There have been many attempts in Congress to pass an "induce" amendment to the copyright law. None have passed.
These laws have been opposed by all hardware manufacturers, because they would make (for example) CD-R manufacturers liable for the CDs people duplicate using the drives. These laws would put entire industries out of business - nobody would be able to sell a CD/DVD burner, a VCR, a photocopier, or even a printer without being sued.
It kinda depends on how a law is worded as to whether it would put all the hardware manufacturers out of business. All of the devices you mention have perfectly legal uses, besides the illegal uses people often put them to.
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I've read Title 17 many times and have never seen anything that prohibits telling someone else how to violate a copyright, much less a EULA.
The original statement would seem to be poorly worded. Instead of "telling how to violate copyright", think of "encouraging copyright infringement" or "assisting with copyright infringement." A photocopy machine might encourage copyright infringement, but it does have other legal uses. In contrast, a do-it-yourself kit for running Leopard on a non-Apple computer has no purpose other than assisting with breaching Apple's license and, hence, copyright infringement.
(Copyright is too specific, as well. Instead, think about a crime of any nature. The whole world of law isn't embodied in Title 17.)
So when Apple released the first iPod, it pre-dated the iTunes store by about three years. That means the only possible use for an iPod for those three years was by copying your CDs onto your computer and then onto your iPod.
I guess under your logic, Apple should have been shut down by the record companies for "using someone elses copyrighted work to make money."
By the way, in the UK, there is no right to make an archival or "private" copy, so every CD copied to an iPod is, in fact, a copyright violation under UK law. Yet, Apple makes millions of dollars from UK iPod sales.
Does the same standard your proposing apply to Apple?
Because the copyright agreement for music allows for the owner to copy the music they bought. So long as it's for their own personal use. It's the "fair use" law in the US. This gives you the permission to make a copy of the copyrighted music you own so that you can listen to it on other devices.There is nothing illegal about copying the music you own on to an iPod. It's no different than recording a vinyl album on to a cassettre tape to listen to it in your car or on a Sony Walkman. Only it's newer technogoly. What you can't do is to make a copy of the music you own to give to a freind or to sell. That would be beyond the scope of "personal use" or "fair use"..
It would be illegal for Apple to use a copyrighted song in a commercial to sell iPods without permission. Or to include copyrighted songs in the iPod they sold, without permission. Or if Apple encouraged you to also Rip, Copy and Burn your friends CDs' on to your iPod.
In many European countries you ARE allowed to copy your music because you pay a "music tax" on your blank media (cassetrte tape, video tape, CD, DVD, etc). The music industry over there had convinced your government that everybody copies music and therefore everybody should pay a tax on blank media to pay for this "crime".
Over here in the US, the RIAA has many times attempted to impose such a tax but the "Fair Use" law has stopped it every time. So far. Over here we haven't allowed the RIAA into brainwahing us into believing that we are committing a crime when we copy our music onto our own computer, on to a cassette tape for the car or Walkman, or an iPod.
Until recently, Canada had to pay an extra $20 for a 'Music tax" on iPods'. The music industry, up there, claimed that the iPod was only used to rip off music. The $20 tax was repealed (only a couple of years ago) when the music industry failed to prove the difference between a hard drive in a computer and an iPod. And the music industry wasn't imposing their "music tax" on a computer hard drive.
So you mean to tell me that over in the UK, you guys have to have two CD drives on your computer if you want to listen to music on your computer while still being able to load or burn a CD/DVD. Since it would be illegal for you to copy your CD music on to your computer hard drive. And if it's O.K. to copy your CD music on to your computer hard drive, why can't you copy it on to an iPod? I'm willing to bet that you pay more for an iPod over there because of a "music tax". Therefore Apple would not be in any violation of your your copyright laws (for music).
(added after original post)
Does this also mean that you guys over there can't make a custom CD of just the songs you like from a handful of CDs. So you're forced to load a CD in everytime you want to hear that one good song from it. That would bring you guys back to the days before reel to reel and cassette tape.
Because the copyright agreement for music allows for the owner to copy the music they bought. So long as it's for their own personal use. It's the "fair use" law in the US.
That is the popular understanding of fair use, but as far as I know, it has not yet been tested in court. Title 17 enumerates a few examples of fair use (parody, review, news reporting) but the list is not exclusive.
