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Comment: Re:Time Shifting? (Score 1) 285

No, the car doesn't count.

Let's look at a bit more of the relevant language in the statute:

A âoedigital audio recording deviceâ is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use

It's what the primary purpose of the digital recording function is (or is marketed as) that matters. We disregard the car and the rest of the machine altogether.

Comment: Re:The Alliance of Artists should lose this suit (Score 1) 285

I think you really need to go back and read up on Copyright Law (17 USC). The license is implied in Copyright Law.

No, there's no license, particularly no license 'implied in the law,' whatever that means.

You have an inherent free speech right to do anything with a work that you like, except for things that copyright gives an exclusive right to the copyright holder about. A copyright holder can only possibly grant a license for something that he holds a right to; he cannot give you permission to do something you don't need his permission for. And once the copyright on the work expires (no, seriously), you're no longer limited as to the exclusive rights either.

So for example, there is an exclusive right to publicly perform music, but not an exclusive right to privately perform music. Even if you have a stolen CD that was itself made illegally, you can lawfully privately perform it without infringing on copyright. No license or anything.

All this licensing bullshit basically is a side effect of stupid (and largely unnecessary) practices in the software industry. It's mostly folk myths. If there's a license, you'll usually know it: it will almost certainly be pages and pages long, written, and you'll have to expressly agree in some way. Record companies would not sell CDs with some sort of implied license.

No, the CD is the work, it is not the derivative.

Depends. Assuming you just mean an album, and not the piece of plastic, it'll either be a work or a compilation.

You do have a right to transform it.

No, that's preparation of a derivative work, probably; an exclusive right at 17 USC 106(2), and doing it is infringing at 17 USC 501(a). You'll need an exception to copyright, or for the work not to be copyrighted, or a license, in order to just make the derivative, never mind distributing it. And if it's not a derivative work after all (see the definition at 17 USC 101), it's likely an infringement of the reproduction right at 17 USC 106(1).

By definition, Fair Use is not an infringement.

Correct. Though as a practical matter, it's treated like an affirmative defense... it just makes more sense to do it that way, even though it is indeed an exception to copyright.

Comment: Re:The Alliance of Artists should lose this suit (Score 1) 285

As long as you don't distribute it, its totally legal. No doubt about it.

No, it's only legal under the right circumstances. Fair use is entirely a case-by-case thing. Just because it could be a fair use sometimes doesn't mean that it will be every time. And vice versa, under the right circumstances, any sort of infringement might be a fair use.

Anyway, I wouldn't recommend relying entirely on it if a better option were available.

Comment: Re:I had to look up the AARC (Score 1) 285

The AHRA means it is _legal_ to buy a blank audio CDR, copy a CD onto it (or make a mix CD), and give it to your friend.

No.

First, it doesn't make it legal, it makes it non-actionable; there's a difference. (I am reliably told that it was supposed to be legal, but it got changed at the last minute in a suspicious manner)

Second, it doesn't say you can give the AHRA-compliant copies away. Just that they can be noncommercially 'used.'

Comment: Re:Unbelievable (Score 1) 285

Even before CDs were invented it was legal to make your own copy for your own use of copyrighted material you owned

Actually, it was never quite clear. It's since been expressly made non-infringing (not technically the same thing as legal; they're very sneaky) in some situations, but not any that are relevant to most people. There's also a fair use argument, but that's not the best thing in the world to rely on; fair use depends on the specific circumstances at hand, and doesn't always produce consistent results.

Comment: Re:Unbelievable (Score 1) 285

This seems to be clearly format shifting for personal use which should be entirely legal.

Should be, but that's not actually what the case is about. This is about making & selling a limited purpose device with a digital music ripping function. Such devices are required to have certain limits, and the people who make, import, or distribute them, have to pay certain royalties. And it looks as though neither requirement has been complied with here.

People don't ordinarily run into this, since computers are general purpose devices which also happen to be able to rip, and are therefore exempt.

Comment: I think that this is actually illegal (Score 1) 285

I don't think that it should be, but let's take a look at the actual law, since 'should be' doesn't provide much practical help.

