Date: 18 Oct 2003 14:21:41 -0400
From: ThomBargerTo: Boycott-riaa
Subject: I win,

By the way, I am writing in a NY Times style of popular culture (or perhaps a Wired style)---some lawyerly concepts I will check with you now and then. You are wrong about your criticisms of the concept of fair use,and I'll tell you why I win this one. Your cynicism gets in your way sometimes. I win and here's why:

Boucher is quite aware that FAIR USE is not exactly defined in case law. A somewhat ephemeral right. You accept the term "ephemeral" in response to broadcast radio don't you?

THAT IS WHY Boucher has authored the DMCRA, to put into black and white ink right on the pages of the Federal Register and add ANOTHER 3000 words to the DMCA. -- I saw him the morning that Dmitry won, and rather than being a cause for celebration, Boucher was quite grim. here's what he said: 'It was a good victory but Dmitry won for the wrong reason, and that's why I have to write the DMCRA." And I replied, "To nail it airtight." And he said, "that's right."

In order to prove to you by analogy why your cynicism is misplaced, Leflaw, I will give you another example of so-called divine rights that Americans enjoy; by this definition, we would say, any consumer would scream bloody murder when he has lost that which was formerly enjoyed like breathing clean air.You only notice when it's been taken away or befouled. What you call implmenting lesser functionality.

Here's my example and it is nothing so simplistic an example such as enduring 30 minutes of commercials prior to the feature presentation at a movie theater.(Which we take for granted because we pay for the privelege of avoiding advertising.)

CASE IN POINT:
The right of an American citizen to travel freely. Why? because we have no NATIONAL IDENTITY CARD! The Social Security Card has express printed restrictions on the back which prohibit its use as a national identity card. Although it is treated routinely as such--or you may make the case that my California drivers' license is seen as such nationwide in the state DMV databases---there is no written prohibiton for the right to move about, nor in the affrimative, the establishment of a national identity card!

America has not become South Africa yet. But we are one silly cunt hair away from such a scenario when some genius implements a smart card chip for drivers licenses. These things are always sold to us as convenience, and you don't notice it until a cherished liberty is taken away.

There you have it, Leflaw, some things are cherished rights in American life, and they are friendly neighbors to the right of association, assembly, speech and privacy.And I didn't even stoop so low as to invoke the Divine Right of The Creator or Yahweh or silly twaddle such as Ol' Thom Jefferson used when speaking of "the intuitive Law of Nature." Ha!

I win!!

Fair use is such a thing. I grant you that facsists like Orrin Hatch are puzzled by ephemeral rights---but that is simply due to a lack of imagination.

I guess I'm not very smart. unfortunatly I don't understand at all what this article is about and what he's arguing about fair use.

I may be wrong but I think it means that you can use a portion of a copywrited piece of work as long you do not profit from your work or you have to have permission from the creator of the work and cut them in on a shareof the profit's. I think and I may be wrong but under FAIR USE laws as long you make no money on your work from copywritten work it's OK to use a portion of some one elses work. correct me if I'M wrong????Leflaw would you like to weigh on????

IN I meant IN sorry for the typo

Barger thinks fair use is part of American freedom, like the right to privacy.
But digitization has had an adverse impact on privacy as well.

But at least Boucher is thinking about it.

So Leflaw What is it going to take to get a clear meaning of the fair use law?????

stilltrying - I understand your explanation. thanks. like you said I don't know if that's correct or not but there seems to be more to it. Leflaw, just as a suggestion, when you submit articles that are very wordy and legalistic, could you put an interpritation along with it for those of us who don't understand lawyer talk? Thanks, and great job you're doing by the way

Thats tom barger talk, not lawyer talk.

sorry for the mislabeling. I still didn't understand it

I’m not a lawyer. But I have done considerable studying on this Fair Use concept lately.

The law as written does not seem to write out the true concept as is being used by the leaders of this rebellion. The EFF FAQ on fair use suggests “If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material.” And also, “Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.”

What I gather from this is, first, as far as Fair Use is concerned, nothing is written in stone. It is really up to the individual judge to decide what strikes him as a fair use or not. And secondly, that the concept of Fair Use is intended to prevent such ridiculous actions as the RIAA has taken recently.

If 60 million Americans assert their feeling that they paid money for CD’s with the expectation that those CD’s then became their property with which they had the expectations of doing certain things with (such as ripping to MP3’s or even trading on the internet) a sympathetic judge could rule this Fair Use, and that would set a precedent that would sink all future RIAA actions. If this is true it’s no wonder the RIAA is taking such pains settle as many cases as possible out of court.

I believe you would only have to collect a few commercials for computers and MP3 players to establish that these products were clearly marketed for the specific purpose of free ripping and trading of music. And some of these commercials come from RIAA related companies.

Furthermore, there is precedent in the buying of music that could be reaffirmed to our benefit. In the days of vinyl there was never any question that you were buying a solid object, the ownership of which was transferred from the artist to the record company, the record company to the vender, and the vender to you.

With the purchase of this object it was assumed all the rights of ownership applied, and the maker of the recording thus lost certain rights and could not control your use of it. Home taping of such recordings was legally established as an expected right of Fair Use. Sharing that music with friends is also an established Fair Use. Logically, this is only a hop skip and a jump from establishing that the noncommercial sharing of the music you buy with friends on the internet is also an expected Fair Use. And that the only things the record companies have a right to protect from duplication is the actual physical product, not the sounds that emanate from it.

