Before the weekend (and before the Napster discussion took off on this thread), erislover said:
Thanks for the clarification - and I was interested in this because of the implication that the publication of such a number on its own could infringe a publishing right. I was speaking to a friend at the weekend (a games programmer, and therefore slightly better acquainted with the concept of digital representation than I am!), and his understanding of the matter was that since the binary code as published by any putative guy-in-the-street requires the intervention of a particular mechanism in order to transform it into the copyrighted work, then it is not an infringement on its own. My brain is getting fairly warm now, and I did try to relate this to the concept of musical notation - it’s pretty useless without the intervention of a human being and a procedure (the playing of a musical instrument). What are the copyright implications of someone transcribing a musical composition and then passing that transcription on to friends? That is the nearest comparison I can think of.
Why? Well, technically, they’re able to. Microsoft could say tomorrow, “We’re giving away all our products free forever.” That probably would make a lot of people happy, especially Steve Jobs and Steve Case, because it would mean Microsoft’s doom as a company.
Microsoft doesn’t care whether it sells a software license to a company or an individual. It makes the same amount of money either way, and it would be foolish for them to say “We don’t need the revenue from our individual customers”, or “We don’t need the revenue from our corporate customers.”
Actually, the near-exact, or exact, terminology wouldn’t really bore me since that is precisely what I am interested in. Can we say that an excessively lossy compression method like MP3 conversion is still sufficiently original?
Yeah it is a copy, at least in my jurisdiction. We’re starting to get away from the originality concept here, though. The key case I’m familiar with is called the Colonel Bogey case (*Hawkes & Son (London) Ltd vs Paramount Film Service *[1934] 1 Ch 593 at 604-6). You know how they used to show movie newsreels at cinemas? This is a case about one of those - the footage portrayed a marching band, playing a part of a tune called “Colonel Bogey”. The owners of the song sued the film studio for infringement of copyright. The song takes four minutes to play in its entirety, and the film showed 20 seconds of the band playing it. The defendant argued that the segment of the song on the film was so short it couldn’t be an infringement of copyright. The appeal court disagreed. one fo the judges said that anyone hearing it would know the song was Colonel Bogey and although it was not long, a “substantial, a vital and essential part” had been copied.
That’s the key here, as I see it. It doesn’t matter that its been compressed. A substantial, vital and essential part of the song has been copied.
Thinking about it in terms of “copyrighting a number” is a long bow to draw. Its clever but its not correct. It’d be like saying that you’re copyrighting the ink of your pen. You don’t listen to the numbers: you listen to the music. The music is protected by copyright. Your analogy of the transcribed music is a good one. Passing that copy onto a friend - in fact, making the copy - is a breach of copyright.
Thanks Dave.
I’m still slightly confused. If passing on a transcription of music taken from an audio recording is an infringement, then is passing a copy of the binary code required to represent that music digitally the same kind of infringement? Apologies for my continued ignorance - I’m only just starting to come to grips with copyright law!
I’ve got essentially the same wonderment as Embra. It isn’t to say that we are copyrighting numbers, but that we are making the distribution of these numbers a violation of copyright laws! Not a long bow to draw at all. Just a compound bow where we loaded the arrow in the wrong way but are not strong enough to hold it anymore (such a fatalist, aren’t I? :p).
I would sumbit that there are a whole lot of possible representations of the song, “Ray of Light” by Madonna (hey, I like Madonna). Distribution of any of those would be an infringement on her (incredibly holy and possibly sexy)copyright if she didn’t give permission. But what, exactly, are we saying is a representation of Madonna’s “Ray of Light”? Is copyright law about representations or is it about knowledge of what is being represented?
Let us say, for a moment, that “Ray of Light”, when represented in MP3 format with a 96k sampling rate, ends up being the 2[sup]100 prime number (in binary). What is the status of this prime number? (apart from representing the work of a goddess in MP3 format, of course—that much is granted).
These copyright laws are pushing me over the borderline.
musicguy, Shaggy’s song “It Wasn’t Me” and the CD wasn’t played at all until a DJ in Hawaii downloaded it off of Napster and started playing it. Only then, months after being released, did the song and the CD it came from finally caught the imagination of the public.
So, does your “theory” apply only to music or also books, software, and videos? Does it apply to patents as well? Because your theory seems to suggest that the creator should have no ability to make money from their work and if they don’t like it, they shouldn’t be in that line of work.
I would assume you enjoy your paycheck (if you have a job). Should you not expect to get paid for the work you do? Artists are trying to make a living just like you and everyone else. Should your food and gas be free because you don’t want to pay for it?
My theory is: If you don’t want it copied, help strengthen the laws so there is more of a deterrent to the people that willfuly break it and prosecute or fine those that do. It’s that simple.
Ok, maybe I threw everyone off the scent with the “passing along” thing (although I see I did try and clarify myself).
The key is in the name. “Copyright” = “right to copy”. That right is exclusive to the owner, unless you licence it etc etc.
It doesn’t matter how you copy it. I buy “Ray of Light” (I’m drunk -sorry Erislover couldn’t help myself). I burn a copy of the CD. Breach of copyright #1. I tape onto audio tape the content of the burned CD. Breach #2. I convert/compress the audio tape’s contents to binary code. Breach #3.
