NEWSFLASH: Hollywood Wins A BIG One

This was a great ruling, no doubt, and one that I fully applaud them for - though I am less happy about the property ruling the Supreme Court recently made, the one where you can be forced to sell your property to another private interest if it’s “decided” by local government that a Starbucks benefits the local economn much more than an affordable apartment - I think that decision smells, more than a wee bit.

And I should add, I was very much in favor of “taking god out of the pledge” ruling by the lower court, and the Supreme Court was wrong for overturning it, for the following reasons -

A) god being in the pledge violates our constituional separation of church and state.

B) “Under god” wasn’t in the original version of the pledge, it was added in the fifties by Ike as a way of differentiating the US from the “goddless communists”. So having it in is not what the drafters of the pledge and the constitution ever intended (Thomas Jefferson was a humanist, not a Christian).

C) Being a Buddhist and an American, having the phrase “under god” discriminates against me (and anyone who doesn’t believe in god) but taking it out doesn’t discriminate against anyone, including those who believe in god.

That’s just my three cents, for what it’s worth. But I am definitely happy about the copyright ruling.

Wow. I guess u didn’t own a VCR.

Good for you.

“that blank videocassettes were not, in and of themselves, immediate lines to piracy”

Wow talk about twisting the facts. How in anybodys name can u blatantly be against P2P, saying that it is a direct piracy mechanism.

It isn’t inherently. I would like to post my short films, and music that I make, for others to download and share.

Who are you or the Supreme Court to tell me that I cannot.

I always was taught that republicans wanted less big government. The way this Supreme Court is ruling, in regards to technology, gay rights, religious freedoms and marijuana legalities, it would certainly seem the other way around.

YAY! No big government for laws that help the poor! But HUGE government to restrict the nation on their rights and freedoms! WOOHOO! Go America!

I’m mixed on this. On the one hand, I think it’s apparent that 90% of the stuff traded via P2P is music, movies, or software the makers will never see a penny for. And that’s just wrong. I spend years writing, networking, struggling, and trying to get my screenplay into the hands that can get it into the theaters and onto DVD, only to be ripped off because, let’s just say, 10,000 people decide they’d rather watch a DiVX version on their PC. I’m pissed about that.

However…

P2P technology is here to stay whether or not Hollywood or the MPAA or the Supreme court like it. The technology is way too entrenched to be ripped out by the ruling class, whether by MPAA & RIAA lawsuits or supreme court rulings. The internet adapts much faster than the Supreme Court or Hollywood ever could, and it’s only a matter of time before some new open source P2P app that masks your IP address is released. Who are they going to sue then? An anonymous community of programmers in 86 countries?

It’s a losing battle, but it’s a battle that’s worth being fought. At some point, Hollywood is going to have to embrace the technology and find a way to turn it to profit. Somewhere, down the line, someone is going to utilize P2P much like the filmmakers of BLAIR WITCH utilized the web to start a grass roots campaign. Whether it’s by posting parts of the film, interviews or insider material or just clever advertising. And that’s when Hollywood will realize that P2P can be used for good as well.

That’s not to say that I think P2P as a whole can or should be able to hide behind the “we just make the product, we aren’t responsible for the way it’s used” arguement.

Until gun maufacturers can also be held liable for MURDER, no P2P company should be held liable for piracy.

What messed up priorities we have.

Uh oh… this can of worms.

Personally I think piracy of computer games and movies is different than music. I wouldn’t be able to get 3/4 of the music I like (I’m a music freak) from mainstream sources, and I wouldn’t know about them if I couldn’t download them. That’s one indie labels LOVE mp3 “piracy.” Their profits just keep going up. A tiny little label like Kill Rock Stars gets most of their buzz from kids trading their songs.

However, the cost of making music is practically neglible. Indeed you have kids in their basements actually making their own professional quality albums with (pirated!!!) studio software.

Movies and games on the other hand employ thousands of people, cost a fortune, and should’t be pirated. It hurts people and hurts their industry. When I was a kid I pirated games, because they were never worth the $50 (well, in those days it was $20-30) they asked for them. In that sense I guess I’m a hypocrite.

I just hope music trading isn’t effected. I love my SoulSeek :(

So the decision boils down to this:

A company which makes a device which CAN (but won’t necessarily) be used to commit a crime can be held responsible for crimes those using the product commit.

Hopefully, the ensuing tidal wave of lawsuits against gun manufacturers will bankrup the industry.

I think any time the government moves to curtail communication or a means of communication, we need to be very careful. What about the people who want to post material on P2P for wide dissemination without overhead? Isn’t that like outlawing highways so bank robbers can’t escape on them?

I think what’s happening with BitTorrent and Globabl Frequency is amazing. Somehow a piece of good work that had been squelched by the copyright owners got loose and is forming a groundswell of people who want more, possibly turning a financial loss into a gain.

On the other hand, I strongly agree with copyright holders’ right to defend their intellectual property. I just don’t think they should be going after the lines of communication as a first effort.

The biggest problem with holding the P2P companies liable is this:

In a year I hope to distribute my film online using companies like Bit Torrent. These companies help lessen the gap between Hollywood Studios and someone like me, goin it alone.

Now, If they get their pants sued off and have to close down, what will that leave me with? Only standard distribution models which are owned by Gigantic Corporations.

Your title says it all: Hollywood Wins A BIG One.

But guess what, Hollywood doesn’t need to WIN BIG. We do!

I wonder how Brandon feels about this…

…Strongly.

The ruling seems to apply to companies (like Grokster and Streamcast) who “induce” people to use their software for the purpose of sharing media illegally. Listen to this
interpretation on NPR.

If the sharing software isn’t used primarily for illegal purposes, it probably won’t be shut down.

I’m sure some indie film group could offer a tool for sharing such films legally.

Ken is right. The court decided that

“…even if you meet the Sony standard (i.e., even if you have “substantial noninfringing uses”), you can still be liable for inducing copyright infringement, if there’s evidence that you actively encouraged or promoted infringing conduct.”

(Quote taken from http://volokh.com/archives/archive20050626-200507_02.shtml#1119891303)

David Post notes in that post, that the Court left open the question of whether someone who doesn’t induce copyright infringement can be held liable.

There’s more analysis here:

http://www.scotusblog.com/movabletype/archives/2005/06/newchallenget.html

and here:

http://www.scotusblog.com/discussion/archives/grokster/index.html

I’m not entirely sure about your enthusiasm with regard to this, Craig. Personally, I think it merely stifles innovation. P2P is an effective method of data transfer and what you’re saying is that the creators of a tool should be held accountable for what is done with it. Guns would be a nice melodramatic example. Furthermore, what qualifies for liability is poorly defined by this case and it sets a very poor precedent.

Maybe instead you should be shaking your finger at the millions of people who don’t find copying music or films to be part of their personal moral code.

And CD-Rs aren’t entirely legal, though they may be in America (I don’t live there, thank god). Consumers in many countries have tariffs placed on their blank media to supposedly compensate for piracy.

P2P networks that enable copyright violations are, in fact, liable for such copyright violations.

Craig, if you were in law school, the prof would stare down his glasses at you and declaim in a stentorian boom, “Mr. Mazin, this is not what the court held. You did not read the opinion very carefully.”

