No, The Supreme Court Did Not Legalize Downloading

from the wtf? dept

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

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

So I was a bit shocked to see a headline declare that the Supreme Court legalizes downloading music, because that’s simply not true. I clicked through… and it’s from RTTV, who apparently understood this story so little that almost nothing in the headline or opening sentence is accurate. On the assumption that perhaps they’ll change or pull this down, here’s a screenshot:

First up, the Supreme Court didn’t do anything other than refuse to hear the appeal of ASCAP, allowing the Second Circuit case to stand. So it didn’t legalize anything. Nothing in the Supreme Court’s decision not to hear the appeal indicates a change to any law, let alone something as crazy as “legalizing downloading music.” Second, the opening sentence is also completely bogus. Downloading music is already an infringement of federal copyright law. Nothing in this case would change that one way or the other. All it concerned was whether or not services that offer downloads have to pay a separate “performance” license to ASCAP for the downloads. Nothing in this is about legalizing (or illegalizing) downloads. Services already pay licensing rights to distribute a copy of a file. The question is whether or not they had to pay even more, if downloading also constituted a “public performance,” which is covered by a different right under copyright law.

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

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Comments on “No, The Supreme Court Did Not Legalize Downloading”

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40 Comments
abc gum says:

Re: Re:

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

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

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

Obviously, it is the content which determines legality.

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

:Lobo Santo (profile) says:

Do you remember

In kindergarten–a game called telephone (or “Chinese Whispers” for the racists)?

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

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

Chosen Reject (profile) says:

Mazburglar does it again with his FUD

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

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

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

Mike Masnick (profile) says:

Re: Is it really illegal?

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

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

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

But, yes, downloading violates the law.

Anonymous Coward says:

Re: Re: Re:2 Is it really illegal?

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

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

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

Anonymous Coward says:

Re: Re: Re: Is it really illegal?

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

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

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

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

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

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

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

Anonymous Coward says:

Re: Re: Re:2 Is it really illegal?

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

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

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

Effectively, based your business models off of piracy.

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

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

Anonymous Coward says:

Re: Re: Re:3 Is it really illegal?

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

Effectively, based your business models off of piracy.”

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

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

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

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

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

Matthew A. Sawtell (profile) says:

Nice Attempt at Mike, but...

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

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

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

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