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ReDigi Loses: You Can't Resell Your MP3s (Unless You Sell Your Whole Hard Drive)

from the a-big-first-sale-loss dept

This is hardly a surprise at all. In fact, we expected this kind of ruling all along. ReDigi, the company that was trying to build a "market" around "used MP3s" has lost at the district court. As you may recall, ReDigi tried to set up a system that monitors your own files, so that if you "sell" a used MP3, you have to make sure it's been removed from your own system. As you might imagine, that system is not foolproof, but some effort has been made (and it's only allowed for reselling MP3s ReDigi can prove you've purchased, such as via iTunes, and not for files just ripped from CDs). While I fully expected ReDigi to lose, the ruling is still fairly distressing in just how badly it distorts other parts of the law, which may harm other, even more reasonable uses. Hopefully, ReDigi will appeal and fight back against the more extreme interpretation from the district court here.

First, the court looks into the question of whether or not a transfer of a copyrighted file, where only one file remains at the end, still violates the "reproduction" right. That is, if Bob transfers a file to Alice, and Bob's copy of the file is immediately deleted, is that still a reproduction under the Copyright Act? The court says yes:
...courts have not previously addressed whether the unauthorized transfer of a digital music file over the Internet – where only one file exists before and after the transfer – constitutes reproduction within the meaning of the Copyright Act. The Court holds that it does.

The Copyright Act provides that a copyright owner has the exclusive right “to reproduce the copyrighted work in . . . phonorecords.” Copyrighted works are defined to include, inter alia, “sound recordings,” which are “works that result from the fixation of a series of musical, spoken, or other sounds.” Such works are distinguished from their material embodiments. These include phonorecords, which are the “material objects in which sounds . . . are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Thus, the plain text of the Copyright Act makes clear that reproduction occurs when a copyrighted work is fixed in a new material object.
Of course, that same bit of the Copyright Act also makes clear that "copying" does not apply to purely digital files, but the court tap dances around that argument. Basically, it says whether or not there are more in the world is meaningless. All that matters is if a copy was made, even if the original was destroyed.
Simply put, it is the creation of a new material object and not an additional material object that defines the reproduction right. The dictionary defines “reproduction” to mean, inter alia, “to produce again” or “to cause to exist again or anew.” See Merriam-Webster Collegiate Edition 994 (10th ed. 1998) (emphasis added). Significantly, it is not defined as “to produce again while the original exists.” Thus, the right “to reproduce the copyrighted work in . . . phonorecords” is implicated whenever a sound recording is fixed in a new material object, regardless of whether the sound recording remains fixed in the original material object.
Basically, under this interpretation, you can never "transfer" a digital file. You can only make a reproduction under copyright law. And, yes, computers transfer files by making copies of them, but it seems a bit ridiculous that the whole concept of a transfer can be wiped out because of that. In fact, by this interpretation, even streaming (which still involves all the data being temporarily copied to your local computer) would count as reproduction. ReDigi pointed this out, noting the possibility of merely cleaning up your own hard drive being considered infringing, but the court buys Capitol Records's (EMI) argument that such uses are protected under other theories.

Moving on to the question of distribution, ReDigi doesn't deny that it's distributing files, but says that it's protected by fair use and (more importantly), first sale. Again, however, the court doesn't buy it. Part of the issue may be that ReDigi "abandoned" an argument it made earlier that merely transferring a file to a cloud locker for personal use is fair use, so it's left arguing that other aspects of its service are covered by fair use, but that's much more difficult under the basic four factors test. On this part, it's not that surprising that ReDigi failed to convince the court, as I'm not sure I see the fair use argument either.

The first sale part is where it gets more troubling. Effectively, the court wipes out first sale for digital goods, arguing that because (as above) each transfer is not really a "transfer" but a "copy," first sale doesn't apply. That is, first sale only applies to the initial "copy" "made under this title." But, the court argues, because the sale involves making a new copy, it's not covered by first sale.
In addition, the first sale doctrine does not protect ReDigi’s distribution of Capitol’s copyrighted works. This is because, as an unlawful reproduction, a digital music file sold on ReDigi is not “lawfully made under this title.” ... Moreover, the statute protects only distribution by “the owner of a particular copy or phonorecord . . . of that copy or phonorecord.” Here, a ReDigi user owns the phonorecord that was created when she purchased and downloaded a song from iTunes to her hard disk. But to sell that song on ReDigi, she must produce a new phonorecord on the ReDigi server. Because it is therefore impossible for the user to sell her “particular” phonorecord on ReDigi, the first sale statute cannot provide a defense. Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. Here, ReDigi is not distributing such material items; rather, it is distributing reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard drives. The first sale defense does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.
That seems silly. Selling a legally purchased MP3 is absolutely nothing like selling a cassette recording of a vinyl record. When ReDigi points out that, under this interpretation, digital files have no first sale rights, the court hits back that this is not true. After all, it argues, you can still sell your hard drive with the original file on it. No, seriously. That's the court's response.
Section 109(a) still protects a lawful owner’s sale of her “particular” phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded. While this limitation clearly presents obstacles to resale that are different from, and perhaps even more onerous than, those involved in the resale of CDs and cassettes, the limitation is hardly absurd – the first sale doctrine was enacted in a world where the ease and speed of data transfer could not have been imagined.
The court argues that if such an interpretation is ridiculous (though it argues it is not) then it's up to Congress to fix it.

With that out of the way, the court says that ReDigi is guilty of direct infringement, contributory infringement ("the court finally concludes that ReDigi's service is not capable of substantial noninfringing uses"), and vicarious infringement. Basically, a triple play and ReDigi is completely out of the inning. While I'm still not convinced about the fair use argument, the court basically killing off first sale for digital goods is a pretty big problem, and hopefully higher courts (or, dare we dream, Congress?) will fix such an obviously nutty ruling.


Reader Comments (rss)

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  1.  
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    Ima Fish (profile), Apr 1st, 2013 @ 12:04pm

    "First, the court looks into the question of whether or not a transfer of a copyrighted file... still violates the 'reproduction' right. The court says yes"

    Yikes!!!

     

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  2.  
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    Rikuo (profile), Apr 1st, 2013 @ 12:05pm

    First off, I get a "400 Bad Request" for whatever it is you linked to at the end.

    Second, the idea of selling used digital data is something that the market should quickly kill off on its own. In a sane world, it would be, because there would be no demand for it. However, in our world, where copyright is a bitch, the idea of selling your files once you're done with them is nice (Steam games once you're done with them, anyone?)

     

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  3.  
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    Rikuo (profile), Apr 1st, 2013 @ 12:16pm

    Re:

    Ah now that link is working.

    And unless I've gone crazy, this court ruling makes it illegal for you to backup the files you purchased (well, more than the anti-circumvention clause of the DMCA already does). They say Alice is only allowed the one copy of the MP3 she downloads from the server onto Hard Drive 1. What if she copies the song for storage onto Hard Drive 2?
    More proof that copyright cannot co-exist peacefully in an age of infinite, identical copies.

     

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  4.  
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    Anonymous Coward, Apr 1st, 2013 @ 12:20pm

    So the court has now ruled that you can resell your MP3s if they're on a form of digital media. So how about loading up a USB stick with music and selling it, then seeing how long it takes for the RIAA to freak out.

     

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  5.  
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    alanbleiweiss (profile), Apr 1st, 2013 @ 12:21pm

    This is a horrific ruling. I completely detest the notion that you can't resell something you've legally purchased.

     

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  6.  
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    Anonymous Coward, Apr 1st, 2013 @ 12:24pm

    Re:

    According to the theory used here... you'd have to download the song directly to the USB stick in order to have the right to resell it.

    If you download it to your computer hard drive and then transfer it to the USB stick it's an illegal copy and the RIAA can sue you for $22 000 / song in damages.

     

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  7.  
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    Rikuo (profile), Apr 1st, 2013 @ 12:25pm

    Re:

    No, what this court has ruled is that you can only resell the MP3's if the files are on the same hard disk you downloaded them to.
    Then again...what if you carefully set up whatever download program you're using to treat the USB stick as the destination, sell the stick, but keep the tracks loaded in the buffer of a playback program while keeping your computer on?

     

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    TasMot (profile), Apr 1st, 2013 @ 12:26pm

    They opened a huge hole here

    When ReDigi points out that, under this interpretation, digital files have no first sale rights, the court hits back that this is not true. After all, it argues, you can still sell your hard drive with the original file on it.

    Don't ever download to your harddisk. Download to a CD. Then "rip" it to your harddrive and use it there. The CD is then your first copy, so when you no longer need that track, you can sell it (as long as you get rid of the copies on your harddrive and other music devices first).

     

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    Violated (profile), Apr 1st, 2013 @ 12:26pm

    Not Internet Friendly, so Obsolete

    I recall that the European Union sorted out this one some time ago ruling that consumers are allowed to resell their digital purchases such as computer games from Steam.

    Not everyone has caught up with that one of course but over in the US then Congress and the Justice system would be doing the consumers a vast injustice by not allowing people to resell their digital purchases.

    Indeed saying that they could sell their HDDs is extremely stupid when digital media operates fully independently from the physical medium that hosts it.

     

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  10.  
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    Yakko Warner (profile), Apr 1st, 2013 @ 12:29pm

    Re: Re:

    If you download it to your computer hard drive and then transfer it to the USB stick it's an illegal copy and the RIAA can sue you for $22 000 / song in damages.

    That would seem to be true even if you didn't intend to sell the USB stick.

    It would also seem to apply to any transfer of MP3 files from your PC to, say, an MP3 player or phone.

    Bad, bad, bad.

     

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  11.  
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    Anonymous Coward, Apr 1st, 2013 @ 12:35pm

    Re: Re:

    What if you download them to a cloud based server such as Amazon's cloud? Wouldn't copying them to your personal hard drive then be a form of illegal copying?
    What if you download them to RAM and then move them to a flash drive? Would that be illegal copying?

     

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    Chris Brand, Apr 1st, 2013 @ 12:36pm

    So what happens when I buy a new computer ?

    Can I transfer all my data, including my legally-purchased digital files to the new one, or is that now copyright infringement ? This could be a huge win for everyone "selling" digital files.

     

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    jameshogg (profile), Apr 1st, 2013 @ 12:37pm

    Once again, Copyright spits in the face of common sense.

     

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    jupiterkansas (profile), Apr 1st, 2013 @ 12:37pm

    Re: Re:

    That would be considered fair use.

    A better question is what if I copy all my music to a USB drive, and then sell the USB drive as just a USB drive.

     

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    Anonymous Coward, Apr 1st, 2013 @ 12:38pm

    Of course, that same bit of the Copyright Act also makes clear that "copying" does not apply to purely digital files, but the court tap dances around that argument.

    Remember when we talked about this, and I pointed out that that argument is foreclosed by Tasini? You pulled out that same, tired argument from Bridges, and I pointed out how it was wrong. He you are pulling it out again. Wishing doesn't make it so, Mike.

