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  1. Banned
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    Originally Posted by adam
    Originally Posted by bazooka
    The judges disagree
    Without providing any context at all, that statement is just silly.
    In the body of that pdf file there was a statement that p2p was a new and unforseen architecture.

    This was two excerpts from the pdf file.
    This Circuit has never determined whether music downloaded from P2P systems violatesthe copyright owner's rights or is a fair use. The RIAA, to our knowledge, has neverprevailed in any infringement actions brought against individual downloaders.

    The court further concluded it is the province of Congress, not the courts, to decide whether to rewrite the DMCA "in order to make it fit a new and unforeseen internet architecture"
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  2. Member adam's Avatar
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    Look at that quote again. They are talking about downloading by individual persons. The DMCA has been used in conjunction with an infringement suit to sucessfully prosecute both P2P systems (I just cited the leading case in my last post) as well as against individuals who have uploaded via P2P. BTW, this is just one Circuit ruling on one single set of facts. Its not even a final ruling, its the denial of a motion, and as the court noted, the RIAA can still file a John Doe suit and subpoena the exact same information that way. The Court is closing one avenue with which to obtain discovery in an infringement suit involving P2P, they are not at all saying that the DMCA "doesn't cover" P2P.

    The DMCA does not even make an action via P2P a violation. That is what copyright law itself does. The DMCA, in regards to P2P and ISPs is used to obtain discovery (subpoena user information.) It doesn't matter how or where the infringement took place. If you meet the requirements of these DMCA provisions then you can use them to obtain discovery under the Statute. This Circuit says the RIAA has jumped the gun. First they've got to prove the action can be a violation of copyright in their Circuit before they will enforce this preemptive measure. But once again, this is only the 8th Circuit.
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  3. Banned
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    Thank you adam.
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  4. Knew It All Doramius's Avatar
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    My question is this, [false scenario example] say I have discs of several different artists. They accumulate to 50 discs. assuming each has 10+ songs on them. That's 500+ songs. I have an auto accident and my stack of CDs are in the car loose and they get damaged or scratched. I have the cases & covers at home. I go online and commit to downloading via P2P all of the songs and burn them to CDs. Because of the large activity over a few days, I get pinged, tracked and then served notice for illegal activity. Could 1 counter sue for wrongful allegations as a legitimate license holder?

    I do know the biggest people the companies are going after are the uploaders. However, I feel that a legal action should be taken forth to force companies to provide a downloading site where people can purchase the songs for free if they are legal license holders. The person paid for the disc & licensing, they should have every right to listen or see their music, movies, etc. and backup how they deem fit and have the resources available to do so. By blocking that right and ability, they are in direct violation of Fair Use.

    [Example] I backup my movies. Backing up is not illegal per fair use, but removing CSS encryption protection is. Why isn't placing the CSS encryption labeled as illegal practice as it violates people's Fair Use? And why aren't the companies themselves being forced to provide such a service as to allow people to exercise their rights? If you want to see the biggest illegal action being done, that's it right there. Honestly, that sounds like a Federal Offense.
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  5. Member adam's Avatar
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    That scenario hasn't really been raised as far as I know. I think the point that this case Bazooka brought up is that downloading may fall under Fair Use, whereas uploading does not. Your rights to copy a CD, or other audio format, do not come from Fair Use they come from a specific exception under Title 17. Caselaw has expressly held that downloading cannot be excused under this section. So your only other defense is Fair Use, and this just hasn't been ruled on yet.

    Actually backing up is not made legal under Fair Use at all. Fair Use says nothing about backups at all really unless you count time-shifting. All of the rights to backup (copies for educational purposes, computer software, librarie's archives, musical recordings) come under express provisions of Title 17. No such provision exists yet for DVDs.

    Now you can of course copy portions of a DVD for certain Fair Use purposes (parody, critique, etc..) and it is not a copyright infringement and it is not a violation of the DMCA to break CSS encryption either because the DMCA contains an express exemption for Fair Use rights. Its just that archival copying of DVDs for any personal purpose has not yet been ruled a Fair Use, and there is no other provision making it permissible.

    As far countersuing for a wrongful suit, yes you can do this via a counterclaim in any suit. Each state has Rules of Civil Procedure and there are also Federal Rules of Civil Procedure. Either avenue provides remedies where a suit is "frivolous and in bad faith, brought for the purposes of delay or harrassment, and was not the product of a minimum investigation, etc..." Your remedies are of course dismissal of the suit but you can also get your court and attorney's fees paid for, damages you have sustained, and sanctions imposed including fines or even the disbarring of the attorney.
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  6. Knew It All Doramius's Avatar
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    I was reading it and it talked about media or medium in general. Some areas talked about digital and analog. But it didn't specify much of anything related to media or medium. Media and medium being paper, DVDs, Cassette tapes, or anything of the nature.

