As I explained above, the AHRA does not redefine “copying.” It merely collects royalties in advance under the presumption that copying will take place. Furthermore, it requires the use of technology that would prevent multiple-generation copying. And it says nothing about making a copy from someone else’s copy in order to restore a damaged copy.
Furthermore, the Diamond Multimedia case found that the AHRA did not apply to computers. So citing to the AHRA doesn’t support your assertion.
No, I’m asking you to support the positive assertion that making a tape from an album does not constitute copying under the law.
You’re the one who made an assertion regarding the definition of copying, a definition that so far as I can tell does not exist in the Copyright Act. You’re the one who needs to provide a cite.
As curious as this might be, you are making a strawman argument; to wit: Ivn said, “I would say that legally, if you purchased Led Zep IV on vinyl, then recorded it to tape, you are not creating a legal copy. You purchased the information that comprises an album, not the mere media.” This is what you cited in your rebuttal. So, I think it’s fair we run with it; how does what may or may not apply to computers have any relevance to recording from vinyl to tape?
A little consistency would be nice.
Also, you’ve been asked twice now, and have twice failed: cite? You’re making an affirmative claim about what something does speak to; it should be of no moment to provide the citation to the such a decision which bears out your claims. That you continually prove you’re not able to do so counsels much.
Ashman, Ivn has made an extraordinary claim about the meaning of what constitutes a “legal copy” in the very section that you quoted. That’s the claim that demands a cite.
Ivn keeps referring me to the AHRA, a statute that, unless Ivn knows something I don’t, is entirely irrelevant to his assertion. The AHRA allows a particular type of copying, not because it isn’t legally considered copying, but because in buying the kind of device that the AHRA applies you, you are charged a royalty fee up front which is distributed to copyright holders.
This is the question I’m asking. The AHRA doesn’t say that making a copy using a digital recorder is not copying. It’s saying that because we know you’re going to go ahead and make copies with it, we’re going to charge you in advance and distribute royalties to copyright holders.
It’s Ivn who needs to give us a cite that this leads us to the conclusion that “legally, if you purchased Led Zep IV on vinyl, then recorded it to tape, you are not creating a legal copy.”
This claim is so extraordinary that demanding that I find a cite contradicting it is like demanding that I find a cite stating that a lawnmower is not a whale.
My point in a nutshell is simply that your assertion, your argumentation isn’t proof.
If his point is novel, then it should be of no moment to refute it with the correct interpretation.
Moreover, you’re bringing up an issue about computers in response to his discussion about vinyl to tape recordings. While curious, I don’t see how it’s directly on point.
Hence, why I’m asking for a cite. A cite to a primary source would surely be preferable to just decrying his interpretation of something he’s citing as novel. He at least makes a cite, and draws an inference from it. Your rebuttal is essentially “I say it’s not the case and because I say it isn’t the case, it isn’t. QED.” That won’t do.
Have you looked at the definition of “copy” in the Copyright Act? I quoted it for you right up there. A copy is anything that allows you to perceive a work. There’s your refutation.
Are you following this discussion? It’s Ivn, not me, who has brought up both the AHRA and the Diamond case. I’m saying that they’re not relevant to his assertion.
The situation is somewhat complex. For isntance, copyright law outside of fair use is pretty much all or nothing. One cannot say, you can’t copy from CD to CD but you could copy from CD to tape. Or you can’t copy a song off the radio.
It’s still illegal to do so. Because a 128 cbr on an mp3 is an inferior copy just like if you held a microphone to a radio and made a copy that way. Whether or not it’s a flawless or crummy copy doesn’t matter.
The other part is, IS music intended to last forever. I will say it hacks me off to buy the same album as a record, cassette, CD, and mp3. I mean how many times am I gonna have to buy that darn “Meet the Beatles,” album
So an argument can be made when one buys music, it should be expected the consumer will have to repurchase the same music over a period of time. Such as clothes or even books will wear out over time.
The biggest obstical to the file sharing phenomenon is the consumer versus artists. The RIAA and/or record companies sue people, but the artists are not seeing any additonal profits from this.
But consumers tend to take their anger out on the artists, so it isn’t doing them any good, they have to bear the blunt of the bad will without much, if any, money gain.
A third problem is the record companies still count each download as a loss. A lot of the downloads are people just being greedy. They wouldn’t go out and buy the music, they are only downloading it 'cause it’s free. A similar problem exists with CDs. In the past ten years I’ve probably bought ten CDs. All the other CDs I have came from used CD stores, and the artist sees no extra profit from that.
Finally countries like Iran and China make it very easy to download and you won’t eliminate the problem but shift it. An example of this is meth. When they limited the amount of cold medicine you could buy over the counter and restricted it by putting it behind the pharamacy, in the US, the meth production nearly collapsed. It worked, well sort of. Use of meth hasn’t dropped one bit. All it did was shift the meth production to other countries, notedly Mexico.
