And this is exactly the time of misrepresentation i keep talking about

you take a quote from the section explicitly labeled "AUTHORIZED TIMESHIFTING" to justify invalidating "UNAUTHORIZED TIMESHIFTING"

the funny part is just below that part there is a sections B. UNAUTHORIZED TIMESHIFTING"


not only does this paragraph prove the point i have repeatedly made that "Fair use" trumps the exclusive rights granted in section 106 but it also disproves all the crap you have been saying about personal use, and different levels of fair use, and yes even the arguement that torrent is only point to content for infringement purposes.

Use of a torrent for fair use purposes "are not infringements of copyright"
which in turn means all of the quote you keep spouting about how the "First ammendment does apply" because it an infringing technology also don't apply.

Given the fact that a pc could handle a maximum 256 connections assuming one goes to the tracker that 255 connection available to seed to. If the file is brokening into more than 255 pieces (most are broken into at least 1000). The maximum swarm density i could obtain before i successfully gave any one person a WORKING COPY of your content is 254.

That is the equivalent of burning the content to 254 dvd and storing them in 254 safety deposit boxes and that is all before i have made a single "POTENTIAL" (because if the downloader is getting the copy for the fair use right of recovery it is also "not infringements of copyright") infringement of your copyright.

I just cannot believe the fine she had to pay in the end.

Gideon, you keep going on about "fair uses of torrents". The reality is that that just doesn't exist. You are attempting to bootstrap a VERY limited personal right into a distributed technology. Just doesn't happen.

The fair right use to recovery applies to copies you have made for yourself. You cannot just randomly give away copies of stuff to other people because the MIGHT have the rights. The entire right to a backup is a copy backed up in manner that you can recover it PERIOD.

The chance that you put your file out on the torrent network today and are able to recover THAT EXACT SAME FILE in the distance future is nil. It isn't the same as a DVD backup copy in a safety deposit box. Using torrents for backups would be like photocopying your bank records and throwing them into a stiff wind. If you looked long enough, you might get your records back. But I doubt it.

Part of the process of creating a backup is securing it and knowing you can get it back. Most torrent files lose trackers and seeders within a few days to a week. Your backup wouldn't be valid, and further, you would have no idea where the file is.

You are just so full of shit it is a amazing.

It looks like this woman just got some nice ammo for an appeal.

http://yro.slashdot.org/yro/07/10/06/228202.shtml

Now its getting interesting;)

'Making available' may not be good enough anymore.

I think you are right and it will further subject that statement to scrutiny.. but here's the kicker on it.. and you would think the judges would go in the same direction.

1. Infringement does not occur just by offering something. Infringement is an act that requires two parties; a giver and a receiver. I don't think the prosecution would have trouble getting a motion for discovery of the transactions occurring from her account. All it takes is one transaction for the violation to occur.

2. The definition of the folder on her computer... "sharing"..... it's not a personal storage location, it's a location to share content. It is intended to show that you have something to give to others.

They may potentially have ignored a little loophole in the law, but the necessary element to avoiding this in the future is just proof of transaction. An OOPS that would be corrected with the next poor schlub that made it to court.

Gideon.. Alex... I kept reading over and over again in the BetaMax decision and in a few other cases that time-shifting was for private, in-home use. Kind of blows it out of the water when you take it out in public and out of your own home.

Gideon.. read the decisions on fair use... read what section 107 has to say specifically about it. Teaching, commentary, parody.... You are taking one decision (BetaMax) and saying that it overrules copyright law.... it does not... it supplements it. Copyright law is the king of the pile and fair use deals with some exceptions. It's amazing that when people want to break the law they find loopholes... everyone else just says, hey.. this doesn't belong to me, maybe I should pay for it. Or .... OH SHIT ... my copy got thrown away, I guess I have to pay for another. No one in their right mind goes back to Sony Pictures and says I have a right to your show I bought 15 years ago... you must provide me with another copy or else I will get one by file sharing. Take care of your fucking house man... be responsible. If you lose or miss something, deal with the issue and pay for it. I agree with Alex.... do I have a right to every show on television by the mere fact that I own one and it has the potential to view all shows? Do I have the right to every program on cable because I pay my cable bill? If I pay for HBO does this mean that every show they deliver I now have a right to get via other means? Of course not... no reasonable person could ever come to that conclusion.

You have a right to copy a television program when it is offered. If your VCR dies, or the power goes out. Tough shit. If your friend recorded it, fine, go watch it at his house or borrow his copy (borrow... don't replicate). You are paying for a right to view when it is delivered, not ad infinitum. Your VCR is giving you the ability to watch at your leisure, in your home, not act as a distribution channel for everyone everywhere just because they own a television. Have some common sense... seriously.

A teacher copying a page from a text and using it for her 100 students is different than you delivering a complete rip of a movie (or television show). You will also notice that fair use does not allow a teaching situation to reproduce consumables (workbooks, etc). So even they have limitations on what they can do.

220 big ones, I think those songs are paid fore now hehe

and you keep ignoring the fact that i am never distributing a single copy of your content. I am not distributing the content by my actions alone.

MY next door neighbour giving me a copy of a TV show that he recorded and i missed is distributing more complete copies than i will ever do in the swarm.

BECAUSE I NEVER GIVE ANYONE A COMPLETE COPY OF THE FILE.

you keep arguing that my action is an infringing distribution but you have yet to produce a single case that justifies that position (without deliberately going to the wrong section)

I think if i go to court in front of a jury of my peers and point out that i am directly sharing less content then they would be doing by giving their next door neighbour a copy of a TV show they are going to draw the same conclusions that i am drawing.


you have the betamax ruling show me the section that says exactly that.
you have access to all the rulings in question show me exactly where it explicitly prevents getting a copy from another person/source.