The music industry believes (and has stated on many occasions) that copying music for personal use (including mix CDs, iPod loading, etc.) is not fair use, but they have chosen to not attempt any prosecution. They're obviously afraid that the courts might prove them wrong. The fact that they never sued Apple for their rip-mix-burn campaign speaks volumes over how confident they are in their legal opinion.
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Originally Posted by DavidW
It would be illegal for Apple to use a copyrighted song in a commercial to sell iPods without permission. Or to include copyrighted songs in the iPod they sold, without permission. Or if Apple encouraged you to also Rip, Copy and Burn your friends CDs' on to your iPod.
It's worth noting that fair use doesn't apply to any commercial activity. If you are a DJ, you are not allowed to run your show from an iPod, even if you bought all the music on CD.
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Originally Posted by DavidW
In many European countries you ARE allowed to copy your music because you pay a "music tax" on your blank media ... Over here in the US, the RIAA has many times attempted to impose such a tax but the "Fair Use" law has stopped it every time. So far.
I know Canada has such a tax, along with permission to copy (and even redistribute) as long as it's not for profit. I don't know about Europe.
In the US, these taxes were not passed into law because Congresscritters got overwhelmed with complaints from the voters. Fair use has nothing to do with this. Congress could vote that out of the copyright law if they wanted to. And the proposed US laws wouldn't make it legal to copy anything - you'd get absolutely nothing in exchange for the tax.
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Originally Posted by DavidW
So you mean to tell me that over in the UK, you guys have to have two CD drives on your computer if you want to listen to music on your computer while still being able to load or burn a CD/DVD. ... Does this also mean that you guys over there can't make a custom CD of just the songs you like from a handful of CDs. So you're forced to load a CD in everytime you want to hear that one good song from it. That would bring you guys back to the days before reel to reel and cassette tape.
I don't know about the UK, but I've read statements from people in Australia who say that this is absolutely true there. The law prohibits ripping or duplicating CDs without a license, regardless of the intention. Individuals aren't likely to be prosecuted for this, but it is illegal nonetheless.
That is the popular understanding of fair use, but as far as I know, it has not yet been tested in court. Title 17 enumerates a few examples of fair use (parody, review, news reporting) but the list is not exclusive.
The music industry believes (and has stated on many occasions) that copying music for personal use (including mix CDs, iPod loading, etc.) is not fair use, but they have chosen to not attempt any prosecution. They're obviously afraid that the courts might prove them wrong. The fact that they never sued Apple for their rip-mix-burn campaign speaks volumes over how confident they are in their legal opinion.
It's worth noting that fair use doesn't apply to any commercial activity. If you are a DJ, you are not allowed to run your show from an iPod, even if you bought all the music on CD.
In a way it has. The courts (US) has determined that the copying of copyrighted works does not in itself constitute an infringement of any copyright laws. Both Xerox and Sony won the copyright infringement cases against them on this. Publishers and Universal Studios tried to stop the sales of Xerox copying machines and Sony Betamax claiming they (Sony and Xerox) were contributing to copyright infringements. The RIAA will have a very difficult, if not impossible, task of proving that the mere copying of music violates any copyright laws. It is how that copy is used that determines if any copyright law has been violated. Selling it or just giving it away would be a violation.
Here's another way the fair use law protects the consumers (in the US). Suppose I videotaped a family gathering during Christmas and you can clearing hear Bing Cosby sing "White Christmas" (and other songs) on the radio and clearly see that the kids are having a great time watching "A Charlie Brown Christmas" on the TV. If it weren't for the fair use law, the RIAA and the movie studio (that owns "A Charlie Brown Christmas") would say that I was breaking the copyright law. But the fair use law protects me. I don't even have to own an original copy of "A White Christmas" (or any of the other songs heard) or "A Charlie Brownn Christmas" in order to keep my videotape of my family gathering intact. Maybe in Australia you have to treat it like child porn and hide the tape.\
Now if my little home movie is going to end up as part of a film going to be shown at the Sundance Film Festival, then I would be required to seek (and maybe pay for) a license from the RIAA and the movie studio (that owns "A Charlie Brown Christmas") before it can be shown in a public forum. This would not be cover under "fair use" and that's only fair. If I'm to profit from my work then the owner of anycopyrighted material that is an integral part of my work should be able to share in that profit.
The fair use law also applies to the recordings you made off the TV or radio. You can keep copies of those recording, without owning any of the original copyrighted works and not have to worry about being hunted down by the movie studios or RIAA for violating copyright laws. So long as you keep those recordings for personal home use. If this weren't the case, the courts would be back logged with cases of football fans alone. Fans violating the copyright law because they own a TV recorded copy of their team playing in the Superbowl.