Now this is not to say, the law isn’t broken or we should break the law, but how many of us Jaywalk, eat grapes in the grocery stores, or any other number of laws we break every day. I can’t remember the last time I’ve actually seen someone STOP and then make a right turn on red. I can walk down any street and count the number of people not in seat belts or talking on cell phones while driving.
This doesn’t mean they aren’t breaking the law either, but you don’t fine them a million dollars simply for the sake of making a point.
You know, I didn’t realize it was this hard or unusual for a cite to be put up here. I guess it’s beyond your abilities. So, just keep on making claims without the benefit of backing it up. That’s a lovely style of argumentation, which I shall dub argumentum ad Dubya.
This. If the lady in the lawsuit was charged for distributing downloaded content and not for actually the act of downloading the music (or possessing downloaded songs), what’s the difference, really?
Sites like Limewire exist because people download music from each other’s downloaded collections.
Frankly I don’t give a shit. Sometimes I download songs, and I burn a CD to listen to in my car. That’s it. A lot of the songs I’ve downloaded are ones I have already purchased, but I want to make a “best of” CD for myself and my own personal use.
To me there is zero difference between that and recording songs off the radio with a tape recorder, recording a movie onto a VHS tape, TIVOing a sports game, or whatever. What then is the difference? It’s silly that these things are technically illegal.
If you want to nail someone for pirating movies and selling them, fine. But downloading songs that are also on the radio or that I already bought in another format? Get outta here.
Ok, I am going to lay out where you are going wrong.
First, let’s look at the 76 act.
It defines a bundle of rights given to the owner of a copyright. These rights include things like public performance, making derivative works, and of course making copies. So far, you are on track.
The focus in this thread is on the right of making a copy. You are entirely correct that section 106 forbids copying. However, it also sets out restrictions on this right in sections 107 through 122.
107 is, of course, the fair use doctrine. 109 lays out the first sale doctrine as applied to phonorecords and computer programs. 110 provides educational exemptions. These and the following sections comprise a lot of exceptions to the bare 106 rights that one has.
For instance, a cover of a song is a derivative work. But covers are expressly allowed and there is a statutory maximum royalty scheme in place. So the right to keep people from making derivative works is not absolute. Similarly, the right to keep people from making copies is not absolute.
You mentioned that a copy is “percievable”. That is inaccurate. A copy, under the copyright act is defined thusly:
Fixed:
Now, as with all statutes, these have been interpreted by the courts and expanded upon over the years. Projecting copyrighted transparencies onto a screen makes a perceivable copy of the work. But the projection is not a copy as defined by the copyright law of the United States. (As defined by case law talking about the definition of “transitory”.)
Therefore, my first point obviously stands that there is the everyday definition of a copy and then there is the legal definition of copy, and a distinction must be made between the two when discussing copyright law. Fortunately we have a tool called “precedent” that allows the courts to clarify the murky ramblings of congress (especially helpful when technology overtakes the law or when congress decides to punt to the courts).
So, as we are now aware of this odd difference in definitions of the word copy (not to mention “infringing copy” or “educational copy” or “transitory copy”), we can continue an analysis.
Now, the congress did pass this AHRA thing. Again, you are correct that the AHRA sets up statutory royalties on recording equipment, etc etc. But, as with almost all acts, it does a little more than that. Let’s take a quick look (again) at the relevant section, section 1008:
And now a little quote from wikipedia talking about the intent of congress (With cites):
Next, let’s look at what the court said in RIAA v Diamond Multimedia (again):
It might be dicta, but that case was the last word on home copying and stands as the law of the land.
So, if you are still with me, ascenray, you can see that the intent of congress was to allow home users to make copies of music they own, for noncommercial use, without running the risk of infringment. That intent was picked up by a circuit court as well. I cannot imagine any way to make it any more clear that things like copying your cds to your ipod, copying vinyl to tape, or any other sort of noncommercial media or space shifting (remember, space shifting like your VCR and DVR is explicitly allowed as per Sony) are completely legal, regardless of the RIAA’s claims in this area. (Also, the Diamond Case didn’t expand the definition of digital recording equipment to computers because Diamond doesn’t make computers, and thus the court has no standing to rule on making, say, Dell pay royalties. That would be a side issue anyway.)
So: since I am allowed to copy my vinyl recording of Leftoverture to CD, and from CD to iPod, we can move on. Let’s say that during a late night court session, someone sets my vinyl record on the radiator and it melts. Do I have to delete the song from my iPod and shred my CD copy? No. Congress’ intent was clear that noncommercial end users can make copies for backup purposes as well as for format shifting.