Remember the Quote i provided proves that "fair use" is exempt from all the exclusive rights defined in section 106 so that is exactly what you would have to produce to justify this statement

First of all you keep arguing about digital copy obtain is a perfect replication of the original. You tried to even us it as a justification for why it should not be allowed. Now you are making the opposite arguement

and that is total bullshit, as long as the torrent exist i have access to that content. It each completed peer is a point of redundancy. I get request from people to seed content i have downloaded from TVTORRENTS.com for me to recover a file i have seeded to the swarm i just mass mail all the peers and ask them to reseed.

traditional back require me to secure it and to know where the copy is located
the swarm only requires that 100% of the pieces be available, if one member of the swarm, or a group of incomplete files gives me that 100% i can always recover a copy of the file i put up.

Gideon, it is all about intent.

if you intend to backup your software or DVDs movies, you would copy them onto local media and back them up. If you needed a duplicate of a song, you would burn it onto a CD.

Tossing a copy out into the ether that is torrent sharing is the worst possible way to back something up. You (a) no longer control it's location, and (b) have to way to certainly recover it. The intent of a backup is to be able to recover from failure.

Your intent to when you put files on torrent sites isn't to protect yourself, it is to bring enjoyment to others without cost.

Contrary to what you seem to think, you don't have the right to provide backup copies to other people without the express permission of the copyright holder. You do not have any right beyond a backup copy for your own use. If someone else needs a copy of software or a movie, they need to take that up with the manufacture.

Also, you have to ask yourself: If this is a valid backup concept, would you put your personal information, your bank records, maybe your bank account info, credit card number, and ATM machine pin number on a file and put it out over TPB, because it would be safe place to back up such information? I don't think so.

So basically, putting something on the net for backup would be a laughable concept, something that would surely get laughed out of court. Even if you can find software or a movie similar to what you had, there is no way for you to identify the pieces and know it is yours. Perhaps the version you download has extra features, or is a newer version of the software.

A backup copy is a copy of what you had, not something like it. You need to be able to locate that backup, you need to be able to destroy it if your license expires or you sell the product to someone else. Once you put something on a torrent, it is no longer in your control.

Basically, you are entirely full of shit. If you don't specifically know where your backup is, and you don't control that backup, you don't have a right to do it. Pure and simple.

As for tvtorrents, well, they are standing on the very narrow "we don't have copyright content, just torrents". I suspect if they start piling up stuff that the networks are trying to sell elsewhere, they will find themselves on the receiving end of a nasty lawsuit. I think they are only avoiding it by being a private tracker system. I also think they are asking for "donations" for download credits, which is another way they will get themselves in trouble, as it is commercialization of the trade.

That is as far as I will go on this. Quite simply Gideon, you are a total fucking moron, unable to understand the very basics of copyright law and it's implications. Perhaps one day you will actually produce something (other than the shit coming out your ass) that you will want to sell. Then let's see how you feel when you make $5 total and everyone has a copy for free because of P2P sharing.

Until then, GFY. You are a total loser.

your miss quoting me again
fair use as a whole supercedes the exclusive rights granted by the act
the two are tied completely together your exclusive assignement of rights is conditionally applied based on you recognizing that fair use is not infringing.

timeshifting is a new fair use right, and it is equal to in protection any of the other fair use rights -- including teaching, commentary, parody. It like all the other fair use right supercedes the exclusive right granted under section 106.


you understand that with copyright you are not selling me the content you are selling me a right of use said content. IF courts interpreted the laws that way you are interpreting them then rio case you referenced would have had the exact opposite ruling.

You are trying to argue in favour of double dipping on payment. (just like in the Rio case) You want to force the extra revenue by RESELLING a right of access and pretending you are selling me the content.

But that is not who copyright law works.

cd and dvd get scratched, tape degrade, hard drives fail all those backup have a single point of failure. THE SWARM HAS MULTIPLE REDUNDANCIES. it is a far more effective backing up to a tape or any single point of failure media.


you keep claiming this but you have never produced proof, quote the exact case where a judge said this explicitly.

that an issue of confidentiality, all backup are not confidential information, in many case repeatitive and redundant information is backed wastefully.

it is stupid arguement that just because i would be willing to sacrifice efficiency for confidentiality when confidentiality is important, i should not have a right to use the most efficient backup when that requirement of confidentiality is not required.


first of all the torrent in question is a session with the peers
the peers are trading the duplicate pieces of the content seed
if i connect to the same torrent i connecting to the same session.
What i take down in that session is the same stuff i originally put up

under copyright law you are not selling me the content but you are selling a right to the content. I am granted additional rights (fair use) with said right assginement.

you argue that i can't re establish my rights when i lose said content by aquirng an identical copy, until you show me a court case that explicitly says so the best statement is you believe that this true but you need to spend a couple million dollars to justify that position.

i have asked you multiple times for the direct quote from the judge that says i am not allowed to do that and you have yet to provide that direct quote.

And given the fact that your previous arguements were wrong (timeshifting was only granted because of inferior quality copies, etc)

this shows you how little you know about the technology you are railing against being a private tracker means that it has greater direct involvement in the sharing of the content. while a public tracker would initialize the session and leave it to peers to determine piece allocation private trackers use statistics to prioritize piece request to maximize piece distribution.
Swarm density is maximized (which inproves availability and speed).

I use it to recover/backup the content for the licienced right i have paid for

Im OK with that actually... if they found out how many times she transferred the songs, it would actually go a long way towards calculating fair damages for the lady to pay.

Alex.. you obviously know as I do that their whole argument is pieced together from the bits of legislation and rulings that they can work around. The entire intent is piracy, not backups not anything else. As you said, it is probably the worst backup possible.

More legislation will be required, or judges that have the balls to say right is right, wrong is wrong. Instead of being wide sweeping in their judgements, it would be nice for them to say.... hey.. it's a VCR.. if you record at home and don't share or distribute your fine.. otherwise.. you are fucked.

Hey.. P2P, or torrents or anything. Don't work with copyrighted materials. You can't give them to anyone else. If you want to put your word document up, fine.. but don't share something you didn't create or that the creator has not given you right to share.

Gideon, this is not a case of forcing extra revenue by reselling. That would be like going to Ford and telling them that their warranty was bullshit and they owe you a new part for your car because it either wore out, you lost it, etc, etc. Why should Ford not have the right to charge you again? Are they now on the hook to you permanently?