The quote you use from Souter makes this clear.

Hosting a P2P network is not sufficient to evoke liability. A mens rea must exist, e.g. “with the object of promoting its use to infringe copyright.”

Brandon, I too make my own films and want nothing to do with the Hollywood system, but you don’t need p2p for indie film making. So that’s not a very valid point.

Just stick it up on a server and let people download it directly. There ya go.

GAh! Damn double posts!

But while I’m here again:

Also, Brandon, you claim that without p2p there are no non Hollywood distribution models. You must be incredibly unimaginative if you think that. There are a LOT of models that Hollywood wouldn’t even consider and they’re ALL AVAILABLE TO YOU! (And me).

Just stick it up on a server and let people download it directly. There ya go.

Which is a horrible option unless you have the money to pay for the bandwidth. Which is one of the reasons programs like BitTorrent are useful - you can distribute the bandwidth and the cost.

The Supreme Court ruling will not in any way prevent voluntary dissemination of your own material on P2P networks. That kind of dissemination does not violate any copyright law. You are giving the user permission to copy it.

The court was clear that the basis for its decision was the intent of the particular P2P network, not the technology itself. It was a no-brainer decision that needed to be made. As Grokster’s attorney pointed out, they still get to have a trial on whether the intent of their network is to violate copyright. They may prevail. If they don’t, they should be shut down.

Photocopy companies like Kinkos faced the same issue almost two decades ago. They merely began requiring users to sign releases for copyrighted material stating they had permission. P2P networks can do the same thing. A big warning that says, “YOU MAY BE ARRESTED IF YOU USE THIS NETWORK FOR ILLEGAL COPYING” goes a long way. It won’t stop technology; it won’t even stop piracy. But it will deter and it will prevent copyright theft from being the norm.

If you think some lightweight copyright regulation will stifle innovation, you should consider the effect of no intellectual property protection on innovation.

Signed: a liberal…except on this issue.

I think what this shows most clearly is how behind the times lawmakers and courts are when it comes to the online world. They are just now, years after the introduction of Napster, addressing the issue directly. Meanwhile, a number of non-traditional p2p options have become readily available and incredibly popular, such as mIRC and BitTorrent. BitTorrent is basically untouchable because it’s not even a filesharing program, but rather a method of delivery which can be utilized by any number of companies and designers. And trying to police or shut down mIRC is dead in the water.

But in four years, when the Supreme Court has finally made a decision on these two systems, the newest set of delivery methods will be available and running just as rampant. I think they are really wasting their time going about things this way (I dunno what would be better, but I’m confident something is).

For the record, I’m one of those punk college kids who dabbles in the downloading of music, mostly foreign/hard to find/expensive stuff. And it’s not worth anything, but I fully intend to begin buying every album I’ve downloaded and enjoyed if/when I get a job that leaves me with a fair amount of disposable income.

I think what this shows most clearly is how behind the times lawmakers and courts are when it comes to the online world. They are just now, years after the introduction of Napster, addressing the issue directly.

I have to say this is a rather naive overview of the legal process and system. This issue is not being addressed by courts for the first time; it was on appeal. It is just now reaching the highest court but had already been reviewed by two previous courts. It has made its way through both the trial and appellate level.

The Supreme Court is not a drive-through window in a fast-food establishment. While much of our society might be in instant gratification mode, that does not extend to the judicial system. It takes considerable time to brief and prepare a case for appeal. It’s not something done in an afternoon. Many things today, including the online world, move at a very rapid pace. But there is a very real and valid reason why not everything moves at that pace.

I never claimed that there are no alternative distribution methods available other than P2P.

What I said was that You’re not going to get much sympathy out of me for Large Scale Coporations winning a battle to further secure their strongholds.

Sorry but the people losing out are not those making small movies, or people that really need the money, nor is it hurting small artists.

I know many bands that have made their careers because of P2P and the internet.

Most importantly, people who see films are always going to enjoy the communal experience of the theater setting and films will make money that way. But DVD’s account for most of the profit you say? Well I guess its high time for the Studios to come up with electronic means of distribution that rivals that of P2P but with more features and of a better quality.

And! what blows me away most of all is that someone like Craig Mazin would even be the least bit concerned with this. What will the rampant onslaught of kids stealing videos on the internet do to you? Cut out 5% of a paycheck? I don’t understand your concern.

This isn’t plagiarism, no one is ripping you off.

You can shed a tear for Hollywood if you like, but it will be a tear wasted.

Well, if I hadn’t said it before, I’ll say it now.

I’ve got the best damn commenters on the web. :)

Great discussion, folks.

Here’s what I think the upshot will be.

I think this case will actually help foster legitimate P2P networks that function in concert with IP owners. Yes, David Hoag is correct…only P2P networks that clearly encourage piracy will be held liable (and the Court found that Grokster clearly met that test…and even made note of the suffix “ster” as a derivative of Napster, which the Court is apparently not very fond of).

So what’s the result? P2P is legal. Distributing copyrighted material without the permission of the copyright owner is not. P2P networks that encourage piracy are liable for it. P2P networks that are legitimate are now emboldened by a ruling that allows content providers to discriminate between “good” P2P’s and bad P2P’s.

So Brandon…this is good for you. This is good for the bands you’re describing.

This is only bad for pirates.

As for my personal concern: I create intellectual property, and I profit from the exploitation of that intellectual property. I’d like the people who come after me (as well as writers who aren’t currently as successful but who would like to be) to benefit from the same system that rewards me. Piracy hurts corporations in the immediate sense, but the smart man asks where the pain will flow.

I believe that corporations, with their duty to their shareholders, will do everything they can to protect their profits from piracy. That means they will reduce their expenses. If they lose money to piracy, I fully expect them to attempt to recoup their losses from the residuals they pay out to writers like me.

Writers specifically like me can absorb that loss (although I don’t like the idea of losing money I think I deserve), but there are plenty of writers who literally (figuratively) exist off their residuals, and those writers deserve advocacy.

Not every Hollywood writer is rich. Most, in fact, aren’t.

This ruling will have no effect on Usenet. It will have no effect on Bittorrent. It will have no effect on Freenet. It will have no effect on .

The only way to discourage piracy is for copyright owners to sue people who trade their material, but that will ultimately be proven an ineffective strategy.

Digital piracy is here to stay.

The only effective way to cover the losses caused by digital piracy is to tax broadband users and distribute the revenue to copyright holders. Some kind of monitoring/ratings system will have to be established to determine how much of what is being pirated, to divvy up the spoils. I think there are already companies that attempt to do this.

Internet users have found ways to steal everything on the internet except for their physical connections. Ultimately somebody has to pay the bandwidth bill. It may be you, it may be your employer, but somebody pays - and will eventually pay more.

That’s a can of worms that the studios and record companies will open eventually, after they realize that a lot of lawsuits only make lawyers rich without putting more than a dent into piracy.

And they’ll be successful too. The MPAA and RIAA practically own Congress already. Just look how they got the copyright period extended to ninety years.

