Facts are neither true nor false. They make propositions true or false.

"Effectively perfect" overstates this claim in a big way.

Hostile takeover is much more likely after they execute this plan fully.

In the fall of 2005, I was in a computer lab in Italy. There were probably 10 or 12 desktop stations. We'd often have trouble with our sessions temporarily crossing. So I'd be on Facebook and then all of a sudden somebody else's profile would show up when I'd click a link to my profile. Similarly, this would happen to other people. We couldn't make any changes - a single click to a new page would take us back to our account. Facebook was a very different operation back then, but I always assumed it was the network admins who were at fault.

Negligible means 'so small it can be ignored.' You don't need to know the exact risk. Whether people do an explicit cost-benefit analysis is not the issue. It's that it's implied in behavior. For me, as an example, I don't calculate the exact risk, but abide by heuristics. I don't pirate any music anymore because too many people get caught and the fines are too great. I do, however, stream TV shows when episodes I want to watch are not available on Hulu or whatever network's website. The likelihood of getting caught for this is much less than getting caught with illegal files, or accidentally sharing music I didn't intend to share on a p2p program. From my experience, people are very aware of the RIAA and insane fines.

Actually, that's not what the AHRA says. 17 U.S.C. 1008 provides that "No action may be brought under this title alleging infringement of copyright based on . . . the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."

Copying a CD and disributing it to a person would violate two exlusive rights under Section 106: the reproduction right and distribution right. If you violate either, you are an infringer. If Section 1008 is to save this potential infringer, it must protect against both of these violations. When you distribute to your friend, you are making a public distribution. Section 106(3) says nothing about private distribution, after all, so this would save the family member (I would guess only immediate family, though). But as far as the reproduction right . . .

While the reports do say this is meant to permit copies for a family member or for use in the car, there's no mention of friends. While we can both imagine a court agreeing with family member copies under the actual text (the text is the law, not the history - though the history will be more or less important depending on the judge), can you really imagine this for a friend? On the one hand, you have enjoyment of your purchase in your home (with your family). On the other, you have enjoyment by somebody else outside of your home. While both scenarios are not much different than downloading the same CD from a p2p client, the distinction has to do with the party you are interacting with. It's not as if sharing across a p2p program with your friend will grant you immunity under Section 1008.

One can't get too caught up in what's commercial and noncommercial. The legal significance is probably not all that intuitive if you ask me. And the reason nobody is prosecuted for mix tapes is because, in part, it's too difficult to find instances where this is happening. What channel would be monitored for finding this?

You said a lot of stuff that could be right. But notice I said "there is measureable harm." This is a simple point. We can also measure benefit. Whether one outweighs the other is a different story, as you've pointed out. That burden is surely on the defendant, though.

You should reread our exchange. I'm amazed at how far off track you've led the discussion, and embarrassed that I continued on so long.

Where's the original copy coming from? The source of each bit. It has to start somewhere, else we're not dealing with a work that's copyrighted.

In a digital world, the public domain of IP is perfectly competitive. There are no marginal costs, so each copy should be free. Because being free would disincentive people from creating, or creating and sharing, we need to incentivize IP and create a legal structure that stops perfect competition so that creativity will happen. Just looking at it from a cost perspective misses the point of U.S. copyright law in the first place.

Well, of course the law could change. Here it would be more likely a change from Congress, though. The analysis was about the current law and a guess as to what the Supreme Court would do based on precedent.

I still don't think your hypo saves you now, but why don't you develop it a bit further and we can look again? That is, tell me the story with a little more precision as to what's happening.

I actually don't think that does anything to alter my above analysis. The unauthorized distribution (via streaming) of the authorized copy (wherever the bits start from) is still a candidate for a Section 106(2) violation. The same issue of reproduction persists (has a copy been made for a 106(1) violation?), but that there's another layer does nothing to change the analysis. It does nothing especially because the Supreme Court is not fond at all of people trying circumvent their logic (see the Sony-Napster-Grokster line of cases to see this in action).

Oh, see, I'm just tired and not thinking well enough right now. If the bits are discarded, then no copy is made, and there's no violation of the reproduction right. The line I was referring to would be how much remains before discarding. At some point, if too much remains in the RAM, then there's a copy and a violation.

That's actually a really good question. To be fair to RIAA, downloading and streaming have different legal significances, which seem to me to be consistent with the technological differences (i.e. the reason you knew to ask that question). I'm not actually sure where the line is drawn, nor do I have a strong opinion on the policy behind drawing that line, for the reproduction right. However, it's not often an important question since they'll go after unauthorized distributors (Section 106(2)).

That said, if you rip from the stream you will violate the reproduction right if it is unauthorized. Because I don't think I made it clear enough earlier, unauthorized means that a) there is a valid copyright; b) the use is not exempt under Sections 107-122 (U.S.C. Title 17, ftr); c) the use was not exempt by the copyright holder's permission.

You just admitted that there are some special and limited cases. My original point was that you were overstating your position.

Also, the hypo used per-unit profit for illustrative purposes, but it was pointing to total profit (i.e. the only change to the equation was CGS and price).

Ok, we can go through this line by line.

This is true. It's an expressive work.

This is also true. If the DL/UL is unauthorized, it violates one of the exclusive rights under Section 106, subject to Sections 107-122. Downloading, where unauthorized, is a violation of the reproduction right (Section 106(1)). This does not apply to public domain works, because they are not copyrighted. This does not apply to you recording a radio broadcast because of Section 114. Even without Section 114, however, since there are substantial non-infringing uses for your radio that can download broadcasts, the device would be fine (Sony Corp. of America v. Universal City Studios, 464 US 417 (1984))

Now, if you are wondering why the act of downloading a copyrighted work without authorization is illegal, it's because you make a copy when doing so. Even if it's only in your RAM or cache.