No, The Supreme Court Did Not Legalize Downloading

from the wtf? dept

First things first: I've appeared on The Alyona Show on RTTV a few times in the past, and have always enjoyed it. I don't know much about Russia Today, the operation behind RTTV, though some have argued that it's a propaganda arm for the Russian government. My general position on these things is that if people want to interview me about the subjects that I'm interested in, I'm happy to talk to anyone. I've done interviews for NPR and the CBC as well, and I've given a talk for execs at the BBC, all of which are also government supported media.

However, to be a credible news source... you have to at least be able to get the basics right. On Monday of this week, we wrote about the Supreme Court's decision to let stand a Second Circuit appeals court ruling, saying that a download did not require extra royalties for also being a public performance. It's basically a licensing dispute over what licenses need to be paid if you're offering downloadable music. Interesting, but not a huge deal.

So I was a bit shocked to see a headline declare that the Supreme Court legalizes downloading music, because that's simply not true. I clicked through... and it's from RTTV, who apparently understood this story so little that almost nothing in the headline or opening sentence is accurate. On the assumption that perhaps they'll change or pull this down, here's a screenshot:
First up, the Supreme Court didn't do anything other than refuse to hear the appeal of ASCAP, allowing the Second Circuit case to stand. So it didn't legalize anything. Nothing in the Supreme Court's decision not to hear the appeal indicates a change to any law, let alone something as crazy as "legalizing downloading music." Second, the opening sentence is also completely bogus. Downloading music is already an infringement of federal copyright law. Nothing in this case would change that one way or the other. All it concerned was whether or not services that offer downloads have to pay a separate "performance" license to ASCAP for the downloads. Nothing in this is about legalizing (or illegalizing) downloads. Services already pay licensing rights to distribute a copy of a file. The question is whether or not they had to pay even more, if downloading also constituted a "public performance," which is covered by a different right under copyright law.

No matter what your position is on copyright law, or this particular case, making totally ridiculous claims, like the Supreme Court legalized downloads, is flat out ridiculous, and suggests not only did someone not understand the case at hand, but didn't even bother to read the most basic information about the case.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 3:23pm

    Downloading is legal, you just usually have to pay for it.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 3:23pm

    It makes you question the accuracy of every news story they produce. I'm a skeptic by nature and usually seek out multiple sources for my news, but some people believe the first thing they read.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    :Lobo Santo (profile), Oct 6th, 2011 @ 3:24pm

    Do you remember

    In kindergarten--a game called telephone (or "Chinese Whispers" for the racists)?

    The kids would all line up, and the teacher would whisper to the first child something like "The quick brown fox jumped over the lazy dog" and each child would pass along the message, until it got to the end, and the last child would repeat loudly the message received, usually "I'm hungry" or "I gotta pee".

    This reminds me mightily of that--we've all known for a very long time how rumors travel and grow.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Richard (profile), Oct 6th, 2011 @ 3:28pm

    Re:

    It makes you question the accuracy of every news story they produce.

    Actually you should question the accuracy any news story ANY outlet produces. Fore example look at the early mistaken headlines - backed up by fabricated detail - that came from many news sources in the Amanda Knox case.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 3:34pm

    If you have noscript installed you can "-" the article on the site indefinitely.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 3:34pm

    Re: Re:

    True. Also applicable to blogs, but if I were to mention the one I'm thinking of by name, I'd have to start living under a bridge.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    :Lobo Santo (profile), Oct 6th, 2011 @ 3:37pm

    Re: Re: Re:

    Are it's initials WSJ? Or perhaps NYP?

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    MarsM (profile), Oct 6th, 2011 @ 3:40pm

    It's a complicated matter, that most people don't understand. Also an article in the biggest Dutch daily newspaper just mis translated a Reuters Bullitin.
    Even more confusing is the fact that the US is a an exception how a download is treated. Rest of the World mostly see a download as a Making Available right/ Public Performance..

     

    reply to this | link to this | view in thread ]

  9.  
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    Chosen Reject (profile), Oct 6th, 2011 @ 3:49pm

    Mazburglar does it again with his FUD

    Once again we see Mazburglar jumping to the aid of his burglarizing buddies without giving any thought to the actual truth. You're always defending the copyright burglars, and ignore stories that don't jive with your freetardian broadbrush ideals.