The problem with what we are talking about is that the productions/creations have useful lives which can reach infinity. Why should you have access to something that you misplaced, lost, destroyed, etc?? That in my book is your problem and not mine. You are twisting the law to suit your purposes (as you will surely say that I am)....

You must understand that copyright is not a sale of anything and you sound stupid saying it. A license is a right to use content ya dumb fuck.

Copy-right.... the right to copy under these circumstances. You apparently live in a world where we take what is listed and work around it to satisfy your need to never have to do anything for yourself again and abstain from responsiblity and accoutability. It's due to you and others that the laws keep getting tighter and tighter and tighter. You act like my 12 year old and 6 year old by saying... well, you never told me that this was against the rules. Common sense doesn't work with you, just lines in the sand.

Congratulations. You are forcing the lines in the sand to keep moving in the direction of more and more controls because people feel like stealing. Way to go winner. You must be so proud to have accomplished something.

OK.. now take it a little further.

Let's find out how many transfers she had....

and lets follow the ripple effect of how many times those songs were transferred (following the logic that the subsequent crimes could not have happened if she had not been guilty of the primary crimes.... or do we just latch her on to the liability of the first and leave the rest alone?).

Do you see how ridiculous it can get and how quickly? The copyright owner now has to chase 1 million little threads. If she hadn't broken the rules in the first place, there would have been no downstream problems to speak of.

Her sharing of 24 songs very reasonably could be in turn the sharing of those songs millions upon millions of times.

Take that into account when you consider the few thousand she would have had to pay out of court, or the $220k she is fined in court.

Or.. we could charge her a reasonable fee for her violations, and then court costs and legal fees chasing down the downstream violations she would have attributable to her actions... Think that might top the $220k? Yeah, and then some.

I don't feel sorry for her at all.

The trouble is this: If she shares the song only once, to someone who has no rights to the song, and they share it 1000 times... did she create 1 damage or 1001 damages? The reality is once you release something like this in the wild, you no longer has control what will happen, but you started the chain of events.

In many ways, it is similar to buying someone a gun and asking them to kill someone. If they happen to kill 10 other people while doing it, you may actually be criminally liable for all 11 murders.

If anything, the liablity could be anything up to the entire loss calculated. If that song was downloaded 100,000 times over kazaa, for instance, then she should be liable for all 100,000 downloads unless she can show that other people seeded it and shared it.

Torrents and P2P networks are very dangerous, because once you put stuff out there, you start a chain of events that cannot be stopped.

Now add on top of that, that the limitation is being thought of as just via Kazaa.... what if the downstream users take that song from her and post it on torrents, or other P2P networks....

It's the Butterfly Effect. One little action can have catastrophic consequences. This is where you have to consider that she didn't do just one (24) little things... She was a source (as are soooooooooo many others).

Kevin, it's the reason I won't keep on it with Gideon. Quite simply, he doesn't get it. The copyright laws are there to be read. Unless a court judgement specifically impairs the law, the law is the law. It isn't made up only of court judgements, fundimentally there is a law at the bottom of everything.

The torrent supporters play games by quoting only what is to their benefit, they don't supply context, and they certainly don't refer to the larger law that exists on the subject, both the copyright law of each nation involved but also the agreements through things like the WTO and international copyright agreements.

At the end of the day, torrent sites show clearly that they know they are breaking copyright laws because they try hard to stay away from hosting the content, hide the whois information on their trackers, and hide in the few friendly countries that tolerate their shit. Otherwise they would all be run out of town.

All the lies and horseshit about "legal backups" "betamax" and "timeshifting" is just that, horseshit.

In that case, why arent they trying to dig through the womans logs and find out who she downloaded some of the files from in the first place, and trying to collect the 220,000$ from them instead? (yea I know she ripped a lot of her cd's too).

Bandwidth constraints put a very real limit on the amount of times she can transmit any of the files. It wouldnt take long for her ISP to cut her off (if they behave like comcast, anyways) if she were transmitting an mp3 all day every day.

Responsibility for the infringement falls on the person who transmits the material. Any subsequent transmissions of the material by other parties, are the responsibility of the parties in question. If 1000 people downloaded the file, and put it up for download, those people are responsible for transmitting the file, not her. Your, in essence, trying to punish her for other peoples crimes.

Even if you calculate in some "ripple effect", its pretty well understood that the vast majority of p2p users dont share files themselves. The networks are mostly comprised of "leechers", with a few "good samaritans" sharing their collections. So you cant really get a fair estimate of the "ripple effect" unless you take that into account. I dont know the exact numbers, I'm gonna look and see if I can find them.

I mean honestly.... I'm sure if it wasnt for her, "Guns'N'Roses - Sweet Child of Mine" wouldn't be available for download anywhere on the p2p networks... :winkwink:

Also, by that logic, if you download a file that already exists on the p2p network, how can you be liable for the "ripple effect"?

your discussions are properly placed. But why should it be up to the copyright holder to chase down every single downstream problem? If that were legitimate, product would suffer due to the legal costs of protecting content from theft (want to pay $75/song because we have to pay attorneys and private detectives to chase down every sharing violation???) Why not just go after the source and hold them accountable? After all, without them, the problem would not be there. So in essence, everyone that shares, no matter where along the line, will be considered a source... no deference will be given to them as being at tier 1 or tier 45 of the ripple... they are all tier 1. Actually, if you receive the file from someone then share it again, you have two problems. You are essentially receiving stolen property, and then by sharing you are violating copyright law.

Welcome to the overall discussion of why these networks and file sharing programs are purely for the purpose of piracy. The whole pretext of someone "owning" a file is bullshit. You don't own the file (the creator/copyright holder is the only one that owns anything, you as a licensee are something completely different)... just like I don't own Sweet Child of Mine.. rather, i purchased a CD with a limited license that allows me to listen from that CD or a backup (which I have created for myself). You don't have the right to distribute it to anyone else, without fully releasing your rights on that product and giving all originals and copies to them, thereby stopping your ability to utilize the content. Determining that you have a right to share that content of any kind (music, video, book, etc) is well beyond your bounds and is outside of pure common sense.

If you download the file which you had no rights to, you violated copyright at that point. No further proof is required. You have possession of a copyrighted material without permission.