This fact, when combined with the fact that MS and almost every other software publisher doesn’t care which CD you use as long as you have a license key, several court decisions dealing with copyrights for computer programs and ram “copies”, and a vast amount of academic thought on the issue seems to lead to the inescapable conclusion that you are indeed purchasing some “nebulous” right to privately perform, make copies of, and otherwise enjoy the music that you purchased. Again, I ask you what you are actually purchasing when you download a song from iTunes, if not this nebulous right? If you move the song around on your hard drive, you’ve made a copy and deleted the original. Are you supposed to buy a new copy, as the electrons storing the song are different? And why does Apple allow you to redownload for free (IIRC) songs you have already purchased? Why does the first sale doctrine apply to music you purchase if it’s nothing but a license from the publisher?
So now that we’ve gotten those issues out of the way, we can address my final point, which I freely admit is theoretical, that you should be OK downloading music you already own. No court has ever addressed the issue, so I guess it is “novel”, at least as in a case of first impression. However, those of us who study copyright law, and the judges who interpret it, are guided by decisions in other areas of law, practice, and public policy. The lines of cases springing up after MAI v Peak all talk about what a “copy” is under copyright law, and some of those also talk about the source of the copy (hard drive vs CD, copies of programs from backup tapes, etc). Most of the cases are pretty liberal; they almost all allow a copy to be run from any source media. In practice, it doesn’t matter if I rip my cds to mp3 or if my friend does it for me, nor is there any real difference between him ripping his own copies and simply making copies of those rips for me if I own the CD (unless, of course, he as the gold remastered edition or something, but I am assuming for illustrative purposes that they are more or less identical albums). As far as public policy goes, there are points on both sides, but given the original intent of copyright law “To promote the Progress of Science and useful Arts”, i.e. for the public good, it seems clear that we would be OK in erring on the side of more freedom for the consumer when there is little benefit in restricting those freedoms.
Therefore, were I to be the judge in this hypothetical “I am downloading only music I already own” case, I would be well within my discretion to rule that those are not infringing copies under the AHRA. But since neither you nor I are a judge in a position to rule on the matter, and since no court has ruled on the issue either, the law is effectively unwritten – admittedly, your interpretation is equally valid (though I find it highly unpersuasive), but I don’t think my points can so easily be discredited.
So, if you would like to step up with some sort of cite that directly counters my evidence as to the intent of the AHRA, the courts’ interpretation of the AHRA, or if you are able to find some ruling that explicitly says you must make recordings personally from your own media, I would be glad to discuss them with you. Alternatively, I would be glad to hear it if you have another theory of what happens when you purchase a CD in a store (as opposed to my theory of “nebulous rights” – which, you will note, I refer to as a theory, because the law doesn’t often explicate the underlying philosophy by either court cases or by statute). I do feel I should point out that argument by eyeroll, implication, and ad hominem aren’t persuasive (and are sort of offensive, at least in GQ).
And here it is. This is not how “the law of the land” works. Dicta is interesting commentary, but it is not an actual holding of law.
You’ve gone into mighty detail on the AHRA without actually catching the point – it is relevant only to copying using the devices covered by the act. And it excuses copying in a situation when the copies in question have already been paid for. This is nothing like a holding that “legally, if you purchased Led Zep IV on vinyl, then recorded it to tape, you are not creating a legal copy.”
The Copyright Act restricts coping (subject to certain limitations). The AHRA specifically authorizes a certain type of copying. Under this rubric, any type of copying that is not specifically authorized under the AHRA is still subject to restriction. That’s how statutory interpretation works.
The AHRA applies only to certain digital recording devices, not to record players, not to cassette recorders, and not to computers. And that’s the holding in Diamond Marketing. That’s where your argument fails.
It applies to both digital and analog devices, as is apparent in both of the quotes I’ve provided and as provided for in the legislative record. The issue of applying to computers or tape recorders or trombones doesn’t make any difference to my arguments. Your analysis is also completely apposite the court’s ruling. This link from Harvard Law School explains that the Rio did not fall under the AHRA’s requirements nor did a computer hard drive, and thus neither device was required to pay royalties nor have SCMS capabilitiesandthat copying mp3s from computer to Rio was legal.
I think you’ve demonstrated that you aren’t in fact familiar with the AHRA’s provisions, as it is not “just about royalties”. In fact, you say in the same post:
This is categorically not true. If I copy my Zep album from Vinyl to tape, or CD to iPod, I am covered by the AHRA. None of these devices, according to you, allow me to legally make copies under the AHRA. Yet, there it is in Diamond, and there it is with iTunes, and the Zune, and in the words of the legislature.
The first statement is true; unfortunately for you, there are no (zero) decisions on this point. The law is unclear. I notice you still don’t have a cite saying otherwise.