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I know Canada has such a tax, along with permission to copy (and even redistribute) as long as it's not for profit. I don't know about Europe.
In the US, these taxes were not passed into law because Congresscritters got overwhelmed with complaints from the voters. Fair use has nothing to do with this. Congress could vote that out of the copyright law if they wanted to. And the proposed US laws wouldn't make it legal to copy anything - you'd get absolutely nothing in exchange for the tax.
Actually in the US there is something call "music CD". These blank media cost a little more that "data CDs'". Early stand alone (non-computer) music CD burners required these type media in order to copy music from a CD. CD burners (and Cd burning software) in computers made these type of media obsolete. But they are still available for those people that are still using these stand alone CD burners.
The fair use law does have a lot to do with Congress not passing any tax for blank media. It's true that Congress don't have to consider the fair use law when passing such a tax. The consumers that overwhelmed Congress with complaints on such a tax are surely considing it a dilution of their rights under the fair use law. If it's not illegal to make copies of the copyrighted material you own, then why should there be a tax impose on the blank media? A tax that will go to the RIAA (and other copyright holdrs) because they think you're doing something illegal. It's not the tax that matters. It's what the tax implies. I'm sure that Congress would not have near the resistance if they wanted to impose a tax on blank CDs' in order to fund a study for ways to recycle them and keep them out of landfills.
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I don't know about the UK, but I've read statements from people in Australia who say that this is absolutely true there. The law prohibits ripping or duplicating CDs without a license, regardless of the intention. Individuals aren't likely to be prosecuted for this, but it is illegal nonetheless.
The RIAA here, in the US, would like for everyone to think that it's against the law and thus illegal to copy music you own (bought the original of) on to other media. But for now, no such law exist.
I would like to see where you referenced that from.
Simple. Refusing to accept a license agreement (which, incidentally, was not disclosed to me until after the cash transaction was completed) does not in any way cause me to cease to be the legitimate owner of the physical medium on which the software is encoded - I own a copy. The courts have upheld the view that retail software distribution constitutes a sale.
Section 117 states in no unclear terms that it is not an infringement of copyright for the owner of a copy of a piece of software to take the steps necessary (including duplication and modification) to run that software on a computer.
So when Apple released the first iPod, it pre-dated the iTunes store by about three years. That means the only possible use for an iPod for those three years was by copying your CDs onto your computer and then onto your iPod.
Which in the USA is perfectly legal thanks to the Audio Home Recording Act of 1992.
From wikipedia:
"The Act also includes blanket protection from infringement actions for private, non-commercial analog audio copying, and for digital audio copies made with digital audio recording devices."
Why are there a set of people who are focused on the EULA and not on the big picture?
Because the EULA is the picture. Law and lawyers focus on the details. And from these details the big picture is formed. Congress on the other hand starts with the big picture and lets the bureaucrats and lawyers fight over the details. We have to live with the results of these fights.
All this other talk about copyright and copyright infringement is besides the point. Open Tech is not violating copyright. They are potentially assisting/encouraging others to violate contracts that the others have entered into.* The question is, is the contractual phrase in the EULA that Open Tech is encouraging the violation of legal or not?
* I am not a lawyer but I believe that the current state of affairs with software purchases is that you buy the HW media that the software is stored on and a license to use that software. You do not buy the software itself or even a copy of the software. As such your permission to use the software (whose ownership still resides with software company) is limited to what the license states. You agreed to this license, or contract, when you loaded the software onto your computer.
Which in the USA is perfectly legal thanks to the Audio Home Recording Act of 1992.
Not at all true. Read the entire law and not just the Wikipedia summary.
Subchapter B requires digital recorders to implement SCMS copy protection, and makes it illegal to circumvent SCMS.
Subchapter D (the part your Wikipedia citation refers to) states:
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
Please note that this is not a blanket license to make non-commercial copies. It only refers to suits based on the AHRA prohibitions. Additionally, when it uses the term "digital audio recording device" it means devices that conform to subchapter B. It doesn't grant you any immunity if you make your copy with a non-compliant device (like a computer CD-R drive.)
If you make copies with a non-AHRA-compliant device, then AHRA doesn't apply. You're back to whatever interpretation of fair use the court someday decides is correct.