    You: http://www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-prot ected-copyright.shtml#c225

    Me: http://www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-prot ected-copyright.shtml#c311

    Me: http://www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-prot ected-copyright.shtml#c562

    Me: http://www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-prot ected-copyright.shtml#c587

    I don't expect you to respond since you and I both know that you'll just keep on repeating the lie and you have no intention of having a substantive discussion. But everyone can see there that I rebutted your silly argument and yet here you are making it again. Just as you've done hundreds and hundreds of times.

     

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  16.  
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    Anonymous Coward, Apr 1st, 2013 @ 12:40pm

    I imagine with this ruling all the big players in the copyright cartel are going to switch entirely to digital format for all of their properties.

     

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  17.  
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    Joe Magly (profile), Apr 1st, 2013 @ 12:42pm

    Re: Re:

    How about a local raid system?

    What if someone creates an app that lets you tie the free disk space you have on multiple systems together to use as a single remote volume? I can come up with all kinds of novel ways to work with files and their filesystems that would run afoul of this ruling just sitting in my basement.

    Sounds like, with this ruling, now doing anything with protected media other than consuming it from the original device it was downloaded on using approved software is now illegal. Want to move your music from one folder to another? Illegal. Want to copy music from your old PC to a new system prior to throwing the old PC away? Illegal. Are someone who only had an iPod but no full PC until recently? All that stuff you downloaded on your iPod must stay there forever.

    Well, if it was hyperbole before, with his ruling, if I am reading it right, all computer users in the US will violate copyright everyday, multiple times a day, just by using their computers.

    Of course from a practical sense it would be hard to harass the public over this. You would first have to prove the user actually understands how the software on their system works well enough to actually willfully infringe.

     

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  18.  
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    Anonymous Coward, Apr 1st, 2013 @ 12:43pm

    Re:

    Do you support the Copyright maximalists? If you do...

    Fuck you. Fuck you so much.

    Signed-
    The Public. Every last one of us.

     

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    Anonymous Coward, Apr 1st, 2013 @ 12:47pm

    Re: Re:

    Great rebuttal. I'm convinced. Not.

    You're just like Mikey likes 'em, dumb and angry at the world.

     

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  20.  
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    Bengie, Apr 1st, 2013 @ 12:49pm

    .

    Denying rights to actual humans should be considered crimes against humanity and treated as such.

    We need a way to punish bad judgements.

     

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  21.  
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    Anonymous Coward, Apr 1st, 2013 @ 12:54pm

    Re: Re: Re:

    Isn't that how you like your supporters?

    My point still stands.
    The world would be a better place without you.

     

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  22.  
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    Rikuo (profile), Apr 1st, 2013 @ 12:56pm

    Re:

    Has it ever occurred to you to maybe ask politely for Mike to respond? Or did your parents/guardians not teach you manners?
    Sure, even if you do ask, Mike may still not respond. He's a busy man. But the possibility of it happening does go up significantly. The last time I asked, politely, he responded to me.

     

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  23.  
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    That Anonymous Coward (profile), Apr 1st, 2013 @ 12:56pm

    So isn't the proper response here to ask why music files cost so much then?

    I have even fewer rights to what I paid for, so it should cost less.

     

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  24.  
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    Anonymous Coward, Apr 1st, 2013 @ 12:56pm

    Re:

    I think 400: bad request pretty much sums up this entire idea.

    Data is non-scarce, ones and zeroes can ALWAYS be copied, that what computers do... regardless of what copyright or DRM says.

    In a normal, sane, economy there is no point in trying to sell a non-scarce good such as air, and a used non-scarce good? Why, you might as well try to sell your used breath.

    Man, talk about wasting breath...

    Of course, there is nothing normal or sane about copyright, but try as they might the MAFFIA can never change the fundamental economics of the situation. Unless they institute communism, which come to think of it, might be the idea.

     

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  25.  
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    Anonymous Coward, Apr 1st, 2013 @ 12:58pm

    Re: Re:

    Eh, not a great response. But it's better than half of his on that page.

     

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  26.  
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    Forest_GS (profile), Apr 1st, 2013 @ 12:59pm

    applicable laws

    Any bets on something in the copyright laws saying if first sale doesn't apply to it, copyright doesn't apply to it?...such a confusing web of laws.

     

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  27.  
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    Anonymous Coward, Apr 1st, 2013 @ 1:00pm

    i wonder how much the court was paid to come up with this ridiculous ruling? however, it still goes back to the even more ridiculous ruling that when you buy something now, you dont buy the item, you just buy the right to use it. what a shame that the dumb bastards that came to this conclusion weren't themselves put into the position as so many others have found themselves. perhaps then common sense would have prevailed and instead of siding with the likes of Sony, people would actually have mattered. the world has existed for centuries by the distribution and reselling of countless items. our heritage is based on what has been found, what has been preserved throughout time and the good ol' USA has managed to throw everything down the crapper just to keep the entertainment industries, in their various forms, alive and prevent them from having to adapt to the new era. i am sure the world is a much better place because we can go and see a movie, even though we cant produce enough food.

     

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  28.  
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    Anonymous Coward, Apr 1st, 2013 @ 1:02pm

    As with most copyright law this makes no sense but then who expected it to?

     

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    Anonymous Coward, Apr 1st, 2013 @ 1:06pm

    Re: Re:

    Mike proved to me long ago that he has no intention of discussing things on the merits where he knows he can't win. He runs away every time. That's why I know he won't respond here, no matter how I put the question to him. I proved him wrong on that point, and he ran away from that thread. Just like he'll run away from it here. He has no interest in truth. He's just a childish, anti-government, anti-IP FUD-pumper who hates copyright more than anything else yet is completely unwilling and unable to discuss his own personal beliefs about copyright. It's amusing to watch.

     

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    Anonymous Coward, Apr 1st, 2013 @ 1:06pm

    Re: Re: Re: Re:

    Duly noted. Let me know if you want to address the substance of my post. I presume you aren't able, though.

     

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  31.  
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    Joe Magly (profile), Apr 1st, 2013 @ 1:09pm

    Re: They opened a huge hole here

    Technically not possible as far as I am aware. In order to burn a CD an image must be prepared and authored (most of this is transparent to the end user these days) which generally means your data is not only copied to a persistent disk but may be copied 2-3 more times during the burning process.

    I am not sure there are any tools out there that can take a data stream and push the output directly onto a an optical disc short of leaving the session open and treating it as an RW device. Even then I would wager the files stop off at the hard drive before being written to the open session.

     

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  32.  
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    Rikuo (profile), Apr 1st, 2013 @ 1:09pm

    Re: Re: Re:

    "Mike proved to me long ago that he has no intention of discussing things on the merits where he knows he can't win. He runs away every time."

    So Mike runs away every time. Huh.
    So why is it, in the VERY LINKS YOU PROVIDE, I found a discussion between you two?

     

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  33.  
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    Reluctant Coward, Apr 1st, 2013 @ 1:17pm

    The question here is...
    I'm told to 'buy this MP3 at ITunes' or wherever, the word 'Buy' comes into play as if I buy anything, shouldn't I OWN it? If I'm buying a license should it not be purchase 'your licensed MP3 at ITunes?

     

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  34.  
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    gorehound (profile), Apr 1st, 2013 @ 1:18pm

    Why do you people even bother to buy Digital Files over a physical product ?
    All of you contribute to this awful market where you do not own what you bought.

    I am a Proud Dinosaur sitting on a vast collection of physical vintage and rare books.They will all get to be in my Will.Right now my books alone are conservatively appraised at $16500.

     

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  35.  
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    cpt kangarooski, Apr 1st, 2013 @ 1:18pm

    Yeah, that's pretty much what I expected.

    Computers really do copy things all the time, whether it's clear that that's what they're doing or not. It's just a part of how they work. And combined with the specific language of the Copyright Act, this leads to problems.

    Clearly the solution is for ReDigi 2 to set up a bunch of server space and to distribute a client to their users so that when the user legally downloads a song, it is directed through the computer onto the mounted server, which provides a separate partition (a small one) for each track. Then users need only sell access to specific partitions and copies (tangible objects, remember) can change owners without leaving the embailment of ReDigi 2.

    Or to just, you know, reform the law to accommodate things that the public wants to do.

     

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    Anonymous Coward, Apr 1st, 2013 @ 1:20pm

    Re: Re: Re: Re:

    So why is it, in the VERY LINKS YOU PROVIDE, I found a discussion between you two?

    Wow. Really? He pretended like I was wrong and said: "I see. Can't win an argument so you pretend you know what I do and don't know. It's fun to watch you flail around."

    I then proved him wrong by citing Tasini and other cases, and guess what, he ran away and did not respond to all of my arguments or the cases I cited that proved him wrong. As soon as he realized he was beat, he ran. Just like he does every time. If he manned up and admitted his error, I would have respected that. But he didn't because he can't stand to be proved wrong. That's why he runs every time.

     

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    Anonymous Coward, Apr 1st, 2013 @ 1:21pm

    Re: Re: Re: Re:

    LOL! I love when you idiots pull that out. That's Mike making a bunch of excuses. What you can't link to is him having a substantive discussion on the merits where he doesn't run away at the first sign of trouble.

     

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  38.  
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    Rikuo (profile), Apr 1st, 2013 @ 1:25pm

    Re: Re: Re: Re: Re:

    No no no no.

    This is me calling you out for being a very obvious and bad liar. You stated, multiple times, flat out, that Mike NEVER discusses with you. That is an absolute statement. Then, to back up your point, you cheerfully provided links to...a discussion. Get it? For some fucking reason, you provided links to something that proved you wrong.

     

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  39.  
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    Rikuo (profile), Apr 1st, 2013 @ 1:28pm

    Re: Re: Re: Re: Re: Re:

    Damn, hit submit too soon again.

    It would be like if I were to go prancing around saying the Holocaust never happened while dancing in front of and inviting people to walk around Auschwitz.

     

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  40.  
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    Josh in CharlotteNC (profile), Apr 1st, 2013 @ 1:29pm

    Re: Re: Re:

    Sounds like, with this ruling, now doing anything with protected media other than consuming it from the original device it was downloaded on using approved software is now illegal

    That's been illegal since 1998 and the DMCA. What this ruling makes illegal is transferring an *un*protected file.

     

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    Anonymous Coward, Apr 1st, 2013 @ 1:36pm

    Re: Re: Re:

    That article is one of my favorites because Mike ponders why we even have a distribution right at all. I suppose he thinks drug dealers should be OK so long as they don't make the drugs themselves. LOL! It's so dumb it hurts.

     

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    Anonymous Coward, Apr 1st, 2013 @ 1:37pm

    Re: Re: Re: Re: Re: Re:

    Mike discusses things with me all the time. As soon as he knows he's losing or being made to look dumb, he runs. This isn't hard, Rikuo.

     

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  43.  
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    Rikuo (profile), Apr 1st, 2013 @ 1:44pm

    Re: Re: Re: Re: Re: Re: Re:

    Saying "He discuses with me but then later runs" is very different to "He never discusses with me".

    This isn't hard, Anonymous Coward.