Now, if you also take that file and re-seed it and share the file around again, you are part and parcel of the sharing. For want of a better description, by doing so, you have in effect become part of a conspiracy to violate copyright.

With everyone breaking the law in some fashion, and to be sharing a common goal (to rip off the record companies, get something for nothing, steal large amounts of music, etc), it adds up to conspiracy.

Alex, be careful of how you characterize the statement of downloading a file which you have (or don't have) rights to. When it comes to a music file on P2P, that's where the discussion lies, in where the rights are.

I have a right to download a file from iTunes that I have bought. Do I have a right to download it again off of Kazaa again now that I have purchased a copy of it? From iTunes I would say yes (and they actually allow you to re-download for a certain period)... from Kazaa I would say no as neither they, nor the person(s) placing the file on the network are authorized to distribute the music..... whereas Apple/iTunes are. I would take it even further in that although I have purchased via iTunes, I don't have the right to go to Amazon, or whatever other music reseller exists and tell them I have a license to the music of so and so and now can download it at will. If I have issues with that copy of music, I need to discuss them with my original purchase point and be subject to their Terms and Conditions (which may very well state that I have a 90 day download period, after which I would be subject to paying for download rights again).

No one on a P2P has distribution rights. Both the suppliers and the receivers are violating portions of the copyright law.

and this exactly the problem with your position, everyone is stealing from you, you test the law to maximize your profits even though you know infringement does not exist for fair use.
Not only does the law say that explicitly but i quoted you interpretation from the betamax case. Yet you keep trying to claim some of the exclusive rights that are granted to you under section 106.

both of you have repeatedly arguement that i can't aquire exact copy of the original content i got WITH MY LICIENCE TO VIEW but neither of you have produced a single case law that explicitly makes such a statement.

you have complete control over the rights you grant when you originally supply the content, using technology like DRM you can create a file that can only be played X times
that could only be played as long as your membership last
That can only be played on certain devices or computers.

whatever right to view you sell me is what right to view i have.
so if you give me an unlimited right to view, allow me to watch it as many times as i want, on as many devices i want then that is the right i have bought.


I was the one who pointed out that you are not selling the content you are selling a right to view, and giving away the content that necessary for that right to view.

When you compare your liciencing rights a purchased item it not valid because your not actually selling a physical item.

The key point is what rights did you sell me when you sold me the video, remember the DRM that apply explictly define that scope. If you don't want to right to continuing to view the content forever then DRM the content to enforce those rights.


This is the main problem, i have never said don't go after the theives, the people who have not bought a right to the content and are gaining access without paying deserve to be charged. I fully support the actions of this case, and the judgement that was served BECAUSE SHE WAS SHARING CONTENT SHE NEVER BOUGHT A RIGHT TOO, and she had the gaul to claim it as fair use.

You can't have fair use rights to content you don't have a right too.

The reality is if all the people in the swarm were people who owned a right to the content , there would be no piracy, there would be no infringement of your content. And the SWARM would be nothing but a backup/ recovery of the content WE HAD BOUGHT A RIGHT TO VIEW.

I'm not going to argue your whole post, even though I think your logic is flawed, but I will have you elaborate on this part.

So you are saying.... that if I sell you a 30 day membership to my site, but you download my videos and photos, that you can share that content with other members at your discretion, because it's inferred that I have given you the right to do so, yes?

Buuuuuuuutttttt.... if I encode those videos with DRM, hence putting a lock on them, I have now respectfully told you to fuck off and you only have rights until your membership expires, right? How is this any different than just saying to members, you only have access to this file as a member, and you cannot distribute it. Wouldn't DRM under your example be a violation of your fair use rights as you claim them? Wouldn't I be violating your ability to view ad infinitum? Would you then have a right to break my DRM or rip the video that is protected by DRM to another format and distribute it at will?

It's very strange that you are saying DRM is ok in one instance, but that in another I can't TOS someone's rights away. They are the same thing. DRM was enacted to keep people from stealing or distributing because nothing else was working.

Just like adding CSS to DVDs.. you can ask someone not to copy, but sometimes you have to try to force them not to copy. And yet they still find ways around it.. and they still share illegally.

This portion of your post keeps staring me in the face...

It is very contradictory to your entire argument.

I have complete control over the rights when I originally supply the content... I can determine how someone is allowed to use it, right??? Doesn't this run counter to your arguments about fair use? It really seems like it does.

What if the rights I grant are via T&C/TOS??? Does that make them any less powerful than using DRM? or DeCSS on the level of DVDs?? Why would a statement be any less powerful than software???

That makes no sense to me.... it's only a level of protection against people that want to break the rules.

http://www.cnn.com/video/#/video/us/...g.judgment.cnn

I love how neither she nor her attorney can hold the gaze of the camera for more than about 3 seconds at a time.

It wasnt' me... it was the invisible man out in my trees.

At some point I see the anonimity of the Internet being challenged as there is just too much opportunity for wrongdoing. Stricter controls on usage, logging in just to use your Internet connection. I love how people think Internet usage is a god given right and not something they need to be responsible for.

Yea, they can try... they already try to strip any anonymity away from sex offenders, but it doesnt work and it will likely never work.

Look at what a police state China is, yet the people easily circumvent the censorship and tracking mechanisms they have in place. Just what kind of police state would this country have to become in order to take away the pseudo-anonymity that we have on the internet today?

The anonymous part of the web exists mostly because it was sort of accidently created that way and nobody has fixed it since. The original internet design for everything was "we trust everyone". The only reason we have spam mail today is because the mail system wasn't written to be secure in the slightest.

The base design of the internet is anarchy. It isn't surprising to see how people react to it, no different in the end from a powerfailure at night in a major US city. Suddenly everyone turns into a criminal.

Weird, isn't it?

See, this is where it amazes me.

You have the people that believe in good is good, bad is bad. You don't have to worry about them.. They will 99.9% of the time do the right thing.

Then you have the scary fuckers that are just plain evil.. Once you catch them you have no worries either. You know they are bad.. lock em up, throw away the key and keep em fed til they pass away.