This ruling is almost irrelevant. P2P programs like Grokster and Kazaa have pretty much faded away in favour of file-sharing protocols like Bittorrent. And considering that a new form of piracy comes around every few years, then we’re just about due.

Lawsuits just aren’t the way to fight piracy; the courts are too slow to keep up with technology. iTunes and Microsoft’s Avalanche are steps in the right direction - companies need to take control of filesharing, not try to stamp it into the ground.

I agree that these systems can be sustained without piracy playing a role in them, and am excited for that day as well.

All I am saying is that moments like these could be potential turning points where we can change the system instead of fearing it.

Craig said,”If they lose money to piracy, I fully expect them to attempt to recoup their losses from the residuals they pay out to writers like me.”

and, “I’d like the people who come after me (as well as writers who aren’t currently as successful but who would like to be) to benefit from the same system that rewards me. Piracy hurts corporations in the immediate sense, but the smart man asks where the pain will flow.”

The people who come after you my be able to benefit from a whole new system, those with rewards that exceed even yours.

Anyways, great discussion and I’ll talk to you all soon.

Brandon

Craig,

Quite a thread you started…

(1) I agree with the decision. As others have noted, it won’t stop online piracy, but will slow it down a bit.

(2) I’m not sure I understand any of brandon’s arguments. Taking just one (not quite at random) I would ask him how he would feel if someone took away 5% of his paycheck? Taking them as a whole there seems to be a Coldplay “shareholders are the worst evil” kind of thing—an indictment of capitalism. Absent capitalism there would be no computer to share songs, very little songs or movies to share anyway and most of us would be working in the mines. Absent large studios making money off their movies, less and (to my mind) less interesting movies are going to be made.

Sure there are independent movies out there that don’t suck that were made for $3000 (not counting later marketing and distribution costs in the millions), but frankly the stuff I like: The Incredibles, Scary Movie 3 (plug for Mr. M), Mr. & Mrs. Smith (to name two DVDs I own and a movie I’ve just seen in the theatre) are very expensive and could only be made with studio backing. I’m sure SM3’s budget of $45 million (not counting marketing and distribution costs) was the cheapest of three, The Incredibles and Mr & Mrs S. were probably in excess of $90 million each.

Moreover, and just as importantly to me as a wanna-be [professional] screenwriter, less money for the studios (and record companies) means less risk-taking which means less opportunity to break-in.

Take away 5% of a studio’s or record company’s profit this year and that’s X number of new scripts that are not going to bought next year or Y number of films not made (or Z number of new acts that are not going to get signed). Craig and the other pros on this board will do okay, they’ll still get assignments because they’re a known (and non-risky) quantity. But who the hell is going to risk money hiring some new kid on the block when profits are tight? And who is going to greenlight a project like Lord of the Rings or the original Star Wars?

(3) Last point Several people make an argument comparing guns to P2P generally. The comparison is inapt. A better comparison might be saturday night specials to (the original) napster.

Cheers,

T

T-

Again, What don’t you understand about this:

I am not against capitalism. But I am against the government interferring on behalf of large corporations but not on the side of the smaller people.

That’s it. What isn’t to understand?

And, I would gladly give away 5% of my paycheck to help support new forms of distribution and communication. Hell, I’m giving away 30% to help support preventing them.

Thanks.

T-

What don’t you understand:

I am not against capitalism, but I am against the government imposing laws that strengthen those already in power.

And I’d gladly give 5% to promote new forms of distribution and communications. Hell, I’m already giving 30% to prevent it.

David-

I don’t think I’m being too naive. What I was saying is that this is the first big decision to (possibly) affect online content distribution. There have been other, more specific cases here and there, but this one is quite far reaching. But just as this decision is being made, it’s going to become irrelevant quite quickly. I understand and agree that courts making major decisions have to take the necessary time for those decisions—often people who would complain at how slow court decisions are would be the same to complain when a court seems to make a snap judgment they disagree with.

My point is not that I think courts need to go faster to match broadband speeds. My point is that the solution to the problem is not in legal cases at all, but rather in the choices available to the corporations who are actually being affected by the problem. Let the courts spend their time on more important and solvable issues.

I also think it would be naive to see this decision as one only against piracy.

This is an industry making sure their ancient models remain in tact for as long as possible.

Also, The record and Movie Industries existed before it was necessary to spend 300 million on a project, and they will afterwards. They will continue to pump out movie after movie and album after album. The best analogy for what is happening would be the record industry. Have they slashed jobs? I’m not sure… you tell me.

Please don’t argue points which are based on fear of what will happen if things change. Things change. And they will continue to.

I’m sure this was the “correct” ruling, but I think it’s both futile and, as Brandon said, a case of the industry trying desperately to hang on to a business model that is dying.

Where would we be if the M.P.A.A. had gotten its way over twenty years ago? “The VCR is to the American film producer and the American public as the Boston Strangler is to a woman alone,” Valenti famously said, and billions of dollars in video tapes and DVDs have proven him wrong, paranoid, and a bit of an ass. Most people only use new technology to break the law until they have a legal way to use that technology. The Supreme Court ruling doesn’t change the fact that the movie industry needs to adapt or die.

Brandon,

What little people are you talking about? We are not talking about a starving Jean Valjean stealing a loaf of bread. We are talking about people with disposable incomes or allowances who are chosing steal intellectual property from someone else simply because they can do it.

These people pay for their food, clothes, transportation, etc. The government enforces laws that protect people who sell food, clothes, transportation, etc from people simply taking these things. Generally we call that theft. How is theft of intellectual property different from theft of any other sort of property? Answer—it’s not. There is no moral difference between downloading a movie, sneaking into a movie to watch it for free, or stealing the canisters of a film from some random movie house.

As to your question regarding job losses, there have been a lot of job losses in the recording industry at all levels—you are welcome to search google or altavista.

Mike,

There is a huge difference between VHS and a P2P network. It’s rather harder to pirate movies on VHS and DVD than via a P2P network.

As to your second point, iTunes has been around for some time and I don’t see the dent in illegal downloads of music. People who use illegal services will continue to use them until they are sufficiently deterred by fear of a lawsuit or criminal action or until they are actually facing a lawsuit or criminal action or they get religon.

Both,

I’m rather curious what alternate industry model you seem to think would exist in a world where P2P was encouraged and what sort of movies would be made.

Mike you say “adapt or die”—assume they can’t adapt and they die. What then?

This is my last post on this subject. It’s been great to listen to everybodies ideas.

here are mine, clearly:

In conclusion, I respect everyones opinion, and am glad I live in a country where we can discuss this and still laugh over drinks later on.

All great changes in Hollywood came from drastic technological advances. It’s a fact. This is no execption. From sound, to lighter cameras, to VHS and DVD, to the Directors that came in and CHANGED Hollywood, making it a place that gives you the BLOCKBUSTERS you so enjoy. Change is good, we don’t need to hold Hollywood’s hand through this new phase. She’ll adapt either way, because Hollywood isn’t the corporations and studios that sit in LA, it’s the dreams and stories, images and emotions that we see on the silver screen. And those, will never die.

Trevor says: “The government enforces laws that protect people who sell food, clothes, transportation, etc from people simply taking these things. Generally we call that theft.”