    Maybe, just maybe, he isn't "running away". Maybe, just maybe, he's got a life outside of you. He's a busy man, with a company to run and articles to write. For you to constantly go on about how the sole reason he doesn't reply to you is because he knows he can't win, says a lot more about your huge-ass ego than it does about Mike.

     

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  44.  
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    Oblate (profile), Apr 1st, 2013 @ 1:48pm

    Re: Re:

    What if I download my songs to a RAID-5 array of X tiny USB drives, and then sell all but one of the drives to someone one at a time, restoring the array between each sale*? It wouldn't be practical, but it would be fun to watch the judge's head slowly deflate as the technical details were assimilated.

    *Note- with a RAID-5 array, the purchaser could extract the missing data on the last drive from the X-1 drives they have.

     

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  45.  
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    Anonymous Coward, Apr 1st, 2013 @ 1:51pm

    Re: .

    Hang, draw and quarter bad judges?

     

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    Reality Check (profile), Apr 1st, 2013 @ 1:53pm

    Re: Re: Re:

    waaaaaaaaaaa.

     

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  47.  
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    Trevor (profile), Apr 1st, 2013 @ 1:56pm

    What About This?

    What if ReDigi developed a cloud based service you could download songs to, and then give the buyer a "key" to sign in and listen to those songs, and stream them to the buyers computer. Then, the buyer could sell the key, without physically transferring or "creating a new copy" and the new buyer can stream the same file to his/her computer? That way you buy access, not the file. Sort of like how the **AA want it to be.

     

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  48.  
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    Anonymous Coward, Apr 1st, 2013 @ 1:57pm

    Re: Re: .

    Yes, you should murder judges because you don't like how they apply the law. Great idea.

    Sigh.

     

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    Anonymous Coward, Apr 1st, 2013 @ 1:57pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    LOL! He's running away. There is no doubt whatsoever.

     

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    Anonymous Coward, Apr 1st, 2013 @ 1:58pm

    Re: Re: Re: Re:

    I agree. Mike is a big baby who can't defend what he writes and who can't discuss his personal beliefs.

     

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    Rikuo (profile), Apr 1st, 2013 @ 2:03pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I said you have an unhealthy large ego. Proof? You just provided it with "There is no doubt whatsoever".

    Thank you for proving us here at Techdirt right again.

     

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  52.  
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    Karl (profile), Apr 1st, 2013 @ 2:07pm

    Re: Very bad ruling

    Dammit, I accidentally hit the "enter" key...

    I agree with Mike that this is a pretty horrible ruling, with immense and far-reaching implications.

    I'll give you two examples.

    First: I buy games on Steam (pretty much exclusively). Steam allows me to sell copies of the games I downloaded, including non-Valve games, to other Steam users. If I do, then Steam deletes the game from my system, and I no longer have the files.

    Under this ruling, this is unlawful. Steam is guilty of direct infringement of both the copying and distribution rights.

    Another example. Because I had to for coursework, I bought a copy of Microsoft Office 2010. I had do pay quite a lot of money for it. Now, like most people are doing nowadays (and like Microsoft themselves encourage), I bought the software not as a set of disks, but as a digital download.

    Suppose, in the future, I decide to upgrade to Office 360. (I know, it's a stretch, but bear with me.) Can I resell my older version of Office to someone, after upgrading?

    According to this ruling, no, I can't.

    Note that these are both unlawful, regardless of whether I am considered an owner or a licensee. In essence, it makes the distinction completely irrelevant.

    This makes the entire line of reasoning in Vernor v. Autodesk moot, which is one reason I think the ruling probably won't last as it stands.

     

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    Anonymous Coward, Apr 1st, 2013 @ 2:11pm

    Is defragmentation with MP3s on the hard drive now illegal?

     

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    tywebb (profile), Apr 1st, 2013 @ 2:14pm

    Boo effing hoo

    You can't re-sell the song you paid 99 cents for? You sound like a bunch of poor people. When you purchase a beer in a bar, do you expect to pee back in the bottle and try to sell it to the guy sitting next to you? No, you recognize that you got your $3 worth of enjoyment out of it, consider it a sunk cost, and move on. You can always turn to streaming if paying 99 cents or $1.29 is too much of a financial commitment to make without the prospect of being able to recoup some of that money down the road. Stop trying to beat the system.

     

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    Almost Anonymous (profile), Apr 1st, 2013 @ 2:22pm

    Re: Re: Very bad ruling

    Yeah, agreed, this is a pretty horrible decision. And if you extrapolate it just a teeny bit further, I'm not sure if it would make a difference if you *had* the discs in your Office 2010 example.

    As I read this article, I found myself wanting to yell at my monitor, "Shut up you stupid old dinosaurs, you don't even know what you're saying!"

     

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    Almost Anonymous (profile), Apr 1st, 2013 @ 2:29pm

    Re: Boo effing hoo

    I'll play along.

    Instead of just one 99 cent song (because hey clever guy, who only has just 1 song?), Alice has 2000 99 cent songs. However, she finds that she doesn't listen to 100 or so anymore, and she would like to sell her legally purchased property. Why shouldn't she be allowed to do so?

    I'll tell you why. Because you goons want your cake and to eat it too. "No no, you can't make copies, because they are digital property." and "No no, you can't sell them, because it's just a license, you don't own that."

    Screw you, stupid lying shill.

     

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    tywebb (profile), Apr 1st, 2013 @ 2:31pm

    Re: Re: Re: Very bad ruling

    In your Microsoft Office example, the first sale doctrine clearly applies to legally manufactured physical goods like optical discs. That was just affirmed last week. Moral of the story, buy physical media if you want to resell it. Before you buy something in a purely digital format, take a moment to consider the value proposition and whether it is worth buying if you can't resell it down the road. It's really that simple.

     

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    BentFranklin (profile), Apr 1st, 2013 @ 2:33pm

    How is ReDigi able to keep you from reselling something you've already backed up without becoming some form of self-inflicted DRM that we all hate so much?

     

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    Karl (profile), Apr 1st, 2013 @ 2:42pm

    Re:

    Remember when we talked about this, and I pointed out that that argument is foreclosed by Tasini?

    Except that it is not foreclosed by Tasini. I have just re-read it, and it is about whether inclusion in a database is the equivalent under copyright of a "revision" of the work.

    Indeed, in that very thread, you quote a different case and not Tasini. It is from a Massachusetts District Court ruling (London-Sire Records v. Does), which has no force outside of Massachusetts.

    Now, I happen to agree with that ruling - that (non-transitory) digital files are "material objects" in which a work is "fixed." But it is not Tasini that makes it.

    Furthermore, it should also go against this ruling. If you are an owner of a "material object" in which a work is "fixed," then that object is a "copy" under the Copyright Act, and first sale should apply.

     

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    tanj, Apr 1st, 2013 @ 2:50pm

    Re: Boo effing hoo

    Reminds me of the furniture dealer that buys junk and sells priceless antiques.

     

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    tywebb (profile), Apr 1st, 2013 @ 2:54pm

    Re: Re: Boo effing hoo

    I know Alice and she isn't interested in selling any of her tracks. Before Redigi emerged, there was no expectation from iTunes customers (at least for the overwhelming majority of them) that they should have any ability to sell the music they purchased. The court essentially affirmed this original assumption that most consumers about the digital goods they purchased. Why the outrage? Because it wouldn't be Techdirt if we couldn't be slamming copyright law or content companies in some way every day.

     

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    Rick Smith (profile), Apr 1st, 2013 @ 2:59pm

    Re: Boo effing hoo

    I think that you are missing the point. Its not really about being able to resale a 99 cent MP3. Its about what this opens people up to legally from a technical point of view.

    Do you have kids? Ever buy them a digital copy of something were you first download it to your machine and then install on their device? I certainly do, but legally this activity could be considered infringement.

    Is it fair use, yes, but I think we all know just how well that usually works. If a company decided it wasn't then you would have to go to court and fight it, but how many will really do that? This opens everyone, and I really mean everyone, to being extorted.

     

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    Franklin G Ryzzo (profile), Apr 1st, 2013 @ 3:00pm

    Re: Re: Very bad ruling

    I'm not sure if the Steam example would be infringing under this ruling. They already have the distribution rights for the games they are selling, and in their contract there is probably a provision that allows them this right based on their DRM scheme. While it's not intrusive, Steam is DRM, and these are exactly the types of digital rights they are trying to manage.

    While I do think this ruling is atrocious, the example doesn't really fit because Redigi is a third party to the transaction and attempts to be a broker between two end users for a fee. They never had any distribution rights, so technically copies they make would be infringing. The law currently does not keep up with the reality of the current technological climate, but a conservative reading of it would come to this result.

    I think this brings up a bigger issue though that will eventually bite the labels in the ass. If first sale doctrine does not apply here, the traditional reasoning behind this is because you are purchasing a license and the license is nontransferable. As seen by the recent Eminem ruling, a license commands a substantially higher royalty rate than a sale, typically on the order of 50% vs 8% respectively. While they claimed this was a special deal they reached with Eminem it seems like Chuck D and some others have begun a class action proceed (which I think techdirt has covered in the past) to try and test this theory. It seems that in the labels shortsightedness they continue to help set precedent that will go against them in that case. I can think of no way to drive them out of business faster than having to pay out 50% of all the revenue they've generated from digital sales.

     

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    tywebb (profile), Apr 1st, 2013 @ 3:09pm

    Re: Re: Boo effing hoo

    Copyright owners have worked with Apple to address many of the sorts of challenges you describe, which is why iTunes allows you to transfer music onto multiple devices (that and fair use as you mentioned). Perhaps iTunes and Amazon will at some point work out a deal with copyright holders that allows for certain digital media to be resold. The initial purchase won't cost 99 cents to. That's for sure.

     

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    Anonymous Coward, Apr 1st, 2013 @ 3:09pm

    Re: Re:

    Sigh.

    Except that it is not foreclosed by Tasini. I have just re-read it, and it is about whether inclusion in a database is the equivalent under copyright of a "revision" of the work. Indeed, in that very thread, you quote a different case and not Tasini. It is from a Massachusetts District Court ruling (London-Sire Records v. Does), which has no force outside of Massachusetts.

    One of the links supplied above is me quoting Tasini in that other thread: http://www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-prot ected-copyright.shtml#c562

    Tasini does indeed foreclose the argument, as indicated.

    I also quoted the London-Sire case there, which just so happens to be heavily relied upon by the district court here. It's not binding precedent, but it's so persuasive that the court here adopted its reasoning.

    Furthermore, it should also go against this ruling. If you are an owner of a "material object" in which a work is "fixed," then that object is a "copy" under the Copyright Act, and first sale should apply.

    As the court here explains, people are not selling that particular material object. They're causing a new copy to be made in a different material object. That's why first sale doesn't apply.

     

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    Anonymous Coward, Apr 1st, 2013 @ 3:19pm

    Re:

    I just read your argument, besides your absolutely hilarious braindead use of the word "piratical" (which apparently applies to the EFF, one of the only organizations fighting for your right to be braindead on the internet), your article doesn't even apply to the same case. Nay, I would say that you are actually attempting to trick people reading it into thinking that you know what you are talking about by pasting together unrelated incidents and hoping no one reads them. In fact it was pointed out to you multiple times in those articles as well (which YOU conveniently ignored, so much for accusing others for "running away" when you yourself like to flee with your tail tucked between your legs whelping like a wounded puppy).