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Originally Posted by aresee
* I am not a lawyer but I believe that the current state of affairs with software purchases is that you buy the HW media that the software is stored on and a license to use that software. You do not buy the software itself or even a copy of the software. As such your permission to use the software (whose ownership still resides with software company) is limited to what the license states. You agreed to this license, or contract, when you loaded the software onto your computer.
And now the argument has come full circle.
The "current state of affairs" you refer to only exists because EULAs say so. The law does not say any such thing.
Your rights depend entirely on whether or not a product's EULA (and shrink-wrap licenses in general) are enforceable, or even legally binding. Right now, this varies radically from state to state and from nation to nation. Only two states have passed legislation explicitly making shrink-wrap licenses binding, and only a small number of other states have had courts declare them binding.
Simple. Refusing to accept a license agreement (which, incidentally, was not disclosed to me until after the cash transaction was completed) does not in any way cause me to cease to be the legitimate owner of the physical medium on which the software is encoded - I own a copy. The courts have upheld the view that retail software distribution constitutes a sale.
Section 117 states in no unclear terms that it is not an infringement of copyright for the owner of a copy of a piece of software to take the steps necessary (including duplication and modification) to run that software on a computer.
[edit] Post 0xFF - yay! [/edit]
You're confusing the physical medium with what is on that medium.
No one is disputing that you own the medium. Several states also implement the shrink wrap license, so that's a problem in those states. We dont know what's going to happen with that. I'm not in favor of it, and adoption has slowed, but not stopped.
We'll just have to wait until Apples' case makes its way through the courts to see where things are going.
It's the court cases that determine the law as much as the law itself. Precedent is very important. If one court has a decision, others then look to it for their own decisions. If enough of these decisions follow over the years, it can become locked into law, as no judge would dare to counter it, as it would likely be reversed in higher courts.
This is far more complex than many here wish to acknowledge. It isn't just a matter of what the copyright laws state, it's what the cases in the real world decide. The results can vary much depending on whether it's by judge or jury. I've been on a good number of juries. I can tell you that while they do try to do a good job, sometimes the feeling of fairness supersedes the actual law as instructed by the judge, and the jury's word is final, unless they make a decision that is so far out, that the judge can reject it and call for another trial. But that is very rare, and the judge must have a really good reason for doing so.
As far as modification goes, that's also not so simple. It's only allowed of the mod is small, and strictly limited to getting it to work on a machine that it would be determined it should work on anyway. Many states don't allow even that. Don't forget that states are allowed to modify the way certain aspects of the federal system works, and that includes, to a certain extent, copyright, as shown by the shrink-wrap licensing agreements. They can't change the Constitution itself, but the later laws can be extended by the states, or in some cases, limited. Note that the actual Constitution says very little about specific copyright, and allows for change in the way it works.
Not at all true. Read the entire law and not just the Wikipedia summary.
Subchapter B requires digital recorders to implement SCMS copy protection, and makes it illegal to circumvent SCMS.
Subchapter D (the part your Wikipedia citation refers to) states:
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
Please note that this is not a blanket license to make non-commercial copies. It only refers to suits based on the AHRA prohibitions. Additionally, when it uses the term "digital audio recording device" it means devices that conform to subchapter B. It doesn't grant you any immunity if you make your copy with a non-compliant device (like a computer CD-R drive.)
If you make copies with a non-AHRA-compliant device, then AHRA doesn't apply. You're back to whatever interpretation of fair use the court someday decides is correct.
And now the argument has come full circle..
From the your above link-
>>>>(11) The term “serial copying” means the duplication in a digital format of a copyrighted musical work or sound recording from a digital reproduction of a digital musical recording. The term “digital reproduction of a digital musical recording” does not include a digital musical recording as distributed, by authority of the copyright owner, for ultimate sale to consumers<<<<
The digital recording device that must confrom to the SCMS (Serial Copy Management System) only applies to devices for reproducing "original" copyrighted works on to another media.
If I read this correctly. It does not pertain to the copying of a music CD you bought retail. Becuase the CD you bought retail is already a copy of the "original" work. Authorized for sale by the copyfight owner.
So a computer CD-R used to copy a CD may still be protected by this act.
>>>>(11) The term ?serial copying? means the duplication in a digital format of a copyrighted musical work or sound recording from a digital reproduction of a digital musical recording. The term ?digital reproduction of a digital musical recording? does not include a digital musical recording as distributed, by authority of the copyright owner, for ultimate sale to consumers<<<<
The digital recording device that must confrom to the SCMS (Serial Copy Management System) only applies to devices for reproducing "original" copyrighted works on to another media.
