Now answer me: What's that got to do with wholesale copyright infringement?
If you majored in logic (really?) then you know the answer to this.
It means that two things cannot be used as premises for moral conclusions:
1. That an act is immoral because it violates the law.
2. That an act is immoral because it violates a statutory property right.
Now, if you care to prove why copyright infringement is immoral without using either of those premises, then I'm all ears.
Copyright doesn't violate everyone's rights. It gives to an author an exclusive right. It also takes away rights that other people would have had but for the copyright
This is a contradiction. If I have an inalienable right (like a personal property right or free speech right), and it is infringed upon, my rights are violated. If copyright "takes away rights that I would have had but for copyright," then my rights are being infringed upon.
The only reason copyright is theoretically justifiable, is because those rights aren't "taken away." They are granted. If I do not grant those rights, but they are still taken away, then my rights are violated.
It's not rocket science.
but those other people's rights are violated. They are taken away LEGALLY.
That just means that the law is infringing on my rights. We are, by your own insistence, talking about morality, not legality. When we're talking about morals, it doesn't matter if what we're talking about is legal or not. If the two don't match up, then it is the law that is wrong - not the actions of lawbreakers. In fact, those who are punished under unjust laws are victims.
If I thought for one second that either dajaz1 or rojadirecta had their rights violated, I'm be there with you. As I see it, they're two criminals that got lucky when the government decided to not prosecute. And the people Righthaven sued, as far as I can tell, were committing copyright infringement.
You see it that way because you're an apologist for totalitarianism, at least where copyright is concerned. In your view, as long as someone is a "prima facie infringer," it doesn't matter how many rights of theirs get violated, or how many laws are disregarded in order to punish them.
You don't care that the seized websites' owners unquestionably had their rights violated. You don't care that Righthaven was running an extortion racket, using the courts as muscle. Even if what they were doing was legal, it would still be morally wrong. And you're too ethically stunted to even recognize this.
If a pirate violates someone's rights, that is per se wrong.
Joe, I cannot believe how ridiculous you are being.
Copyright by definition violates someone's (in fact, everyone's) rights.
Copyright does not actually grant the ability to artists to do anything. Without copyright, they can still speak however they like. They can still produce art. They can still sell that art. They can still dispose of their art however they want.
The only thing copyright does is allow copyright holders to take away rights from everyone else. It takes away property rights: if I have a copy of a piece of art, copyright takes away my right to make a duplication if it, with my own labor and materials, and dispose of that duplication (my property) however I like.
And because that "property" is expression, it takes away (some) of my right to speak. You may say that nobody has the "right" to speak what others say, but this is complete hogwash. Morally speaking, there is no difference between speaking words that I created, and speaking the words of others. At worst, it may make my speech boring and derivative (in the negative sense). But I have just as much of a right to speak in a boring and derivative way as I do in an interesting and unique way. When you disallow this, you are removing my right to speak as I please.
In fact, "speaking the words of others" is the very thing copyright is supposed to encourage. Copyright is supposed to incentivize distribution to the public, not to provide legal fodder for injunctions and lawsuits. It exists to promote copying, not prevent it.
And both of these rights - unlike copyright - are inalienable rights. They arise from fundamental civil rights that are innate in all humanity, and the government does not have the moral right to take them away.
So why do we have copyright at all? You know the answer to this. "In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public?" In theory, the public voluntarily gives up some of its innate property and free speech rights. It does this so that the public may benefit from the production and use of more art.
And when copyright was limited to commercial infringers (as it was for most of its history), it was only a minor evil. Businesses simply don't have the same moral rights to speech and personal property as individuals, so taking away their rights was a very limited moral wrong. Additionally, it was supposed to be a temporary grant of privileges, further mitigating that evil.
It is not a moral issue. It is was never any sort of "moral imperative" arising from the "rights" of artists. It is a purely utilitarian cost-benefit analysis. To the extent that it works, it is tolerating a minor wrongdoing to promote a greater good.
This may make it justifiable. It does not make it moral. It is never moral to take away the rights of others. Morally speaking, the people who are prevented from accessing works are just as much "victims" of copyright holders, as copyright holders are of pirates. They have had their inalienable rights taken away. Copyright holders haven't.
This makes you a complete hypocrite. For all your caterwauling about the "rights" of copyright holders, I have never heard you defend the rights of the public that copyright takes away from them. Not once. You've never even acknowledged that they are rights at all. You've never shown an inkling that copyright even could "victimize" the public.
