UK High Court Goes Even Further In Emphasizing That You Cannot Rip Your Own CDs

from the because-fuck-you dept

Last month, we wrote about an initial decision by the UK High Court to take away the private copying right that allowed people to rip their own CDs. This change in law had been sought by the public for so long that by the time it finally came into practice it didn't really matter because (1) who the hell still buys CDs and (2) everyone who did already assumed that ripping those CDs was perfectly legal, because that's the only sensible way of thinking about it.

Yet, last month, the UK High Court ruled that the government had somehow erred in putting a private copying right into law because the government didn't believe the fanciful made up "losses" of the recording industry. However, it still left open the possibility that the law could be left in place if the government could come up with a good enough reason to keep the law in place. But, on Friday, it stomped out that hope, issuing a final ruling that makes it clear that the 3 UK citizens who still buy CDs cannot rip them into MP3s because the recording industry will die, or something along those lines.

As for why? Well, it appears that the UK government itself sided with the record labels and said "sure, get rid of the law that Parliament passed."

The Secretary of State has accepted the position that the Regulations should be quashed. He states as follows:

“The Secretary of State welcomes the guidance which the Court has provided as to the correct approach to be adopted as a matter of law when considering the introduction of a private copying exception, and as to the scope and nature of the factual enquiries which are necessary. He will now take the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced. The Secretary of State has not decided on any specific course at this stage and wishes to take time to reflect before making any further decisions. He would not wish to create any uncertainty in the law by submitting that the Regulations remain in force while further policy decisions are made.

Given that the Secretary of State submits that a quashing order is appropriate at this stage, there is no necessity for a reference to the CJEU. As is made clear in the body of the Judgment, the Judge’s conclusion leading to the ruling that the decision was unlawful did not depend on his conclusions on issues of EU law, in particular as to the meaning of “harm” (the issue identified by the Judge is a matter for a potential reference)”.

There is a separate question of whether all those CDs that were ripped in the past few months created newly infringing files or if those somehow get grandfathered in. Here, the court has decided that... it won't bother answering that question and will punt and leave it for a future lawsuit to decide. Really. It goes on for a few pages weighing the two arguments and then says "meh, I'll let someone else decide":

I am not prepared to rule upon the position ex tunc. It seems to me that the declaration sought raises potentially complex and far reaching issues which it is appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer. It will be for a defendant in future proceedings to explore and raise this issue, including whether the effect of the fact that they relied at the time upon Section 28B creates some species of estoppel, legitimate expectation or fair use defence in private law and whether, if such exists, this goes to the cause of action or the remedy or both.

One hopes that the record labels aren't so stupid as to actually go after someone for this, but this is the record labels we're talking about and "suing fans" is about the only thing they know how to do these days.

Filed Under: cds, copyright, private copying, recording industry, ripping, uk

UK High Court Strips Away Short-Lived Private Copying Right, Buying Recording Industry's Demented Assertions

from the no-rights-for-end-users dept

It wasn't until late 2014 before the UK government finally (officially) allowed its citizens to make personal copies of their purchased music and movies. It was an uphill battle against copyright-reliant industries to bring the UK in line with exceptions available in other European countries. The recording industry threatened to fight this new exception in court, because of course it did.

So, it sued. And it got its way. It somehow convinced the UK High Court that people making copies of music they've purchased causes the industry harm. The resulting opinion is so lacking in logic and so thoroughly divorced from reality that the EFF is actually somewhat impressed by the audacity of the industry's arguments, as well as the court's willingness to follow them to these irrational ends.

Whilst accepting that the Copyright Directive does not require “that sellers must be able to extract the very last gram of value from the copyright,” the court found that the personal copying exception might have resulted in some loss of sales (for example, some hypothetical consumer might have refrained from buying an extra copy of their favorite CD for their car, in reliance on the new exception), and that the government had failed to present any evidence that these lost sales were zero or minimal.