    In short, I don't really know why you still bother. You're either extremely hardheaded or you genuinely believe that you're fighting the battle of the downtrodden copyright holders like those poor, poor souls at the RIAA who would break down into tears at any moment if it weren't for the emotional support of some anonymous guy on the internet.

     

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  67.  
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    Anonymous Coward, Apr 1st, 2013 @ 3:20pm

    Re: Re: Re:

    "One of the links supplied above is me quoting Tasini in that other thread'

    More handwaving, hilarious! I think next you should try the "Here's ten pages of text now do you believe me to be correct?" tactic.

     

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    Anonymous Coward, Apr 1st, 2013 @ 3:25pm

    Re: Re: Boo effing hoo

    Because MP3 files totally degrade over time which means they're "junk" in a few short years, it's because of the rotational viscosity of the disc and because of the quantum moonmen. Which means all MP3s can only exist on a hard disc for about five years until they're too corrupt to be listened to and then have to be bought again from yet-another DRM-ridden scam.

    You see, that nice RIAA is only trying to help us.

     

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  69.  
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    Anonymous Coward, Apr 1st, 2013 @ 3:27pm

    Re: Re: Re: .

    SIGH

    SIGH SIGH SIGH SIGH

    LOOK HOW SUPERIOR I AM, I CAN SIGH

    ON THE INTERNET

    ps, I have patented sighing on the internet to express a pathetic aura of self-superiority, you now owe me 2,000 dollars.

     

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    cpt kangarooski, Apr 1st, 2013 @ 3:30pm

    Re:

    How is ReDigi able to keep you from reselling something you've already backed up without becoming some form of self-inflicted DRM that we all hate so much?

    How does a used bookstore keep you from reselling a book that, unbeknownst to them, you've xeroxed? How does a used record store keep you from reselling a CD that, without them having any way to know it, you've ripped to your computer?

    They don't, and there's no reason why they should. The onus of not making new, infringing copies is on the person who had possession. If the copyright holder suspects that they did, they're free to sue him.

     

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    Edward (profile), Apr 1st, 2013 @ 3:43pm

    Hold on a second... If I move all my digital media to a blank HDD, I can then sell it, right?

    I don't see a problem with this. I'm going to move my media to a nice RAID 1 and then sell one of the HDDs on ebay.

    I'll then rebuild the array, and repeat. All legal, right?

     

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    Rick Smith (profile), Apr 1st, 2013 @ 3:44pm

    Re: Re: Re: Boo effing hoo

    And that is even a better example of why this ruling can not be allowed to stand.

    If the copyright owners decide that they no longer want to be part of iTunes, what happens when they terminate the contract. Now Apple and the users are potentially infringing, since I would be surprised if the contract specifically states that once the contract no longer exists that the rights continue as if the contract was still in effect. The reason that no one would specifically state that condition is that once an item is sold at that moment, we all have expectations about certain rights that we currently have. This ruling, says that you don't that those rights.

    The fact is that everyone has to operate as if something that could happen will happen (legally speaking). Even if everyone agrees that it would never occur, if it can, it will eventually. And claiming that no reasonable person would enforce it like is not a valid defense.

    So the best solution is that this ruling is overturned. Otherwise, we had all expect to get even more complicated legalese in our digital lives.

     

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    Anonymous Coward, Apr 1st, 2013 @ 4:21pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    There's no record of Masnick discussing dozens of these issues on the merits, because he doesn't do that.

    The poster is correct: It's quite obvious that Masnick flees when confronted with the inconvenient facts that prove him so dishonest.

     

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    Anonymous Coward, Apr 1st, 2013 @ 4:23pm

    Re:

    False.

    If I created a way to kill you and get away with it, it wouldn't make it any more legal or moral.

     

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    Anonymous Coward, Apr 1st, 2013 @ 4:28pm

    Re:

    As long as you don't advertise it as being full of content.

     

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    the onion said cunt, Apr 1st, 2013 @ 4:53pm

    Judges are dumb cunts. Thank god for appeals

     

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  77.  
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    Anonymous Coward, Apr 1st, 2013 @ 4:54pm

    Re: Re:

    Mike claimed in that article: "Technically, the distribution right under copyright law does not apply to digital files." He cites attorney Andrew Bridges for the claim. Source: http://www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-prot ected-copyright.shtml

    In this article, Mike claims: "Of course, that same bit of the Copyright Act also makes clear that "copying" does not apply to purely digital files, but the court tap dances around that argument." He again cites Bridges for the argument.

    Mike is confused here because Bridges was talking about the distribution right (as Mike correctly noted in my first link) and not the reproduction right (as Mike erroneously says here), but it's clear that Mike thinks that the Copyright Act doesn't apply to digital files.

    My point, which remains unrebutted (because I'm right), is that the Supreme Court foreclosed this argument when in Tasini it HELD (not dicta, but holding) that sending a digital file over the internet implicates the distribution right found in Section 106.

    I explained this to Mike, and, of course, he ran away and never addressed the case law that I cited that proved him wrong. And then here again today he's pulling the same debunked argument back out and pretending like distribution of digital files isn't even infringement. He just keeps repeating the lies, either out of stupidity or malice (I suspect healthy doses of both).

    So explain to me how exactly I'm "attempting to trick people." The only one tricking people is Pirate Mike. Rather than admit that he was proved wrong, he intentionally repeats the lie.

     

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    Karl (profile), Apr 1st, 2013 @ 5:57pm

    Re: Re: Re:

    One of the links supplied above is me quoting Tasini in that other thread:

    Right, and the Court talks explicitly about "LEXIS/NEXIS' central discs and UMI's CD-ROMs." It doesn't explicitly reference digital files, and it's not clear whether "distribution" would apply to only the files, as distinct from the "central discs" or "CD-ROMs."

    Nor does it need to. Unlike the London-Sire case, the defendants did not even touch on the subject in their defense, nor would it have made any difference whatsoever in the outcome of the case.

    Of course, that does not mean that the Court ruled that digital files are not subject to "distribution" laws. If the court had examined this particular question explicitly, then they probably would have ruled in the same way the Massachusetts court did.

    But "probably would have ruled" is very different than "did actually rule." Tasini may have heavily implied the outcome of the issue, but they did not "forclose" on any other outcome. There are cases that do, but Tasini is not one of them.

    As the court here explains, people are not selling that particular material object.

    Under this Court's interpretation, no digital distributor is can possibly sell any particular material object. Not iTunes, Microsoft, Steam, or anyone else. The "material object" that a customer (supposedly) owns, is not the same "material object" on the servers of Apple, Microsoft, or Valve. In fact, selling any kind of "material object" is legally impossible using digital distribution.

    So, either these vendors are not distributing a "material object," in which case they're not "distributing" anything under copyright law; or they are, in which case you should be able to resell that "material object" in the same way that the vendors did. You can't have it both ways.

    Of course, neither outcome seems exactly right. I expect a higher court will either clarify the issue, or (more likely) punt it to Congress, and decide the case some other way.

     

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    Karl (profile), Apr 1st, 2013 @ 6:12pm

    Re:

    You pulled out that same, tired argument from Bridges, and I pointed out how it was wrong. He you are pulling it out again.

    By the way - you did read that actual article that Mike linked to, right?

    In case you didn't, I'll refresh your memory:
    The reasoning requires a very literal reading of the law. [...] Note the emphasis on material objects. As such, you can read the law, as written, to conclude that passing around the song itself, which is not a material object, is not actually an infringement of the distribution right under the current law.

    Now, before people get too excited about this, in a later panel this question was raised again, to the EFF's Fred von Lohmann. He agreed that this appeared to be a literal reading of copyright law -- and that just about every copyright scholar he's spoken to agrees -- but that every time he's argued it in court, the court has disagreed or ignored it.

    So, why even quote Tasini? Mike (and von Lohmann) have already acknowledged that courts have "disagreed or ignored it." It doesn't prove Mike wrong, because Mike never said that the interpretation was favored by the courts - only by a "very literal reading of the law."

    And, since the court here is taking an equally literal reading, it's apropos to point out their inconsistency.

     

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    Karl (profile), Apr 1st, 2013 @ 6:20pm

    Re: Re: Re:

    Source:

    Not the source. Mike linked to this article:
    http://www.techdirt.com/articles/20080508/1119441065.shtml

    Mike thinks that the Copyright Act doesn't apply to digital files.

    Mike said no such thing, so you're making a straw man argument. Or, in layman's terms, lying.

    Pirate Mike

    And this is why Mike doesn't debate you. You lie and insult him.

    To be fair, you do this to everyone who disagrees with you. In the very comments you linked to, you referred to the EFF as "your piratical allies." Anyone who actually believes that about the EFF is an idiot who isn't worth debating.

     

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    btrussell (profile), Apr 1st, 2013 @ 6:31pm

    Re:

    If you can't resell it, you haven't bought it.

     

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  82.  
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    btrussell (profile), Apr 1st, 2013 @ 6:38pm

    Re: Re: Re: Re:

    If drug dealers aren't okay, why do we have so many pharmacies and pharmaceutical companies?

    Or are you just referring to drugs that they can't have 100% control over?

     

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    Karl (profile), Apr 1st, 2013 @ 6:41pm

    Re: Re: Re: Re:

    There are cases that do, but Tasini is not one of them.

    One of those cases, by the way, was the one you quoted further down - Arista v. Usenet. They, too, focused on Tasini.

    I don't believe the Arista court correctly interpreted Tasini, but they didn't conflict with that ruling, either. They took a (somewhat) ambiguous statement, and ignored the ambiguity when they interpreted it. It's not wrong, but it - rather than Tasini - is the case I would quote.

     

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    nasch (profile), Apr 1st, 2013 @ 6:43pm

    Re: Re:

    If I created a way to kill you and get away with it, it wouldn't make it any more legal or moral.

    If the public generally wanted to kill people you might have a point at least worth discussing.

     

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    cpt kangarooski, Apr 1st, 2013 @ 7:03pm

    Re: Re:

    If I created a way to kill you and get away with it, it wouldn't make it any more legal or moral.

    People get killed legally all the time. You may have to work at it a bit, but I'm sure that under the right circumstances you could do it if you really tried.

    As for morality, that's a bit of a non sequitur. Copyright is amoral. It is neither morally right or morally wrong to set up copyright laws or to violate them. Although I suppose that if I were really pressed, I'd admit that pirates who don't act for financial gain (aside from the gain of not having to pay), are acting morally, because they are working against those who would lock away knowledge out of mere greed.

     

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    MrWilson, Apr 1st, 2013 @ 7:24pm

    Re: Re:

    And then the copyright holders owe me a large rental fee for storing their property on my computers, devices, and CDs.

     

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  87.  
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    Anonymous Coward, Apr 1st, 2013 @ 7:49pm

    Re: Re: Re:

    if the public generally wanted to kill people you might have a point

    The public doesn't generally want to rip off creators.

