Whatever Happened to Fair Use?

[Anderton]

The digital download war goes on... http://www.siliconvalley.com/docs/news/svtop/faruse110101.htm

[David R.]

Remember writing basic code? I used to get a hoot going into Radio Shack and on their TRS-80 computers and writing: Line 10 - Go to line 20 Line 20 - Go to line 10 I think this can be explained if line 10 is greed and line 20 is lawyers. Feeds upon itself. -David R.

[SFOracle]

For me, fair use is extends only to making copies or compilations for my personal use. Downloading music that I have already purchased into portable devices is fair use, but downloading music that others have purchased is not fair use. I feel that "sharing" with friends is stealing - so I neither borrow nor share. I'm not a big fan of copy protection because all of the schemes I have heard of prevent the type of fair use that I have described above. I'm sorry, but the guy (in the article Craig linked to) is full of shit when he says he downloads music only to see if he likes it, and if he does he purchases the CD and deletes the copy. If he is honest, then he has much higher ethics than most people I know. How many people are going to rush out to buy a CD that they already have on their computer - and can burn to CD at will? I think one of the reasons that people feel no guilt about stealing music is that they are really not stealing (much) from the artists, but from the record labels. I do think that if artists maintained the rights to their music and downloading the latest Smashmouth CD off the internet actually took money right out of the band's pocket - more people would care. The Internet was supposed to be the great dis-intermediary. The way for the those who create art, hardware, software, books, etc. to have access to a large market without going through traditional channels. It has worked this way for a number of businesses, but the music biz is so screwed up. It is a classic case of the channel being more important than the product. I have been listening to one of our local FM stations (an infinity broadcasting station) in my garage at night lately as I've been working on some home projects. Every couple of hours, you hear the following songs at least twice: Dave Mathews Band - The Space Between. Enya - Only Time Five for Fighting - Superman Lifehouse - Hanging by a Moment U2 - Stuck in a Moment Blu Cantrel - Hit 'Em Up Style. Smashmouth - I'm a Believer. Their entire weekly playlist posted on their website is only 27 songs - but that's all they play. Okay I think last night they slipped in Warren Zevon's Werewolves of London, but other than that ... nada. I like pop music, and for the most part, these are all fine songs, but this type of programming just shows how corrupt the "biz" is - and is what sends me back to KCSM (member supported jazz radio). Every piece of the music channel - production, distribution, broadcast and retail sales etc. is controled by a limited number of media giants who are far too closely connected. This makes it virtually impossible for an independent artist to get access to any one piece of the channel without going through a major record label and signing away the rights to their music. I think the key to the channel is radio (or video/TV for kid's music) airplay. But as long as commercial radio stations won't play anything but the top 27 "hits" from the major labels nothing is going to change. The radio is like dial tone, it's just there - in the car, at home, in the malls; no downloading.

[Submersible]

from the article: [quote]All five major labels are exploring ways to squelch music piracy at the source: the compact disc. They're working with companies like Macrovision in Sunnyvale to copy-protect CDs -- essentially, padlocking tracks on discs so songs can't be ``ripped'' -- copied onto a computer -- and distributed endlessly over the Internet.[/quote] Fair use is basically defined in the Sony v. Universal Supreme Court opinion. In Sony, the Court found that "time shifting" programs via a VCR for personal viewing at a later time was a fair use. Later cases, such as the Diamond Rio case suggest that "space shifting" your personal collection to another, more convenient medium is a fair use, as well. That's what you're doing when you rip tunes for conversion to MP3. Leaving aside the issue of downloading tunes that OTHER people ripped (which may not be a fair use), think about whether the industry's effort to make ripping impossible somehow violates or undermines fair use. I don't think it does. Nothing in the case law suggests that the copyright holder has to make it easy or convenient to copy content. It sucks, but there are no legal grounds for demanding that CDs be rippable. Here's the real threat to fair use: what if a simple shareware program could defeat the anti-ripping technology and allow CDs to function as before? That might be circumvention of technological measures designed to prevent infringement. Under the DMCA, it'd be illegal to write such a program, link to it, or even use it. Check out the DeCSS cases for a grim indicator of what we might be in for.

[AudioGaff]

As long as MP3 or any other format used on the net sounds like crap, there will be people who will buy CD's and DVD's of the real thing. Mabe not everybody but still a lot of people. When bandwidth is no longer an issue or another format comes along as good as CD that doesn't use up as many bytes as PCM/.wav format then there will be no audio quality incentive to buy anything that you can get for free. This is what the record companies, retailers and copyright police are really afraid of and they know it could come anyday now... Bruce McIntyre

[gtrmac]

[quote]When bandwidth is no longer an issue or another format comes along as good as CD that doesn't use up as many bytes as PCM/.wav format then there will be no audio quality incentive to buy anything that you can get for free. This is what the record companies, retailers and copyright police are really afraid of and they know it could come anyday now...[/quote] Maybe at that point the record companies will start promoting a new format like DVDA or SACD. One thing is certain, either you have respect for the property of others or you don't. I believe that musicians and artist at every level suffer as a result of piracy. It doesn't matter if the record companies suffer more or not. I believe they don't suffer at all and probably pass all the losses on to the consumers and the artists. Thinking that you are a part of some grass roots revolution when you pirate copyrighted material is lame IMO. It would be better to try and support some alternative instead. Someone please tell me what the alternative is!