This deliberate ignorance of the public's rights colors your every view. It makes you an extremist. And, make no mistake about it, your views on copyright are far more outside the mainstream's than Mike's. Not just morally, but legally. There is no behavior from copyright holders that is so odious that you haven't twisted the law to defended it.
You still defend Righthaven. You still defend the ICE seizures. News flash: Rojadirecta, Dajaz1, and the people sued by Righthaven are victims. Their rights were infringed upon. You blamed them then, and you're still blaming them now.
You said you learned your morals when you were four. Obviously your moral compass hasn't progressed much since then. You have the morals of a schoolyard bully, claiming he's a victim because his knuckles are bruised.
What is protected by copyright is expression - in a more abstract sense, culture. When people share culture - legally or not - they are doing something that is good. Non-commercial piracy is morally no different than checking out a book from the public library. And checking out books from the library can never morally bad. Even if the library acquired a used copy and didn't pay the publisher; even if the author didn't want the book in the library in the first place; even if Congress made libraries illegal.
Piracy is certainly unlawful. Stopping it may be necessary (and in commercial cases, it absolutely is, IMO). But it is certainly not morally wrong. When stopping piracy is necessary, it is a necessary evil.
It was even phrased as such by Congress: "The granting of such exclusive rights [copyrights] under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly."
...The catch is that moral debates like this are pointless. No matter who wins this debate, there will be billions of people around the planet who believe that it is not immoral in the least, and more laws or harsher penalties will never convince them otherwise.
So, if you're a content creator, the practical thing to do - the thing that they must do, if they want to operate as a business in a free market - is figure out ways to convince these people to do business with you.
That's why this is the focus of Techdirt.
Also, you need to get off of the fact that it's "violating rights." Copyright is a legal right, not a moral one. It exists merely because the public (through congress) will it to be so - and they grant it for their own interests, not copyright holders'.
Unlike, say, the right of free speech, or the right to due process - things which are not granted by the government. If the government takes those things away (even if they do it lawfully), then the government is violating your rights. On the other hand, if the government eliminated copyright altogether, nobody's rights would be violated - they would simply cease to exist at all.
I know I'm late with all of this, but I'm back in college now. However, I'll try to address the cases you brought up.
Live Nation Motor Sports, Inc. v. Davis
This was a motion for preliminary injunction, not a ruling on the merits; all that was necessary was a likelihood of success. Also, it was issued by a district court, not a circuit court; it's not even binding on other districts - much less the entire circuit. (Though, obviously, the circuit court could find it relevant.)
Since that injunction, linking has been held not to be infringing at the Circuit level, in multiple Circuits.
Kelly v. Arriba Soft
You're referring to a case that was withdrawn, as you said. But to say it was only "for procedural reasons" is not quite accurate.
That case was explicitly discussed - and completely shredded - in Perfect 10 v. Google. The court's description of the case is entirely apropos:
In its now-withdrawn opinion in Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002) [hereinafter, "Kelly I"], amended by Kelly II, 336 F.3d 811 (9th Cir.2003), the Ninth Circuit discussed liability for direct infringement resulting from in-line linking, without addressing how the technology functioned—i.e., who stored and served the infringing content. Defendant Arriba operated an image search engine much like Google's—it in-line linked to and framed, but did not store or serve, full-size copies of Kelly's photographs. Stating that "[n]o cases have addressed the issue of whether inline linking or framing violates a copyright owner's public display rights," id. at 945, the Ninth Circuit nevertheless analogized to Webbworld and Hardenburgh, ignored the fact that the defendants in those two cases actually hosted and served the infringing content, and concluded that Arriba had directly infringed Kelly's exclusive right to display. Kelly I, 280 F.3d at 945-47.
Like the defendants in Webbworld and Hardenburgh, Arriba is directly liable for infringement. Arriba actively participated in displaying Kelly's images by . . . having its program inline link and frame those images within its own web site. Without this program, users would not have been able to view Kelly's images within the context of Arriba's site. Arriba acted as more than a passive conduit of the images by establishing a direct link to the copyrighted images. Therefore, Arriba is liable for publicly displaying Kelly's copyrighted images without his permission.
Id. at 947.