    I mean, look at this article, does anyone really believe that the supreme court would legalize downloading? And yet here you are, defending this tra....

    uhm, wait. I'm going to have to rethink this. Give me a moment.

     

    reply to this | link to this | view in thread ]

  10.  
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    nasch (profile), Oct 6th, 2011 @ 4:15pm

    Is it really illegal?

    Downloading music is already an infringement of federal copyright law.

    Is it? Does the statute specifically mention downloading? If not, has there been any case law indicating that downloading is copyright infringement? Clearly uploading is, but I don't think I've ever seen anything concrete about downloading.

     

    reply to this | link to this | view in thread ]

  11.  
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    Mike Masnick (profile), Oct 6th, 2011 @ 4:22pm

    Re: Is it really illegal?

    Is it? Does the statute specifically mention downloading? If not, has there been any case law indicating that downloading is copyright infringement? Clearly uploading is, but I don't think I've ever seen anything concrete about downloading.

    A download is a reproduction... And reproduction is one of the Section 106 rights covered by copyright. http://copyright.gov/title17/92chap1.html#106

    I think the confusion you may have is that most of the lawsuits had been targeted at uploading, because that could be more easily seen by copyright enforcers. Downloading was harder to discover, unless they were downloading from you directly -- at which point it's not infringing.

    But, yes, downloading violates the law.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 4:39pm

    Re: Re: Is it really illegal?

    "But, yes, downloading violates the law."

    Only if unauthorized by the copyright owner.

    Failing to make that distinction is sort of like saying "driving a car is illegal." Well, only if you don't have a license.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 5:10pm

    Re:

    Piracy is legal, just don't get caught ;)

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    abc gum, Oct 6th, 2011 @ 5:12pm

    Re:

    "Rest of the World mostly see a download as a Making Available right/ Public Performance.."

    What does this mean?

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 5:13pm

    Re: Re: Re: Is it really illegal?

    "Only if unauthorized by the copyright owner.

    Failing to make that distinction"

    That distinction is obvious. It's an implied no-brainier.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 5:19pm

    Re: Re: Re: Re: Is it really illegal?

    That doesn't make it any smarter to write the sentence without the distinction.

    It should be obvious that driving a car, entering a building, or smoking a cigarette are only illegal in specific circumstances, but that doesn't make it a good idea to write "driving a car is illegal," "entering a building is illegal," or "smoking a cigarette is illegal" right?

    It implies (well, really just states) that "downloading" = "illegal downloading" when there are plenty of legal downloading options.

     

    reply to this | link to this | view in thread ]

  17.  
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    Mike Masnick (profile), Oct 6th, 2011 @ 5:23pm

    Re: Re: Re: Is it really illegal?

    Only if unauthorized by the copyright owner.


    Yes, of course. Sorry, I should have added that, but seemed obvious in context.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 5:23pm

    Re: Re: Is it really illegal?

    But, yes, downloading violates the law.

    Got that Jay?

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 5:37pm

    Re: Re: Re: Re: Is it really illegal?

    Yeah, I'm a nit-picker

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 5:45pm

    So...

    ...downloading has a legal?

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 8:50pm

    Speaking of inaccuracies, Metallica is usually placed firmly in the genre of 'thrash metal', not 'heavy rock'.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 9:01pm

    Re: Re: Is it really illegal?

    "But, yes, downloading violates the law."

    So why would you suggest that people base their business models off of it?

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Oct 6th, 2011 @ 10:02pm

    Re: Re: Re: Is it really illegal?

    "So why would you suggest that people base their business models off of it?"

    He's not. At least not in the misinterpretation you're taking from it. He's saying, look at what it is/does, learn from it, adopt it and profit from it.

    What does downloading a file give people? A file with no DRM at a reasonable price (free in this case) that has no limitations (i.e. can only be viewed/heard for a week, or only on Computer A, or Device B, etc). File availability in multiple formats (avi, mkv, mp4, mp3, flac, m4a, etc). Etc.