Now it's the people in the middle that drive the cart per se. Making judgement calls that suit their whims for that day. I like to call it situational ethics. They determine what is best for them at that moment. Against the rules???? perhaps.. but hey, it's no big deal, right?

We either police ourselves, or we have a government step in to tell the kids in the sandbox that we have no fucking clue how to utilize freedom and that it's all being taken away. Abusers will complain about how they get screwed all the time, when in fact they are the ones causing the rules to get pushed further and further against us.

Act responsible and no one pays attention to you.

What kind of effort is needed by the users of a system to ensure that police-state tactics are not required?

Oh yeah, drjones, if you haven't already, you might consider reading the book "the Tipping Point". Having a better understanding of trends and fashion is a good way to control these things.

We can't stop everyone from file sharing. That won't happen. You put up bigger walls, and people buy bigger ladders.

However, if you make it somehow unfashionable, uncool, or undesirable then suddenly the trend dies. There is a move now to tube and torrent sites as the main source of porn. Making those things uncool or undesirable in some manner will have longer term effects. Making the risk (220,000$) higher than the reward (a couple of CDs of songs) can actually go a long way to tipping people away from stealing content.

You cannot fix social trends with legislation or a police state mentality. You have to change it at a fundemental level. Have you seen now how often there are comedy pieces about dumb white people trying to talk with "ebonics"? Trying to talk like a gang member? There is a whole series of radio commercials up here with some kid and his mother, and she is saying "My new lower insurance rate is ill!". The kid is cringing listing to his mom talk like this. But the reality is that more and more, that style of talking is becoming uncool, and you actually hear less and less of it these days. Many of the top black rap artists and performers appear to be going out of their way to be well spoken and better understood. It's intresting to watch.

In the end, when it becomes less cool, people will download less. Just one of those things.

TOS and DRM are not the exact same thing.

When i DRM content so it can not be played on another machine (for example) the content does not have the ability to play on the machine.
There is no possible way i can believe i had a right to play it on another machine because the content will not work on another machine.

The desenting opinion in the Betamax case recognize the technological removal of said right.

It also makes sense on a logical basis, if the file is DRM encoded in this way, and you mislead me to believe i had greater rights during your sales pitch then refute the charges and get my money back. I have to agree to the limited rights Undeniable (remember you are not getting signed contracts to establish the transfer of rights)

The scope of the content in and of itself is restricted by DRM that the point and under that situation you can override fair use rights. The key is you are taking away rights before Section 106 of the act is even considered or applied.

When you TOS away right that is exactly what you are doing, your giving me an unrestricted right and then trying to take away rights with a TOS by using the exclusive rights granted by section 106. The problem you have to respect all of the exemptions including fair use if you want to use those exclusive rights, which in turn limits what rights you can and can not take away.

Nice, but you know the dissenting opinion doesnt' mean shit.. it's just an opinion

You are still making no sense, rather you are just talking semantics. DRM is a physical restriction placed on a file. If fair use is what you say it is, then you have all the rights you claim, including time-shifting, and from what I have read, the potential to format shift (which is still being argued.) Also, how can you claim that I can override Fair Use? I thought in your mind it is an undeniable right that is more powerful than copyright law itself?? Just by using DRM I can tell people that they have no fair use right to my content? So if someone circumvents my DRM would they then have created an infringement?

A member must agree to my TOS before entering my site. It is part of the contract when signing up. You agree to adhere to these Terms and Conditions.

Just because I don't put a physical limitation on the file doesn't change the fact that I am retaining my rights. You cannot say that DRM is a clear definition of saying here are your limitations, but the contractual arrangement of TOS and T&C is not. That is a complete contradiction.

so far the court have side with that scope limitation so i have to respect the distinction even though i may not agree with.


your missing a part INDEPENDENT OF COPYRIGHT LAW.

this is an important part
think about it this way if i DRM a public domain content i am placing restrictions on the content even though i have no copyright protections. As a public domain content i am free to release it anyway i want, i can't claim a copyright to that work, yet i can still apply DRM to said content.

Obviously in that example someone could get a NON DRM copy of the work but for the instance i have create i have restricted access.

simply put if you are claiming the protections of exclusive right of the copyright act you must respect the exclusions to those rights (fair use etc)

IF on the other hand you are blocking access independent of those exclusive rights (see the above public domain example) then you have no responsiblity to honor the exclusions.

I may not like it but that the way the law works, so i respect it.

both fair use and your exclusive rights are part OF THE SAME LAW, in order of priority FAIR USE part trumps the EXCLUSIVE rights part because the ACT creates an absolute exclusion of those exclusive rights.

FAIR USE like the EXCLUSIVE RIGHTS of the act are bound by the limits of that act, impliment a restrictions outside the scope of that act (outside the scope of the exclusive rights granted by the act) and FAIR USE does not apply.

nope because again both the DRM and the circumvention are outside the scope of the copyright act. You might be able to sue them if there is a law that makes such an act illegal (contract law) but you would be bound by damages of that section of statutes. If you want to use the protection of copyright law you must respect fair use even if the act of circumvention is extended into the domain of copyright law (DMCA). That why studios won in 321 case and lost when targeting open source DVD player for using the same illegal code.

and that is contract law, not copyright law
nothing stops you from suing them for damages under contract law. But you would have a much harder time in an online transaction because having to prove that they knowingly agreed to all the terms you are suing them for.


no it is not (check out the public domain) your rights under the act are limited by fair use. When you go beyond the scope of the act you can restrict their rights further (i don't like it but that the way the law works now) the second you fall back on the protections of the act you have to live with the responsiblities as well (exclusion of your exclusive rights)

any you would have to define damages without referencing any of the exclusive rights granted by the copyright act, since for the scope of the rights you are taking away via the contract the content is legal equivalent of "public domain" (exempt from exclusive restrictions of the act)

You can't use public domain in your example and have any credibility at all.

Putting DRM on public domain content would not only be silly, it would be counter-productive. The sheer definition of PUBLIC DOMAIN is that the content itself is available to the public. The copyright restrictions have been removed by statutes.