This decision is so bad, that it isn't even wrong. Not because we think that the government did produce the economic evidence that the court was looking for, but because the fact the government should even be required to produce that sort of evidence before allowing users to make personal copies of purchased works shows how completely detached copyright law has become from the real world.

The fact that the industry can claim -- with a straight face -- that the private copies somehow cut record labels out of additional income is so ridiculous it veers into the realm of the bizarre. It continues to feel it should retain all rights to purchased products, even up to the point that it can deny people who have paid money for its products the option of making backup copies or format shifting it from physical-to-digital, or from device-to-device.

That a self-interested industry would claim this -- in the face of all reasonable logic -- isn't surprising. That a court would buy what the industry's selling is a bit more disconcerting. Both have drifted in the unintentional satire that is (most) of European copyright law, with the High Court following the overly-restrictive nature of EU court decisions -- ones that include ongoing (and increasing) "you must be a pirate" levies on devices and media.

The worst thing about this decision is that the court looked at the industry's malignantly overgrown sense of entitlement and said, "Yes. These are perfectly rational demands. Let's make sure no iteration of its products ever occurs without compensation -- despite having been paid for once already."

Demanding that each such lawfully-made copy be somehow carved into its own sliver of value, and ensuring that rightholders have been afforded the maximum opportunity to extract rents from that value, is nonsense on every level: it is administratively unworkable, acts as a barrier to fair use and innovation, and has no justifiable legal or moral basis as a matter of copyright policy.

Any arguments that copyright law -- at least the industry's interpretation of it -- has any basis in reality can be dismissed. The original purpose of copyright has been buried and the new purpose -- to provide as many endless revenue streams as possible -- is urinating on its grave.

Products these industries don't even make (CDs, hard drives, memory cards, etc.) have levies added to somehow offset piracy -- apparently the only purpose these items exist, according to the rationale behind these demands. Customers purchasing movies and music are similarly treated as thieves in order to ensure repeated sales across multiple formats, stripping them of any "rights" they might enjoy after spending their own money.

The EFF conjectures that maybe that UK copyright law's abysmal nadir is what's needed to get some real copyright reform kickstarted.

[P]erhaps a stupid decision like this is just what is needed to turn the temperature up a notch, and place more British users on the offensive. After years of lobbying for a free personal copying exception, its loss at the hands of the music industry clearly outlines the incursions that unbalanced copyright law makes upon users' freedom to make reasonable, private (and public) uses of copyright works. It's high time to bring European copyright law back into line with reality.

Reality isn't something the industry has much familiarity with. Its battles with technological advances have been mostly futile but increasingly tenacious. It will take any inch a government will give it, even if it means screwing its own customers over in the process. And it fights these battles like a doddering but vindictive patriarch, holding tight to its dwindling power even as its assertions are increasingly dotted with demented ravings.

Filed Under: copyright, exemptions, private copying, uk, uk high court, user rights

EU Copyright Head Looking To Roll Back UsedSoft Decision, Makes Weak Noises About 'Infinite Contracts'

from the industries-still-writing-the-rules dept

The European Union has its own revolving door, one that allows lobbyists to enter government agencies in order to directly regulate the same industries they so recently stumped for. Maria Martin-Prat went from directing "global legal policy" for IFPI (the international RIAA) to being the EU Commission's point person for copyright issues.

In the past, Martin-Prat has gone on record as being against any sort of private copying exception to copyright law, stating that:

"private copying has no reason to exist and should be limited further than it is."

The private copying exception varies from country to country, but in Martin-Prat's mind, the best case scenario is likely "not at all… anywhere." So, why is Martin-Prat, an admitted hardliner on copyright issues, suddenly discussing the unfairness of certain copyright contracts?

Speaking at a Westminster Forum seminar, Maria Martin-Prat, EC Head of the Copyright Unit for the Internal Market Directorate General (DG MARKT), said the Commission should look at whether contracts were fair.

She told us that the infinite assignment of rights that authors must agree to in most EU countries to get their work published was what she had in mind.

In the digital era, freelance authors and photographers in many members states have been asked to assign their rights to an intermediary in “infinite” deals.