The decision in Kelly I was roundly criticized:
If [the] logic [of the original opinion in Kelly] is valid, it should ensnare AOL, Dell, Microsoft, and Netscape as well. Indeed, it condemns those other actors a fortiori: the user of those products can see Kelly's entire web site displayed, whereas Arriba only offers a portion of Kelly's material, framed by its own proprietary content. Accordingly, Arriba's usurpation of Kelly's display right is even less than the others.'
4 Nimmer on Copyright [hereinafter "Nimmer"] § 12B.01[A][2] (2005).
Some seventeen months later, perhaps "reflect[ing] sub silentio that the panel no longer believed in the substance of its much-criticized conclusion," id., the Ninth Circuit withdrew the portion of the Kelly I opinion dealing with direct infringement on procedural grounds.
That case also cited a huge number of other cases that said, explicitly, that linking cannot be direct infringement:
Certain other decisions, some unpublished, do deal with traditional hyperlinking—i.e., rather than incorporating thirdparty content via in-line linking or framing, websites create hyperlinks that transport the user directly to the linked-to, infringing page. Each of these cases holds that such linking does not implicate any of the exclusive rights under copyright. Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654, 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (unpublished) ("[H]yperlinking does not itself involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no copying is involved."); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n. 12 (N.D.Cal.2004) ("[H]yperlinking per se does not constitute direct copyright infringement because there is no copying, [although] in some instances there may be a tenable claim of contributory infringement or vicarious liability."); Bernstein v. JC Penney, Inc., No. 98-2958, 1998 WL 906644, at *1 (C.D.Cal. Sept. 29, 1998) (unpublished) (granting, without discussion, defendant's motion to dismiss on the ground that hyperlinking cannot constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement).
they are also applicable where the transmission is capable of reaching different recipients at different times...
A link (including an embed) is simply not a "transmission." This is made abundantly clear in the MyVidster case:
myVidster is giving web surfers addresses where they can find entertainment. By listing plays and giving the name and address of the theaters where they are being performed, the NewYorker is not performing them. It is not "transmitting or communicating" them. Is myVidster doing anything different? To call the provision of contact information transmission or communication and thus make myVidster a direct infringer would blur the distinction between direct and con-tributory infringement and by doing so make theprovider of such information an infringer even if hedidn’t know that the work to which he wasdirecting a visitor to his website was copyrighted. [...] myVidster doesn’t touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster.
You are saying that one who violates the "to do" is a direct infringer, but one who only violates the "to authorize" is an aider and abettor.
Except merely linking to a performance isn't "authorizing" that performance. The linker does not control what is or is not on the third-party site that streams the content. He has no ability to "authorize" anything.
Besides, "authorizing" the performance only gives rise to contributory infringement, as the Congressional record makes clear: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."
Since it's streaming, only the public performance right is implicated. I think we agree on that.
We do. Here, I'd just like to point out that this is a criminal case, and infringing on the public performance right cannot be anything more than a misdemeanor - even if there are multiple offenses. No felonies could even possibly have been committed.
That's assuming direct infringement on the public performance right. There is no "contributory infringement" in criminal law; there could only be "aiding and abetting" of the direct infringement. It's doubtful that merely providing a link would raise to the level of aiding and abetting, but even if it would, it would be aiding and abetting a misdemeanor at worst.
Embedding a video to be streamed by others violates the public performance right. There is no doubt about that.
Indeed, there is no doubt. There's no doubt that merely linking to infringing content absolutely is not a direct infringement of the "public performance" right. ("Embedding" a video, legally speaking, is simply providing a link.)
The only question is whether it could be contributory infringement, or not any kind of infringement at all.
You do know, of course, that piracy has been around much longer than ten years?
More to the point: Guess what? More software has been created in the "piracy" years than ever before. More music has been created in the past ten years than ever before. Movies have been pretty constant (as far as I can tell), but the profits from movies have only been increasing.
The anti-piracy crew likes to pretend that piracy actually results in the production of fewer movies, albums, or games. There is not one single shred of evidence that supports their position.
In ten years, after piracy is even more the norm than it is now, we'll have even more movies, music, and computer programs.
You do know, of course, that piracy has been around much longer than ten years?
More to the point: Guess what? More software has been created in the "piracy" years than ever before. More music has been created in the past ten years than ever before. Movies have been pretty constant (as far as I can tell), but the profits from movies have only been increasing.