    It's just you slimeballs that do.

     

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    cpt kangarooski, Apr 1st, 2013 @ 8:33pm

    Re: Re: Re: Re:

    I don't think that people generally consider it 'ripping off' when used books, records, movies, games, or other media are sold. So what's special about this case that would cause it to be 'ripping off?'

     

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  89.  
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    Anonymous Coward, Apr 1st, 2013 @ 8:54pm

    Re: Re:

    Then why would anyone pay anything for a used mp3?

     

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    Josh, Apr 1st, 2013 @ 9:08pm

    First Material Object it's copied to?

    What the... May I ask, how do you define the first material object a file is copied to? This seems the biggest problem with this ruling to me. Mostly all a computer ever does is copy data around with various manipulations to it.

    Let's assume the many routers the data passes through on the way from source to destination don't count because there is very little chance the whole file will be stored in any one router at any time. But the file data will be stored on these intermediary devices on the way in little bits for a few moments. We will also discount other parts of your computer where data could not be complete or is very unlikely to be complete (e.g. network card cache or CPU cache)

    What about the system RAM the file is inevitably copied into before being written to your HDD? What about the the HDD cache RAM that the data may be copied to before being written to your HDD platter? What about the temporary storage location the system may use in the process of downloading and writing a file? For anyone less familiar with the internal workings of personal computer systems than myself, a typical download of a file by your web browser would cause a copy of the file to be created in RAM (may or may not be a complete copy) a temporary progressive copy in whatever temporary location the web browser uses until the file is completely downloaded, this temporary file is then copied to wherever you asked the file to be saved. A typical cheap domestic PC HDD these days will have an internal RAM cache of 4-8mb where data written to it may be stored temporarily (depending on how busy it is at any given moment) before it stores the data in a more permanent way. As many posters before me have pointed out, a RAID array complicates matters even more as the data is stored across multiple physical disks.
    Does the above mean we should consider one whole computer a material object?

    What about if I use my PC to download a file and store it on a network location, such as my NAS device sitting over to my left? What if it was copied to some sort of SAN? Do we then consider a LAN a single material device?
    What if I use my PC to download a file to my cloud storage (dropbox or similar) location? Do we then consider the entire internet to be a single material object? oh, hello, now this would mean ReDigi is not making copies on different material objects, just shifting the location, so I guess not.

    How do you possibly define this?

     

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    cpt kangarooski, Apr 1st, 2013 @ 9:43pm

    Re: Re: Re:

    If you're the ultimate purchaser, why do you really care whether the seller kept a copy or not? All that matters to you is the quality of the thing you're buying and the price. Presumably in the case of a music file, the quality would be as good as whatever you'd get if you went to the official source directly, and the price would be lower.

    If you're a middleman, you might care a little -- a customer who sold you used works and secretly kept his own is unlikely to ever change his mind and buy back copies of what he sold from you. Other than that, though, how does it harm you?

    I can certainly see why the copyright holder cares, but that's not what you asked. And anyway, they don't like anyone dealing in used copies, not that I'm particularly interested in what they do like.

     

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    tanj, Apr 1st, 2013 @ 10:42pm

    Re: Re:

    That reminds me of "A Logic Named Joe".

     

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  93.  
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    Karl (profile), Apr 1st, 2013 @ 10:56pm

    Re: Re: Re: Re:

    The public doesn't generally want to rip off creators.

    No. And nobody here does, either.

    Nor, for that matter, do people who pirate. That's obvious, because pirates buy more than non-pirates.

    If anything, people pirate because a) they're not given any way to buy legally, and/or b) because they know that paying for copies won't actually put money in the pockets of creators - and choose, instead, to spend their money on things that will.

     

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  94.  
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    Karl (profile), Apr 1st, 2013 @ 11:15pm

    Re: Re: Re: Re:

    And this is why Mike doesn't debate you. You lie and insult him.

    By the way, I've just checked my comment record. Of the last five posts where you and I have interacted, I've made the last comment in all five of those posts.

    Guess what, you ran away and did not respond to all of my arguments or the cases I cited that proved you wrong. As soon as you realized you were beat, you ran. Just like you do every time.

    Obviously, you are too cowardly to debate me on the merits. As soon as you know you're losing or being made to look dumb, you run. This isn't hard. There is no doubt whatsoever. Obviously, you're just a big baby who can't defend what you write and who can't discuss your personal beliefs.

     

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    enril29a (profile), Apr 1st, 2013 @ 11:22pm

    If transferring to a locker is fine....

    Why not make the locker, the transfer service as well. Rather than maintaining and monitoring two sources (user and recipient computers) make the service an online locker so that transferring songs is really just a database update? Allowing the locker service to only maintain 1 copy of a file, but allow access to many people, rather than "transferring" said file.

    The service could have streaming as well via web or app.

    I'm sure that opens up an entirely new can of worms though.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 2:08am

    They should just bring flash drives into the mix and really fuck shit up. Then the people can actually claim they're selling the hard disk when they mail the flash drive.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 2:23am

    Re: Re:

    yes and no. It IS illegal, it's just in practice, copyright holders don't care. It probably should be codified in law, however.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 2:27am

    Re: Re: Re:

    that's usually accounted for in the licenses for such services, actually.

     

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    Tim Griffiths (profile), Apr 2nd, 2013 @ 2:51am

    Re: Re:

    You want to know how crazy this is? This ruling effectively means that raid arrays are breaking copyright law. You could say that since the data is written across drives in the first "fixing" that makes it ok but if you ever try and recover data you will be fixing some part of it in a new medium. Now this likely would be covered under something like fair use but it just points out how crazy it is trying to apply laws like this to new technology.

    Hell while we are at it I wonder if defragging your hard drive would count as infringement? You are effectively "refixing" the file to a different part of the physical material by copying bits of it to a closer physical space. Does that qualify as being in the same 'material' and so that's ok?

     

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    Tim Griffiths (profile), Apr 2nd, 2013 @ 2:58am

    Re: Re:

    You'd have to force the downloads to use the USB as their temporary download locations as well. For example if you have Itunes installed on your main drive and have it download to a second data drive your data drive copy will, under this ruling, be an infringing copy as Itunes has a default temporary download location for in progress files from what I remember. The file is first "fixed" on the main drive and then copied to the second drive. While this is most likely "fair use" it still ridiculous to rule on the letter of the law of copying that was written before the digital age.

     

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    techflaws (profile), Apr 2nd, 2013 @ 3:01am

    Re: Re: They opened a huge hole here

    Read up on DVD-RAM then.

     

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    btrussell (profile), Apr 2nd, 2013 @ 3:07am

    Re: Re: Re:

    We can dream.

    I'd be happy getting back my "you must be a thief tax" from all my blank media.

     

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  103.  
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    Anonymous Coward, Apr 2nd, 2013 @ 6:50am

    Re: Re: Re: Re: Re:

    "big baby"

    Hilarious considering how often you whine about him not arguing directly with you.

    Face it, we all know you have an ego that matches Masnick's on one level or another, but hell at least he's constructive with it.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 6:54am

    Re: Re: Re: Boo effing hoo

    No expectation? I'm sorry, no expectation does not equate to being unable to sell something you purchased legally.

    Why don't you actually try answering the question.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 6:57am

    Re: Re: Re: Re: Re:

    I wouldn't bother Karl. This guy sound like Joe on his endless quest for an ego stroke from Masnick.

    For as much as he bitches about how "terrible" Masnick is, at least Mike isn't petty enough to goad people into arguments via insult.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 7:10am

    Re: Re: Re:

    Hi, AJ. I'm pretty sure he won't debate you because, as has been pointed out by Mike, he chooses not to take the bait from people who are rude, ignorant, and completely obsessed with ad homs and the 'you're wrong I'm right, and you're just lying' attitudes. So, if you decide to actually be polite, provide a substantive argument in a way that isn't meant to inflame, and stay on topic...? Well, you might be surprised. You being you, however, I'm betting that won't happen. Still, it'd be nice to see you actually clean up so we can get those great debates going, again.

     

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  107.  
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    Anonymous Coward, Apr 2nd, 2013 @ 7:34am

    Re: Re: Re:

    No, it's not illegal. Ripping CDs is a fair use, for example, as is making copies on each device I own like both of my computers, my mobile phone, or a CD for my car.

     

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  108.  
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    Anonymous Coward, Apr 2nd, 2013 @ 7:35am

    Re: Re:

    The court wants to pretend that fair use exist for every copy the owner makes except this copy. So it's like some kind of temporal loophole where a fair use copy becomes and infringing copy depending on what you do with it later which makes no sense.

     

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    JMT (profile), Apr 2nd, 2013 @ 7:35am

    Re: Re: Re: Re:

    So in a post about reselling used goods you resort to "ripping off creators"? Are your feelings on selling used cars, houses, clothes, etc just as stupid?

     

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    BentFranklin (profile), Apr 2nd, 2013 @ 7:39am

    Re: Re: Re: Re:

    And this is why ReDigi lost. Other markets for digital products have ways to control authenticity, either through encryption/trust (Bitcoin) or by keeping the objects on their servers (MTGO, Second Life). ReDigi has none of that, so it was a very tenuous business model in the first place. I'm surprised anyone funded it.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 7:52am

    Re:

    Is the point you're trying to make that Mike was against that interpretation of the Tasini case both then and now because that's all I'm getting here.

    Also this bit from Tasini:

    What matters in the marketplace is not whether a material object “changes hands,” but whether, when the transaction is completed, the distributee has a material object. The Court therefore concludes that electronic file transfers fit within the definition of “distribution” of a phonorecord.


    Sounds like it contradicts the ruling above to me. Tasini seems to hold that it's distribution regardless of if a material object changes hands but that would make this transfer ok since first sale covers the right to distribute. The opinion in this case appears to be that there's no such thing as digital distribution. That digital distribution is always reproduction and therefor isn't covered by first sale. So which is it? Does the fact that a material object does or does not "change hands" matter, as it does in this case, or not matter as it did in Tasini? If a file transfer is distribution then it should be covered by first sale, if it's not then it shouldn't be a violation of the distribution right.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 7:58am

    Re: Re: Re:

    How is a file transfer a reporduction right question when it comes to resale but a distribution right question when it comes to sharing?

    Similarly, how can it be both malice and stupidity? Besides being a stupid ad hom that doesn't make sense. It can't be malice if he's too stupid to know better and it can't be too stupid to know better if he's doing it out of malice.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 8:11am

    Re: Re:

    "Selling used CDs, it's just like murder!"

    -Some deranged AC once

     

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    Anonymous Coward, Apr 2nd, 2013 @ 8:13am

    Re: Re:

    Technically, the distribution right under copyright law does not apply to digital files.