I put onto the internet a software package and platform to allow people to exchange compressed MP3 copies of Ray of Light. I don’t actually copy them myself, but I assist other people to do it. That’s aiding and abetting copyright infringement.
Napster relied on a technical defence peculiar to US law, which I’m not very familiar with, I have to admit. There was a case on Betamax video technology which apparently helped them, which I comprehended when I read it but now I have forgotten the gist of it.
Part of what I personally think is wrong about all of this is that new cheap technology has sprung up (Gnutella esp) which copyright laws just don’t like. Which is a big problem, because the copyright laws themselves are effectively a disincentive to the development of this new technology, and disincentives to the development of new technology are Economically Bad Things[sub]TM[/sub]. It was this sort of reasoning that stopped the Romans from developing the steam engine (“But what will the slaves do?” asked the emperor)*. So you have private property and reward for effort arguments against technological development arguments. Both have considerable merit.
Further to what we were talking about earlier, I happened to find this on the issue of damages in copyright cases:
I see musicguy has already answered you. You musn’t be a proponent of private property. Can I come over and eat your food?
*[sub]So my boss tells me after watching a BBC show on the subject. Amazing! [/sub]
Dave, I thank you for your comments, but it wasn’t really the “right to copy” part that I was confused with, but rather what represents a copy. In my previously poorly-coded example, the 2[sup]100[/sup]th prime number just happened to be “Ray of Light.” I understand that copying the MP3 would be illegal, but what is the status of that number?
That seems like a legal loophole that would be very difficult to phrase correctly for closure.
This is exactly what I was talking about. An artist gets signed and gets a record made, and then finds it barely promoted by the record company. (IIRC, the vast majority of signed bands find themselves in this situation.) This DJ hears about him somehow. Pre-file sharing, if he wanted to hear the song, the DJ would have had to go out and find the CD, then spend $15 of his own money to buy it. (If he could even find it in Hawaii.) Instead, he was able to download it for nothing. He liked it, so he started playing it on the air, and more people liked it, and it eventually became a hit.
That’s the problem with record company promotion–we only ever get to hear the few artists that the record companies want us to hear. An artist can’t find an audience if no one can hear the music.
You can’t copyright a number per se. I can’t go prevent people from using the number 42. (You can trade mark a number in certain extreme circumstances, but that’s a different issue)
But the prime number 2[sup]100[/sup] of itself isn’t “Ray of Light”. It’s in a digital format, capable only of being understood as “Ray of Light” by humans using special equipment.
Same as the colour black of itself isn’t able to be protected by copyright. But if its black on a canvas, which results in something original (and other criteria), then its subject to copyright.
Think of the equipment and the compression software as being the canvas, and the number as being the paint.
Now, to follow through with the analogy, if people using Napster were merely copying the prime number, the colour black, that would be no issue. But they’re not. They’re copying the number in a special format which enables the number to be understood as a song. They’re not writing down the prime number 2[sup]100[/sup], and thumbing their noses. Its more than just that.
Nope. copyright is more like monopoly on publishing. Owning a copyright does NOT give you exclusive right to control all copying. There are mitigating factors; Buying a copy gives a user certain rights to make additional copies, depending on the purpose.
nonsense. this is perfectly legal under fair use.
Nonsense #2 & #3, these are also legal under fair use.
Also nonsense, if the software also facilitates the exchange of non-copyrighted or properly licensed information, then you have done nothing wrong or illegal. If there is a legal use for your software, then it doesn’t matter if there are also illegal uses.
Actually, no. The Betamax case is what established that fair use permits a consumer to make copies for their own use of data that they have a single licensed copy of.
The Napster defense was based on a law regarding what is called a ‘common carrier’. That is, if you provide a data-neutral service for exchange of information, and you don’t filter or otherwise restrict what users exchange using your service, then you aren’t responsible when they use your service to commit illegal acts.
Can you give me one logical reason why a record company would make a large investment in a product and then not want anyone to hear about it? Please provide a cite because it doesn’t sound correct to me.
Tejota - are you an American lawyer? I have already said my knowledge of American IP law is spurious at best.
Additional copies are not permitted in my jurisdiction. In software contracts I draft, the licencee to make a back up copy only if there is a specific term allowing this.
As for whether its property, see Pacific Film Laboratories v Commisioner for Tax (1970) 121 CLR 154. Or Re Dickens [1935] 1 Ch 267 if you’re in any other British Commonwealth country. And read what I wrote above about it being a chose in action.
If you are talking about exemptions like fair dealing fo the purpose of reseacrh or study, fair dealing for the purpose of criticism or review, fair dealing for the purpose of reporting news, then you are looking at very very narrow exceptions to the property right.
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>Sigh<. God I love dealing with lawyers from other jurisdictions. Nonsense to you, good law to me. What you are saying is nonsense, as far as I’m concerned. To be fair to you and your liberal use of the word “nonsense”, jurisprudence on “fair use” is considerably more advanced in the US - you’ve got, for example, * Sony vs Universal Studios* 464 US 417 (1984), which allows you the private practice of recording TV programmes for viewing at a later time. Most common law jurisdictions don’t allow that.
Perhaps then you’d like to explain the basis of the music industry’s action against Napster. My understanding, confirmed by Wired is that