The question isn’t whether it’s theft or not, the question is whether the inventor of the technology should be held liable for their theft (or misuse)? Should the grocery store owner be held liable for the people that steal from him? Should the car manufacture’s be held liable if someone steals your car? If one is held liable, they ALL should be. Theft is of course theft, but don’t close down the grocery stores and car plants just cuz we can’t control the evils of human nature.

Why are American citizens okay with their rights being taken away. Everyday you are losing rights. And you seem to be shouting to your government, “Here take more, we don’t want them.” You even fight those who fight for you to keep them. It’s nice watching America implode from where I sit.

Jen, we shall clank mugs as we watch the fireworks…

Hehehe. This is an argument about outlawing those who create technology for the use of digital sharing. On a webblog that couldn’t have existed without similiar technologies. Hehehe.

Chad:

That’s simply not true. This website does not use any P2P technology in any way. There is no file-sharing that occurs on this site.

Why are American citizens okay with their rights being taken away. Everyday you are losing rights.

Such as?

Jen,

You have the right to shadow box almost anytime or anywhere you want. Your right to shadow box diceases when I (or someone) else is standing such that your boxing would hit me square in the face. Which is to say your right to shadow box should not, and does not, trump my right to be free from assault.

Similiarly, you have the right to share as much non-copyrighted stuff as you would like, but once you start sharing stuff that is copyrighted by someone other than yourself you are stepping on their, pre-existing, rights.

The P2P pirates are the ones taking away rights, not the government. Don’t believe me check your copy of the Constitution—copyright was written in long, long ago:

Art I, section 8:

Congress shall have 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.

Cheers,

T

For “diceases” please read ceases. Sorry!

This website does not use any P2P technology in any way. There is no file-sharing that occurs on this site.

But then, Chad didn’t say those things. He said that we are using a system of digital sharing to have this conversation about the laws of digital sharing.

And he didn’t say P2P. He said this site couldn’t exist without similar technology. Which is technically true - but completely irrelevant.

It’s like saying the guy who secretly digitizes a film print and shares it on the internet is using similar technology as the movie distributor who sends a movie print to the theatre over the internet (or via satellite). They do use similar technology, but the right to do so, and the scale of the distribution are different.

Which is why the sense of irony Chad tried to invoke falls so flat. Both P2P and web blogs use a system of protocols to share files over the internet, but the similarity pretty much ends there.

Erik:

We’re not file sharing here. I can’t see your files at all. This site is one-way. I post files, and you view them. Even your comments are my property. :)

But yeah, we agree. Chad’s just wrong.

Trevor-

Your Shadow boxing example still does not make a case against the P2P software creators, and it is they, not the pirates, who are on trial.

A better analogy is: That I own a Shadow boxing arena. People come to my ring and are allowed to shadow box, as long as they don’t hit other people. But, as soon as people begin to assault other people, I as the owner of this arena, am sued and shut down. Even though the people who hit others signed forms saying they would not.

That is what this trial is about. It’s not about the pirates. It is about the people who created a forum and are watching it be misused. I understand that there is still intent which has to be proved. We’ll see how that turns out. In the meantime, please at least understand what and who is on trial, so that your opinions sound informed.

This is some victory for Hollywood. Let me ask you, what is the point of technology companies trying to push forward with anything new? They’ll just get sued. They will all move overseas taking their jobs and tax revenues away from the US for fear of getting sued.

What’s next, sue laptop manufacturers because people can potentially use the technology to pirate movie?

In the long run, this “victory” will be a a blip on the radar screen because you cannot stop the advance of technology no matter how hard you try to legislate it. Entertainment companies need a new business model. They are only hoping to stem the tide enough to buy time to find a technology that only the most hardcare techies can defeat, thus marginalizing piracy to an “acceptable” level.

Now, as a writer myself and an artist, I know how important it is to protect intellectual property rights. But instead of fighting for the old ways, I think energy and money are better spent looking for way to take advantage of the new ways.

Steve

We’re not file sharing here.

No one, not even Chad, said we were file sharing. I certainly didn’t.

I did say we were digitally sharing. But that doesn’t mean we are sharing files. It just means we are sharing information.

For this next bit, please give me a moment to place my tongue firmly in my cheek:

I can’t see your files at all.

Then why does your server keep reading my browser’s cookie file? I can see your site. You can see my cookies. We’re sharing files!!! Oh my God! ;)

But instead of fighting for the old ways, I think energy and money are better spent looking for way to take advantage of the new ways.

Who’s fighting for the “old ways”? I think this will help legitimate P2P flourish. No, your argument about “looking for ways to take advantage of the new ways” is hardly a justification for not fighting criminal behavior.

A better analogy is: That I own a Shadow boxing arena. People come to my ring and are allowed to shadow box, as long as they don’t hit other people. But, as soon as people begin to assault other people, I as the owner of this arena, am sued and shut down. Even though the people who hit others signed forms saying they would not.

An even better analogy would be:

You own a shadow boxing arena. You tell people: “Remember that place where you could hit each other? We’re replacing it”. Then you set up your business model so that you benefit when people hit each other. Then you get sued for people hitting each other, because where you live hitting each other is illegal.

Remember the Supreme Court said that Grokster could be sued for inducing and encouraging people to commit copyright infringement, not simply for making a product that could be used for such an act.

To quote David Post from the Volokh Conspiracy again (who, in turn, liberally quotes the Court):

On, then, to the second part of the holding, the application of that law to these facts. No need to decide whether the Grokster or StreamCast systems were in fact “staple articles of commerce,” because here the “record is replete with … evidence that Grokster and StreamCast, unlike the manufacturer and distributor in Sony, acted with a purpose to cause copyright violations.” In other words: we don’t have to see whether a presumption of intent is or is not warranted; here’s there was actual proof of such an unlawful intent — “words and deeds [that] show [defendants’] purpose to cause and profit from third-party acts of copyright infringement.” These included: 4ac8f6e9602ef2418c3297a6a30781fa Here’s where things get weird: the defendants didn’t really dispute this either…

Here’s the link to the rest of this, since I may being moving beyond fair use… (I may have already moved beyond, in which case Craig will probably hit the delete button.)

http://volokh.com/archives/archive20050626-200507_02.shtml#1119975283

Wow. Looks like the blog completely chewed up part of that post, even after the preview said it looked okay. Ah well, I guess that means people will just have to visit the post. :)

When Kurt Rambis was asked what was his favorite part about playing in the NBA, he replied, “Free shoes.” Everyone loves free stuff. We have an entire generation of kids who have not had to pay for their favorite singles. When the technology is used to promote a new band by giving away a song for free… this is called a “loss leader,” and is a business practice that has been around for centuries. Get you in the door at a loss, but you’ll end up buying enough shit to justify the loss on that one product. Nobody is saying that new bands or even established bands with new material shouldn’t do this to promote their album. But it doesn’t mean that you should then be able to go steal five cuts off of Eminem’s new record because it only takes a few clicks to do it and your chances of getting caught or sued are slim. There is a huge difference between a band using the technology to promote themselves and out and out thievery.