    Because in the article I linked to, Mike claims: "Technically, the distribution right under copyright law does not apply to digital files." (emphasis his). Source: www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-protected-c opyright.shtml

    Mike doesn't link to that other article you're quoting, and he doesn't admit that no court ever has agreed with that silly reading of the statute. He's intentionally leaving out the inconvenient truths that he doesn't like.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 8:16am

    Re: Re: Re: Boo effing hoo

    I know Alice and she isn't interested in being free. Before the underground railroad emerged, there was no expectation from slaves (at least for the overwhelming majority of them) that they should have any ability to live for themselves on their own recognizance. The court essentially affirmed this original assumption that most slaves about the lives they could live. Why the outrage?

     

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    Anonymous Coward, Apr 2nd, 2013 @ 8:17am

    Re: Re: Re: Re:

    Right, and the Court talks explicitly about "LEXIS/NEXIS' central discs and UMI's CD-ROMs." It doesn't explicitly reference digital files, and it's not clear whether "distribution" would apply to only the files, as distinct from the "central discs" or "CD-ROMs."

    The Supreme Court explicitly says that it's "clear" that distributing digital files over the internet implicates the distribution right. I'm sorry you don't see it. This court understood it: http://www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-prot ected-copyright.shtml#c587 You simply are reading the case wrong.

     

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  117.  
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    Anonymous Coward, Apr 2nd, 2013 @ 8:19am

    Re: Re: Re: Boo effing hoo

    So you're seriously trying to say the publisher is a better manager of the consumer's rights than the consumer is. So much so that consumers prefer it when their rights are managed by publishers. Are you completely nuts?

     

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  118.  
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    Anonymous Coward, Apr 2nd, 2013 @ 8:21am

    Re: Re: Re: Re:

    Mike said no such thing, so you're making a straw man argument. Or, in layman's terms, lying.'

    In the other article he said: "Technically, the distribution right under copyright law does not apply to digital files." He cites attorney Andrew Bridges for the claim. Source: http://www.techdirt.com/articles/20121112/03150921014/why-do-we-even-have-distribution-as-right-prot ected-copyright.shtml

    So there he thinks it doesn't apply to the distribution right.

    And in this article he says: "Of course, that same bit of the Copyright Act also makes clear that "copying" does not apply to purely digital files, but the court tap dances around that argument."

    So here he's trying to extend it to the reproduction right.

    If ever there were a person who wished that copyright law didn't apply on the internet, it's Mike.

    And this is why Mike doesn't debate you. You lie and insult him.

    I proved Mike wrong about Tasini and he ran away rather than man up and admit I was right. And now here he's pulling out the same argument that I completely debunked. The benefit of not addressing my criticism and admitting that I'm right is that he can keep repeating the lies.

    To be fair, you do this to everyone who disagrees with you. In the very comments you linked to, you referred to the EFF as "your piratical allies." Anyone who actually believes that about the EFF is an idiot who isn't worth debating.

    The EFF are pro-tech and anti-copyright just like Mike.

     

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  119.  
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    Anonymous Coward, Apr 2nd, 2013 @ 8:24am

    Re: Re: Re: Re: Re:

    Guess what, you ran away and did not respond to all of my arguments or the cases I cited that proved you wrong. As soon as you realized you were beat, you ran. Just like you do every time.

    LMAO! Karl, I've spent hundreds of hours over the past few years going at it with you. I respond in depth and at length, always telling you exactly what I believe. I back up what I say, and I always shoot straight without mincing words. To say that I run from you is disingenuous. Nobody engages anybody more than I've engaged you.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 8:25am

    Re: Re: Re: Re: Re:

    I assume he's actually making a social commentary on how we ostensibly have a 'war on drugs' because drugs are bad but what we really have is the government handing out monopoly/oligopoly privileges to selected pharmaceutical companies and that drug dealing really interferes with their government granted, exclusive distribution rights. Although why he's making a drug legalization argument in a thread about copyright I haven't the foggiest.

     

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  121.  
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    Anonymous Coward, Apr 2nd, 2013 @ 8:26am

    Re: Re: Re: Re:

    You're not seriously arguing that the reason there's a distribution right and the reason dealing in illegal narcotics is illegal are analogous are you? So dumb it hurts indeed.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 8:27am

    Re: Re: Re: Re:

    Hi, AJ. I'm pretty sure he won't debate you because, as has been pointed out by Mike, he chooses not to take the bait from people who are rude, ignorant, and completely obsessed with ad homs and the 'you're wrong I'm right, and you're just lying' attitudes. So, if you decide to actually be polite, provide a substantive argument in a way that isn't meant to inflame, and stay on topic...? Well, you might be surprised. You being you, however, I'm betting that won't happen. Still, it'd be nice to see you actually clean up so we can get those great debates going, again.

    I appreciate that, but you're confusing the cause with the symptom. I'm an arrogant and rude to Mike BECAUSE he's proved hundreds of times that he has no intention of having an honest discussion on the merits. He's a manipulative liar that can't stand to be challenged. If he wants me to act nice, all he has to do is be open, honest, and human. Just a couple weeks ago he engaged me and we had a nice, friendly chat. The ball's in his court.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 8:28am

    Re: Re:

    Sounds like it contradicts the ruling above to me. Tasini seems to hold that it's distribution regardless of if a material object changes hands but that would make this transfer ok since first sale covers the right to distribute. The opinion in this case appears to be that there's no such thing as digital distribution. That digital distribution is always reproduction and therefor isn't covered by first sale. So which is it? Does the fact that a material object does or does not "change hands" matter, as it does in this case, or not matter as it did in Tasini? If a file transfer is distribution then it should be covered by first sale, if it's not then it shouldn't be a violation of the distribution right.

    Excellent! I've been pondering the same thing. I think I have an answer, but I'm out the door for the day. I'll try and respond this evening.

     

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    cpt kangarooski, Apr 2nd, 2013 @ 8:30am

    Re: Re: Re: Re: Re:

    The public doesn't generally want to rip off creators.

    No. And nobody here does, either.


    "Rip off" is very vague and subjective. I'd want to know specifically what it consists of first. For example, wasn't it Garth Brooks who complained in the 90s that musicians were being ripped off by used CD sales at local record stores?

    I'm sure that the public doesn't see their own behavior as wrong or objectionable for the most part, but that doesn't mean that authors would agree, or that it doesn't have negative effects on authors. Of course, just because authors disapprove or are negatively affected is no reason not to do something!

     

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    Anonymous Coward, Apr 2nd, 2013 @ 8:30am

    Re: Re: Re: Re: Re: Re:

    To say that I run from you is disingenuous


    WHOOOOOOOOOOOOOOOOOOOOOOSH!!!!!!!!!!!!!!

     

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    nasch (profile), Apr 2nd, 2013 @ 8:33am

    Re: Re: Re: Re: Re:

    Of the last five posts where you and I have interacted, I've made the last comment in all five of those posts.

    Snap!

     

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  127.  
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    Anonymous Coward, Apr 2nd, 2013 @ 8:33am

    Re: Re: Re: Re: Re:

    I think it would be far more accurate to say the EFF or pro-tech and pro-copyright reforms that solve the inexorable conflict between exclusive rights to make copies and technology that is literally completely reliant on making copies to operate.

     

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  128.  
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    Jon, Apr 2nd, 2013 @ 9:01am

    Response to: alanbleiweiss on Apr 1st, 2013 @ 12:21pm

    Its not horrific. It's the best answer to a company that is only fronting as a reseller when it would only be contributing (and profiting) from the rampant piracy problem.

     

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  129.  
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    Anonymous Coward, Apr 2nd, 2013 @ 9:11am

    Re: Re: Re: Re: Re: Re:

    Your depth and length as compared to Karl is like comparing a kiddie pool to the Pacific Ocean.

     

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    Anonymous Coward, Apr 2nd, 2013 @ 9:34am

    Re: First Material Object it's copied to?

    To judges, and most other Ludites, computers are black boxes wherein some kind of special "magic" happens. That's why we end up with ridiculous rulings like this one... It's the same legal fiction they maintain where a computer program "magically" transforms the computer it is in into a brand new device. That's why patent law is so screwed up...

     

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  131.  
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    Anonymous Coward, Apr 2nd, 2013 @ 12:20pm

    Re: Re:

    > this court ruling makes it illegal for you to
    > backup the files you purchased

    What I understand Mike's post says is that the court ruled that that would be true, except for the fact that there is other law/precedent which explicitly allows that.

     

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  132.  
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    Anonymous Coward, Apr 2nd, 2013 @ 3:07pm

    People actually BUY mp3s?!?!

    I guess P.T. Barnum was right.

     

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    cpt kangarooski, Apr 2nd, 2013 @ 4:34pm

    Re: Re: Re: Re: Re:

    No, if by authenticity, you mean verifying that only one copy of the file existed at any one time, that's irrelevant. What mattered was that its not possible to move a computer file except by physically moving a tangible storage medium on which it resides in the real world. No system that copies over a network can ever suffice, no matter how elaborate or controlled.

     

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    Ophelia Millais (profile), Apr 2nd, 2013 @ 5:21pm

    Re: First Material Object it's copied to?

    From the (big) copyright owners' perspective, there's no need to define anything. They would be quite happy to charge for a license for every one of those incidental copies, no matter how fragmented, inaccessible, and transitory they are. Hasn't this been part of their m.o. in the anti-DVR cases?

     

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    Karl (profile), Apr 2nd, 2013 @ 6:41pm

    Re: Re: Re: Re: Re: Re: Re:

    WHOOOOOOOOOOOOOOOOOOOOOOSH!!!!!!!!!!!!!!

    Bingo.

     

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    Karl (profile), Apr 2nd, 2013 @ 7:17pm

    Re: Re:

    Is the point you're trying to make that Mike was against that interpretation of the Tasini case both then and now because that's all I'm getting here.

    Not just Mike, but also Andrew Bridges, Fred von Lohmann, and (according to von Lohmann) "just about every copyright scholar."

    Also, "against" may be a strong word - "not supported by a technical reading of the statute" might be better.

    And not the Tasini case:

    Also this bit from Tasini:

    I think you meant to say "this bit from London-Sire v. Does," since that's the case the quote is from, and not Tasini.

    What is interesting is that they rely on the First Sale doctrine to make this ruling - something that this court explicitly rejects.

    Off-topic, but also interesting, is the fact that this case shows - yet again - why Arcara does not apply to copyright infringement:
    Copyright infringement, per se, is clearly not speech entitled to First Amendment protection. See Harper & Row Publishers, Inc. v. Nation Enters.,471 U.S. 539, 555-57, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (discussing the First Amendment and copyright, and examining whether fair use doctrine applied to alleged act of copyright infringement). But there are some creative aspects of downloading music or making it available to others to copy: the value judgment of what is worthy of being copied; the association of one recording with another by placing them together in the same library; the self-expressive act of identification with a particular recording; the affirmation of joining others listening to the same recording or expressing the same idea. See Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535, 545-47, 562-81 (2004); Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L.Rev. 1, 45-46 (2004); cf. Harper & Row, 471 U.S. at 547, 105 S.Ct. 2218 (noting that compilation of pure fact "entails originality" in selection and ordering of the facts). Thus, while the aspect of a file-sharer's act that is infringing is not entitled to First Amendment protection, other aspects of it are.