DRM is a restriction for multiple reasons. Venue (such as the machine in your example), availibility, format, and multiple others. The reason that people are objecting to DRM is that it is counteracting their ability to time-shift and to format-shift, which so far have been shown as fair use exemptions. If fair use is what it is, then DRM itself would control someone's ability to utilize what they have rights to, yes?

If Fair Use doctrine was the controlling factor, DRM would be entirely illegal.

You keep addressing Fair Use as the beat all end all when in reality it is a case by case reality that the courts have no clue how to define (yet you appear to have a textbook or library full of knowledge concerning it). The truth is that fair use could change tomorrow and you know it. The only validity to this date are a handful of decisions.

There is no logical way that encoding something is an acceptable way to control infringments, yet outside of that encoding, it's free reign and the user inherently believes the inference is that they can do as they wish with the content in question. What that in essence states is that producers are required/strongly encouraged to encode their content (to either protect something that statutes are protecting anyway or admitting to the fact that copyright protections have been overrun and there is no protection anymore) which in turn places an economic burden that is neither necessary or justified. Courts are not in the business of requiring you to spend more money to succeed. They apply the law equally. Your assumptions are ludicrous.

DRM is not outside the scope of the copyright act, it is part and parcel to it. It is being used to place controls due to unforseen results of technology that the act never foresaw.

FAIR USE like the EXCLUSIVE RIGHTS of the act are bound by the limits of that act,

I love this part of your argument, yet you neglect it in other parts of how you justify things. Fair Use has been defined as certain actions, yet Fair Use to you means something outside of those definitions.... lots of inference.

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including

As i have already pointed out repeatly the court have ruled (i even quoted the paragraph from the case) that this is an exclusionary, or notwithstanding clause.

IT basically means that the exclusive rights you are granted by the act don't apply to fair use.
In a sense your content is "public domain" for the scope of "fair use".

This is why my example of DRM "public domain" content is legitimate.

Let me give you another example for your pee brain

if i shot some content featuring the pornstar "august night" and i but a branding bug with her name across the bottom of the content.

If i then put the content up on all the free content sites, gave it away on this board with the statement "do whatever you want with as long as keep the branding bug intact"

then for the scope of "keeing the branding bug intact" the content is effectively unprotected by the copyright act. IT is effectively in the public domain for that scope.

Can you DRM that content ? YES
Can you claim infringement if someone else distributes the content ? NO because everyone else has the right
Can i claim infringement if someone choose to distribute it out of scope ? YES because i only gave up the rights for the scope "keep the branding bug intact"

the same is true with "fair use" the only difference is that instead of giving the right away for the scope after you have been granted said right, YOU ARE NEVER GIVEN THE RIGHT AT ALL.


If that was true the law would not have defined "fair use" and it did.

You have to remember that in our arguement i have already cede the point that downloading content you HAVE NEVER BOUGHT A RIGHT TO is an infringement.
I have ceded the point that sharing a file IN IT ENTIRETY to someone who has never bought a right is an infringement.

You don't need to encode anything to go after these people. and it fact i have EXPLICITLY SAID THESE PEOPLE SHOULD BE TARGETED.


We are only talking about two areas

1. Downloading content for RIGHTS YOU HAVE ALREADY PURCHASED
2. seeding an incomplete and broken copy that in and of itself CAN NOT BE USED

until you prove you have a right to DOUBLE SELL THAT RIGHT TO ACCESS
then "the effect of the use upon the potential market for or value of the copyrighted work." is zero because you have not been granted the right to double sell.

Until you explain how providing an unusable copy of the content in and of itself grants access to the content then "the effect of the use upon the potential market for or value of the copyrighted work." is also zero.
Your talking about extending your right beyond those granted by the law (because the law exclude fair use from your ACT assigned exclusive rights) using technology.

This is an area that is NOT protected by the Statutes, it is infact explicitly excluded, the economic burden is cause because you want to claim a rights that are explicitly excluded by the statue.

The copyright act has not been overrun, it just as valid as it was before. The same technology that has allowed a previously inaccessable "Fair use" as significantly reduced the cost of production for your content which means the technology is balanced in the scope of copyright.

Like the VCR/VTR technology which reduced the cost of transporting the content (vs broadcasting lives across the air ways) and expose the previously inaccessible fair use "time-shifting". digital distribution does the same thing.

You are the one that is making the insane conclusion that you should exclusive protections IN THE SCOPE THAT IS EXPLICITLY EXCLUDED BY THE ACT.

If you would like I could post all of Title 17 and not pick and choose which parts I find important, but that would be a little long and truly it?s only section 107 that you like to selectively enforce anyway. As you know section 106 gives me specific rights.. they are my rights to control my production. Section 107 is the exceptions for fair use. And here it is:

§ 107. Limitations on exclusive rights: Fair use38
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ?
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

How you start using examples about Public Domain when we are talking about theft is beyond me. You cannot steal something that is in the public domain. It now belongs to the public. This woman did not share items in the public domain (even if she had purchased the songs, they still aren?t hers nor do they belong to anyone but the copyright holder. She owns a license to one copy personally.) Of course if I place my content in the public domain I am fucked. That would just be stupid. RadioHead, by essence of their ?you decide how much it costs? have placed their songs in the public domain because the song value is zero. I, and others, have an interest in selling for a profit and no one has the right to circumvent that right, except for the limitations listed in Section 107. Nowhere in Section 107 does it say that users control their product for anything other than what is listed. Show me how file sharing (even by your quasi legitimate purposes) could fall under the scope of what is listed above.

Pee brain would mean that somehow I had managed to urinate on my own head, which is not something I would even consider doing. Pea brain on the other hand is probably what you are searching for. If you would have listened in 4th grade English before dropping out to further your career as a paralegal and Internet hack, you may have learned that and many other wonderful things.

I am given the rights in Section 106, of which I have the right to control distribution. Section 107 defines fair use infringements, of which distribution is not listed as a limitation. If I place something in the Public Domain, I have made distribution unlimited and thereby released my rights to the work. No one but me can do that. If they do, they have violated my rights granted to me. You assume more than the statutes define.

You can cede whatever you like, it doesn?t change the fact that I believe you are wrong as I am sure many others do.

