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67845017 (banned)
join:2000-12-17
Naperville, IL

67845017 (banned) to MyDogHsFleas

Member

to MyDogHsFleas

Re: Suing for downloading or uploading?

Yeah, it wasn't really an uploading versus downloading matter. I think that issue may have been raised in the oral arguments, but I'm not quite sure. I didn't follow the case very carefully.

In the end it was really a fair use decision. As such, the appellate court operated under the premise that downloading was illegal in this case and that the claim of fair use was not a viable defense. It kind of short circuited the crazy theories that get thrown around on here regarding honey-pots and the mechanics of torrents.
MyDogHsFleas
Premium Member
join:2007-08-15
Austin, TX

2 recommendations

MyDogHsFleas

Premium Member

Yeah, I've been trying to educate/correct people around here on the reality of copyright laws, licensing terms, and "fair use". People really get some out-there ideas. I think they confuse how they think it should be with how it really is. I think they also think I'm arguing with them when mostly I'm trying to educate them on the reality of the situation.

I mean, it's one thing to know you are breaking copyright law and do it anyway. Look, I do it myself sometimes. I use DVD decrypter to make operational copies of DVDs I own, and keep the originals unused, because too often they've gotten scratched and rendered unplayable in spots. I use iTunes to burn a few tens of copies of mix CDs to hand out at very special events (anniversary parties, weddings). Both of these are totally illegal! And I know it. But I'm taking the (extremely small) risk because the alternative is way too costly and mostly annoying. I mean, I'm really not going to buy two copies of a DVD, and I'm really not going to buy 20 copies of a song from iTunes under 20 different accounts just so that I can burn it into 20 mix CDs legally to hand out to good friends and family.

And, it's another thing to pretend that you are in the right when you do stuff like the people in these cases are doing. And, worse, that the people suing you for what you are doing are evil, mendacious, incompetent, and are violating your rights. To me, that's just... no other way to put it... stupid.
67845017 (banned)
join:2000-12-17
Naperville, IL

67845017 (banned)

Member

+1

FFH5
Premium Member
join:2002-03-03
Tavistock NJ

FFH5

Premium Member

+2
Kearnstd
Space Elf
Premium Member
join:2002-01-22
Mullica Hill, NJ

Kearnstd to MyDogHsFleas

Premium Member

to MyDogHsFleas
said by MyDogHsFleas:

Yeah, I've been trying to educate/correct people around here on the reality of copyright laws, licensing terms, and "fair use". People really get some out-there ideas. I think they confuse how they think it should be with how it really is. I think they also think I'm arguing with them when mostly I'm trying to educate them on the reality of the situation.

I mean, it's one thing to know you are breaking copyright law and do it anyway. Look, I do it myself sometimes. I use DVD decrypter to make operational copies of DVDs I own, and keep the originals unused, because too often they've gotten scratched and rendered unplayable in spots. I use iTunes to burn a few tens of copies of mix CDs to hand out at very special events (anniversary parties, weddings). Both of these are totally illegal! And I know it. But I'm taking the (extremely small) risk because the alternative is way too costly and mostly annoying. I mean, I'm really not going to buy two copies of a DVD, and I'm really not going to buy 20 copies of a song from iTunes under 20 different accounts just so that I can burn it into 20 mix CDs legally to hand out to good friends and family.

And, it's another thing to pretend that you are in the right when you do stuff like the people in these cases are doing. And, worse, that the people suing you for what you are doing are evil, mendacious, incompetent, and are violating your rights. To me, that's just... no other way to put it... stupid.

See I never knew putting DVDs to my Media Server was Illegal, because I saw it as a backup which is allowed by US Copyright Law.
MyDogHsFleas
Premium Member
join:2007-08-15
Austin, TX

MyDogHsFleas

Premium Member

said by Kearnstd:

See I never knew putting DVDs to my Media Server was Illegal, because I saw it as a backup which is allowed by US Copyright Law.

When you say "putting DVDs to my Media Server" -- I assume you mean cracking the encryption and putting the VOD files on a file server? Yes, that is not allowed by your license, and is also a DMCA violation because you cracked encryption intended to protect content.

Now, will you ever get caught? Almost certainly not, since (presumably) this is all on your home LAN and not shared out to the world, so how would they find out?

And, there is nothing in US Copyright Law that "allows backup". I hate to be harsh, but I see this all the time -- people just making stuff up and claiming it's part of the Copyright Law. It's not.

Again, that said, is making a backup for yourself (not distributing it and certainly not selling it to others) a good idea, despite the fact that it's a copyright violation? In many cases, yes, IMO. But don't pretend it's all legal and covered, because it's not.

You're really just proving my exact point. Lots and lots of people have wrong ideas about what the copyright laws are and what they mean. Look, I am no expert, but I can read and understand, that's really all you have to do. Do not listen to what others say, because they are often wrong.