Furthermore, if you think the movie studios aren’t working on a dual front here… 1. going after pirates and those that foster pirating and 2. developing their own delivery system… you aren’t current. The studios have seen the success of Itunes and are already on their way to establishing their own delivery partnerships (or in-house systems.)

To say that the entertainment industry is against new technology or delivery methods for disseminating their films and television shows is just misinformed. The entertainment industry is only against theft of those properties and is actively seeking new ways to deliver.

Finally, why should any writer, director, actor, set painter, stunt man, transpo driver or studio exec have to take even a 1% pay cut so that people can steal their finished product? You lost me with that argument. No one is arguing that the technology is here to stay. No one is against you using the technology to promote your independent films for free. The entertainment industry only wants to end piracy… and if certain file-sharing services go out of business because they encourage piracy, then I have no problem with that.

Craig,

You’re saying that people should be sued for encouraging others to do wrong? Is that correct? Or making it easy for others to do wrong? Why are you so okay with allowing the government to be everyone’s mother: “Mommy, he made me do it!” Why not be responsible for your own actions! If the pirates steal, they are the ones that have commited the crime! You seem to be saying that if someone makes it easy for me to commit a crime, then it’s really not my fault and they should be punsihed. That’s just crazy! It’s a problem that you are advocating the restriction and censor of innovation. It’s a problem that you are allowing individuals to not be responsible for their actions. What if Henry Ford (who I’m not saying invented the car, but made it available to mass population) was sued and forced to close it’s car plants because of all the people who died in intial car accidents? Where would we be today? Even if Henry himself was standing at the side of the road telling everyone to drive 90 miles an hour into a tree, it is ultimatly my decision to do so. And if I do decide to be “encouraged” then shame on me.

I have yet to understand all the people who have been against this ruling. I have read tons of analogies and metaphors and although some of you are creative writers, there’s a huge point being missed here. This has nothing to do with stunting technology. This has nothing to do with the Big Bad Man, coming down on the little guys. It is about theft and the encouragement of theft. No one, I repeat NO ONE is suing P2P creators because it exists. BitTorrent and Grokster are being sued because they promote theft. Perhaps all this technology talk is confusing the issue. Encouragement of theft has always been illegal. Encouragement of any illegal activity has always been…illegal. Is everyone really that ok with theft? Am I missing something here? Yes, we all did it. Yes, we’ve all done it. And we should be thankful that we got away with it for so long. Again, WHEN YOU TAKE SOMETHING THAT YOU HAVEN’T PAID FOR, IT’S ILLEGAL. IT’S CALLED STEALING. PEOPLE WHO ENCOURAGE OTHERS TO STEAL IS ILLEGAL. STEALING IS BAD. We learned this in kindergarten.

It would be nice, now, if there were a ruling against the studios (from the guild, supreme court, whoever) promising prosecution for those producers / director who force writers into free rewrites …

VANESSA:

I actually misspoke back there. It’s more than “encouragement”. I live in New York. I can’t go 100 feet without seeing some guy selling a bootleg of some movie that’s still in the theatre or not even out yet! And you know what? I know full well that these movies are illegal to purchase. Why? Because it is stolen materials. Not only do I know that they are stolen, I also know that the means in which they obtained the material is illegal. You know that too. And that guy selling it? Yeah, he knows that too.

If that same guy “encouraged” you to go into a movie theatre, videotape a movie, and pass it to all your friends then yeah, you’d have a point. But he has the material. He has stolen property. Like Grokster and BitTorrent. Again, the software isn’t being sued, the sites are. Why? Because if I maintained a site and it was being used for illegal activity I would shut down the site or make sure the stolen property was removed. It’s called responsibility. They showed none. And as cliche as it may sound, you gotta pay the price.

Kevin:

You make it sound so simple. But it isn’t. BitTorrent and Grokster do NOT inherently promote THEFT! END OF STORY! Did you learn how to think in kindergarten too?

I want so badly to stop posting..want, sooo badlyy..

I’m sorry for being mean in my last post. Kevin, your point on the responsibility of the site owners is noted.

But right now, there is no way to sift through pirated and legal materials. An Mp3 is an Mp3. Of course the content creators are working on making protected file formats, as they should, and this is where they should be spending their time and dollars.

How can the site be responsible when the technology isn’t there to block people from doing what they are doing? I agree and believe that if the technology was there, and they were not implementing it, then there would be a problem.

You may say that it is irresponsible for an application to be released before it can differentiate between legal and illegal files, but again, I believe that responsibility lays in the content creators lap.

Thanks, much love.

And Kevin:

In case you are unfamiliar with BitTorrent and Grokster Technology, They do not have the stolen material. People do. On their own computers and use the sites as a way to find other people who do. As well as people who use the site to trade legal materials.So you’re NY analogy doesn’t hold much water.

I’m not against the ruling. I just think the only people this ruling helped were lawyers and polical groups. If you think that it helped artists in some way, you are delusional in my opinion.

I know and work with a number of wealthy entrepreneurial individuals who now intend to create their technology startups offshore to avoid the US courts as a result of this decision. This is a real problem for the future of technology in this country.

The position of the bloggers on this site is that that file sharing technology was invented to steal. I disagree vehemently. File sharing, and likewise technologies, were invented to DECENTRALIZE power. To take power away from the megalith multinationals and return it to the individuals where it belongs, and where creative endeavors can regain a foothold. To curb the rampant greed running through the entertainment industry, as it fleeces the customer (remember them?) and forces inferior art down their collective gullets.

The lawyers are salivating over this decision. They know that all technology companies will now have to hve a freaking appendix in their contracts about their so-called compliance with the DMCA. What a joke.

Steve

BRANDON:

Are you saying that the administrators of Suprnova didn’t know their site was being used mainly to distribute pirated material?

My thanks to Craig for hosting this Discussion. After much thought, I believe this is the best analogy, and actually shows the courts decision making somes sense.

Filesharing services are essentially transportation systems. So, let’s say a brand new hyper fast train was invented which shot through the country, from NY to LA in under an hour. Let’s call this train GroksterRail.

Now, some people use GroksterRail to carry their own materials which they wish to send to LA from NY, but the majority of the passengers on this train use it to transport crates full of pirated materials, real physical crates filled with bootlegged DVDs, CDs, etc. And when they arrive in LA, they give it all away for free. Obviously violating the copyright laws, and stealing from those who made the works.

These scoundrels use GroksterRail because GroksterRail doesn’t have security, they don’t police their own train. Yes, some people use the train to transport legal materials, but some do not. In fact,the overwhelming majority of people riding on the Magnificent GroksterRail use it to transport illegal crates of stolen product.

Now, would any of us have any problem with the government declaring this type of transportation sytem, which lacks security and is used for illegal transportation, unlawful?

At this point the government isn’t even closing down GroksterRail. It’s just saying, “The intent to setup a train company with the intent to aid in illegally trafficing materials is unlawful”.

Would we say it is the responsibility of the content creators to invest in technology that makes their DVDs and CDs explode upon entering the train? Would it be their job to make sure their DVDs would sprout little legs and run away from the train, ensuring an avoidance of travel?

I’d say the government would shut down the train, make sure they got their security up to par, made sure the GroksterRail checked IDs so that Criminals would stop using it.