     

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    Karl (profile), Apr 2nd, 2013 @ 7:29pm

    Re: Re: Re:

    Mike doesn't link to that other article you're quoting

    Go to the above story, and click on the words "does not apply" that are in blue. This is called a "hyperlink," or generally a "link."

    If you do you will be taken to a Techdirt story, whose title is: "IP Lawyer Explains Why Uploading Files May Not Be Distribution For Copyright."

    In fact, Mike does not link to the story that you are linking to.

    and he doesn't admit that no court ever has agreed with that silly reading of the statute. He's intentionally leaving out the inconvenient truths that he doesn't like.

    He certainly did in the article which he linked to, above.

    But he also did in the story that you linked to:
    There's an even bigger problem with the distribution right under copyright law, which copyright lawyer Andrew Bridges has brought up numerous times, but which most copyright lawyers like to ignore. Technically, the distribution right under copyright law does not apply to digital files. Yes, the courts tend to ignore this all the time, so you could argue that they've decided that it doesn't matter. [Emphasis mine]

    Mike left nothing out. You did, intentionally, so that you could accuse him of not saying the thing that you left out. Or, in layman's terms, so you could lie.

     

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  138.  
    icon
    Karl (profile), Apr 2nd, 2013 @ 7:42pm

    Re: Re: Re: Re: Re:

    Addressed the rest above, but wanted to address this:

    The EFF are pro-tech and anti-copyright just like Mike.

    The EFF are not "pro-tech." They are pro-free speech, pro-privacy rights, and pro-individual rights, especially regarding electronic communications of all forms. If that makes them "anti-copyright," then that reflects badly on copyright, not the EFF.

    Fortunately for copyright, the EFF is not "anti-copyright." They are against instances where copyright law intrudes upon free speech, privacy, and individual rights - things that anyone who is "pro-copyright" should also be against.

     

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  139.  
    icon
    Karl (profile), Apr 2nd, 2013 @ 8:03pm

    Re: Re: Re: Re: Re: Re:

    "Rip off" is very vague and subjective.

    Personally, I believe that if someone does something that causes my bank account balance to go down, and theirs to go up, without my informed consent, they are ripping me off.

    File sharing doesn't do this, obviously, because no matter how many times my works are shared, my bank account never goes down.

     

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  140.  
    identicon
    Anonymous Coward, Apr 3rd, 2013 @ 8:16am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Bingo.

    Karl,

    If you can't even be honest about the fact that I have engaged you many, many, many, many, many, many, many, many, many times at length and on the merits--more so than any other two people on TD have engaged each other--then I guess I don't see the point in ever engaging you again. I've spent hundreds and hundreds of hours debating you, going off on all sorts of tangents as you tend to do.

    Can you not admit this? If not, it's been fun chatting with you. I wish you good luck in life.

     

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

  141.  
    icon
    Karl (profile), Apr 3rd, 2013 @ 9:50am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If you can't even be honest about the fact that I have engaged you...

    If you can't be bothered to know the difference between dishonesty and sarcasm, then it's been fun chatting with you, and good luck in life.

     

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

  142.  
    identicon
    Anonymous Coward, Apr 3rd, 2013 @ 9:57am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If you can't be bothered to know the difference between dishonesty and sarcasm, then it's been fun chatting with you, and good luck in life.

    Thanks for admitting that it's not true. If only Mike were 1/10th as willing as you to discuss the issues on the merits.

     

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  143.  
    icon
    Karl (profile), Apr 3rd, 2013 @ 10:12am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Thanks for admitting that it's not true. If only Mike were 1/10th as willing as you to discuss the issues on the merits.

    And, again, whoosh!

    I thought it was obvious, but I guess I have to spell it out. The entire comment was a satire of your comments here - in fact, most of it was direct quotes of things you've said about Mike in this thread.

    Yes, you've engaged me many times in the comments - just like Mike has engaged you. The fact that you keep posting things after he replied to you - and after you've lied about what he said, and his motives, and consistently attack and berate him - does not mean he hasn't engaged you. And it doesn't mean he's "running away" or a "coward."

    Just as the fact that I've posted the "last word" in our discussions doesn't mean you're "running away" or a "coward."

     

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

  144.  
    identicon
    Anonymous Coward, Apr 3rd, 2013 @ 10:27am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I disagree, Karl. For example, Mike once claimed that piracy is not OK. It took me several months to get him to give one reason why he thought that. The reason he gave was that it's because it's contra to the wishes of the copyright holder. It then took me almost TWO YEARS to get him to address the question as to whether that was the ONLY reason he thinks that piracy is not OK. Mike is a closed book. He doesn't want to discuss his personal beliefs. He doesn't want to admit his mistakes. Nothing scares him more than being open, human, and honest. That's not how he rolls. He wants to pump out idiotic anti-copyright rhetoric and FUD, and he doesn't want to discuss the difficult issues on the merits. He's a complete fake and a complete coward--the opposite of you. You're an open book, as am I, and I appreciate that about you. Go ahead and get the last word in defending him.

     

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  145.  
    icon
    Karl (profile), Apr 3rd, 2013 @ 10:40am

    Re: Re: Re: Re: Re:

    The Supreme Court explicitly says that it's "clear" that distributing digital files over the internet implicates the distribution right.

    Except that they're not talking about "distributing digital files over the internet." They are talking about distributing digital files on CD-ROM, and viewing files that reside on LEXIS/NEXIS "central discs" (their database).

    That's why the Librarian of Congress argued that LEXIS/NEXIS was violating the "display" right, which is not covered under 201(c). But: "Satisfied that the Publishers exercised rights 106 initially assigns exclusively to the Author, we need resolve no more on that score." (Footnote 8.)

    They did not examine which right was violated, because they didn't need to; they never even looked at the language of the statute itself, because, again, they didn't need to. The question was never raised by the defense, and wouldn't have affected the outcome of the case.

    Because that was never the deciding factor. The deciding factor was whether inclusion in a database is "a revision of a collective work." That was the only defense the publishers raised, and the only thing the court needed to decide.

     

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  146.  
    identicon
    Anonymous Coward, Apr 3rd, 2013 @ 11:03am

    Re: Re: Re: Re: Re: Re:

    Except that they're not talking about "distributing digital files over the internet."

    You're just wrong.

    The Court said: "and LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, “distribute copies” of the Articles “to the public by sale,” § 106(3)."

    "Through the NEXIS Database," Karl. It couldn't be more clear.

    That database is the one that's available on the internet. They weren't talking about distributing the CD's, they were talking about distributing the digital files over the internet.

    This is confirmed in the other link I provided:
    However, a finding of direct infringement of the right of distribution (and reproduction) was essential to the Court's opinion and holding-that is, without a finding of direct distribution and reproduction, there would have been no need for the § 201(c) privilege, because the databases would not have been engaged in direct infringement in the first instance. Thus, Plaintiffs are correct that Tasini indicates that the delivery of articles and/or content to download at the request of subscribers can be the basis of direct infringement of the distribution right.
    Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 146-47 (S.D.N.Y. 2009).

    "Tasini indicates that the delivery of articles and/or content TO DOWNLOAD" is distribution. DOWNLOAD. As in, OVER THE FREAKING INTERNET.

    This is what's so frustrating about debating you. No matter how wrong you are, you insist that you're right. I'm sorry you don't see it, but everything I've said on this point is 100% correct. The district court in London-Sire agreed with what I'm saying, as did the district court here with Redigi.

     

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  147.  
    identicon
    Anonymous Coward, Apr 3rd, 2013 @ 11:21am

    Re: Re: Re: Re: Re: Re:

    "Subscribers to NEXIS, accessing the system through a computer, may search for articles by author, subject, date, publication, headline, key term, words in text, or other criteria. Responding to a search command, NEXIS scans the database and informs the user of the number of articles meeting the user's search criteria. The user then may view, print, or download each of the articles yielded by the search." Tasini at 490.

    They're talking about the ONLINE DATABASE (the very one I used to find this quote).

    "UMI, by selling those CD-ROMs, and LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, “distribute copies” of the Articles “to the public by sale,” § 106(3)" Tasini at 498.

    UMI was the one with the CD's. LEXIS/NEXIS had the online database.

    Go back to the district court: "MEAD owns and operates NEXIS, an on-line, electronic, computer assisted text retrieval system in which articles from a number of leading newspapers, newsletters, magazines, and wire services—including The New York Times, Newsday, and Sports Illustrated—are displayed or printed in response to search requests from subscribers. . . . UMI produces and distributes two CD–ROM products identified by plaintiffs in their Amended Complaint." 972 F.Supp. at 806.

    NEXIS is ONLINE. UMI is the CD's.

    "NEXIS instead uses the electronic files to input the contents of each article on-line along with such information as the author's name, and the publication and page in which each article appeared." 972 F.Supp. at 808.

    They put the electronic files ONLINE.

    "Customers enter NEXIS by using a telecommunications package that enables them to access NEXIS' mainframe computers. Once on-line, customers enter “libraries” consisting of the articles from particular publications, or groups of publications." Id.

    It's FREAKING ONLINE. This is why I often leave discussions with you. It's not that I'm running away, it's that you're a brick wall. It's really frustrating.

     

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  148.  
    icon
    Karl (profile), Apr 3rd, 2013 @ 12:17pm

    Re: Re: Re: Re: Re: Re: Re:

    "Through the NEXIS Database," Karl. It couldn't be more clear.

    It is unclear whether they were referring to downloads when they talked about "selling copies." The contents of other defendants' CD-ROM's, for example, were reproduced from the LEXIS/NEXIS database for a fee.

    In fact, the ruling didn't touch on any distinction between downloading and viewing the articles. The language was all about the "display of each article;" how it "appears" to the user; how it is "presented to, and perceptible by, the user of the Databases;" and so forth. Thus, the argument of the Librarian of Congress, regarding the "display" right - which the court did not need to determine or decide.

    In other words, the court is vague - obviously; the entire discussion consists of one sentence and a footnote, without any examination of the statutes, or even mentioning any alternate arguments. They don't need to be anything but vague, because nobody even raised the argument, and it would have made absolutely no difference at all to the outcome.

    Let's say another court had ruled that selling a digital download was not "distributing" a "material object" under the language of the statute; instead, it was an "authorization" for users to make "material objects" on their own hard drives. (This viewpoint, incidentally, is the only thing I can think of that would be consistent with the ReDigi ruling).

    Do you think that ruling would have been "foreclosed" by Tasini? I don't. Nor would it have made the defendants in Tasini any less liable (since all of them made, and/or authorized, tangible copies).

    Also, I explained my position on the Arista court earlier. They read a bit too much into Tasini, IMO. But it's not inconsistent, nor is it legally wrong; and they're both courts of equal standing, so the point is really moot. Tasini may not have "foreclosed" the argument, but later courts certainly have.

    Which makes the ReDigi ruling all the more confusing, because it appears to directly contradict all the other courts on this matter (as I suggested above). In order to "distribute" a digital file, you need to "transfer" it, and the ReDigi court seems to say that this is completely impossible even in theory.