If I read this correctly. It does not pertain to the copying of a music CD you bought retail. Becuase the CD you bought retail is already a copy of the "original" work. Authorized for sale by the copyfight owner.
So a computer CD-R used to copy a CD may still be protected by this act.
That doesn't make sense at all. Why would a home recording act be written in a way that only applies to the original master recording, which no home user will ever possess.
"original" is anything published by the copyright holder. SCMS tags all media as "original" or "copy". Commercially-manufactured discs are always tagged "original". If you copy such a disc using an SCMS-compliant device, the copy is tagged "copy". If you try to copy a disc that is already tagged "copy", the device rejects the attempt. The law is referring to precisely this kind of "original" disc.
The whole point of the AHRA law is to explicitly permit consumers to copy discs, when compliant devices (that implement SCMS and use tariffed media) are used to make the copy. If it was intended to permit all duplication with all devices, it wouldn't waste all that text describing what a compliant device is.
That doesn't make sense at all. Why would a home recording act be written in a way that only applies to the original master recording, which no home user will ever possess.
It doesn't. It, as you suspect, refers to the recording that you buy.
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"original" is anything published by the copyright holder. SCMS tags all media as "original" or "copy". Commercially-manufactured discs are always tagged "original". If you copy such a disc using an SCMS-compliant device, the copy is tagged "copy". If you try to copy a disc that is already tagged "copy", the device rejects the attempt. The law is referring to precisely this kind of "original" disc.
Again, correct.
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The whole point of the AHRA law is to explicitly permit consumers to copy discs, when compliant devices (that implement SCMS and use tariffed media) are used to make the copy. If it was intended to permit all duplication with all devices, it wouldn't waste all that text describing what a compliant device is.
Of course, at the same time the laws recognize that copying originals for private back-up, or for enabling play on other devices that can't accept the original media is ok, no matter what device is used to make the copy?and as long as the licensed recording isn't protected by encryption, which seems to override "fair use" (so far).
..........The whole point of the AHRA law is to explicitly permit consumers to copy discs, when compliant devices (that implement SCMS and use tariffed media) are used to make the copy. If it was intended to permit all duplication with all devices, it wouldn't waste all that text describing what a compliant device is.
I believe the whole point of the AHRA Act was to protect the manufacturer of digital recording devices from being sue for copyright infringment. When the act was added to the copyright law, it was already recognized that home recording for personal use was legal. It doesn't matter if the device they used was compliant with the AHRA Act or not.
However the RIAA was able to block the import of DAT tape recorders for home use. DAT tape recorders was availble for professional use, in other countries and expensive. RIAA sighted that a DAT tape recorder can make an exact digital copy of a music CD. As a compromise Sony agreed to add SCMS and pay a royalty to the RIAA for each device sold (imported). A royaly was also paid to the RIAA for blank media used in such device. SCSM prevented the mass copying of copyrighted works. Early stand alone CD copier only allowed you to make so many copies (it was less than 10. I think) of a CD. You also had to use a media made for "music". Media that paid a royalty to the RIAA. I know my early model Sony DAT recorder doesn't record at 44.1K sampling rate. That's the same rate as a music CD. I can record at a lower or higher rate. But it can plays back a tape recorded at 44.1K. Thus I can not make an exact copy of a music CD.
Using a digital recording device with SCSM doesn't protect the consumer against copyright infringment if he decides to circumvent SCMS and mass produce 1000 copies. But it does protects the manufacturer. The same is true for your computer DVD burner. It has sort of a management system that prevents consumers form copying an encrypted DVD movie. However, if the consumer disable this management system or remove the encryption from the DVD and makes 1000 copies of the DVD. The movie industry would not be able to sue the maker of the DVD burner. They have to go after the consumer. A digital camcorder has the same type of management system. You can't copy an encrypted movie on it either.
iTunes has a management system wherby you can only burn 5 copies of a playlist. (At least early versions of iTunes. It may have changed by now.) After 5 copies you got to change something in the playlist (add a song, remove a song, change the order of the songs) before you can burn another 5 copies. It too can be circumvented. But the RIAA won't be able to go after Apple if they found out the someone made 1000 copies of a music CD using iTunes.
Comments
There have been many attempts in Congress to pass an "induce" amendment to the copyright law. None have passed.