Sure this is some great new technology, and the government wouldn’t be lawful in destroying the Hyper fast train forever. But I doubt any of us would disagree that we would never see a day where the government looked a blind eye at this speeding train, as it catered mostly to theives, even if there were a couple nannies carrying babies seated alongside them.

Maybe this ruling does make sense. I’m not here to prove myself right. Just to find the truth. Thank you, AND GOOD DAY!

BRANDON:

And this may seem mean but if it is I apologize but I noticed that everyone who is for the ruling has sold some piece of copyrighted material and/or written, directed a film. Everyone who is against the ruling has not. I assure you, I’m not being petty but once you start to truly work within this industry, you’ll have a different tone. When I see something that I’ve spent an enormous amount of time and energy on, sitting on a street corner, I feel the theft. You will too.

BRANDON:

I just read your last post. It is indeed the perfect analogy and I agree with you 100%. Subsequently, you won the analogy war which was the real purpose of Craig’s post.

And I wouldn’t ride GroksterRail cause I wouldn’t want to get shot.

KEVIN:

That may be true (regarding truly working in the industry), but one thing I hope more than any thing else, is that it won’t be true. That no matter how much work I do, and how high I rise, I won’t be against things like grokster. I will be a Pearl Jam and not a Metallica.

Time will tell.

“That may be true (regarding truly working in the industry), but one thing I hope more than any thing else, is that it won’t be true.”

-I mean that when I truly work in the industry in full creative standings, I hope my opinions will reamin the same.

Oh, and congratulations on your feature!

Kevin,

BitTorrent and Grokster are being sued because they promote theft.

Just for clarification, BitTorrent is not being sued. This suit was against Grokster and StreamCast only.

Kevin,

A) You say: “Everyone who is against the ruling has not (sold copyrighted material).” For you to presume this without knowing of of us, is completely asinine!

B) You say: “once you start to truly work within this industry” This is the pretty much the jist reason why those of us against this reason are against it! I don’t want to work within “this industy”, I’m looking and hoping and advocating for a new industry, evolved of people like you!

Get off your high horse!

Steve’s points are spot on.

I still think that they should take out the phrase “under god” from the pledge of alliegence as that it discriminates against those of us who freely chose to believe in something other that god. I don’t have an analogy for it, just the reasons I listed in my previous post.

Of course we should take that phrase out. My analogy is that of a large mongoose who, oh forget it.

Hey Kevin, I think I know you - I believe I met you and Larry at one of the Circuit events sponsored by Mark Grande - I just sent an email via your site - how’s it going?

VANESSA:

Take it easy. My horse is quite low and will probably be shot soon.

You shouldn’t be so quick to villify someone without knowing who they are as a person. But if you wish to live in a world “evolved” of me, so be it.

Brandon:

And thank you. It’s nice to have a debate with someone intelligent who doesn’t get personal. It’s people like you that make this site interesting. I’m glad you’re so…evolved.

JOSHUA:

I remember meeting you. From what I hear, you’re a really good playwright.

Heya Brandon,

Two Things…

You stated that companies like Bitorrent cannot track illegal files… Unless something has changed in the past year and a half -which it very well may have- 3rd parties have implanted trojans into P2P networks and could find out who were trading illegal materials in a matter of minutes. I might be wrong about this as technology changes quickly, but something you should look into. I’ve seen tracking stats on these sites, and if you can track, then you have to know what you are tracking.

Second, and this is on your analogy. After reading it, I don’t think you know everything the court decision stated. Because what you said the government should do, is basically what the court stated.

You should check out a site called the “Volokh Conspiracy,” they cover court cases really well, and are all lawyers, so they have a good understanding for it.

Remeber the key statement the court used was…

“…if there’s evidence that you actively encouraged or promoted infringing conduct. And there is such evidence in this case.”

Also

“Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.”

as per your reccomendation in your analogy…

“I’d say the government would shut down the train, make sure they got their security up to par, made sure the GroksterRail checked IDs so that Criminals would stop using it.”

Is basically exactly what the court is doing, except they are not even shuting down P2P, they are just giving lawyers the right to go after them, if they fit within the model they gave.

Remember, they in no way over turned the Sony standard in this ruling.

http://volokh.com/archives/archive20050626-200507_02.shtml#1119891303

Yes, I know, I said that. I have come to an understanding of why the courts are doing what they are. Though I may not fully agree.

But thanks for the links.

Hey, totally off topic, but I think some of you may know what this is:

For the past six months or so, many big budget films I have seen (I only say this because I haven’t seen it on smaller indie flicks) have a pattern of 5-7 dots in the middle of the screen for a couple of frames. It’s sort of like the cigarette burns in the upper right hand corner of the screen. But it’s a weird pattern. And right in the middle.

Does anyone know what those are? I’ve googled and researched it but can’t find any information on it. If any of you know what it is, please let me know.

Thanks.

And back on topic:

Here’s an example of a big corporation ripping off a smaller company’s intellectual property. For better or worse. Where is the government now?

http://www.kottke.org/05/06/theft-or-homage

Brandon:

My understanding is that the dots are an individual film print ID code. The idea is that if someone videotapes the screening, the recording will have the code on it (and police could identify the code), which would let them track the illegal recording back to a theater.

These dots are not reel change marks. I noticed them too.

Finally, it appears that Nike agrees that they violated copyright and did everything they could to make amends. It’s not up to the government to prosecute on Minor Threat’s behalf. It’s up to the damaged party to seek legal action, just as MGM did with Grokster.

Here’s another example of the benefits of P2P:

http://www.wired.com/news/digiwood/0,1412,67986,00.html

And might I add, A great example of how the studios aren’t worried about the implications of P2P on the artists and creators of the content.

Thanks for the dots info Craig.

Have a question for you Craig:

Let’s say I bought vinyl record X, some 25 years ago. Over the years, the record became scratched and unusable. What objection would you have to me downloading the tracks from record X off of Grokster-style systems in order to replace the damage goods that I have already bought?

Wouldn’t you agree that such downloading would be fair use? After all, I have already paid the artist right? (as well as the record label, etc.) Surely you would agree that this is not “stealing” as some simpleton posters on this site would suggest.

For those of you who still insist that such a scenario would be “stealing” - would your views change if it became known that record X is no longer being sold on the market because of the fact that it is being tied up in a legal dispute between corporate parties?

That has certainly been the case with me when I purchased the soundtrack to “The Shining” by Wendy Carlos. You can’t find it in stores today. My vinyl copy became unusable some time ago. So I have no guilt in using P2P programs to replace my legally bought copies (and am now enjoying the Shining soundtrack once again after shelling out my hard earned money to buy a copy when I was kid).

The greater tragedy in this case is that it assumes that copyright violations occur by the mere act of copying rather than taking a look at the end use of what the copies are used for. That is a dangerous and radical restriction of the concept of fair use - one that will likely come back to haunt even the screenplay writers of the world…

Justin:

If you buy X on vinyl, you’ve essentially licensed the right to own and play that mechanical copy of someone else’s intellectual property…and to only do so for private use.