What we're looking at is the Audio Home Recording Act, or AHRA, which is Chapter 10 of the Copyright Act, and can be found at 17 USC 1001 et seq.

17 USC 1002:

No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to-- (1) the Serial Copy Management System; (2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system's method of serial copying regulation and devices using the Serial Copy Management System; or (3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying.

17 USC 1004:

(a) Prohibition on Importation and Manufacture.-- No person shall import into and distribute, or manufacture and distribute, any digital audio recording device or digital audio recording medium unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments for such device or medium specified in section 1004.

So the question is, is this feature in the car a "digital audio recording device," "digital audio interface device," or "digital audio recording medium"? As always, if a term is specially defined in the statute, that meaning controls, as opposed to the ordinary meaning. Definitions are provided at section 1001. They're a bit complicated, and we'll have to work through several layers here.

Let's start with a digital audio recording device.

Per 17 USC 1001, a "digital audio recording device" is:

A "digital audio recording device" is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for-- (A) professional model products, and (B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.

This refers to another definition:

A "digital audio copied recording" is a reproduction in a digital recording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.

And that refers to yet another definition:

(A) A "digital musical recording" is a material object-- (i) in which are fixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sounds, if any, and
(ii) from which the sounds and material can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

(B) A "digital musical recording" does not include a material object-- (i) in which the fixed sounds consist entirely of spoken word recordings, or (ii) in which one or more computer programs are fixed, except that a digital musical recording may contain statements or instructions constituting the fixed sounds and incidental material, and statements or instructions to be used directly or indirectly in order to bring about the perception, reproduction, or communication of the fixed sounds and incidental material.

(C) For purposes of this paragraph-- (i) a "spoken word recording" is a sound recording in which are fixed only a series of spoken words, except that the spoken words may be accompanied by incidental musical or other sounds, and (ii) the term "incidental" means related to and relatively minor by comparison.

Also,

A âoeprofessional model productâ is an audio recording device that is designed, manufactured, marketed, and intended for use by recording professionals in the ordinary course of a lawful business, in accordance with such requirements as the Secretary of Commerce shall establish by regulation.

So --

The machine in the cars is a digital audio recording device, as that term is defined in the statute, if:

1) It is commonly distributed to individuals, for use by individuals

I think that's true here

2) It doesn't matter whether or not it is included with, or part of some other machine or device

So the fact that it's part of a car doesn't protect it

3) The digital recording function (i.e. the CD ripping; more on this in a minute) is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use.

Since this refers to only a specific function, and not to the whole device, or to the overall car (which was already excluded as being the other machine or device that this device is part of), I think it probably applies. The feature is designed to make copies, and the CD ripping feature is marketed for the purpose of making copies.

4) There's an exception for professional model products. But those are defined as being designed, manufactured, marketed, AND intended for use by recording professionals. I don't think that this qualifies, and therefore the exception doesn't help us.

5) There's another exception for dictation machines, answering machines, and equipment that is designed and marketed for making recordings of non-musical sounds. Again, I don't think that this qualifies, and therefore the exception doesn't help us.

6) So, it now hinges on whether the digital recording function as discussed above, is designed and marketed for making digital audio copied recordings. That's a reproduction of a digital music recording, in a digital format. Well, whatever the music is being stored as (mp3, wav, flac, etc.) I think we can expect that it's a digital format. So are the CDs digital music recordings?

They're material objects -- like CDs -- in which are fixed, in a digital recording format, only sounds and incidental material, and from which the sounds can be perceived with the aid of a device.

So yes, CDs appear to qualify.

7) We've got a couple of last-ditch exceptions; if none of these apply, we're in trouble. Are the CDs only spoken word recordings? Well, some CDs are, but I doubt that the functionality or even the marketing only involved that. Do the CDs include computer programs beyond the 'incidental material' level discussed above? Likely not; we're basically looking at music CDs.

So that's it: Because the relevant function of the device makes digital copies of CDs, and is designed or marketed with that as the primary purpose, and is commonly sold to individuals, for use by individuals, notwithstanding the fact that it's part of a larger device and a car, the devices at issue are digital audio recording devices. And it's illegal to make, import, or distribute them unless you comply with certain copy protection schemes and pay royalties.

