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Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48164523) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

And you showed nothing that describes dowloading. The owner of the server controls whether a copy is made or a file is transfered and is responsablty for the distribution.

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:

Courts have consistently held that the unauthorized duplication of digital music files over the Internet infringes a copyright owner's exclusive right to reproduce. However, courts have not previously addressed whether the unauthorized transfer of a digital music file over the Internet -- where only one file exists before and after the transfer -- constitutes reproduction within the meaning of the Copyright Act. The Court holds that it does.

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

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

This understanding is, of course, confirmed by the laws of physics. It is simply impossible that the same "material object" can be transferred over the Internet. Thus, logically, the court in London-Sire noted that the Internet transfer of a file results in a material object being "created elsewhere at its finish." Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the Internet, the Court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act.

Case law is not law either.

It is in the US.

Judges have been wrong before and they will be wrong in the future.

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

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48156707) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

just that the act of downloading a file is not magically illegal despite no law defining it so

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.

The theory that when you download you cause a copy to be made is erroneous because there are specifically outlined situations in law where a transfer in that way is legal and the onus rests on the server to be compliant- not the downloader.

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.

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48146939) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

You just spent a good deal of time stating digital files are different then hard copies like books.

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.

Copyright does already deal with digital files under the sections of computer programs which also covers data.

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?

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48127859) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

I still control whether I give you the original or a copy of it

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.

Very few times will you ever have the ability to determine if the file on my server or computer is copied or deleted

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 transferred to your system

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.

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48122673) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

Copyright covers the work played over speakers, and since I can't see my speaker wires bulge as the song is played, then your analogy is obviously wrong.

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.

The physics of it is that the actual work is copied at the server. They keep one copy on the server HD, copying it into RAM, then that RAM is copied to my RAM, by the server. An exact duplicate of the server copy, transmitted to my computer in 100% the original form.

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.

It just demonstrates you don't know what a file is.

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.

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48122657) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

So, viewing a movie on Youtube existentially causes copies to be present on your computer. Are we to assume that all viewers of websites, online video, or streaming music services are copyright infringers making illegal copies all over the place?

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):

Do those who browse the websites infringe plaintiff's copyright?

The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement). See 17 U.S.C. 106.

"Copy" is defined in the Copyright Act as: "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." 17 U.S.C. 101. "A work is fixed' . . . when its . . . sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.

When a person browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. n5 See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by licence, such an act constitutes copyright infringement); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. Distrib., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer); see also Nimmer on Copyright 8.08(A)(1) (stating that the infringing act of copying may occur from "loading the copyrighted material . . . into the computer's random access memory (RAM)"). Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.

Footnote n5: Although this seems harsh, the Copyright Act has provided a safeguard for innocent infringers. Where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages. . . ." 17 U.S.C. 504(c)(2).

More importantly, wouldn't that make the internet a device primarily intended to enable copyright violations and illegal to manufacture, import or posses under copyright law?

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.

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48121415) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

Great analogy. The only problem is that the person "on the phone" is instead "through the mail". So the recipient gets the whole book, in paper, from the first reader. The first reader is asked for a copy, and makes one, and passes it along. The "listener"

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.

My local copy is no more a material object than the network the copy passed over.

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.

Comment: Re:Also left unexplored... (Score 1) 577

by cpt kangarooski (#48121401) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

i.e. me pirating some album from some rich celebrity still negatively affects that celebrity (since me not buying it means they don't get more money)

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.

Comment: Re:Fewer candidates to draw from... (Score 2) 577

by cpt kangarooski (#48121267) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

Do those who browse the websites infringe plaintiff's copyright?

The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement). See 17 U.S.C. 106.

"Copy" is defined in the Copyright Act as: "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." 17 U.S.C. 101. "A work is fixed' . . . when its . . . sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.

When a person browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. n5 See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by licence, such an act constitutes copyright infringement); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. Distrib., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer); see also Nimmer on Copyright 8.08(A)(1) (stating that the infringing act of copying may occur from "loading the copyrighted material . . . into the computer's random access memory (RAM)"). Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.

Footnote n5: Although this seems harsh, the Copyright Act has provided a safeguard for innocent infringers. Where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages. . . ." 17 U.S.C. 504(c)(2).

