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+ - Well, if it's a war they want...

Submitted by cpt kangarooski
cpt kangarooski (3773) writes "Information has come to light, thanks to the recent Sony hack, in which MPAA and major studios are colluding as to what legal actions are available to them to compel an entity referred to as 'Goliath,' most likely Google, into taking aggressive anti-piracy action on behalf of the entertainment industry. MPAA and member studios Universal, Sony, Fox, Paramount, Warner Bros., and Disney have had lengthy email discussions concerning how to block pirate sites at the ISP level, and how to take action at the state level to work around the failure of SOPA in 2012. Emails also indicate that they are working with Comcast (which owns Universal) on some form of inspection of traffic to find copyright infringements as they happen. More information at The Verge."

Comment: Re:Creators wishing to control their creations... (Score 1) 268

Copying was a difficult and expensive enough proposition that a natural exclusivity existed even without copyright.

No it didn't. Pirates have never had a technological edge over legitimate publishers. At best there's parity, but usually publishers have an edge over pirates.

If you wanted to pirate a book before the invention of movable type, you could copy it longhand -- just like you'd have to do if you wanted to make an authorized copy.

And people did this all the time. In fact, the only reason that any books (other than those written on clay, stone, or metal) survive from antiquity is because they were copied, the copies were copied, and the copies spread far and wide. Often only one copy survived long enough for more to be made. Paper of various kinds has been in use for a long time, but the oldest paper book is only about 1700 years old.

There was no exclusivity. Some places, like the city of Alexandria, in Egypt, had an official policy that all books that entered the city had to be made available for copying.

The very idea that authors should have exclusive rights in their works is only a few centuries old.

Comment: Re:Creators wishing to control their creations... (Score 1) 268

How many people would publish if no option to have a copyright existed at all?

Well, all the people who published works before 1710 had no copyrights. All the people who published after that, but not in England had no copyrights until various countries slowly adopted copyright (the US picked it up in 1790, the French after that, and most of Europe in the 19th century -- and they only exported it to the rest of the world by means of colonialism, not on its own actual merits).

Plus there were various limits, e.g. the US only granted copyrights to Americans until almost the end of the 19th century; British authors had no option to get an American copyright at all... unless they became American citizens.

More recently, various classes of work were ineligible. For example, architectural works (in practice, buildings) were uncopyrightable in the US until 1990. Were no buildings designed and built in this country until architects were given copyrights?

What I think you're missing here is that there are a plethora of incentives for an author to create and publish a work. Money gained by exploiting a copyright on the work is but one of those incentives, and often is not the most important one, and also often is not an essential one.

I certainly agree that it can be useful, but that doesn't mean that we ought to go hog wild with it; as with many other things, a little might be beneficial, but too much can be harmful.

And what is the point of having a copyright in the first place if the creator isn't supposed to be permitted to try and exercise control over who may copy their works?

The point is to grant authors copyrights as an additional incentive in order to entice them into creating and publishing works which they would not have created and published, but for copyright. If they would've done it anyway, the copyright is superfluous, and granting it would be wasteful. If they require more copyright than is healthy for society, all things considered, we're literally better off not granting it even though it means we'll be bereft of the work in question.

It's not intended to give authors control over works for their own sake. That's just the means by which it functions. It's intended to produce a public benefit. And while the public does benefit from having works created and published, it also benefits from not having anyone controlling works.

Comment: Re:Creators wishing to control their creations... (Score 1) 268

Care to take a guess how many people would willfully publish their stuff if everything that they published had to become public domain?

Well, that's how it operated in the US from 1790 through to the end of 1977. Turns out that relatively few published works were copyrighted. Further, since there was a renewal term (that is, the copyright would be good for an additional number of years if you re-upped in a timely fashion) we also know that most authors of copyrighted works didn't bother to get a renewal, and let their works enter the public domain sooner than they had to.

It worked fine. We got great literature and the golden age of Hollywood on both film and tv, as well as tons of great music.

And frankly, a system of strict formalities to get copyrights is a more important thing to change in the law than shortening the term length.

Comment: Re:Creators wishing to control their creations... (Score 1) 268

Why should the creator not be able to impose any restrictions they damn please?

Why should the rest of us aid them in doing so? E.g. by conferring upon them some sort of legal rights that pertain to how the work is used by others.

While I think it could potentially be beneficial for the public to grant rights to authors, it's surely not always beneficial under every circumstance, and every permutation of works and rights.

And if the author doesn't like the terms under which the public might deign to give them rights, they're free to not create the work.

Comment: Re:And people who write software (Score 3, Informative) 152

by cpt kangarooski (#48264411) Attached to: Stan Lee Media and Disney Battle For Ownership of Marvel Characters

It seems obvious to me that the person who came up with the idea and directed it's creation is the copyright holder.

It's really a matter of directing its creation. Mere ideas aren't copyrightable, and merely coming up with one doesn't matter. If you use someone else's idea but are the only creative participant, they won't get rights in tor work.

And if you direct creation, you don't have to be the person who literally brings it about, either. But this is more than just paying someone a commission, or giving them the basic idea. It means that the other active participant isn't contributing anything creative.

So for example, if you tell a photographer that you want a photo of some subject, the photographer will end up being the author. If you tell him exactly what camera settings to use, what lighting, choose the subject, pose the subject, etc., then you're engaging in authorship.

. Likewise, if I hire someone to take wedding photos, then the photo copyrights are mine, as I commissioned the person to take them.

No, they're not. Being the author means having sole artistic control. Being a joint author would involve two parties having artistic control, and an intent to produce a joint work. And a work for hire, in which authorship is attributed to an employer requires more than merely commissioning a work. It requires actual employment, with all the relevant indicia (tax forms, insurance, providing the tools and work area, etc.) or in a handful of cases, contractual language.

You might be interested in Burrow-Giles Lithographic Co. v. Sarony and Community for Creative Non-Violence v. Reid.

Does Keanu Reeves own the copyright for Edward Scissorhands? No.

I think you mean Johnny Depp.

Comment: Re:Fewer candidates to draw from... (Score 1) 580

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) 580

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) 580

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) 580

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) 580

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) 580

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) 580

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.

Don't sweat it -- it's only ones and zeros. -- P. Skelly

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