There is no user out there that has a right to distribution (except for the case of public domain, which we aren't addressing as an infringment, because logically there could be no public domain infringement), especially when their distribution entitles users with no usage rights to access content. That in my book is a willful distribution violation. It would be no different than the magazine stand putting the adult magazines at kids eye level without plastic covers and then when the kid reaches for them, no one stops them. There are no controls in place to stop the users that it should.

I don?t agree at all that users sharing with other users is appropriate, but at the very least the controls need to be in place to ensure that theft is not occurring. By stating that the sharing has legitimate purposes and therefore is acceptable use by fair use doctrine is completely dodging any responsibility and accountability. Leaving it up to the receiver to raise their hand and claim they have a right to such content is laughable. If I were a store owner in Times Square, would I leave my doors unlocked and leave a note on the door telling people thanks for respecting my store, if you would like something, make sure you leave the money on the counter? I know, I know, we are talking tangible product vs online content. But you have to admit, that store would be empty by morning. And with file sharing, our stores are getting effectively emptied.

I love this quote because in many of the examples we are using, it?s ludicrous to think that someone has a logical expectation to unlimited use following a time period of forever. Especially in the case of music or video or whatnot.

I may have purchased a copy of Van Halen?s 1984 way back when (in fact it was probably 1985) on cassette tape. I have not seen that tape in years. By virtue of that original purchase, do I now have a right to claim usage of that content for free? May I now download it without compensating the copyright holder? Or even more so for users that have heard that song on the radio, they have heard the content for free. Do they now have a right to access the songs at no cost since they were placed in the public domain?

In my example above, of course the record company and Van Halen have a right to double sell to me. I fucked up. I made the mistake. Why should they be held accountable for that? Where is the argument that when the user neglects reasonable standards, that of course the owner has every right to demand compensation again? We aren?t talking about someone?s computer crashing 4 days after purchase (every seller I have ever heard of would provide a replacement copy at that point). We are talking about you accessing something years after purchase and expecting the original owner to provide complete access because you didn?t provide the proper level of personal protections.

I like this one, because it addresses torrents directly. The file has been chopped up into many smaller pieces, thereby circumventing the test in Section 107 regarding the whole of the work. No one can be blamed for providing entire rips of content.

It?s intent is plain and simple. Circumvention of the law and theft. Reason and common sense lead me to the fact that they are wrong. Argue all you like, it?s wrong.

I don?t even understand most of this portion as your grammar is very poor.

The last part addressing reducing the cost of transport is a bit funny though. VCRs did nothing to reduce the cost of delivery, rather they increased the cost. If a distributor wanted to get their product to the end user, broadcast is inevitably cheaper, but obviously less secure, especially when you want to be compensated for the use of your content. Time shifting (which you overextend on every occasion) is intended to be used privately, in home. The minute you take your copy of that content and share it, you have become a distributor or broadcaster, which you have no right to.

Wow, difficult to read again. You may not have made it through 4th grade, I will have to rethink that insult against you.

I claim my right to control my product and it is not insane. It is the same rights claimed by every other producer. You, the lecherous end user, are claiming that our work is for your entertainment and for your good and use and that you have rights that supercede ours. You are wrong.

Make all the claims you like. Quote the portions of the law that you like. Abandon all levels of common sense where you assume that you as the end user somehow have rights that allow you to control my content more than I can. It makes no difference to me. We can keep going back and forth all you like. It?s entertaining. Stupid, but entertaining.

This sets the precedent.

Laws or not. We now have Madonna jumping ship. So that makes 4 big bands now who have said goodbye to the big record labels. I am going to assume that U2 or someone as large as they are will be following suit in the weeks and months to come. While I realize that Madonna is now with a Clear Channel affiliated company, it is still a departure from the traditional record industry business model. Clear Channel has quietly positioned themselves to be the next really big (they already are) music company as they own many radio stations and the rights to most big venues.

Like I said before, people are starting to realize that selling records is becoming increasingly more expensive and less productive. They are looking for other avenues to make money. Who knows if this new model is going to be sustainable over the long haul, but only time will tell.

I see little reason or utility in siting precedent cases and trying to figure out very wordy and vague laws when the reality of the situation is glaringly obvious. It makes me laugh that the artists are the ones driving the charge rather than the record companies. It just goes to show that they are not interested in change or trying to come up with a new business model.

Change is already happening right now! For whatever reason some of you are either too reluctant to embrace the change or too busy trying to keep the ship afloat that you are blind to what is going on. I would have thought our generation would understand and be ready for change in any industry, but I guess I'm wrong.

Madonna isn't jumping ship. She just took what is a better overall offer. The current record companies aren't going to put that type of money on the table, and performers like Madonna aren't going to put their concert gross, souvenir, and likeness rights on the table either. At the end of the day, this company will go to one of the major record labels and get a distribution deal, and the record companies will still be in the game.

The record companies will still be in the game, and some other company has be put in the place to plunk down 100 million dollars worth of risk money to get there.

I don't think you understand what Clear Channel is and what they do. They are not a record company and therefore it is pertinent to our discussion. If you don't realize the implications of this then you really can't comprehend what this is going to do to the industry.

They are certainly making money off of her tour. Now that she has inked a deal with Live Nation, she is only going to play in Clear Channel venues and at Live Nation promoted events and therefore they are making money, big money off of her. Look on Wikipedia and see what huge festivals Live Nation owns. This company is not interested in making money off album sales I can guarantee you that.

It's great for Madonna.... or any other HUGE act that has itself planted firmly in the culture.

What good does it do for the unknowns? So instead of being pushed and supported by a central organization the answer is to completely do it on their own? So instead of working backwoods gigs for 10 years and waiting for their break they just keep plugging away???

Big acts can make the statement like this because their risk is small. Saying Fuck you to the companies that brought you there doesn't hurt when you have big ratings..... unless of course you do something wrong after that fact and the public then ignores you. You would have nothing to fall back on.

I still would not say this is a complete business model, only something that already successful acts can accomplish with little risk involved.

Its not going to be easy for the small guys to make it, but it wont be impossible. Hell, getting a popular video on youtube can put you in front of millions of people.

