Nope!

ReDigi was a company that claimed to sell used music files, just as a used bookstore sells books. It argued that it was protected under the 17 USC 109, the first sale exception, by claiming that copying then deleting files was a transfer. (Even they were not so stupid as to believe that it's possible to transfer a file over a network without copying in the process, even if this is not apparent to the user)

The court that heard the case shut them down:

You should read the whole thing: http://www.documentcloud.org/d...

It even points out, as I have, that this is unavoidable:

It is in the US.

What does that have to do with anything? You think that legislators are never wrong?

Here are the laws that make unauthorized downloading of copyrighted works prima facie illegal in the US:

17 USC 501(a): "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 ... is an infringer of the copyright ... of the author."

17 USC 106: "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights ... to reproduce the copyrighted work in copies."

17 USC 101: "'Copies' are material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term 'copies' includes the material object ... in which the work is first fixed."

"A 'device', 'machine', or 'process' is one now known or later developed."

"A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is 'fixed' for purposes of this title if a fixation of the work is being made simultaneously with its transmission."

If Alice has a file server on which are copyrighted works, and Bob, without permission from the copyright holder, downloads them, Bob causes his computer to fix those works in a tangible medium of expression (such as a hard drive), which creates new copies of those works. The copy is the tangible medium, again e.g. a hard drive, not the mere intangible files. By creating copies without permission, Bob has infringed on the exclusive right of the copyright holder to make new copies.

So, it's prima facie infringing.

You actually conceded this point earlier; you obliquely referred to 17 USC 117, which is an exception dealing with computer programs. Section 117 is completely unnecessary if no prima facie infringement occurs. Much in the way that you don't have to bother raising a defense to a charge of murder, like self-defense, if the supposed victim is still alive. Or if programming is more your thing, think of an if-then-else statement: if infringement occurs, then see if section 117 applies, else infringement has not occurred, so exit.

So you appear to agree that downloading is prima facie infringement, the question is simply whether the exception in 117 saves the downloader. It almost never will.

17 USC 117: "(a) Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

(b) Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner."

17 USC 101: "A 'computer program' is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result."

This usually won't work because Bob, the downloader, almost certainly 1) isn't the owner of a copy prior to making a new copy, which is necessary in 117 to be allowed to make the new copy; 2) isn't making copies for archival purposes only; 3) most data, such as music, movies, etc. will not be treated as computer programs by courts, despite the broad language in section 101.

I mean, feel free to try it, but you have my guarantee that you'll not just lose, but be laughed at.

Okay genius, I've cited the relevant statutes for making my argument. It's time for you to put up or shut up.

Remember to cite very specifically, and to look at definitions. You may also want to look at relevant caselaw.

the push for younger coders is to create a user base for microsoft and facebook. microsoft is still thinking everyone can be converted to their crappy software base by letting kids learn how to code for it. when i was coding ircbots i was totally hooked on using windows, because for most of my life gaming i had played on windows computers and nintendo consoles...

i had some pretty cool projects like an ASCII video player (think ASCII art, replaying static frames manually typed out for playback on mirc) it actually was able to get almost 30fps on a p-120 laptop with about 2gb hdd and 48MB of ram.

anyways compared to what i've seen these days a p-120 is pathetic, yet most of the people who use them don't need the speed hence tablets and laptops being so far behind desktop systems and graphic cards. wikipedia has documents that show that standards for video were all really old tech too, they had a plan to make themselves billionaires and have more gamer addicts whom tend to have the biggest craving for overpriced electronics.

and the bubbles come when people find out they are being suckered into buying stuff that is old and power hungry when they could have just used a iphone or android to get their facebook fix and candy crushing games. which are also overpriced but not if you get a used or 'older' model

Digital files are just intangible information; what we'd call a work. A book, as a material object in which a work can be fixed, is no different than a hard drive. And btw, most, if not all written languages are digitial. There's no letter that's halfway in between an A and a B.

Not really.

The only significant special treatment of computer programs in the Act that might be useful here is the exception at 17 USC 117. The Act defines "computer programs" as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. I think it would be quite a stretch to apply that to absolutely any sort of data on a computer, as opposed to actual executables and such.

But even if we accepted that, it still isn't helpful. 117 allows the owner of a copy to make additional copies or adaptations, only if they're essential for using them, or as backups. And the backups cannot be transferred without transferring the ownership of the original, and cannot be kept in the event of a transfer.

So I don't see how it would help protect you if you decided to host mp3 files for people to download, in an infringing manner. Perhaps you'd like to explain your plan?