Buying X on vinyl does not give you the right to steal a digital version of it any more than it gives you the right to shoplift a CD of it. If X is no longer available for sale, then my attitude does change. It’s still stealing, but you’re not damaging anyone, so not legally but ethically speaking I’d say…okay…but if it did subsequently come on the Apple Store for sale, let’s say, then a digital Pollyanna would go ahead a purchase a legitimate file.

The fact is that I doubt anyone vigorously pursues illegal downloading of files that aren’t currently being exploited by their owners.

See this is the bigger issue at hand. What exactly are we buying when we pay for something. I agree With Justin and think that it’s the actual piece of work which is just being distributed on a piece of technology. I am not purchasing a CD, I am purchasin the content on it and can do whatever I want with it, as long as its for my own personal use.

Obviously the courts agree, as I can make copies of CDs for my own personal use.

You’re buying a license to personally use one mechanical copy.

If that’s true then why isn’t it illegal to copy CDs for personal use, or to rip a CD into itunes?

I’m gratified that Brandon “gets it”.

I’m disappointed that you don’t seem to grasp the bigger picture here Craig.

In terms of the copyright debate at issue, when I purchase a vinyl record and the revenues go to the “author” of the creative work in order to compensate him and provide incentives for the creation - I am purchasing a LIFETIME right to play that work for my own private use. The underlying physical medium is irrelevant.

You comment of “Buying X on vinyl does not give you the right to steal a digital version of it any more than it gives you the right to shoplift a CD of it” is pure sophistry.

Shoplifting a CD would mean depriving a store of physical, or “real” property (i.e., the physical CD divorced from any “intellectual property” that might happened to be embedded in it). Unlike intellectual property, real property has a finite quantity and costs money to reproduce and distribute. Unlike a digital file, the physical CD can’t be in two places at once - hence your analogy of shoplifting a CD is off the mark.

And if you really believe such nonsense, then I fail to see why you seem to make an exception in cases where the underlying work is no longer available (i.e. legal entanglements). Would this exception that you have personally carved out also apply to cases where the distributor just doesn’t wish to sell the particular music anymore for financial or other reasons? What if the actual composer is just sick of his/her creation and doesn’t want store shelves to carry the music anymore? I paid for it in the past. The product I paid for was destroyed by accident/tragedy - so now I just have to bow to the whims of distributors and authors and eat that cost without getting a replacement?? Are you saying that if the reissuing of a certain musical work is tied up in legal limbo, then I would have the right to go into a record store and shoplift its last old remaining copy of the work on CD??? Your reasoning is nothing short of bizarre on this matter.

So now let’s get back to addressing the issue of replacing my intellectual property that I previously purchased legally but has sense become damaged through the limitations of the physical medium that it was embedded in. If you could make the argument that a digital file of the music I download is substantially different enough from the intellectual property that I bought on vinyl such that it qualifies as a different work altogether (i.e., a “derivative work”), then you obviously may have a point. But that is clearly not the case in the hypothetical that I have outlined for you. Digital “remastering” on to a digital CD from a pristine recording on vinyl does not offer enough new “creative” elements such that the ordinary listener would know the difference (especially when the raw digital file has been compressed into a small MP3 file). There may be a technological difference, but there is no creative difference from the author of the musical work - and copyright should only concern itself with creative differences between two works.

Technology should be ruled by patents alone.

Song X played on a new vinyl record played on a quality stereo will sound just the same to someone who hears an MP3 file of song X. It is the EXACT SAME CREATIVE WORK! The same creative work that I have ALREADY PAID FOR!!

So when you try to deny me my right to continue to listen to the creative work that I legitimately paid for Craig, just who is trying to steal from whom exactly???….

When you license the use of a mechanical copy, you also license the right to make LIMITED copies for PERSONAL USE ONLY.

That’s why you can only install a purchased iTunes song on three computers.

Justin, it’s not sophistry. It’s a contract. Don’t blame me if you don’t understand or respect the concepts behind your purchase of mechanical copies. When you buy an album on vinyl, you are most certainly not purchasing the right to own a copy, any copy, all future copies of that album.

You’re purchasing the right to own and play THAT copy.

Theft of intellectual property has two components: physical and intellectual. The piece of plastic is physical (shoplifting). The intellectual property is, well, intellectual (downloading or shoplifting).

The violation is the same. The cost to produce the intellectual property is entirely relevant to its inherent value. You can spend $14,000,000 to make a movie that no one wants and has almost no value. You can also paint a black line on a white canvas and art collectors will pay $14,000,000 for it. For the intellectual property. Not for the value of the paint and paper.

When you steal a song by downloading it, you are stealing intellectual property with a specific value.

I made an exception in the case you described because intellectual property theft typically falls under the realm of civil law, which means you must show that you are damaging another party. It’s hard to argue that you’re damaging an owner’s ability to receive fair value for his property when that owner no longer believes the property is value enough to offer for sale.

Technically, however, you’re right. It’s still theft. That’s why I made the distinction in my comment between legal and ethical. It’s still illegal.

You still don’t understand what makes two copies different. It has nothing to do with how the copies are made. The CD could be a recording of the vinyl being played on a Victrola. Irrelevant.

The difference is that it’s a different copy. You’ve purchased only one copy. You don’t get another for free just because you scratched your old one up. You are NOT buying the song. You ARE buying one and only one COPY of the song.

And you’re not even buying THAT. You own the physical property of the copy, but you are licensing the use of the intellectual property of the copy.

You didn’t pay for a creative work, Justin. You paid for the right to own a copy. If you don’t understand what you’ve purchased, I could see how you wouldn’t then understand what you’ve stolen.

“When you license the use of a mechanical copy, you also license the right to make LIMITED copies for PERSONAL USE ONLY.”

Well doesn’t that prove my argument? How are the copies I am making NOT for my personal use??

And what authority are you using when you declare that I have never “purchased” music, but rather merely “licensed” a copy? I never signed any such license. Nor have I signed any such “contract” that you refer to. I am merely bound by copyright laws that have been passed by federal and state governments.

Are you refering to some aspect of the Copyright Act that I am unaware of when you charactarize my purchasing music to own for my personal use as merely a “license”?

My arguments are based on the Fair Use exception to the Copyright Act. (I can cite you the actual law if you need me to - but somehow I suspect that you already know what I am talking about.)

Justin:

You are allowed to make personal copies of the copy you purchase (or license). You are not allowed to steal other copies.

If you purchase a movie on VHS, you’ve purchased a mechanical copy. You can copy that specific copy for your own personal use (i.e. you can’t sell the copies you make or charge people to view them).

Purchasing the VHS copy does not entitle you to a free DVD copy of that movie…or a free digital downloadable copy of that movie…or a free pay-per-view copy of that movie…or, in fact, anything else at all.

You only get to reproduce the specific discrete copy you purchased.

To your next question, my authority is United States Copyright Law, which grants copyright owners the sole authority to make copies or authorize the making of copies (other than reproduction copies of specific copies for personal use).

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner’s exclusive rights of reproduction and/or distribution.

Exclusive. Rights.

Fair Use has absolutely nothing to do with the purchasing or licensing of copyrighted material. If you think that Fair Use somehow makes unpaid downloading legally acceptable, you’re just flat out wrong.

You can learn about Fair Use here.