The anti-piracy crew likes to pretend that piracy actually results in the production of fewer movies, albums, or games. There is not one single shred of evidence that supports their position.
In ten years, after piracy is even more the norm than it is now, we'll have even more movies, music, and computer programs.
You do know, of course, that piracy has been around much longer than ten years? About thirty for sofware piracy; and about twenty for music and movies.
Guess what? It's still growing after all this time. Decades of legally and morally discouraging piracy simply haven't worked.
You know what has? Treating "pirates" as potential customers, and convincing them to pay money. It's how Steam made over a billion dollars per year in the last few years.
the guy was willfully and intentionally putting content that was knowingly infringing on his sites
This is completely wrong. He was not putting any infringing content on his sites.
According to the complaint, the only thing that Quinoa was doing was providing links to pre-existing streams on other sites. In other words, he would be the equivalent of a myVidster user.
He is not even alleged to have uploaded any infringing material to any streaming website. Nor is he even alleged to have had any direct contact with anyone who did.
In other words, he's not even allegedly guilty of direct infringement; and he's not even allegedly guilty of "aiding and abetting" the direct infringers. It is extraordinarily likely that he has not broken any criminal law at all.
But even if he was guilty of "aiding and abetting" infringement, it would only be infringing the public performance right. This is not a felony; even with repeat offenses, it can only be a misdemeanor at most.
It's likely that this is what he pleaded guilty to.
Because you can't tax piracy and the other "sharing" that this site continues to endorse.
First: This site endorses legal sharing, so if there is money involved, it would be taxed.
Second: You're the same one who (falsely) believes "Big Search" and "Big Hardware" are the ones behind "Big Piracy." Now, both "Big Search" and "Big Hardware" do pay taxes - in fact, they pay far more taxes than "Big Content." So, by your own definitions, you can tax "piracy."
It does, in the sense that if someone wants to use my music in a commercial capacity, they have to license it (or otherwise get my permission).
Without -NC, my work could be exploited for profit without my approval. Also, you couldn't join PRO's like BMI or ASCAP - nor, for that matter, Tunecore. Jamendo Pro would pretty much be out of business.
That may not matter to many artists, but it matters to me.
I completely disagree with this idea. I personally release my works under a CC-ND license, and if I didn't have that option, I wouldn't use CC at all.
The rationale is simple: I don't care if people share my music with each other (in fact, I welcome it). But if someone is making money directly from my music, then I deserve some of that money.
And I am not alone: 67% of the artists who use CC licenses use some form of -NC license. If you include -ND licenses, that number is 71%. Clearly, the vast majority of CC license users want these licenses to exist.
The bigger (and IMO better) question is what should constitute "commercial use." If you host my music on a blog with ads, is that a commercial use of my music? If you're a file hosting site that offers paid subscriptions, and someone uploads my music to that site, is that a commercial use of my music? In my opinion, the answer to both questions should be an unequivocal "no."
The plain fact is that the CC license really doesn't answer these sorts of questions. (It does, at least, explicitly exempt file sharing from "commercial use.")
So, I actually defined "commercial use" myself, in a FAQ on my website. By my definition, it is a "commercial use" if:
1. You are charging money for access to, or copies of, the content; or
2. You are a legally registered business entity (LLC, corporation, partnership, sole proprietor, etc).
"You" means the entity that actually offers the content (legally speaking, the distributor or transmitter), and not third parties.
I'm actually unsure if I can still call this "CC-NC," but when I asked this in the CC forums, I got no answer. So, I still do.
First of all: This comment should NOT have been reported.
Now, then:
I am not clear on the concept that a third party duplication service could be considered fair use.
It is fair use to create a copy for your own personal use. But this service isn't even allowing people to do that; it merely "format shifts" the books, and the original is destroyed in the process.
The only time it would be copyright infringement is if you distributed the format-shifted (digital) book.
This service certainly seems like a way for people to make money on knocking out copyright material, and of course probably retaining a copy for themselves and their friends.
If the service itself did that, then it would be infringing; if the people who use the service did that, they would be infringing.
But there is no allegation that the first happened. And in the second case, 1DollarScan might be held liable for contributory infringement, if it knew the customers would be distributing the books.
You don't think they keep a copy? I would say they almost certainly have to keep one in case the client's copy craps out.
So long as that copy isn't distributed to the public, it isn't infringing.
I don't think you can "fair use" this one Mike, sorry!