Furthermore, I think we have rights above and beyond Fair Use that might enable this to happen. 60 million people is not a number to be sneezed at. In the face of such numbers of The People desiring a certain thing, the government might be Constitutionally required to grant the will of the people and revise the copyright law to permit the non-profit copying of music.

Otaku-Of-Tom, yes that makes perfect sense. thanks

"one silly cunt hair away"? Is this NY Times writing style for popular culture?

I'm sorry, please enlighten me, who is Thom Barger?

you think you're confused? I'm still wondering what right I just lost this time. I hope it wasn't that free public toilet thingy

"I’m not a lawyer. But I have done considerable studying on this Fair Use concept lately."

You better keep studying because you just gave out a load of misinformation.

Stilltrying:

You can read the actual Fair Use law here:

http://www4.law.cornell.edu/uscode/17/107.html

You can read about the law here:

http://fairuse.stanford.edu/

Hey Thom Barger...I think you are a pubic hair away from your next chill pill.

Mroop your links did not lead me to the subject matter. I will try to copy and paste it and see if that works. Thanks for the info, hope to find it.

I should have edited that. no wait - then I'm censor. No wait - free speech - but offensive to women ---but there are undre 18 years olds -


ArGHgHGH!!!!!!!!!!!!!!!!!!!!!!!!


Pretend it's hunter s. thomson

don't censor, it was fine how it was. Offensive as it may have been to women, that was the choice HE made in writing the article. It isn't your job to change the wording in his articles. You just have to decide how raunchy it has to be for it to NOT be posted. heh, I guess its your job to only allow PG-13 and lower articles onto the site

People who don't refrain from such wording in their papers, essays, and communique simply reduce the power of their words. That is their fault not yours, I think your doing a great job

I have tried repeatedly to find some basis for the movement in the laws as they are written on the sites Mroop was trying to link. It simply is not there to be found by anyone with an untrained legal eye. But I assume the lawyers of the EFF must know what they're talking about, as they intend to go into court and argue these points. Thus I refer to their Fair Use FAQ rather than the actual law.

I believe people like Mroop deliberately insist that we read the actual law and take it at face value because it looks worse than it really is, and this undermines the confidence of the people in exploring and exorcising what rights they might have under Fair Use.

The EFF is a leading factor in this movement. If there is anyone to ask for an authoritative statement of what our Fair Use rights might be, I believe it is the EFF.

Their Fair Use FAQ can be found here.
http://www.eff.org/IP//eff_fair_use_faq.html

QUOTE:
Furthermore, I think we have rights above and beyond Fair Use that might enable this to happen. 60 million people is not a number to be sneezed at. In the face of such numbers of The People desiring a certain thing, the government might be Constitutionally required to grant the will of the people and revise the copyright law to permit the non-profit copying of music.
END QUOTE

I think, Otaku-Of-Tom, that a judge would consider providing a song on a p2p network NOT fair use. Although considering such an act in isolation it would be considered fair use, when you look at the bigger picture (you just removed 60 million possible customers), logic tells you that putting it there reduces the power of the artist to make money from it. However, that's in an environment that does not consider alternative inovative future business models. This same judge would soon change his mind if it was suddenly realised that infact by providing the song free on a p2p application a larger audience was reached, alternative, possible larger, revenues materialised from concert sales, advertising etc. The problem is the record industry is too lazy, and entirely happy with it's existing cash cow, and the control it enjoys, to highlight such alternatives.

The problem with all this is that the judge, even if he rules against the file sharer on the fair use issue, will still realise that he really hasn't changed anything because there are still 59,999,999 other sharers out there, and he will never be able to prosecute them all (although the RIAA, like the trooper it is, is giving it a shot), so what has he really achieved: nothing. This is the paradox of this situation.

...then again, maybe that judge has achieved something: a precedent. This would speed up the prosecution of others, and scare off the average sharer quicker. Unfortunately, privacy issues have probably been violated to get to this point some would argue, not to mention the extortion strategy (see the next news item "Here's a case that explains use of RICO against extortionists") on the part of the RIAA.

What's against the law today may not be against the law tomorrow and it's up to us to persue change. Afterall, sixty million people is a lot of clout. It's time for a music revolution; it's time to cut out the dead weight. We just cannot go back to pre-net p2p. The amount of awesome music I discover these days is phenominal, and magical (Trance rules! - discovered this type of music on p2p .

Consider this. You can sit home with a stack of videotapes, and, if you had enough time, tapes, and VCRs, legally copy hundreds of full length videos from TV. You could also, using audio tapes, legally tape hundreds, thousands of songs. In fact, you could record a 1000 songs and have them sitting in your front room and be legal under the Home Audio Recording Act. But, you download ONE movie (even a horrible screener) from online, essentially copying, from a P2P or even, from broadcast TV, and you can be found to be acting illegally.
You download ONE song, and in England, the new European Directive, could put you in jail for two years.

With regard to Fair use, most fair use people use a standard with a three or four pronged criteria, one of those criteria being that fair use generally must be LESS than copying/use of the FULL or complete work. How does this relate to home copying of complete, copyrighted movies.

Now, let's turn the prism around. You go to the Video Rental and rent a video. You make a copy of that video, you've just violated the FBI warning on the tape and allegedly broken copyright law.

Anyone who does not see the inherent problems with these laws just isn't paying attention.

A digital copy like an MP3 is not a perfect and identical copy of a song anymore than a JPEG is a perfect copy of a bmp format. Most compression formats are lossy , NOT lossless, and as a lossy compression scheme, by definition, it is not the same as the original.

I say, go to http://www.petitiononline.com/codewarr/petition.html and sign Code's petition to repeal the DMCA.

-bulkeraser