     

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  149.  
    icon
    Karl (profile), Apr 3rd, 2013 @ 12:33pm

    Re: Re: Re: Re: Re: Re: Re:

    They're talking about the ONLINE DATABASE (the very one I used to find this quote).

    And when you read that quote, did you download a copy, or just view it online?

    The "distribution" right would only be implicated in the former, and not the latter (which would be the "display" right).

    The court never made this distinction, because it never had to.

     

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  150.  
    icon
    Karl (profile), Apr 3rd, 2013 @ 12:51pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    The "distribution" right would only be implicated in the former, and not the latter

    Actually, I misspoke slightly. The "distribution" right would only be implicated in the former, if downloading a digital file constituted a "transfer" of a "material object."

    Which is exactly what the ReDigi court said is impossible. Hence the confusion.

     

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

  151.  
    icon
    btrussell (profile), Apr 3rd, 2013 @ 2:30pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    "And when you read that quote, did you download a copy, or just view it online?"

    He only viewed it online. LOL

    Lots of chuckles here today.

     

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

  152.  
    identicon
    Anonymous Coward, Apr 3rd, 2013 @ 2:40pm

    Re: Re: Re: Re: Re: Re: Re:

    This is why I often leave discussions with you. It's not that I'm running away, it's that you're a brick wall. It's really frustrating.

    Isn't that exactly what Mike said to you?

     

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

  153.  
    identicon
    Anonymous Coward, Apr 3rd, 2013 @ 3:31pm

    Re: Re: Re: Very bad ruling

    Good point regarding the distribution rights Steam probably has.

    I'm Australian and not quite sure how American law works, but my mind starts to boggle when you combine a ruling like this in conjunction with the talk (and hopefully it never amounts to more than talk) of criminalizing things such as copyright infringement. Depending on how it was implemented, obviously, something like steam could suddenly become criminal. In Australia you can not contract away something that is criminal, you just can't, I would assume the USA in similar. It could even more or less, in effect, make computers criminal.

     

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

  154.  
    identicon
    ChrisH, Apr 5th, 2013 @ 5:39am

    Re: They opened a huge hole here

    Agreed, this would be the way to go.

    It's stupid that the act of moving a digital file from one medium to another is considered a copy. It's the same friggin file! If courts could just reach this conclusion (that making a copy then deleting the original is the equivalent of moving a physical object) then so most all bad prior rulings would be invalidated.

     

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

  155.  
    identicon
    ChrisH, Apr 5th, 2013 @ 5:46am

    Re: Re: Re: They opened a huge hole here

    Even if you could avoid the hard drive they'd nail you for making RAM copies. It's ridiculous. From their server to your hard drive, the file's probably been copied to dozens of temporary storage mechanisms. Are they going to go after network operators for making unauthorized copies in their routers or unauthorized public performance by retransmitting the digital signals over the internet?

     

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

  156.  
    identicon
    ChrisH, Apr 5th, 2013 @ 6:36am

    Re: Re: Re: Re:

    Hopefully the term distribution will be correctly interpreted to mean "causing two copies to exist where only one existed previously". Looking at digital transmission, the court seems to become narrowly focused on the fact that a copy is made, while ignoring that the first copy is now gone. They ignore the non-transient requirement that the Cablevision courts understood. Transmitting a digital file isn't copying, it's moving. Arguing the opposite fails ad absurdum when trying to define digital file transfer for copyright purposes.

    Call it the blink of an eye test, if there's one copy on a hard drive before you blink, now there's one copy on a CD, and examining them shows that the copy on the CD is identical to what was on the hard drive, then no infringement occurred.

    For the court to try to concern itself with what happened during that split second is a pointless technical examination which will forever be re-interpreted as the level of technical detail that new courts could choose to consider is unbounded. The next case could be talking about how the movment of atoms within the CDs structure means that it isn't a fixed medium and that no mediums are really fixed, therefore nothing can be copyrighted. It's just as ridiculous as saying that there's no way to transfer a digital file.

     

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  157.  
    identicon
    ChrisH, Apr 5th, 2013 @ 6:48am

    Re: Re:

    The problem is that to actually use the non-material object song, it must be recorded onto a material object, so even if the transmission of the song isn't "distribution", it doesn't really get us anywhere.

     

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  158.  
    identicon
    ChrisH, Apr 5th, 2013 @ 6:59am

    Re: Re: .

    How about a different approach? Seeing as there's still a lot of legal ambiguity, anytime you think a media company isn't providing you your full right under the law, why not look at the perfectly legal doctrine of "self-help". Got a computer and an internet connection? The courts will appreciate you not clogging their dockets since you've found a simple and easy way to resolve the matter on your own. :)

     

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  159.  
    identicon
    ChrisH, Apr 5th, 2013 @ 7:09am

    Re:

    That they're digital files doesn't inherently make it a license. It's a purchase unless you're presented with a license and (importantly) you agree to it. If you pay for a digital file without actively agreeing to any license (such as a CD or DVD purchase), then it's a plan old sale. If you can find some way to do this for a digital download, same thing. If a minor uses iTunes, it might be considered a purchase since someone under 18 can't possibly be bound by any license agreements. I'm not sure what Apple would argue then.

     

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  160.  
    identicon
    ChrisH, Apr 5th, 2013 @ 7:22am

    Re: Re: Re: Re:

    It's also an open question just what do these "creators" create? The artist doesn't create notes or images, they simply copy what already existed. Why act like the content of pictures, songs and movies was spawned out of nothing? Once you realize that these works are the collective effort of a society, the word "stealing" doesn't seem to make sense. Who's stealing from who? For example, people buy an attractive landscape photo. My tax money paid for that landscaping work. I deserve some of the money for that sale. This is why copyright is an agreement with society, not an author's natural right.

     

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  161.  
    identicon
    ChrisH, Apr 5th, 2013 @ 7:28am

    Re:

    LOL

    Yep, probably.

     

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  162.  
    identicon
    ChrisH, Apr 5th, 2013 @ 7:33am

    Re: Re: Re: Boo effing hoo

    We're actually defending copyright law. It's media companies that are twisting things so that the rights that are given to everyone under copyright law no longer apply.

     

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

  163.  
    identicon
    ChrisH, Apr 5th, 2013 @ 7:49am

    Re: Re: Re: Boo effing hoo

    iTunes allows you to transfer music onto multiple devices

    Only because the iTunes model uses licensing to accomplish that. The right to make private copies was recognized as a right under copyright law, such as for the owner a CD, not a licensee. Now because of rulings like this one, such rights are under attack.

    Amazon will at some point work out a deal with copyright holders that allows for certain digital media to be resold.

    Great, but that cannot happen so long as this ruling stands.

     

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

  164.  
    identicon
    ChrisH, Apr 5th, 2013 @ 8:00am

    Re:

    Potentially legal, if you delete the copy on the mirrored drive. The new problem is that under this ruling, the copy you're selling is not considered the same copy as one you bought, even though it's indistinguishable. That's the ridiculous part.

     

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

  165.  
    identicon
    ChrisH, Apr 5th, 2013 @ 8:09am

    Re: First Material Object it's copied to?

    Great point. I'd even add your defense of router operators:

    Let's assume the many routers the data passes through on the way from source to destination don't count because there is very little chance the whole file will be stored in any one router at any time.

    doesn't work because 1) the whole file will eventually be stored in the router, even if not all at once and 2) it's infringing to store even a small part of the file and there's no set legal limit on how small the part may be and still be considered infringing.

    So the situation is even more out of hand.

     

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  166.  
    identicon
    ChrisH, Apr 5th, 2013 @ 9:36am

    Another example of why courts need to use a common sense approach when looking at computer processes is this. If all files are stored as 1s and 0s, then large files are likely to contain long sequences of identical data. Under current law, even copying a small amount of a work is infringing. There is no "de minimis" defense. Therefore an overly literal comparison of digital files will conclude that every DVD that's produced infringes the copyrights of every movie that came before it. Clearly this line of reasoning is absurd. Instead, using one's eyes no parts of any two movies will appear identical. Likewise, when you tell your computer to move a file, from a visual observer's perspective, the file was moved not copied. Taking into account that a computer used copying to accomplish the move is as absurd as comparing files bit by bit for copyright purposes.

     

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  167.  
    identicon
    Wow, Apr 18th, 2013 @ 5:12pm

    Re: They opened a huge hole here

    Have usb sticks mounted in a Raid 1 array (could be 10 of them) and buy the original music from there.
    Then sell the sticks...

     

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

  168.  
    identicon
    Wow, Apr 18th, 2013 @ 5:15pm

    Re: Re: Re:

    Worst than that: listening to the music could be a violation since the player will need to copy the music into its memory.

     

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

  169.  
    identicon
    Daniel, Jul 31st, 2013 @ 11:26am

    When you buy images or music or books in digital format you are only purchasing the license to use it or to listening to it, reading it, or incorporating into your own artwork for a particular project. You are never purchasing the rights or the ownership of the artwork itself, so you cannot resell unless the artist or license allows you to resell it. A tangible is different, you buy a car, the car is yours, but for digital files you only buy a license to use it for your personal use and it does not allow reselling. You cannot sell a rental car, or a rental apartment, so this is the same case.

     

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  170.  
    icon
    nasch (profile), Jul 31st, 2013 @ 1:44pm

    Re:

    you cannot resell unless the artist or license allows you to resell it. A tangible is different, you buy a car, the car is yours, but for digital files you only buy a license to use it for your personal use and it does not allow reselling.

    The only difference between digital and tangible is the medium. The copyright aspects are the same. So are you saying that if I sell you a used CD, you don't have the right to listen to it, only to have the physical object? If not, and the license rights go with it when I sell it to you, why is it different from a digital file (other than the practical difficulty of ensuring I no longer possess a copy after I sell it to you)?

     

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  171.  
    identicon
    Anonymous Coward, Nov 10th, 2013 @ 10:28pm

    Re: Re: Re: Re: Re:

    average_joe just hates it when due process is enforced.

     

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

  172.  
    identicon
    Anonymous Coward, Nov 10th, 2013 @ 10:33pm

    Re: Re: Re: Re: Re:

    average_joe just loathes it when due process is enforced.

     

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

  173.  
    identicon
    Anonymous Coward, Nov 10th, 2013 @ 10:34pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    average_joe just despises it when due process is enforced.

     

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

  174.  
    identicon
    Anonymous Coward, Nov 10th, 2013 @ 10:37pm

    Re: Re: Re: Re: Re:

    average_joe just detests it when due process is enforced.

     

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

  175.  
    identicon
    Anonymous Coward, Nov 10th, 2013 @ 10:40pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    average_joe greatly hates it when due process is enforced.

     

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

  176.  
    identicon
    Anonymous Coward, Nov 10th, 2013 @ 10:44pm

    Re: Boo effing hoo

    Because the difference between a song from a brand new CD and a song that's been heard several times is the exact same difference between a bottle of beer and the pee made from the beer.

    You're an idiot.

     

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

  177.  
    identicon
    Joe Schamoe, Mar 9th, 2014 @ 10:09am

    Resell MP3's

    Thank you your honor ! From here on I will download my music directly to CD and LEGALLY sell the CD's !

     

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


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