Forever contracts are, indeed, the sort of unfair deal that the EU Commission should take a longer look at. Here in the US, the reversion of copyright back to the creators (for pre-1976 recordings) has prompted record labels to argue that everything created was a "work for hire," and thus belongs to the label in perpetuity. (This argument also took the form of a midnight run to Congress to get copyright law amended in the recording industry's favor.) An infinite contract obviously closes that potential loophole for artists to reclaim their work after a reasonable amount of time.

Seems like a good start, but Martin-Prat continues, dispelling any notion that serious copyright reform will occur under her guidance.

The distribution of “the share of the value in the internet” was worth examining said Martin-Prat - particularly “who gets the profits?”

Ah, the old "the Internet owes everyone a living" argument, wherein (probably) Google is blamed for every low number on the copyright industries' balance sheets and asked to kick in to make up for the shortfall. Note that Martin-Prat asks "who gets the profits," rather than asking how to divide the profits, which indicates she already has an answer in mind. Why address problems in any logical fashion when you can just use the weight of the EU Commission to make internet services bend to the will of misguided court decisions and nearly two decades' of useless complaining from the recording industry?

Then Martin-Prat steps even further away from copyright moderation and takes a swing at the few remaining rights purchasers of creative works have, citing specifically the UsedSoft decision, which agreed that sold software was a "license" rather than a sale, but despite this distinction, could still be resold.

“In both cases the Court was pushing the boundaries of the copyright rules to help the function of the internal market,” she said. “UsedSoft was desperately trying to turn software licensed by a user into a good - so they could enjoy free movement of goods,” she observed. “The Court cut a few corners” in its interpretation, she thought. However, “if we don’t do something at some point the CJEU will keep pushing.”

So, it looks as though Martin-Prat will be pushing back on this decision in order to remove something that actually helps sell new software -- the possibility of resale. Whether the copyright industries like it or not, people consider this factor when purchasing new items and if the possibility exists to make something back, it actually encourages a few more sales. There's nothing inherently "unfair" about not being able to profit from every sale, but the industries still think it's just another way they're being screwed -- hence the push to call everything a "license," even if it's a physical good.

Martin-Prat offers to take on an inherently unfair contract (the infinite copyright contract) but only because she has a desire to protect other unfair contracts (you can't resell what your purchase). The first will likely end up riddled with loopholes (for all intents and purposes, most recording contracts may as well be "infinite," considering how hard it is for artists to reclaim their copyrights) and the latter will just help the industries further pare down the few copyright law exceptions that currently exist.

Filed Under: copyright, eu commission, infinite contracts, license, maria martin-prat, ownership, private copying, sale, used goods
Companies: usedsoft

Japan Makes Private Copying Illegal

from the wrong-direction dept

Plenty of countries have reasonably pointed out that the entire point behind copyright laws was to protect again commercial for-profit copying -- and thus, private, non-commercial personal use copying really shouldn't be covered by copyright laws. Of course, for an entertainment industry hell-bent on filing lawsuits against people rather than adapting to the marketplace, this is a serious, serious problem. So, the recording industry has been lobbying hard in any country that carves out an exception for private copying, trying to make it illegal. Unfortunately, it appears they've won in Japan. A new copyright law has been passed that specifically says that private, non-commercial copying is infringing (via Cybeardjm). This really isn't all that surprising, given that Japan has also been pushed on copyright extension and a recent court ruling found that uploading your own content for personal storage could be infringement. Still, it's yet another victory for entertainment industry lobbyists who will do anything possible to pass laws to protect old business models.