Please understand this is not a matter of opinion or an argument. The things I am telling you are easily verifiable facts.
67845017 (banned)
join:2000-12-17
Naperville, IL

67845017 (banned) to Kearnstd

Member

to Kearnstd
Even though you are cracking the encryption and violating the DMCA, fair use is still an affirmative defense. I would argue that you are covered under fair use.

I consider myself an expert.
TheRogueX
join:2003-03-26
Springfield, MO

TheRogueX to MyDogHsFleas

Member

to MyDogHsFleas
said by MyDogHsFleas:

And, there is nothing in US Copyright Law that "allows backup". I hate to be harsh, but I see this all the time -- people just making stuff up and claiming it's part of the Copyright Law. It's not

Actually, in terms of software at least, US Copyright Law allows for the user to make one copy of the software for archival(backup) purposes. That archive is linked to the original, though; if you sell/give away the original, you have to destroy the archive, or otherwise send it with the original.

I'm not sure if this relates to music and/or video though, and I'm not in the mood to look it up right now.
67845017 (banned)
join:2000-12-17
Naperville, IL

67845017 (banned)

Member

Different statutes.
MyDogHsFleas
Premium Member
join:2007-08-15
Austin, TX

MyDogHsFleas to TheRogueX

Premium Member

to TheRogueX
said by TheRogueX:

said by MyDogHsFleas:

And, there is nothing in US Copyright Law that "allows backup". I hate to be harsh, but I see this all the time -- people just making stuff up and claiming it's part of the Copyright Law. It's not

Actually, in terms of software at least, US Copyright Law allows for the user to make one copy of the software for archival(backup) purposes. That archive is linked to the original, though; if you sell/give away the original, you have to destroy the archive, or otherwise send it with the original.

No you're thinking of the Audio Home Recording Act (AHRA) of 1992, which explicitly allows backup copies on audio cassettes only. There is no provision in the US Copyright Law or any other law that generally allows users to make backup copies of software. The software EULA may allow you to do that under license, or not.

So, once again this is a fiction people keep saying. I really don't get why people keep doing this. It's easy enough to look it up in WikiPedia or whatever.
MyDogHsFleas

MyDogHsFleas to 67845017

Premium Member

to 67845017
said by 67845017:

Even though you are cracking the encryption and violating the DMCA, fair use is still an affirmative defense. I would argue that you are covered under fair use.

Well, first off, it's a moot point since no one is ever going to sue you for cracking/copying a DVD at home for your own backup purposes.

But, if you actually look at the fair use provisions, you'll find that there is nothing in there that remotely comes close to allowing you to make a full copy of an entire work.
67845017 (banned)
join:2000-12-17
Naperville, IL

67845017 (banned)

Member

said by MyDogHsFleas:

said by 67845017:

Even though you are cracking the encryption and violating the DMCA, fair use is still an affirmative defense. I would argue that you are covered under fair use.

Well, first off, it's a moot point since no one is ever going to sue you for cracking/copying a DVD at home for your own backup purposes.

But, if you actually look at the fair use provisions, you'll find that there is nothing in there that remotely comes close to allowing you to make a full copy of an entire work.

WTF are you talking about? Fair use covers many aspects of these things without using explicit language. Here are the four main considerations:

1. The purpose and character of the use, including whether such use is of 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

4. The effect of the use upon the potential market for, or value of, the copyrighted work

Clearly 1 and 4, which relate to the financial effects of copying the DVD, fall in favor of the home DVD copier. The court considers monetary effects as among the top considerations of fair use.

Look at the Real Networks case. Judge Patel explicitly stated, "While it may well be fair use for an individual consumer to store a backup copy of a personally-owned DVD on that individual's computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies."

This has been known for a long time. Selling a tool for circumventing encryption is illegal. Making copies of your own DVD for personal use on your own machine is arguably fair use.

After 17 years of IP law practice, I've looked at the fair use provisions more than I care to think about. I'll stick with my interpretation.
TheRogueX
join:2003-03-26
Springfield, MO

TheRogueX to MyDogHsFleas

Member

to MyDogHsFleas
said by MyDogHsFleas:

No you're thinking of the Audio Home Recording Act (AHRA) of 1992, which explicitly allows backup copies on audio cassettes only. There is no provision in the US Copyright Law or any other law that generally allows users to make backup copies of software. The software EULA may allow you to do that under license, or not.

So, once again this is a fiction people keep saying. I really don't get why people keep doing this. It's easy enough to look it up in WikiPedia or whatever.

No, actually I'm thinking United States Code, Title 17, Chapter 1, § 117, which states:

"Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Under Section 117, the rights of a copyright owner in a computer program are limited such that the owner (but not a licensee, borrower or mere possessor) of a particular copy of a computer program may make a copy or adaptation of the program as an "essential step" in using the computer program in a computer or for archival purposes."