The future of the music biz is going to be internet traffic, if had to make a guess. Oddly enough, many in the adult biz who are masters at acquiring traffic would probably make good marketers for new young bands.

Kids these days probably find more new bands through places like MySpace, rather than the radio or mtv

That's not really a response to what I said, and does not show that you really know what I am talking about or what Clear Channel is as a company.

The fact of the matter is that artists are moving away from the labels. Perhaps you are right it does not help small acts that are starting up right now. But this is just the beginning of a new way to do business and make money in the music industry. Most bands are not going to sign to Live Nation for the simple fact that they do not appreciate the fact that they are a huge conglomerate on the same level as GE. Regardless, in this new climate, album sales are going to become increasingly less relevant and the live show is going to be more and more important. Finally we can justify paying $30-$40 to see a mid-level band.

Say what you want today. The fact is that this is all idle speculation until one of is proved right or wrong in the months and years ahead. I personally predict the huge record companies are going to start selling assets and become smaller just like we are seeing with Ford in the auto industry.

Like I said in the beginning of this argument. It doesn't matter what the four big companies want or the RIAA because the market has spoken loud and clear since Napster that prices are too high, etc. Money will always be made in music, just not through traditional album sales anymore. Save for the bands that actually put out decent "albums" that people are willing to buy. I can name countless bands that fall in this category.
The days of record companies making huge sums of money from teenagers buying Britney Spears and the like is long gone. So now let's figure out a new way to make the industry profitable...it that ok with you? Or do you want to keep suing your customers?

Damn straight. Welcome to tomorrow. MTV doesn't play anything but top 40 videos and even then that's probably only 1 hour in the middle of the day. The radio replay the same tracks all day and they are bands that only have singles and no album. MySpace is key for marketing bands.

the VCR was only the very tail end of the taped content distribution
when you are talking about Taped content distribution you have to include VTR (Video Tape Recorder) the big commercial grade recording devices which never cost less than 10,000 and were originally selling for more than 50,000 each.

before they were invented TV shows were sold to single sponsor and broadcast live. NBC and (then) CBS were the only two distribution network you could get your show carried on. And as a producer you of a content you had to pay them for the right to broadcast on their channel, which in turn paid local affiliates to carry the single the last mile. NBC owned may local affilates outright allowing them to dictate price. The total revenue was very small and your piece was even smaller. TV stations broadcast somthing like 4 hours a day of content with a max of 6-10 on the weekend. And a portion of that was local news that had to be broadcast to comply wth FTC liciencing requirements. TV shows were filmed not recorded and had the massive cost associated with producing them in the first place.

Obviously i can't expect you to read a book on the subject so i suggest you rent the movie hollywoodland about george revees to get a better picture of that market.



VTR changed that, it add the ability to sell commerical interuptions, affiliates were give VTR with national commerical spots included with empty spots to fill with local advertisers. TV stations no longer paid for the access right of local affilates but provided them tv shows and allowed them to sell the extra ad spots. Regions of the country that did not have the financial capacity to put up a satalite reciever got VTR delivered by truck from the closest metropolitan center. Satalite signals were broadcast a week/sometimes two weeks in advance, recorded and cut up for insertion of local tv ads. More hours were added, additional stations like ABC came on the marketplace. More tv time was added and therefore more available money for content producers. Advertisers paid more for the reach of television. Production budget went up massively. at it peak (during the time the BETAMAX case was running thru the courts) VTR sold for 10,000. TV networks/TV producers/local affiates were raking in the money. 16 + hours of content was being distributed for a fraction of the cost of distributing 4 in the day. Ad revenues were thru the roof.

Add to that filming disappeared and recording took it place and the cost of physical production dropped significantly (again i can't trust you to read so i suggest you watch boogie nights to see that part)

Everyone was making ungodly money compared to the early days of tv.

the personal sale of recording technology did put a damper on this revenue slightly, but they solved that problem by increaseing the quantity of ad spots between shows. And then when these devices hit critical mass, a new revenue stream came about (sale of tapes, movies).

Digital distribution has gone thru a similar ebb and flow, starting with the digital compression of analog signal to fit more data on the satilite signal, to current day.

sure there will be dinasours who will fight the technology just like the companies that tried to sue Sony in the BETAMAX case, but they will ultimately lose.


Well it better than making completely unfounded claims like some of your exclusive rights exist for fair use.

You have yet to produce a single quote from the law that justifies that position.

In simple terms even if i violate every single one of your exclusive rights, as long as i do it for a fair use reason it is "not infringements of copyright"

You keep trying to claim some/most of your exclusive rights hold even under fair use.

IF that were true then you would be able to produce one court case where a judge made such a statement explicitly.

You could quote me a paragraph from a court case when a judge said something like "even though the act was fair use, this exclusive right superceds ....and it is therefore still an infringement"

You can't because in every case in which fair use has been brought up one of two things has happened

1. the courts have recognized the fair use and eliminated the liablity
2. the courts have determined that the action was not fair use

all of your attempts to justify your position have been trying to jury rig these non existing rights into fair use by making claims that have already been established to be legal (ie it illegal to get a tape of a show from a friend when you lose power at your house and your vcr fails to tape)

She doesn't sound that bright to me.

Brad, here is a funny story for you.

Radiohead has had all the hype about the "online download for whatever price" album. What I found out today is that starting in about 30 days, the box set will be sold worldwide in music stores. That's right, behind all the hype, Radiohead has a distribution deal with a record label to get the box set out to the public in time for christmas.

So the hype ain't the reality.

As for Live Nation (and similar projects) it would appear that they are trying to get under contract all the things that artists for years fought to NOT give the record companies. Image, marketing, and similar rights. Cradle to grave, from record to souvenir programs, Live Nation is getting the money, and the artist gets a contract.

Sounds like a record deal to me. People can play the game and call it an "artist entitlement deal" or some other crap, but it is just a record label in wolf's clothing.

Most of us aren't going to pay $30 - $40 a ticket to go watch some band we have never heard of. It's just not in the cards. So this sort of deal works for existing established acts, and there will be nobody to do the establishing.