewed (if applicable) the work remains the sole posession of the copyright owner to do with as (s)he wishes. If that means it's not available publicly than that's the wish of the author, a wish everyone will have to accept.<

It might be the wish of the author, or I might just not be able to find out the author's wishes. The author may be dead. In any case, I agree with you as that copyright law makes sense. I just think life + 70 years is excessive. I might as well be forced to pay the descendants of Bach any time I play one of his fugues. Would that make sense?

It's important to realize that copyright is a government entitlement. Now, I like government entitlements, but that's what it is. If I say something, or write something, or record something, I don't have any natural right to be paid any time somebody wants to read or hear it for the rest of time. If I make a beautiful chair, and somebody starts building similar chairs, do I have a fundamental right to be paid? Only if the government decides to say so and decides to enforce it.

Now, that's different from my right not to have the manuscript or painting stolen. What we're talking about here is if the painter has a right not to have his painting photographed.

I'd say it makes sense for the unique chair maker to get paid for a certain amount of time, but for his life plus 70 years? If you get all caught up in the chair maker's "rights" to his design, then that might seem sensible, but from a more objective look, I think it's a bad idea.

What if TV shows decided they wanted to start charging people per person for watching television? Do they have such a right? Should the police be able to start peeking through our windows and arrest people who underreport their television watching? What if they just put a thumbprint sensor on the remote control?
12.12.2005 10:16am
qwerty:
DWA,
The assumption that copyrights are limited in time is one embraced by the Framers of our constitution, and not some radical new idea. Art. I section 8 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." "Limited times" is key.
12.12.2005 12:03pm
qwerty:
DWA,
The assumption that copyrights are limited in time is one embraced by the Framers of our constitution, and not some radical new idea. Art. I section 8 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." "Limited times" is key.
12.12.2005 12:03pm
Splunge (mail):
Thanks for the various responses to my earlier comment. I'm going to add one that may annoy the many lawyers here: I think the law is meant to reflect the collective decisions of society, not vice-versa. If most members of society are found to be breaking the law, the fault lies with the law, not with the society. To think otherwise seems to me to be placing the cart before the horse. People are more important than paper.

That does not mean, of course, that any one person is "above the law." I see nothing wrong with any individual act of prosecution under the copyright law as it is. But I do mean to say that all of us, collectively, are and must be "above" the law. That's what it means to be sovereign. Law is not unchanging diktat handed down to us from God, Marx or Aristotle -- it is what we the people say it is.

Which means I think it's very much worth thinking out carefully what it means that so many people are willing to break the law. Is the law as it's constituted still making sense, in this case? Maybe not. Maybe it needs serious revising to correspond to the social realities.

I think we can dismiss the RIAA's point of view ("You felon! Downloading is theft! Repent, lest the Republic be doomed!") as self-interested hysterics from an industry more or less built, it would seem, on parasitizing the true creators of wealth here, the artists. Frankly, I find it as hard to give a fig if these folks can still make money as I would find it hard to give a fig if pimps were driven out of business. So I think the law should focus on the right of the artist and the fan to strike some enforceable bargain on how they can exchange value, art for money, to each other's mutual benefit.

That any fan would like to get the art for free doesn't mean they're all corrupt, it just means they're not idiots. That any artist would like to sell his art for huge prices and retire rich doesn't mean they're all greedy bastards, it just means they, too, are not idiots. Good copyright law allows them to meet in the middle by ensuring they can't cheat each other.

What would the new copyright law look light? Honestly, I don't know. But I do think it must begin, like all good laws, with being practical. It must conform to what most people believe to be right and reasonable, so that people obey it out of a conviction that it is the right thing to do, and not because they might get fined or put in jail. If it does not, it will eventually become as irrelevant as Soviet law.
12.12.2005 12:33pm
David M. Nieporent (www):
The copyright law doesn't seem to account for this at all, though, which means people are afraid to put even that kind of stuff up. I think that's a serious problem.
Well, FWIW, I do, too. It's bad enough to have modern copyright terms keeping things out of the public domain for an insanely long time, but it's absurd that things that the copyright owners don't even think are worth keeping "in print" (or the audio equivalent) can't be used for all that time.

I have no problem with an artist exploiting his work to make money, but if he's not going to do so anymore, what purpose does it serve in prohibiting everyone else from using it? (I speak only of published works here, not unpublished works.)


Jeroen:
Marcus, if something is out of publication that doesn't mean it's in the public domain. I work in software engineering myself, and face the constant battering from people screaming that it's not fair that old versions of products are not released for free.
Never mind that we still sell those products (or replacement products with similar functionality) in a different version
Well, that doesn't do me a lot of good if, say, I have an old computer that can't run your "different version." Or a document in an old file format that can't be opened by your "replacement products." Nobody would rationally expect Microsoft to give away Word 2003 when Word 2004 is released, but how about Word 1 (or whatever it was called), from back in 1990?
12.12.2005 3:14pm