But in the U.S., unlike Canada, the royalties only apply to media that are specifically designed to record music only.
So, if you buy a blank "audio CD-R," you pay the royalty tax. If you buy a blank "data CD-R," you don't.
What's the difference? One says "audio" on the packaging, the other doesn't. That's literally the only difference. Well, that and the price you have to pay.
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As I have already conceded several times explicitly, that would be an exception to my rule.
So, why isn't copyright infringement an exception to your rule?
Do you actually have a reason, or are your morals just arbitrarily determined according to your personal whims?
This is precisely why you can't use those two reasons as premises. The moment there is even one exception, the whole thing falls apart.
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If you majored in logic (really?) then you know the answer to this.
It means that two things cannot be used as premises for moral conclusions:
1. That an act is immoral because it violates the law.
2. That an act is immoral because it violates a statutory property right.
Now, if you care to prove why copyright infringement is immoral without using either of those premises, then I'm all ears.
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This is a contradiction. If I have an inalienable right (like a personal property right or free speech right), and it is infringed upon, my rights are violated. If copyright "takes away rights that I would have had but for copyright," then my rights are being infringed upon.
The only reason copyright is theoretically justifiable, is because those rights aren't "taken away." They are granted. If I do not grant those rights, but they are still taken away, then my rights are violated.
It's not rocket science.
but those other people's rights are violated. They are taken away LEGALLY.
That just means that the law is infringing on my rights. We are, by your own insistence, talking about morality, not legality. When we're talking about morals, it doesn't matter if what we're talking about is legal or not. If the two don't match up, then it is the law that is wrong - not the actions of lawbreakers. In fact, those who are punished under unjust laws are victims.
If I thought for one second that either dajaz1 or rojadirecta had their rights violated, I'm be there with you. As I see it, they're two criminals that got lucky when the government decided to not prosecute. And the people Righthaven sued, as far as I can tell, were committing copyright infringement.
You see it that way because you're an apologist for totalitarianism, at least where copyright is concerned. In your view, as long as someone is a "prima facie infringer," it doesn't matter how many rights of theirs get violated, or how many laws are disregarded in order to punish them.
You don't care that the seized websites' owners unquestionably had their rights violated. You don't care that Righthaven was running an extortion racket, using the courts as muscle. Even if what they were doing was legal, it would still be morally wrong. And you're too ethically stunted to even recognize this.
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Joe, I cannot believe how ridiculous you are being.
Copyright by definition violates someone's (in fact, everyone's) rights.
Copyright does not actually grant the ability to artists to do anything. Without copyright, they can still speak however they like. They can still produce art. They can still sell that art. They can still dispose of their art however they want.
The only thing copyright does is allow copyright holders to take away rights from everyone else. It takes away property rights: if I have a copy of a piece of art, copyright takes away my right to make a duplication if it, with my own labor and materials, and dispose of that duplication (my property) however I like.
And because that "property" is expression, it takes away (some) of my right to speak. You may say that nobody has the "right" to speak what others say, but this is complete hogwash. Morally speaking, there is no difference between speaking words that I created, and speaking the words of others. At worst, it may make my speech boring and derivative (in the negative sense). But I have just as much of a right to speak in a boring and derivative way as I do in an interesting and unique way. When you disallow this, you are removing my right to speak as I please.
In fact, "speaking the words of others" is the very thing copyright is supposed to encourage. Copyright is supposed to incentivize distribution to the public, not to provide legal fodder for injunctions and lawsuits. It exists to promote copying, not prevent it.
And both of these rights - unlike copyright - are inalienable rights. They arise from fundamental civil rights that are innate in all humanity, and the government does not have the moral right to take them away.
So why do we have copyright at all? You know the answer to this. "In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public?" In theory, the public voluntarily gives up some of its innate property and free speech rights. It does this so that the public may benefit from the production and use of more art.
And when copyright was limited to commercial infringers (as it was for most of its history), it was only a minor evil. Businesses simply don't have the same moral rights to speech and personal property as individuals, so taking away their rights was a very limited moral wrong. Additionally, it was supposed to be a temporary grant of privileges, further mitigating that evil.
It is not a moral issue. It is was never any sort of "moral imperative" arising from the "rights" of artists. It is a purely utilitarian cost-benefit analysis. To the extent that it works, it is tolerating a minor wrongdoing to promote a greater good.