[ I had to post this fast - so please excuse any typos below.]

Craig,

Your reiteration of “exclusive rights” in the Copyright statute does little for your argument since you divorce it from the EXCEPTION to “exclusive rights” to copy that are found in the Fair Use portion of the statute. Citing one portion of the law without the other fails to provide a proper context of the issue, no?

That is why section 107 of the Copyright statute which contains the Fair Use provisions is entitled “Limitations on exclusive rights: Fair use”. You seem intent on ignoring the limitations that the law allows for in order to defend the overly restrictive view of copyright freedoms that the entertainment community has long lobbied for.

Again, as you are no doubt aware, the full portion of the Fair Use statute reads as follows (emphasis added):

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

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

(2) the nature of the copyrighted work;

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

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

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

If you needed “permission” from the copyright author to make a copy under the guise of fair use - then any notion of fair use would be completely meaningless since the author could simply withhold such permission.

Findings of fair use are done on a case-by-case basis, but I am sure that, in looking at the common “4-factor” test, most courts would look at the “character” and “nature” of the use I have described and conclude that the copy in question was made to replace my lawfully purchased copy which would not affect the market for the original purchase of the work.

It seems axiomatic to me (and others - based on other commenters to this post) that if you purchase creative work X, then fair use allows you to create protection copies of X so that you can protect your investment for your own personal use throughout your lifetime. If the copy you make is actually a different “derivative work” then obviously this logic wouldn’t apply. This does nothing to disrupt the economic incentives for authors. On the contrary, it creates futher incentives since authors know that they can’t force people to purchase the exact same work multiple times, but instead should be inspired to create more derivate works for others to purchase.

I can see that we could go round and round ad infinitum on this issue. Since I think we can both agree that we don’t wish to have our time consumed with endless relplies on this post - I am content to admit that we have different interpretations of both the current concrete law of copyright as well as the broader policy reasons behind copyright protections.

You can continue to respond (and I expect you, since this is your blog site). But it’s unlikely that any further back-and-forth would advance the argument beyond what we have already put forth - so I’ll just let my own arguments stand and have enough faith that people will understand the differences without my having to respond further.

I am confident enough that if people read both of our posts, most reasonable people will agree with my analysis and see your views as those of an anti-consumer monopolist bent on unjust enrichment by forcing people to purchase the same craetive work over and over again. You obviously feel differently and think that I (and others who feel like me) are nothing more than common theives who steal from artists. It’s obvious that we won’t bridge this gap on this discussion board, so I’d simply invite you to direct people to this discussion and let them make up their own minds.

Cordially,

Justin

Justin:

Thanks for inviting me to kindly shut the fuck up, but I don’t think I will. :)

The Fair Use statutes, which you summarize reasonably above, simply do not support your position (which is why I didn’t bother quoting them here). Since you’re not downloading music to criticize, comment, news report, teach (including multiple copies for classroom use), do scholarship or conduct research, but rather simply to enjoy in the way the song was commercially intended for you to do, it’s not Fair Use. You may believe you are right, but you’re not. You may believe that I’m a monopolist (what???) or that I’m anti-consumer (huh???), but I’m not.

Nor does downloading music that the creators and owners clearly intend for you to purchase pass any other possible Fair Use test. Ever. In any way.

And no one, Justin, is forcing you to buy the same creative work over and over again. What an odd thing to suggest! No, I’m pretty sure you scratched the shit out of your record, and now you want another copy for free.

Sorry. That’s not Fair Use, and while it’s extremely likely you’ll ever be in a position to claim Fair Use in front of a judge, if that day comes, you’ll see (just as everyone before you who has tried that argument) that it doesn’t hold water, the theorizing of the “copyleft” notwithstanding.

But yes, cordially. :) You’re a very smart guy. Pleasure doing battle!

Craig:

Wouldn’t it be cool if this were the first of your comments sections to reach 100 posts. I mean, triple digits! That would be something.

Why yes! It would be!

(and if someone says one…more…thing…!!!)

C.

one. more. thing.

I’ll admit it. I’ve used Bittorrent. I used it to grab some episodes of a show that I was speccing. I also TiVo’d them. I’ve watched them a couple of times on my TV, and a couple of times on my computer. And, I don’t feel bad. If the DVD boxset of this show comes out, I’ll be buying it, even though I could just burn a DVD of the show, because there are bound to be cool extras, and interviews, and shit.

I’ve downloaded songs when I couldn’t find them on iTunes and I couldn’t get them out of my head. I didn’t feel that I was shirking the band/singer, because I’ll be seeing them in concert, or I’ll be buying their next albums, or their paraphrenalia, or…

I’m working on a thing that’s got horror elements, I’ve looked for scripts at Samuel French that are similar in tone/genre. I can’t find them, so, I get them from drew’s script-o-rama. I don’t feel bad, because I saw these movies in the theater, or I own the DVDs.

There’s a TV show that was picked up that I cannot wait to see. The pilot script was amazing. A friend got a pirated copy, and offered to give it to me. I want to wait until it comes out, so that I don’t have as long to wait till the next episode.

I’m happy to wait till movies are out on DVD (because I get sick of the phone calls people take in movie theaters), unless it’s something like War of the Worlds that’s cool to see on the big screen. Something like Pieces of April? I waited.

These people get my money when I can give it. I don’t think that I, the individual, should be punished because there are those who refuse to pay for anything. For me, sampling some will make me buy more.

The hubby, Simon, has got all het up, now:

As dictated by Simon: “By making the companies (Grokster, etc.) liable, piracy moves further and further underground. If the music business had negotiated with Napster back in ‘99, they would have been 4 years further down the line of commercializing downloads. Instead, everyone’s used to it being free. The latest protocols are encrypted and designed in such a way to look like HTTP on the network so ISPs (etc) can’t filter them. The business model’s broken, the Supreme Court’s ruling doesn’t help fix it.”

What freedoms are we losing?

http://www.guardian.co.uk/worldlatest/story/0,1280,-5122918,00.html

This is the scariest times I have ever been a part of.

Brandon:

The freedom to conceal sources as part of a federal investigation has never existed.

Sorry, but nothing’s been lost. The President of the United States had to submit to questioning on this matter, which put a government worker’s life in jeopardy. Reporting for the New York Times does not, and has never, meant that you are no longer accountable to the law.

I reiterate…no freedom was lost here.

I am so astonished that you would stand by these actions. And don’t say you didn’t, rationalizations of the courts decisions is as bad as applauding them.

So now, because 1 life was in jeopardy, we should make it so that sources will not divulge any information?

One minute you are for the writer, next you are not. Actually that isn’t so, you are always for the authority. Have a wonderful life.

I cringe thinking about which side you would have been on during the red scare hollywood blacklist era.

I probably would have been on the side of inidividual liberties but against those who continued to support Stalin even after he made his pact with Hitler.

Count me in with Kazan and Schulberg.

And regardless of your opinion, I’m a writer every minute of the day, Brandon.

I didn’t say you weren’t a writer, I said “for the writer”.

and, I will count you in with them. How could I not.

The funniest thing is that companies like Mansanto, which make acknowledged harmful products still thrive, yet the government will go after a company like grokster.

G-d save us all.