    That is what people want, a product with no restrictions placed upon it and of decent quality and at a reasonable price. Nothing more, nothing less. Well, one more thing, available to get in an easy and convenient manner (ala iTunes or Netflix). If those two services can compete with free, so can others. As long as greed (on the part of studios/labels) doesn't strangle them off once they really start hitting their stride that is.

    I've seen "official" digital downloads that were worse quality than what I get from ripping my own dvds/blu-rays myself. AND that were 3 times the size, with limits usually being can only be transferred to Computer A to be immediately transferred and only used on Device B. In addition to of course being charged about $5 (minimum) more to get that digital copy "bundled" with a dvd/blu-ray. Or basically, "here's the digital copy you want, but how we're going to let you have it".

    Why do you insist on trying to put a spin on everything Mike says? He's actually quite clear on most points he makes and presents plenty of examples of others doing things in ways that benefit all (both the companies/creators and the consumers). Or do you ignore those examples just because they aren't being done in the manner that's always been done (and thus they can't obviously be worth investigating and attempting to mimic as well)?

    Also, it should be noted, "downloading violates the law" ONLY in some places. It's perfectly legal and socially acceptable in quite a few countries. Of course, we must judge and determine what's best from everyone based on our morals, which is silly to say the least. Your morals aren't mine, mine aren't Average Joe's, his aren't God's, etc.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Prisoner 201, Oct 6th, 2011 @ 10:25pm

    Re: Mazburglar does it again with his FUD

    Your Tro Shil is weak, grasshopper. Never let opponents words distract you from strong purpose.

    Hesitate, and you have allready defeated.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Prisoner 201, Oct 6th, 2011 @ 10:26pm

    Re: Re: Re: Re: Re: Is it really illegal?

    It does not help that the industry encourages the confusion.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    That Anonymous Coward (profile), Oct 7th, 2011 @ 3:40am

    Re:

    I was filing them under BAD... like fire.

    FIRE BAD.

     

    reply to this | link to this | view in thread ]

  27.  
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    btrussell (profile), Oct 7th, 2011 @ 4:44am

    Re: Re: Is it really illegal?

    So how do we legally view most web pages since they generally have a copyright notice? Which we cannot see until we download it and reproduce it.

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    btrussell (profile), Oct 7th, 2011 @ 4:48am

    Re: Re: Re: Is it really illegal?

    "Downloading was harder to discover, unless they were downloading from you directly -- at which point it's not infringing."

    So, I can legally save streams then?

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    abc gum, Oct 7th, 2011 @ 4:51am

    Re:

    Down and up loading occurs much more than most people realize, and a very large percentage of it is completely legal.

    You want to read the morning news with your coffee? Well, I'm sorry but you will have to download these files first. Does this make you a freetard pirate?

    I do not see how the SCOTUS could "make legal" something that is already legal.

    Obviously, it is the content which determines legality.

    You can copy ones and zeros all day long, so long as they do not match some one else's sequence of ones and zeros.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Oct 7th, 2011 @ 5:04am

    Re:

    I do pay for it. Everybody pays for it

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Oct 7th, 2011 @ 5:09am

    Re: Re: Re: Re: Is it really illegal?

    "That distinction is obvious."

    not to the law.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Oct 7th, 2011 @ 5:19am

    Re: Re: Re: Re: Is it really illegal?

    ""So why would you suggest that people base their business models off of it?"

    He's not. At least not in the misinterpretation you're taking from it. He's saying, look at what it is/does, learn from it, adopt it and profit from it."

    Way to tapdance. When you filter it all out, what Mike is saying is because there is piracy, you should adjust your business models to profit from it, no matter the costs to others. Profit from the "infinite distribution" network created by P2P and other methods, don't try to sell any product that can be digitized, and pander to those who would steal your work anyway.

    Effectively, based your business models off of piracy.


    "it should be noted, "downloading violates the law" ONLY in some places. It's perfectly legal and socially acceptable in quite a few countries. "

    Name a few... because I can't think of many. Canada? That's going the way of the Dodo. Any other western countries where this is legal?

     

    reply to this | link to this | view in thread ]

  33.  
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    Andreas (profile), Oct 7th, 2011 @ 5:55am

    Downloading music is NOT an infringement of federal copyright law. Uploading may be.

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    The eejit (profile), Oct 7th, 2011 @ 6:26am

    Re: Re: Re: Re: Re: Is it really illegal?