This may make it justifiable. It does not make it moral. It is never moral to take away the rights of others. Morally speaking, the people who are prevented from accessing works are just as much "victims" of copyright holders, as copyright holders are of pirates. They have had their inalienable rights taken away. Copyright holders haven't.
This makes you a complete hypocrite. For all your caterwauling about the "rights" of copyright holders, I have never heard you defend the rights of the public that copyright takes away from them. Not once. You've never even acknowledged that they are rights at all. You've never shown an inkling that copyright even could "victimize" the public.
This deliberate ignorance of the public's rights colors your every view. It makes you an extremist. And, make no mistake about it, your views on copyright are far more outside the mainstream's than Mike's. Not just morally, but legally. There is no behavior from copyright holders that is so odious that you haven't twisted the law to defended it.
You still defend Righthaven. You still defend the ICE seizures. News flash: Rojadirecta, Dajaz1, and the people sued by Righthaven are victims. Their rights were infringed upon. You blamed them then, and you're still blaming them now.
You said you learned your morals when you were four. Obviously your moral compass hasn't progressed much since then. You have the morals of a schoolyard bully, claiming he's a victim because his knuckles are bruised.
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Except, of course, that it's not wrong.
What is protected by copyright is expression - in a more abstract sense, culture. When people share culture - legally or not - they are doing something that is good. Non-commercial piracy is morally no different than checking out a book from the public library. And checking out books from the library can never morally bad. Even if the library acquired a used copy and didn't pay the publisher; even if the author didn't want the book in the library in the first place; even if Congress made libraries illegal.
Piracy is certainly unlawful. Stopping it may be necessary (and in commercial cases, it absolutely is, IMO). But it is certainly not morally wrong. When stopping piracy is necessary, it is a necessary evil.
It was even phrased as such by Congress: "The granting of such exclusive rights [copyrights] under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly."
...The catch is that moral debates like this are pointless. No matter who wins this debate, there will be billions of people around the planet who believe that it is not immoral in the least, and more laws or harsher penalties will never convince them otherwise.
So, if you're a content creator, the practical thing to do - the thing that they must do, if they want to operate as a business in a free market - is figure out ways to convince these people to do business with you.
That's why this is the focus of Techdirt.
Also, you need to get off of the fact that it's "violating rights." Copyright is a legal right, not a moral one. It exists merely because the public (through congress) will it to be so - and they grant it for their own interests, not copyright holders'.
Unlike, say, the right of free speech, or the right to due process - things which are not granted by the government. If the government takes those things away (even if they do it lawfully), then the government is violating your rights. On the other hand, if the government eliminated copyright altogether, nobody's rights would be violated - they would simply cease to exist at all.
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I know I'm late with all of this, but I'm back in college now. However, I'll try to address the cases you brought up.
Live Nation Motor Sports, Inc. v. Davis
This was a motion for preliminary injunction, not a ruling on the merits; all that was necessary was a likelihood of success. Also, it was issued by a district court, not a circuit court; it's not even binding on other districts - much less the entire circuit. (Though, obviously, the circuit court could find it relevant.)
Since that injunction, linking has been held not to be infringing at the Circuit level, in multiple Circuits.
Kelly v. Arriba Soft
You're referring to a case that was withdrawn, as you said. But to say it was only "for procedural reasons" is not quite accurate.
That case was explicitly discussed - and completely shredded - in Perfect 10 v. Google. The court's description of the case is entirely apropos:
That case also cited a huge number of other cases that said, explicitly, that linking cannot be direct infringement:
they are also applicable where the transmission is capable of reaching different recipients at different times...
A link (including an embed) is simply not a "transmission." This is made abundantly clear in the MyVidster case:
You are saying that one who violates the "to do" is a direct infringer, but one who only violates the "to authorize" is an aider and abettor.
Except merely linking to a performance isn't "authorizing" that performance. The linker does not control what is or is not on the third-party site that streams the content. He has no ability to "authorize" anything.
Besides, "authorizing" the performance only gives rise to contributory infringement, as the Congressional record makes clear: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."
Since it's streaming, only the public performance right is implicated. I think we agree on that.
We do. Here, I'd just like to point out that this is a criminal case, and infringing on the public performance right cannot be anything more than a misdemeanor - even if there are multiple offenses. No felonies could even possibly have been committed.