We can even leave the questions about a digital audio interface device (probably not), and digital audio recording medium (very probably not; it's almost certain to be a generic hard drive) as exercises for the reader.

But wait, you say -- didn't the RIAA v. Diamond Multimedia case say that this was allowed?

Well, no, actually; it didn't.

If you're unfamiliar with the Diamond Rio music player that was at issue in the case, just think of the older iPods that really only played music. The Rio had no ripping function; it could only copy mp3 files from an ordinary personal computer equipped with the correct software. The business of ripping CDs happened entirely on the personal computer side of things.

This meant that the Rio had no ability to directly (a requirement in the statute; look for it in the definition of a digital audio copied recording) make copies of a digital music recording, since the Rio copied files from the computer's hard disk, and a computer's hard disk doesn't qualify as a digital music recording. (It's not the physical medium that matters so much as that there's lots of stuff on the disk, such as computer software, beyond the merely incidental level)

This is what saved it -- the lack of a ripping feature. But the doohickey in the cars does have a ripping feature.

Further, the computers used to rip did not fall under the AHRA because they're general purpose computers, and their digital recording function was not their primary purpose. Even things like Apple's old 'Rip, Mix, Burn' ad campaign didn't make it the primary purpose.

Fair use is a fine argument, but it's functionally a defense against copyright infringement. The AHRA, despite being in the Copyright Act, is treated (like the DMCA) as something different. So fair use won't help here; the plaintiffs aren't alleging (AFAIK) infringement, but failure to comply with the AHRA.

The reason that fair use came up with the Rio was because the Rio didn't fall under the AHRA, and contributory copyright infringement was an alternate attempt to go after it, which also didn't work. The same argument as for the Rio would likely work just as well here -- if the plaintiffs were making a claim to which fair use applied. Too bad that they don't seem to be doing that.

Some people might also remember 17 USC 1008, the part of the AHRA that limits certain actions. Sadly, it's of no use. That section limits infringement actions, and this is not an infringement action. It's an action under the AHRA (sections 1009, 1002, and 1003 -- infringement is sections 501 and 106).

So as I said, I think that the plaintiffs here have a solid argument. There's a reason why mp3 players that did their own ripping were few and far between. The defendants here would've been wise to notice that, and to ask their lawyers to check to see if they could offer a ripping feature along with storage and playback, on a specific-purpose device.

I'd rather see the law changed to make this thoroughly legal without the stupid copy protection, restrictions, royalties, etc., but right now, it is what it is.

Comment: Re:Disengenous (Score 1) 171

by ShanghaiBill (#47571953) Attached to: Amazon's eBook Math

If by Middlemen you are referring to Editors (who read the book, find grammatical errors, find plot errors, etc etc), typesetters ,Graphics illustrators then they will still be there.

There is no reason that any of these services need to be, or should be, bundled with "publishing". There are plenty of people offering these services, either per-page, or for an hourly rate. You can find them on any Freelancer website.

Comment: Re:Er, that's a bit confusing (Score 2) 120

by ShanghaiBill (#47571923) Attached to: The Problems With Drug Testing

Your sampling is skewed towards the homeless population that is willing to go to a church.

They don't go to church. The church goes to them. My wife's mother works through her church to reach out to homeless people, give them food and blankets, and help them find day labor so they can earn both money and self-respect. She often asks me and my kids to go with her. We find people living in parks or under bridges, etc. My experience is that nearly all of the homeless have deep interrelated problems, including substance abuse, mental illness, alienation from family and friends, mistrust of authority (including people like me that are offering to help), etc. I can think of only two or three people where our efforts have made any lasting difference, but hey, even turning two or three lives around is an accomplishment, and I would rather be out with my kids and their grandmother doing that, than sitting at home watching TV.

Comment: Re:Equally suspect (Score 1) 171

by hey! (#47571271) Attached to: Amazon's eBook Math

Yes, publishers and middlemen have all kinds of rationalizations for trying to kill e-books, but calling any of them "legitimate" is shilling so hard you could pence a crown.

All the arguments based on classical economic theory only work if the assumptions of classical economics hold, particularly the assumption that there is a free market.