Well, I suppose that it's possible that you might unplug your hard drive, put it in a cardboard box, and mail it to me, in response to a download request, but that's surely too unusual to care about.

Because the law defines making copies as a form of infringement, defines copies as material objects, and because we lack the ability to send a material object through the net, you cannot transmit an original copy of a work to me online. All you can do is give me the information I need to create a new copy on my end.

It's irrelevant whether you delete the file once I've downloaded it. The Copyright Act doesn't treat a copy followed by a deletion as not being copying. It doesn't matter in the least how many copies actually exist in the end, only what the provenance of the copies is. There is an essay called 'What colour are your bits?' which you may find helpful.

It is not, in any legally meaningful way, transferred anywhere.

Please take a look at this page, which discusses the outcome of the ReDigi case, and includes a copy of the opinion. ReDigi tried to sell used music files, going through the sort of copy and delete rigamarole as you suggest. They got shut down hard because it's utter nonsense as far as the legal system is concerned.

Thanks for agreeing with me, then; it's not possible to argue fair use unless there already is prima facie infringement.

the first real world mass market character recognition i used was brain age 2 for nintendo ds and if you didn't start the characters the right stroke for stroke recognition it would screw up on you.

with many millions of users of the ds and it's descendants it is clear that microsoft is reinventing the wheel again.

No.

Creating a new copy of a work can infringe per 17 USC 106(1). But playing a work over a speaker doesn't create a new, infringing copy. That's why we have 17 USC 106(4), which can cause the public performance of certain works to be infringing. With public performance, no new copy needs to be created. Of course, not all performances are public performances -- playing a CD at home, privately, is likely not public and thus not infringing to begin with. Playing it outside, in a public park, is public and very well could be infringing.

I really think you'd benefit a lot by actually looking at the law, or perhaps reading a good book about it, instead of just continuing with what you imagine the law to be.

Given that the word 'copy' in copyright law is defined as a material object, and given the physical impossibility of sending material objects through telecommunications systems, I'm afraid you're very, very wrong.

I can't hold a file in my hand. It's not a material object. But I can hold the storage medium it's written to in my hand; that is a material object. Fixing the work into a new material object from which it can be perceived for a period of more than transitory duration is basically the definition of copying in the law, and as an exclusive right, copying can be infringing.

Feel free to read the relevant portions, at 17 USC 101. You'll want the definition of copies and also of fixing a work. Copying as an exclusive right is at 17 USC 106(1), as already mentioned.

Not all viewers, but a hell of a lot of them.

Here's an excerpt from Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999):

No. Just because it's commonplace doesn't mean that the Internet is intended to enable infringements. The Sony precedent and the DMCA safeharbor both work to protect the continued existence of the Internet, despite widescale infringement. Remember, the basic rule of Sony is this: "[T]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses."

But just because ISPs are not obligated to dismantle the Internet doesn't help individual infringers.

If your analogy using the mail were accurate, it would be possible for me to download a blender from Amazon and have it emerge from the side of my computer. Not a 3d printed blender either; that's just a copy. I mean one that was built at a factory in China or something.

You have RAM, which is a material object. You have a hard drive, which is a material object. You have flash memory, which is a material object. A work written to those makes them copies, just as a work written to a paper book makes it a copy.

In that case, you not buying it because you don't like it equally negatively affects that celebrity, because whatever the reason you don't buy it, they don't get more money.

Now, since then there has been the Cablevision case, where the 2d Circuit said that a work that was momentarily buffered in RAM (in that case, by a network provider) was not a copy because it lasted for too short a duration. But this is not likely to have much effect for the end user.

Also, your example is wrong. Copyright infringement is a strict liability offense, so the mental state (e.g. intent, knowledge) of the infringer is irrelevant.

A better example would be statutory rape, another strict liability offense. If you have sex with someone who swears they're an adult, who can produce excellent documentary support of that claim, and where you literally could not have undertaken any further reasonable measures to ensure that that person wasn't a minor, but it turns out that they were a minor anyway, you've just committed the crime of statutory rape. It doesn't matter how careful you were, that you didn't intend to have sex with a minor, what you knew, etc. Copyright is the same sort of thing.

A&M Records v. Napster., 239 F.3d 1004, 1014 (9th Cir. 2001).

Well, depending on whether MAI or Cablevision controls, it may very well be a copy. My point is that a copy can only be a tangible object, and maybe you live on the Starship Enterprise or something, but around here, I can't buy a DVD on Amazon and see the bulge in the ethernet cable as the disc is physically moved over the Internet.

Downloaders always make new copies at their end; that's just how it works. There may be numerous copies in between too, but it's asinine to say that downloading isn't copying at all.