    Brazil.

    ...What, you wanted somewhere closer to home?

    Mexico.

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Matthew A. Sawtell, Oct 7th, 2011 @ 6:26am

    Nice Attempt at Mike, but...

    "I don't know much about Russia Today, the operation behind RTTV, though some have argued that it's a propaganda arm for the Russian government. My general position on these things is that if people want to interview me about the subjects that I'm interested in, I'm happy to talk to anyone."

    Cripes Mike, you appeared on network that tries to make Jerry Springer look like Ted Koppel, in terms of guests and topics. If you want to make sure you do not want to have your public image to be reduced to "trailer trash", then pick your venues better.

    Interest touch with the RT article, with that picture of Metallica - the hack who wrote the piece has a vague memory of the Napster Debacle?

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Anonymous Coward, Oct 7th, 2011 @ 7:23am

    Re: Nice Attempt at Mike, but...

    Pirate Mike will go on any show that'll have him. The desperation is truly palpable.

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Anonymous Coward, Oct 7th, 2011 @ 7:34am

    Re: Re: Re: Re: Re: Is it really illegal?

    "Way to tapdance. When you filter it all out, what Mike is saying is because there is piracy, you should adjust your business models to profit from it, no matter the costs to others. Profit from the "infinite distribution" network created by P2P and other methods, don't try to sell any product that can be digitized, and pander to those who would steal your work anyway.

    Effectively, based your business models off of piracy."

    That's not tapdancing. See what I mean about you putting a spin on things? You're now doing the same to what I said. You CAN sell products that can be digitized, Netflix and iTunes and Steam do it all the time. And successfully I might I add, while reaping in tremendous profits. How do they do so? Hmm. By exactly the method I said. They determine what the customers want, how they want it, and then give it to them at reasonable prices. On top of that, they realize that customers can get those same products elsewhere (cheaper or for free) and thus they add things that add value and make the customer want to pay them. iTunes is beyond convenient and easy to use. Netflix can be viewed on a plethora of devices. Steam allows you to download your games over and over again if need be, provides regular updates for purchased content, etc.

    "Name a few... because I can't think of many. Canada? That's going the way of the Dodo. Any other western countries where this is legal?"

    Well, I can't name ANY OTHER Western countries, because how many Western countries are there that you'd actually accept as an answer (all of 3, U.S. Canada and Mexico, saying this based on size/population)? But I know in Europe, file sharing is most definitely viewed in a different light. Here's a quick list off the top of my head on countries where it's legal to file share (for non-profit) and keep in mind I just woke up so this list will be beyond short but added to later when I can actually think: Canada, the Netherlands, Spain, Russia. So that is "a few". (Heck, camming a movie is legal in the U.K. as long as you don't put it online. Bet that grinds your gears to a screeching halt.)

    Also "going the way of the Dodo" IS NOT THE SAME AS "has gone the way of the Dodo". I think the intelligence of American citizens in general is "going the way of the Dodo". Doesn't mean everyone in America is an idiot now does it?

    What you can or can't think of doesn't discredit anything just because. Can I name more than 5 baseball players? No. Does that automatically mean baseball must be the crappiest sport in the world and should be disbanded because obviously I (emphasis on I) DO NOT know about it or it's players? No. Your arguments are pathetic. They're never based on fact. If anything all your arguments are based on YOUR morality and YOUR thoughts and YOUR knowledge, but seldom if ever any actual facts or evidence.

     

    reply to this | link to this | view in thread ]

  38.  
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    nasch (profile), Oct 7th, 2011 @ 2:48pm

    Re: Re: Re: Re: Re: Is it really illegal?

    Effectively, based your business models off of piracy.

    If you're basing your business model on it, it's no longer piracy.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Pirate Mike, Oct 7th, 2011 @ 3:11pm

    Re: Re: Nice Attempt at Mike, but...

    I haven't been on any show, so what the hell are you talking about?

    You seem to confuse me with someone else.

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    nasch (profile), Oct 7th, 2011 @ 4:50pm

    Re:

    Downloading music is NOT an infringement of federal copyright law.

    Do you have a reference for that claim?

     

    reply to this | link to this | view in thread ]


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