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.

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48121223) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights.

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

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48121187) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

You are asserting that RAM on the network router doesn't hold a copy

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.

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48121157) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

Your statement fails to respond to the grandparent's point. Back when the US Constitution was written it wasn't possible to reasonably make a single copy of something.

Sure it was. Paper and pen worked just fine. And until the then quite recent invention of the printing press, that was usually how books were copied.

This is what the laws were intended to punish.

And yet, that's not what the actual language of the law, whether at the Constitutional level, or below, actually does.

Someone making a single copy isn't likely to sell it, just use it for personal use. This is not what 17 USC 501 was intended to punish. Rather than the $100K-$1M, this is pretty comparable to shoplifting, a very minor crime whose small punishment is really too large for making one illegal copy of something.

Hey, I'd just as soon legalize all non-commercial infringement engaged in by natural persons. But it does no one any good to be unaware of what the law currently is, and what it actually does. And that is to render individual downloading of copyrighted works, without permission or an applicable exception, illegal, and potentially criminal.

It won't get changed if people delude themselves as to what it is that needs changing.

Comment: Re:Fewer candidates to draw from... (Score 1) 577

by cpt kangarooski (#48121107) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

You keep saying downloading, but downloading isn't illegal and it has never been successfully litigated.

There are numerous court cases in which it was found that at least some downloading was illegal (obviously only certain downloading would be; downloading public domain works, or subject to a valid copyright license is not infringing). For example, from the Napster case, the Ninth Circuit said "We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holdersâ(TM) exclusive rights: the rights of reproduction, Â 106(1); and distribution, Â 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffsâ(TM) distribution rights. Napster users who download files containing copyrighted music violate plaintiffsâ(TM) reproduction rights." A&M Records v. Napster., 239 F.3d 1004, 1014 (9th Cir. 2001).

It's just that it's not usually worthwhile to sue downloaders. Even the MPAA, RIAA, et al have limited resources. Downloaders are the tail of the snake; shut down a single downloader, and all you've shut down is a single downloader. Shut down networks, and you can shut down all of their users. At least, that was the idea.

Comment: Re:yes, they people who follow the law/ rules (Score 1) 577

by cpt kangarooski (#48118487) Attached to: FBI Says It Will Hire No One Who Lies About Illegal Downloading

The rule that what I create with my own hands os mine to give away, trade, or sell exists for a very good reason.

And what reason is that, pray tell?

Fyi, it's copy right - the right to copy. Please feel free to lecture me about the history after you at least learn what it's called.

Actually, copyright is the right to prohibit other people from making copies, as well as from doing some other things, but that's not precisely where the name originates from.

The right to make copies is the right of free speech, and it inherently exists in everyone, and applies to everything. I'm not Shakespeare, and I don't have a copyright on his work, but I can make copies of his plays by exercising my free speech right.

Clearly, what you do is not copyright law. Arguing copyright law with you would be like arguing international monetary policy with a second grader.

I am not Vellmont, the poster to whom you were replying earlier, but I am a copyright lawyer, and there's nothing I like more than arguing about copyright law. Seriously, it's an actual hobby for me, not just a job.

I'm not doing it anymore

That's an acceptable outcome.

Copyright isn't meant to maximize creation and publication, nor is it meant to benefit all authors. Rather, it is meant to maximize the public benefit enjoyed by both on the one hand maximizing creation and publication of works that would not be created and published but for copyright, but also on the other hand, minimizing protection so that works are in the public domain as rapidly and as fully as possible.

I would love to sculpt the Moon into a piece of art, but the amount of copyright I'd require to make it economically worth my while is tremendous. Our society, through our government, appears to have decided that we are all literally better off without me doing it, given what I would require from everyone. I'm still free to do it at my own expense, for less reward than I deem necessary, but no one is obligated to cater to my needs, and no one does. And that's acceptable, just as it is in your case.

Much, though not all, piracy indicates the level of copyright that we ought to have, and if that is too little to sustain you, then that's an acceptable consequence. If it turns out that you're too important to let go, people will willingly choose to respect copyright more in order to do that.

Machines certainly can solve problems, store information, correlate, and play games -- but not with pleasure. -- Leo Rosten

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