[Chip McDonald]

[quote]Originally posted by dxr@iname.com: [b]Remember writing basic code? I used to get a hoot going into Radio Shack and on their TRS-80 computers and writing: Line 10 - Go to line 20 Line 20 - Go to line 10 [/b][/quote] I remember making simple for/next loops asking people "Hi, I am a computer what's your name?" and having it loop on input "MALFUNCTION MALFUNCTION MALFUNCTION" or some such. Only took a minute. You do this at the mall in 1980, stand back and wait. A random victim freaks out because they think they broke the computer... What was really bad back then was watching someone trying TALK to a TRS80 by typing "hello computer" and some such. That's a sociological quirk that has obviously left us, but at one time older people really did have a funny idea of what a "COMPUTER" was...

[Gus Lozada]

[quote]Originally posted by Chip McDonald: [b]What was really bad back then was watching someone trying TALK to a TRS80 by typing "hello computer" and some such. That's a sociological quirk that has obviously left us, but at one time older people really did have a funny idea of what a "COMPUTER" was...[/b][/quote] Oh yes... never saw someone trying to lauch US Missils to RUSSIA ??? :D ... too much "War Games" exposure...

[-]

[quote]Originally posted by Chip McDonald: [b]What was really bad back then was watching someone trying TALK to a TRS80 by typing "hello computer" and some such. That's a sociological quirk that has obviously left us, but at one time older people really did have a funny idea of what a "COMPUTER" was...[/b][/quote] I knew of someone who had just bought a Commodore 64 and, soon after turning it on, typed "PLAY FROGGER", as if the C64 would magically perform this kid's wishes and put the game Frogger on the screen... I remember trying to explain things, saying, "No, no, no -- you have to load a program or cartridge to do that..."

[rold]

[quote]Originally posted by Submersible: [b] Under the DMCA, it'd be illegal to write such a program, link to it, or even use it. Check out the DeCSS cases for a grim indicator of what we might be in for.[/b][/quote] Here's an update: "Using the Internet to publish software code used for decrypting and copying digital movies is protected by the First Amendment as an expression free speech, a California appeals court ruled." The rest of the article: http://canoe.ca/CNEWSTechNews0111/02_dvd-ap.html Peace, Harold

[JingleJungle]

I'm one of those that buys the records,if I like what I hear... Having the original is a way of (hopefully) giving something back to the artist who worked his/her ass off to make the recording. Having said that, there are only few records I lately purchased by choice. I guess the Majors just created a commercial monster that is getting too expensive to run, and are ripping off the general public by publishing a lot of CRAP and expecting people to pay good money for it. The general public responds by voting with its wallet, i.e. copying/ripping/duplicating. Fair enough to me. Paul

[inadequate.com]

While I agree that much copying of music is harmful to musicians incomes I feel I should point out that many of my 500 cds and 800 LPs have been bought on the strenght of mix tapes that I have been given over the years. These are sales that the copyright owner would not have made if I hadn't been made aware of their music. By the same token if someone says to me "Wow, what do you call this music?" I will happily spend an evening making them a primer tape or cd. And I have often seen records turn up in my friends collections from hearing my little tasters. I have no way of knowing if these sales outweigh the lost revenue from copying or not and I doubt that reliable figures exist. I have heard that the napster era was characterised by a surge in CD sales but I haven't checked this out myself. I suspect that revenue lost would be mainly in the top 40 markets where there is less guilt about Brittney or NSync doing it hard from piracy. I also see a lot of people downloading hard to find oldies that they rarely have an opportunity to buy anyway. If these points are correct I feel that the major labels are partly to blame for the rise in alternative distribution by trying to channel the publics taste into narrow, cheaply serviced and hence more porfitable music stlyes. Having said all that it is still stealing. Peace

[Dogfur]

Here is another scenario to consider: I recently heard a good song on a very popular movie. Although I'm not a huge fan of the gal that was singing it, I went to my local Tower Records to see that this multi-million dollar artists CD was going for $18.99. I was offended at the price, and went home to download the song. I listened again and wasn't as impressed by the tune anymore. I'm not a big download guy, but that swayed me from looking anymore for the CD at an understandable price. I won't download anymore, I don't care anymore about her. Dogfur

[olhhyperback.com]

FWIW making copies of music for your own personal use is not what is meant by "fair use." This is a technicality but an important one to understand. There is a law that grants this privilege, it is not a right. It was passed as part of the legislation that also included the serial copy management system. The RIO case did not make digital copies legal either. The RIAA just couldn't prove that the RIO couldn't be used for legal purposes and a piece of midnight legislation excluded computers from requiring SCMS. Copyright and patent ownership is a constitutional right, in fact the only property right that any individual has. Copyright laws are various pieces of legislation that have been sponsored by corporate special interests intended to restrict that individual right while extending it to corporate ownership.

[Submersible]

[quote]FWIW making copies of music for your own personal use is not what is meant by "fair use." This is a technicality but an important one to understand.[/quote] I don't think the Audio Home Recording Act nullifies fair use or the Sony decision. And like you said, the AHRA doesn't apply to everything (most notably, music residing on hard drives.) The part of the Rio case you identified (you cannot ban technology with a substantial non-infringing purpose) is straight out of Sony, the case that defines modern fair use.

[olhhyperback.com]

The Sony decision only applied to recording broadcast video, not to copying pre-recorded video. It also made it clear that it was expected that the person who was timeshifting the programs would not be keeping the copies.

[soapbox]

I have no qualms with one making as many copies as one wants of something one has purchased for one's personal use. Any form of "copy protection" that interferes with this should be illegal, IMO. That goes for anything: music, software, etc. At the same time, I believe that piracy should also stay illegal. Any organization that aids and abets piracy should be stopped.