That's assuming direct infringement on the public performance right. There is no "contributory infringement" in criminal law; there could only be "aiding and abetting" of the direct infringement. It's doubtful that merely providing a link would raise to the level of aiding and abetting, but even if it would, it would be aiding and abetting a misdemeanor at worst.
Embedding a video to be streamed by others violates the public performance right. There is no doubt about that.
Indeed, there is no doubt. There's no doubt that merely linking to infringing content absolutely is not a direct infringement of the "public performance" right. ("Embedding" a video, legally speaking, is simply providing a link.)
The only question is whether it could be contributory infringement, or not any kind of infringement at all.
On the post: As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
Re: Re: Re: Re:
On the post: As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
Re: Re: Re:
Not according to the myVidster ruling.
Simply: merely watching an infringing stream is not any form of copyright infringement at all. So, helping those people watch those streams is not secondary copyright infringement, since they didn't infringe in the first place.
If he had uploaded the material to be streamed, then he would be guilty of copyright infringement. If he had directly aided the people who uploaded the material, he would be guilty of aiding and abetting copyright infringement.
Since he did neither, he is guilty of neither.
The courts ain't fooled by that shit.
Name one case where the courts have found someone who only links to streams guilty of infringement. Just one. Not a plea bargain, not a settlement, but where a judge has actually ruled on it.
You won't be able to find any such case. Because there aren't any.
There are, however, plenty of cases where judges ruled that merely linking to infringing content is not infringing. Not just myVidster, but Kelly v. Arriba Soft and Perfect 10 v. Google.
On the post: Piracy Is A Cultural Opportunity; Embrace It
Re: Re:
More to the point: Guess what? More software has been created in the "piracy" years than ever before. More music has been created in the past ten years than ever before. Movies have been pretty constant (as far as I can tell), but the profits from movies have only been increasing.
The anti-piracy crew likes to pretend that piracy actually results in the production of fewer movies, albums, or games. There is not one single shred of evidence that supports their position.
In ten years, after piracy is even more the norm than it is now, we'll have even more movies, music, and computer programs.
I'm willing to bet a year's salary on it.
On the post: Piracy Is A Cultural Opportunity; Embrace It
Re: Re:
More to the point: Guess what? More software has been created in the "piracy" years than ever before. More music has been created in the past ten years than ever before. Movies have been pretty constant (as far as I can tell), but the profits from movies have only been increasing.
The anti-piracy crew likes to pretend that piracy actually results in the production of fewer movies, albums, or games. There is not one single shred of evidence that supports their position.
In ten years, after piracy is even more the norm than it is now, we'll have even more movies, music, and computer programs.
I'm willing to bet a year's salary on it.
On the post: Piracy Is A Cultural Opportunity; Embrace It
Re:
You do know, of course, that piracy has been around much longer than ten years? About thirty for sofware piracy; and about twenty for music and movies.
Guess what? It's still growing after all this time. Decades of legally and morally discouraging piracy simply haven't worked.
You know what has? Treating "pirates" as potential customers, and convincing them to pay money. It's how Steam made over a billion dollars per year in the last few years.
On the post: As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
Re:
This is completely wrong. He was not putting any infringing content on his sites.
According to the complaint, the only thing that Quinoa was doing was providing links to pre-existing streams on other sites. In other words, he would be the equivalent of a myVidster user.
He is not even alleged to have uploaded any infringing material to any streaming website. Nor is he even alleged to have had any direct contact with anyone who did.
In other words, he's not even allegedly guilty of direct infringement; and he's not even allegedly guilty of "aiding and abetting" the direct infringers. It is extraordinarily likely that he has not broken any criminal law at all.
But even if he was guilty of "aiding and abetting" infringement, it would only be infringing the public performance right. This is not a felony; even with repeat offenses, it can only be a misdemeanor at most.
It's likely that this is what he pleaded guilty to.
On the post: Want To Know How Weak The GOP's Internet Freedom Platform Is? The MPAA Loves It
Re: Re: Re: Re: Uh, creators are voters too
...not to mention the film subsidies from state governments, which in 2010 totaled $1.5 billion; or the tax breaks from the federal government, which totaled $30 million.