Filed Under: copyright, japan, private copying

Even Movie Industry Execs Seem To Think The DMCA Is Unreasonable

from the do-as-we-say dept

We've pointed out for a long time that the DMCA is bad for innovation and needlessly inconveniences users. It seems the point is becoming so obvious that even senior executives in the movie industry are beginning to tacitly acknowledge (via Ars Technica) that the DMCA is unreasonable. At a conference on DRM last week, Scott Smyers, VP of network and systems architecture for Sony Electronics, admitted that he makes backup copies of his kids' DVDs. For those keeping score at home, not only is copying DVDs illegal under the DMCA, but Sony itself participated in a lawsuit to shut down a company making precisely the sort of DVD-backup software Smyers is presumably using to copy his kids' movies. Meanwhile, Jim Helman, the chief technology officer of MovieLabs, a research organization funded by the major studios, says that one of the most promising new devices on the horizon is a video jukebox that will let you rip your DVD collection onto a hard drive and then stream your movies to all the devices around your house. That is, unless the studio-backed DVD-CCA uses the DMCA to prohibit the creation of DVD jukeboxes. Helman and Smyers are absolutely right. If only their bosses would listen to them. They should point out to their bosses at the major studios that allowing people to create useful hardware and software products could be good for their bottom line, because it would make the movies they sell more useful to consumers.

Filed Under: dmca, drm, mpaa, private copying
Companies: mpaa, sony

Germany Says Nein To Private Copying

from the who-would-want-to-do-that? dept

A bunch of folks have submitted the news that Germany's upper house of parliament has approved a new copyright law that forbids any kind of private copying of music or movies. There aren't many details in the Variety article about why such a strict law would get approval, though it does note that the politicians ignored widespread criticism against the law. Obviously, this is the type of law that some large entertainment companies would push for, though if it really does become the law, they'll find that it harms them a lot more than it helps them. That's because forbidding private copying will make music, movies and TV shows a lot less valuable to purchasers. If you can't rip a CD to mp3 format to place on your iPod, that CD is suddenly a lot less valuable. It's amazing that such a law would pass, but the end result is going to be criminalizing a large segment of the population while making entertainment products a lot less valuable. It's hard to see how that's beneficial to anyone. Update: In the comments there's a good clarification, that suggests the Variety report isn't entirely accurate (or at least leaves out some of the details). This may just forbid circumvention of copy-protected material -- and then forbid any additional copies of content that was originally copy protected. Thus, it might not forbid copying a CD or DVD that has no copy protection. Still, given how many people still make private copies of copy-protected music in order to listen to it on a different device for convenience, this would still criminalize a lot of activities -- though, perhaps not as many as the original report suggested.

Filed Under: copyright, germany, private copying

Canadian Recording Industry Suddenly Against Private Copying Levy It Fought So Hard For

from the suing-is-more-lucrative dept

For many years, the recording industry has been able to convince the Canadian government that it needs to add a "private copying levy" to various forms of blank media, to reimburse the industry for any "private copying" that happens on that media. This is pretty questionable for a number of reasons -- basically amounting to a government tax to support a private industry and its inability to adapt its business model to the market. At times, this private copying levy can be an astounding 70% of the cost of blank CDs. Once mp3 players (specifically the iPod) started to become popular, the recording industry fought to have the private levy attached to those players as well. In late 2003, the industry got its wish -- but with a catch. A ruling found that the devices could be taxed, but if they were, then downloading unauthorized content would be seen as legal (uploading unauthorized content would still be illegal). A judge later overturned the iPod levy, but some in the industry have kept fighting for it, and the Copyright Board of Canada supports extending the levy to iPods.

However, in a surprise move, the Canadian Recording Industry Association (basically, Canada's version of the RIAA -- controlled by American record labels, of course) has come out against extending the private copying levy to mp3 players, admitting that if the levy is extended (even though it will send millions of dollars directly into recording industry bank accounts), Canadians may (incorrectly, in the view of the CRIA) start to believe that downloading is legal. Of course, some people pointed out this loophole in the recording industry's efforts to extend the private copying levy years ago -- but it seems that it just occurred to the powers that be. Once again, it's a case for the industry to be careful what it wishes for. The private copying levy makes the industry a ton of money, but does so at the expense of anger from purchasers of any blank media. Still, that anger is probably better than the anger generated by thousands of lawsuits against file sharers based on flimsy evidence.

Filed Under: copyright, downloading, ipods, levy, private copying
Companies: cria, riaa