Oops, I should have investigated further before posting. What I thought was the German goverment is actually their equivalent of the RIAA.
Under the theory that I am entitled to possess copies of the music I have licensed in multiple formats.
Are you saying that, while I may legally convert an album myself from one format to another, if I have someone else do it for me, then that is infringement of the right to copy? I can see where the rightsholder would have a case against the company providing the service – they are making money from the IP of the rightsholder from an act that involves copying – but not against me. And I thought your primary objection was that I, as a (hypothetical) user of the service, was in violation of US copyright law because I was coming into possession of IP without the permission of the rightsholder.
Please don’t be coy, **Bricker **-- I am not trying to trap you into an answer. If there is something that is blindingly obvious to you, it’s not (apparently) obvious to me.
So, let’s say the Feds deem Allofmp3 to be definitely illegal (as in, a press release). Then what? Would the same thing happen that happened to the Spanish site? Could Allofmp3’s US customers claim they believed the site to be legal and not face possible prosecution by the Feds or lawsuits by the RIAA? Do you think the Russian authorities would force Allofmp3 to turn over their customer data?
Can you explain what you mean by this? Fair Use, AFAIK, does not require any license existed, either expressed or implied. That’s why it’s “Fair Use”. In fact, since I’m probably in a small minority of people who have had to respond to legal threats involving Fair Use in the US, I actually have been through the “4 tests” in excrutiating detail.
Note I’m not saying that copying an entire commercial song is “Fair Use”, but I am contesting this legal statement you’ve made that appears to assert that Fair Use requires the existence of a license. If what you mean is “since copying the entire work would certainly not be considered Fair Use, AND there is no license, therefore it is a copyright violation” then I would agree with you.
See this for a non-anecdotal reference: http://www.copyright.gov/fls/fl102.html
Yes, this is exactly what I meant. Apologies for the lack of clarity.
And I apologize for being nitpicky. The specific issue has…personal interest to me.
The RIAA has made similar assumptions in the past, particularly dealing with Canadian law. You can’t assume that copyright legislation will be applied in similar ways in different places.
The German government recently took a hard line stance against copyright infringment, much like our own. That’s had me initially thinking that GEMA (“Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte” - the society for musical performing and mechanical reproduction rights) was an agency of their government.
Er, “that’s what had me initially thinking…”
I’m not trying to be coy – I’m trying to illustrate the method of analysis that is necessary.
Yes, as a general principle, you have the legal right to convert an album yourself from one format to another. That is an example of fair use.
How do we determine fair use? Remember the points that must be weighed:
[ul]
[li]The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes[/li][li]The nature of the copyrighted work[/li][li]The amount and substantiality of the portion used in relation to the copyrighted work as a whole[/li][li]The effect of the use upon the potential market for or value of the copyrighted work[/li][/ul]
When you make a copy for yourself, item #1 is not triggered; there is no profit being made by anyone. When someone else profits by making the copies, item #1 is triggered. So the act of someone else making copies for you is not a clear fair use exception, even though you making copies for yourself is.
Thank you.
So the act of copying, rather than the existence of the copy, is the problem? What then is the legality of services (such as MusicShifter) that will take my CDs and convert them to digital format for me? Since they are profiting from the conversion, does this trigger item #1 as well?
Holy reencoding batman. They take it all the way.
They will convert your music to MP3, AAC, WMA, FLAC, burn it to cd for you, and optionally put it on a hard drive that you buy from them or send to them for that purpose. They do giant orders too (I can infer > 70GB).
Suspiciously sparse of legal info, but I see no reason why someone could not run a service of making fair use copies of music people provably (as you have to send them the cd) own.
It does, yes, but it doesn’t tip the scale, since item #4 saves them.
Should you be giving that advice on this message board? Can you make an absolute statement that “#4 saves them” and that Fair Use applies? Do you have a case cite that you want to share on that exact situation? Isn’t that something that must be decided by a court for the specific case in question? When I retained an attorney over a threatened lawsuit by an SDMB member/stalker, I learned an awful lot about Fair Use and who exactly determines whether or not it applies.
Are you sure? One could argue that the existence of sites like MusicShifter has a negative effect on the market for online music stores like iTunes. If you have a stack of CDs that you want to copy onto your portable player, but aren’t able to rip them yourself, you’d never consider downloading the tracks at $0.99 per track when you could have MusicShifter convert them for $0.79 per album.
Well, yeah, but job of copyright is not to protect every single medium from every concievable competition. This isn’t affecting the value of the copyrighted work, it is affecting the value of a specific medium. A healthy competition where advantaged and disadvantages are fully and freely explored between competing formats is what makes the free market theoritically work.
Copyright was never meant to give any business with anything vaguely IP related a monopoly on anything that they do. It’s meant to grant artists a temporary monopoly on their artistic works in order to encourage them to create more. MusicShifter does not infringe on that.
How then does item #4 not save allofmp3.com in my original supposition (hypothetically speaking, in light of Una’s comments)?
In what way are these not equivalent? Again, not trying to trap you or be obtuse, but I’m just not seeing this the same way you are (obviously). I’m not an “information wants to be free” kind of guy – I think the protections that copyright law affords to intellectual property is a good thing.
But…
Given that I have already licensed the material, and that my use of the material across other devices or formats is previously determined to be legal, why does it matter than I got one digital copy of the album from someone who digitized my physical CD and another copy from someone who digitized a different copy of the CD? The resulting digital copy is identical – is it the path that the bits followed that matters?
Sure, the path matters.
If you have $31.15 in the bank, you are legally entitled to withdraw it. You’re not entitled to hack into the bank’s computers and cause a wire transfer into another bank, even if you only transfer the exact amount in your account.
The allofmp3 method causes too much risk of improper use. Even if the particular example you raise would result in only a legitimate ending – that is, only material to which you already have the right to copy being copied – the METHOD produces far too much risk that people will end up with material for which they are NOT licensed. That causes a loss of the value of the copyrighted property and impacts prong #4 of the fair use test.
So now we are forbidding business practices with a known legit use because they might somewhere somehow be used to pirate?
In this case, I’d say we’re forbidding piracy techniques even if they somewhere somehow might be used as legit business practices.