On the post: Want To Know How Weak The GOP's Internet Freedom Platform Is? The MPAA Loves It
Re: Re: Re: Uh, creators are voters too
Major labels have been dodging taxes since the 70's:
http://www.shit-fi.com/interviews/AaronMilenski
And, according to "Hollywood accounting," Return of the Jedi never made a profit:
http://www.techdirt.com/articles/20110912/13500315912/hollywood-accounting-darth-vader-not- getting-paid-because-return-jedi-still-isnt-profitable.shtml
Even if Google does have "offshore tax dodges," they still pay more taxes than the RIAA or MPAA clients.
On the post: Want To Know How Weak The GOP's Internet Freedom Platform Is? The MPAA Loves It
Re: Uh, creators are voters too
First: This site endorses legal sharing, so if there is money involved, it would be taxed.
Second: You're the same one who (falsely) believes "Big Search" and "Big Hardware" are the ones behind "Big Piracy." Now, both "Big Search" and "Big Hardware" do pay taxes - in fact, they pay far more taxes than "Big Content." So, by your own definitions, you can tax "piracy."
You never get sick of being wrong, do you, Bob?
On the post: Two Years Later, Lobbying By Microsoft & IBM Creates Loophole In New Zealand To Allow Software Patents
What kind of shilling is this????
Yet here you are, writing a story that criticizes both of them, and advocates against their direct interests.
This is totally unacceptable! What kind of shill are you, Pirate Mike?
On the post: Should Creative Commons Drop Its NonCommercial & NoDerivatives License Options?
Re: Re: I disagree on this one
It does, in the sense that if someone wants to use my music in a commercial capacity, they have to license it (or otherwise get my permission).
Without -NC, my work could be exploited for profit without my approval. Also, you couldn't join PRO's like BMI or ASCAP - nor, for that matter, Tunecore. Jamendo Pro would pretty much be out of business.
That may not matter to many artists, but it matters to me.
On the post: Should Creative Commons Drop Its NonCommercial & NoDerivatives License Options?
I disagree on this one
The rationale is simple: I don't care if people share my music with each other (in fact, I welcome it). But if someone is making money directly from my music, then I deserve some of that money.
And I am not alone: 67% of the artists who use CC licenses use some form of -NC license. If you include -ND licenses, that number is 71%. Clearly, the vast majority of CC license users want these licenses to exist.
The bigger (and IMO better) question is what should constitute "commercial use." If you host my music on a blog with ads, is that a commercial use of my music? If you're a file hosting site that offers paid subscriptions, and someone uploads my music to that site, is that a commercial use of my music? In my opinion, the answer to both questions should be an unequivocal "no."
The plain fact is that the CC license really doesn't answer these sorts of questions. (It does, at least, explicitly exempt file sharing from "commercial use.")
So, I actually defined "commercial use" myself, in a FAQ on my website. By my definition, it is a "commercial use" if:
1. You are charging money for access to, or copies of, the content; or
2. You are a legally registered business entity (LLC, corporation, partnership, sole proprietor, etc).
"You" means the entity that actually offers the content (legally speaking, the distributor or transmitter), and not third parties.
I'm actually unsure if I can still call this "CC-NC," but when I asked this in the CC forums, I got no answer. So, I still do.
On the post: Authors Guild Continues To Battle The Present; Attacks Another Legal Service As 'Infringing'
Re:
Now, then:
I am not clear on the concept that a third party duplication service could be considered fair use.
It is fair use to create a copy for your own personal use. But this service isn't even allowing people to do that; it merely "format shifts" the books, and the original is destroyed in the process.
The only time it would be copyright infringement is if you distributed the format-shifted (digital) book.
This service certainly seems like a way for people to make money on knocking out copyright material, and of course probably retaining a copy for themselves and their friends.
If the service itself did that, then it would be infringing; if the people who use the service did that, they would be infringing.
But there is no allegation that the first happened. And in the second case, 1DollarScan might be held liable for contributory infringement, if it knew the customers would be distributing the books.
You don't think they keep a copy? I would say they almost certainly have to keep one in case the client's copy craps out.
So long as that copy isn't distributed to the public, it isn't infringing.
I don't think you can "fair use" this one Mike, sorry!
The article was written by Tim, not Mike.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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They do that in the United States, too.
But in the U.S., unlike Canada, the royalties only apply to media that are specifically designed to record music only.
So, if you buy a blank "audio CD-R," you pay the royalty tax. If you buy a blank "data CD-R," you don't.
What's the difference? One says "audio" on the packaging, the other doesn't. That's literally the only difference. Well, that and the price you have to pay.
...See? I'm insightful as all git-out.
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