»www.law.cornell.edu/usco ··· 117.html

So... before you accuse someone of spouting fiction while claiming the simplicity of research, perhaps you should actually research.

Interestingly enough, while the USC was amended for the copying of both audio recordings and software, it was never amended the same way for video recordings... at least, not that I can see.
MyDogHsFleas
Premium Member
join:2007-08-15
Austin, TX

MyDogHsFleas

Premium Member

said by TheRogueX:

No, actually I'm thinking United States Code, Title 17, Chapter 1, § 117, which states:...

»www.law.cornell.edu/usco ··· 117.html

So... before you accuse someone of spouting fiction while claiming the simplicity of research, perhaps you should actually research.

Yes, I should have researched again and gone to the source material, which you've kindly provided a link for! I did not know that this had been updated. Thanks and obviously I was wrong and I take back the comments about making backup copies of software.

Interestingly enough, while the USC was amended for the copying of both audio recordings and software, it was never amended the same way for video recordings... at least, not that I can see.

Interesting, I'm looking at United States Code, Title 17, Chapter 1, § 116,, "Scope of exclusive rights in sound recordings", and I don't see anything in there about being allowed to copy audio recordings? Do you? It looks to me like it's all about broadcasting audio and what you are allowed to do with that. Am I missing something?
MyDogHsFleas

MyDogHsFleas to 67845017

Premium Member

to 67845017
said by 67845017:

Fair use covers many aspects of these things without using explicit language. Here are the four main considerations: ... snip... After 17 years of IP law practice, I've looked at the fair use provisions more than I care to think about. I'll stick with my interpretation.

Interesting. Maybe I'm changing my mind. Two questions:

In your experience is this interpretation widely shared in the IP law community?

Has the question of fair use allowing home backup copies and/or ripping to hard drives for home use ever been actually decided in court? Could a DVD content seller not argue that the consumer could easily have bought a second DVD if the first gets damaged or lost, and therefore they are definitely suffering an economic impact if you multiply that times thousands of customers and potential lost sales?
67845017 (banned)
join:2000-12-17
Naperville, IL

67845017 (banned)

Member

As you know, lawyers won't agree on anything. But, in terms of fair usage, economic impact is acknowledged by the courts as being very key. I don't have a cite off the top of my head, but I could probably dig it up. Actually, I've posted extensively about this a couple of years ago or so.

Unfortunately, to my knowledge there hasn't been a court decision regarding the legality of backing up personally owned DVDs. I doubt there will be one any time soon, since it doesn't make economic sense for the studios to go after a single potential infringer, since enforcement would be almost impossible anyway.

I agree that the studios would make at least that argument, among others. But, in most cases, those subsequent sales aren't ones that studios typically rely on to reach their sales goals. In addition, the courts don't like inequities, and if the studios were to mention to the judge that they rely on damaged DVD sales for income, it potentially creates a conflict of interest in how the studios package/manufacture disks. So, I'm not sure that even if damaged/lost sales were significant that the courts would go for it.

NoLuckChuck
@teksavvy.com

NoLuckChuck to Kearnstd

Anon

to Kearnstd
But if you don't have nothin' you can't lose nothin' unless you get sued and have the unfortunate luck to hit a powerball lottery grand prize. I say bring back the lash for these swindlers that prey on internet users. I say to the DMCA or whatever that organization is *get* a job!!
TheRogueX
join:2003-03-26
Springfield, MO

1 edit

TheRogueX to MyDogHsFleas

Member

to MyDogHsFleas
said by MyDogHsFleas:

Interesting, I'm looking at United States Code, Title 17, Chapter 1, § 116,, "Scope of exclusive rights in sound recordings", and I don't see anything in there about being allowed to copy audio recordings? Do you? It looks to me like it's all about broadcasting audio and what you are allowed to do with that. Am I missing something?

That's a good question. I wonder if they modified the law somewhere else? Because I know they did put in the exemption for 'mix tapes' and stuff, but I'm not seeing it in here either.

EDIT: Found it. It's barely understandable, but it's in USC Title 17, Chapter 10, Subchapter D, § 1008, "Prohibition on certain infringement actions." That's the part that AHRA added that allows consumers to make copies for noncommercial use. Apparently, though, this is worded so badly that it still draws a lot of questions and debate.
MyDogHsFleas
Premium Member
join:2007-08-15
Austin, TX

1 recommendation

MyDogHsFleas

Premium Member

OK well you and Goober have really brought the goods and I've learned a lot, thanks. This is really why I keep posting here, to learn through argument/debate/facts.

I am going to stop saying that copyright laws technically forbid home users from copying/backing up content they purchased for use in the home (e.g. DVDs, CDs) because

(a) it doesn't matter because no one will ever sue them for this, and

(b) when you consider fair use AND the prohibitions on infringement actions, it's arguably allowed or at least defendable to do this.