    People can also retain a personal archive, and it does not have to be a registered as such. However, it looks like you can't lend or allow open viewing of anything unless it's made public for everyone and that it is not violating copyright. So if I make 1 copy for personal archive, it looks like that is permissable. That would basically be saying I'm allowed to make 1 back-up for archive purposes.
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  7. Member adam's Avatar
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    The Fair Use doctrine really has nothing to do with personal archival copying at all.

    Here is the full text of the Fair Use doctrine as codified under Title 17:

    § 107. Limitations on exclusive rights: Fair use

    Notwithstanding the provisions of sections 106 and 106A [17 USCS §§ 106 and 106A], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
    Fair Use is really nothing more then a test for the courts to apply in determining whether something is an infringement or not. What is actually permissible or imperissible under it is determined by case law, and will vary from one jurisdiction to the next. No US court has ever directly even heard the issue of whether copying a DVD for archival purposes is a Fair Use, and there has certainaly never been a ruling on it. Fair Use is completely silent on this matter.

    However, there are multiple cases holding that a complete and exact copy, or even a substantial copying, can never be a permissible Fair Use.

    Almost total copying of copyrighted work cannot be considered "fair use"

    Robert Stigwood Group, Ltd. v O'Reilly 346 F Supp 376,
    179 USPQ 712
    530 F2d 1096,
    189 USPQ 453,
    429 US 848,
    50 L Ed 2d 121,
    97 S Ct 135
    Walt Disney Co. v Powell (1990, App DC) 283 US App DC 111
    I imagine that eventually copying of DVDs will become so easy and common that Title 17 will be amended to include a similar compromise between industries that we currently have for audio recordings. The manufacturers of the hardware and media used for copying will pay royalties to the industry, and the law will grant the consumer the right to copy. I wouldn't hold my breath on this one though. All throughout copyright law there is far greater protection granted to audio/visual works as compared to just audio/musical ones or written works.
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  8. Knew It All Doramius's Avatar
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    It's all going to come down to segregation of media or medium used and that's going to be a tough route to go. Virtually everything can be turned digital.

    Here's What I think should be amended, but it's ability to become reality has a probability percentage that runs in the negatives:

    Copyright granted of 60 years through standard copyright process. An extension of 2 year segments up to a combined total copyright of 80 years can be filed for 2 month's prior to the expiration of the term segment. After the term, the item becomes Public Domain if the item falls into an Out Of Print, or of the like status. The item may continue to file copyright for 2 year segments of up to a combined total of 120 years provided such item is In Print and available to market.
    Or somewhere along those lines. It actually provides a longer ability to hold a copyright, yet forces them to keep works available or they fall into public domain by force. It does lessen the time for Out Of Print items. So if you're doing nothing with it, it doesn't get forgotten or left out.
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  9. Member adam's Avatar
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    I'm not sure what you mean since the words media or medium are not even used in the Fair Use provisions at all, but I will admit it is open to intrepretation. Still the fact remains that no court has ruled archival copying of DVDs a Fair Use right and there is no other law providing that right. As such, the general prohibition of any and all reproductions under the first provision of Title 17 would govern until an actual exception has been carved out.

    BTW: Medium would apply to anything at all that can be copyrighted. One of the requirements of copyright is that it be "fixed in a tangible medium of expression." Media could refer to several things but I'm not sure where you are getting this language from so I don't know the context in which it is being used.

    As for the language you quote, I'm not sure but it sounds an awful lot like the transitional period language contained in the Sonny Bono Copyright Extention Act. Those numbers only apply to a very small amount of works which fell into a transitional period where their copyrights had not yet expired at the creation of the act, but would expire prior to its going into effect. So because of this they are afforded an extension if asked. Most of these works are so insignificant the copyright holders have just let them slip into the Public Domain. This of course didn't happen with Mickey Mouse though (what promted the act in the first place.)

    The general term of copyright in the US is 70 years after death of the copyright holder. It can be less for other works (anonymous, cinematographical, etc...) but at current this is the max with the exception of those works falling into this transitional period. Where are you reading that language, because that is not the general term of copyrights? But if this is the Sonny Bono Act then I wholeheartedly agree with you, it should amended at the least and it'd be better to throw it out entirely. Then the term would drop back down to 50 years after death, which is still too long in some people's view, but nevertheless is pretty much the worldwide standard.
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  10. Knew It All Doramius's Avatar
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    I gathered my information from a couple of different sources, but the Bonno act was one of them. I'm all for Copyright, but the enforcement has gone way out of hand and the fact that they are doing what they can to increase the timeframe is utter foolishness and greed. I think someone needs to put a foot down.

    When I used the word medium & media, I was trying to entertain the fact that there may be any other possible future tangible items to which a copyright can be held. Technically, digital information is not tangible. Part of the reason why Copyright is having such a hard time with it. However, a storage medium of digital information would be the 'medium' or media. This could even pertain to Flash drives or whatever new technology that hasn't been discovered yet.
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