The second statement, however, is wrong. Statutory interpretation doesn’t “work” in any specific way, especially in an exclusionary one. How do you think the supreme court found a right to privacy or the fair use doctrine sprang up? (Hint: fair use didn’t start in 1976.)
Finally, you still haven’t even made a clear argument other than that you keep telling me without cites that I am wrong about what the AHRA does.
P.S.: Indeed, one of Diamond’s holdings was exactly that copying your Led Zep from vinyl to tape did not create an infringing copy.
You say this, but do you have an actual case where that was determined to be true? One where someone tried to use the AHRA, but was turned down because what was copied was not what was specifically allowed?
I have no doubt that you have an expert level of knowledge on the subject. But your opponent has went to a lot of trouble to provide citations for everything. You have provided exactly one, and that same one has been used against you. Until you provide citations, I see no reason to believe you over your opponent.
And while dicta is not actually law, it is often mined to discover the reason a ruling was made, and thus the intention of the original law. In the absence of specific laws for a certain case, such interpretation of laws is often necessary to rule on a specific case. Heck, the highly regarded Separation of Church and State comes from a letter that was not even part of a legal setting. But because it was an interpretation of a law (or, in this case, Constitutional amendment) that already exists, made by someone who had the authority to interpret laws, it was later used by a court ruling.
Actually, my focus here is on your assertion that “legally, if you purchased Led Zep IV on vinyl, then recorded it to tape, you are not creating a legal copy.”
And not one of these sections limit the scope of the definition of “copying” as set forth in Section 101.
Actually, what I see is that for certain devices that are covered by the AHRA, the law collects royalties in advance and authorizes certain types of copying. It does not limit the definition of “copy” set forth in Section 101.
You can’t imagine anything more clear? Really?
Nowhere have you offered any evidence that “copying” as set forth in Section 101 is redefined by the AHRA or anything else. You have offered speculation as to what kinds of copying might be authorized, but that is not remotely the same thing.
It’s called the Plain Meaning Rule. You will find the Court talks about it all the time. Some cases include Caminetti v. United States and many others. Basically it means you enforce the statute according to its terms. Thus if the AHRA says it applies to audio home recording devices of digital and analog types, you don’t have to be skeptical when someone says “The AHRA does not apply to Xerox machines.” Nor do you have to provide a citation to case law for this astonishing proposition.
Ok. Take the words “legal copy”. Replace them with “noninfringing copy”. Replace them with “copy that does not meet the requirements laid out in the body of copyright law, including statutes and court decisions, that would expose the copier to liability for copyright infringement under 17 USC 106”.
Or replace the words “recording” or “copying” with “creating a physical embodiment of some information, fixed in a tangible medium, that is perceptible, and non-transitory”.
I sincerely hope your whole problem here wasn’t predicated on some weird misunderstanding of what I mean by legal copy, or infringing copy, or whatever, because my meaning was obvious. Everyone else here seems to have gotten it.
Frankly, I suspect you are just scrambling to score a point, as you have backtracked from me being obviously, completely, and hopelessly wrong, to making an obscure point that isn’t even very central to the topic at hand. Consider your point scored, I’ll stipulate that it’s a copy under the definition of 17 USC 101. But it’s still legal to make that copy, and I feel that there is a strong legal justification for it being OK for someone to download music they already own.
However, you do have to provide a cite when you are presenting an analysis that goes against cited case law, statute, and congressional records. I’m not sure what the canon of “every authority presented so far is against you” is called. But either way, you are well aware of Llewellen’s old saw about every rule having a counterpart that would lead to the exact opposite result.
Here in Kanada, the CRIA (our version of the RIAA) gets money from a levy on every single blank CD and DVD, every hard drive, and every flash drive sold. This money was supposed to be compensation for any copying of music. It was instituted because, despite the insanity of having to pay the CRIA every time you want to purchase a new memory card for your digital camera, the CRIA has a lot of money to buy politicians – and convincing their pet politicians to give them a whack of money meant their investment in politicians paid off handsomely. When the whole filesharing thing broke, they were hoist on their own petard, since now they couldn’t sue people. Fortunately, Kanada is now under the rule of neo-cons and – despite the fact that the CRIA has already been paid for any copying done – the neo-cons (under pressure from Amerika) have introduced new copyright legislation so that the CRIA can sue people for making copies for which these people have already paid the CRIA. Ain’t capitalism grand?
(PS: Copying is not theft. By definition. If I steal something, I have taken something away from you. Copying takes nothing away. The original is still there. Ergo, it can’t be theft.)
I say it not so much to weigh in on the OP–although I think we all agree that the AHRA does not apply to Xerox machines–but rather to fight the misapprehension that each and every legal proposition has a citation to a circuit judge somewhere. Sometimes reproducing the statute is enough, especially if you are saying that the law is the plain meaning of the statute in question. You do not need a court of appeal to say “123 USC 456 really means what it says.”