Amazon is arguing for its freedom to set prices it charges in its ebook store; that would be no concern of the publishers if we lived in a world where ebook users could simply buy books in non-proprietary formats from any Internet storefront they wanted. But we don't live in such a world. We live in a world where most ebook readers are controlled by Amazon and inextricably linked to its store. It wouldn't have been hard for Amazon to build the Kindle that way. Define some public book trading protocols, bootstrap the standard by building those protocols into the Kindle and Amazon's online store, and instantly the world is a better place for everyone except printers and bricks-and-mortar bookstores with no Internet presence. But Amazon didn't do that, because the Kindle is designed to tie the user to Amazon, the way the iPad is designed to tie the user to Apple.

So what we're looking at is a maneuver by Amazon to corner the market on books *in general* by killing off the traditional paper book trade. Preserving the ability to buy most books from someone other than Amazon seems like a legitimate reason to me.

Comment: The iTMS App store is a strange beast (Score 1) 152

by Overzeetop (#47571263) Attached to: Is the App Store Broken?

Imagine you have a store the size of you typical WalMart Supercenter, packed with aisle upon aisle of app boxes. There are 5-6 generalized sections, and absolutely no organization within the sections - apps just set in rows on the shelf. Except it's not even that convenient, because when you walk into the store you are in a small space with what are effectively endcaps for each section. To get through to the rest of the store, you have to go around the side of this front display area through a small, unmarked door. So you usually just pick what's on the endcap and checkout because even for people who have wandered into the main body of the store, they find it's just stocked with thousands upon thousands of seemingly identical products for a single task - most of which mirror an app that's on the end cap with a 4+ star review from a million users.

It's dysfunctional, but in a very Apple way.

Comment: Re:Maybe the author needs to get out more (Score 2) 171

by hey! (#47571143) Attached to: Amazon's eBook Math

No dude, your books are not so incredible that people will buy them no matter what the price.

Nobody's book is so incredible that people would buy them no matter what the price. If my only way to get Shakespeare was to pay a ten thousand dollar license fee I'd find a way to do without.

Authors/publishers/developers/etc need to get over this idea of their digital goods being "worth" a certain amount. No, you need to figure out what you need to do to maximize your profits since there is zero per unit cost. Usually, that is going to mean selling cheap, but selling lots.

You really shouldn't assume that anyone who disagrees with you does so because they're stupid. Publishers know their marginal and fixed costs and certainly have a pretty good idea of the price elasticity of their books. The situation is more complicated than you know.

You can't compare Hachette to Valve, because Valve owns the whole Steam ecosystem, and delivers its services to users' commodity PC hardware with no intermediaries (other than Internet service). In the case of Hachette v. Amazon, we're looking at a situation where Amazon owns the point of sale, and has more control over the users' devices than the user himself has. And yes, you can read ebooks on a PC but few people will want to do that. And yes you can download ebooks in non-proprietary formats like epub from sources other than Amazon, convert the format to .mobi, and use file transfer to move the converted file onto the kindle; but that's a significant barrier for most people.

So what we're looking at is a move by Amazon to take control of the book market in a way it cannot as long as paperback and hardback sales remain strong. Amazon *looks* like a friend of the consumer because they're calling for lower prices. If they get what they want, then ebooks may well make a significant market share headway against paper books.

You might think that's fine, but it's not *generic* formats and *commodity* hardware we're talking about. It's formats and hardware controlled by an inextricably linked to *one* company. And that may mean lower prices today, but what will it mean ten years down the pike when Amazon corners the market on books?

Comment: Re:Disengenous (Score 2, Interesting) 171

by ShanghaiBill (#47570953) Attached to: Amazon's eBook Math

I'd rather not live in a world where the only places to shop are walmart, amazon, and maybe costco. using size and supply chain efficiency to force smaller guys out of business is not a good thing in the long run.

I disagree. Small bookstores were crap. They had the bestsellers, and a small random assortment of other books. Amazon has a better deal on the bestsellers, and has millions of other books. This is not only far better for customers, but better for niche authors as well. The small booksellers are gone, and good riddance. Now the publishers are getting squeezed. Good. The fewer middlemen between the customers and the authors, the better.

   

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