These laws have been opposed by all hardware manufacturers, because they would make (for example) CD-R manufacturers liable for the CDs people duplicate using the drives. These laws would put entire industries out of business - nobody would be able to sell a CD/DVD burner, a VCR, a photocopier, or even a printer without being sued.
It kinda depends on how a law is worded as to whether it would put all the hardware manufacturers out of business. All of the devices you mention have perfectly legal uses, besides the illegal uses people often put them to.
I've read Title 17 many times and have never seen anything that prohibits telling someone else how to violate a copyright, much less a EULA.
The original statement would seem to be poorly worded. Instead of "telling how to violate copyright", think of "encouraging copyright infringement" or "assisting with copyright infringement." A photocopy machine might encourage copyright infringement, but it does have other legal uses. In contrast, a do-it-yourself kit for running Leopard on a non-Apple computer has no purpose other than assisting with breaching Apple's license and, hence, copyright infringement.
(Copyright is too specific, as well. Instead, think about a crime of any nature. The whole world of law isn't embodied in Title 17.)
Do you REALLY believe that?
So when Apple released the first iPod, it pre-dated the iTunes store by about three years. That means the only possible use for an iPod for those three years was by copying your CDs onto your computer and then onto your iPod.
I guess under your logic, Apple should have been shut down by the record companies for "using someone elses copyrighted work to make money."
By the way, in the UK, there is no right to make an archival or "private" copy, so every CD copied to an iPod is, in fact, a copyright violation under UK law. Yet, Apple makes millions of dollars from UK iPod sales.
Does the same standard your proposing apply to Apple?
Because the copyright agreement for music allows for the owner to copy the music they bought. So long as it's for their own personal use. It's the "fair use" law in the US. This gives you the permission to make a copy of the copyrighted music you own so that you can listen to it on other devices.There is nothing illegal about copying the music you own on to an iPod. It's no different than recording a vinyl album on to a cassettre tape to listen to it in your car or on a Sony Walkman. Only it's newer technogoly. What you can't do is to make a copy of the music you own to give to a freind or to sell. That would be beyond the scope of "personal use" or "fair use"..
It would be illegal for Apple to use a copyrighted song in a commercial to sell iPods without permission. Or to include copyrighted songs in the iPod they sold, without permission. Or if Apple encouraged you to also Rip, Copy and Burn your friends CDs' on to your iPod.
In many European countries you ARE allowed to copy your music because you pay a "music tax" on your blank media (cassetrte tape, video tape, CD, DVD, etc). The music industry over there had convinced your government that everybody copies music and therefore everybody should pay a tax on blank media to pay for this "crime".
Over here in the US, the RIAA has many times attempted to impose such a tax but the "Fair Use" law has stopped it every time. So far. Over here we haven't allowed the RIAA into brainwahing us into believing that we are committing a crime when we copy our music onto our own computer, on to a cassette tape for the car or Walkman, or an iPod.
Until recently, Canada had to pay an extra $20 for a 'Music tax" on iPods'. The music industry, up there, claimed that the iPod was only used to rip off music. The $20 tax was repealed (only a couple of years ago) when the music industry failed to prove the difference between a hard drive in a computer and an iPod. And the music industry wasn't imposing their "music tax" on a computer hard drive.
So you mean to tell me that over in the UK, you guys have to have two CD drives on your computer if you want to listen to music on your computer while still being able to load or burn a CD/DVD. Since it would be illegal for you to copy your CD music on to your computer hard drive. And if it's O.K. to copy your CD music on to your computer hard drive, why can't you copy it on to an iPod? I'm willing to bet that you pay more for an iPod over there because of a "music tax". Therefore Apple would not be in any violation of your your copyright laws (for music).
(added after original post)
Does this also mean that you guys over there can't make a custom CD of just the songs you like from a handful of CDs. So you're forced to load a CD in everytime you want to hear that one good song from it. That would bring you guys back to the days before reel to reel and cassette tape.
Because the copyright agreement for music allows for the owner to copy the music they bought. So long as it's for their own personal use. It's the "fair use" law in the US.
That is the popular understanding of fair use, but as far as I know, it has not yet been tested in court. Title 17 enumerates a few examples of fair use (parody, review, news reporting) but the list is not exclusive.
The music industry believes (and has stated on many occasions) that copying music for personal use (including mix CDs, iPod loading, etc.) is not fair use, but they have chosen to not attempt any prosecution. They're obviously afraid that the courts might prove them wrong. The fact that they never sued Apple for their rip-mix-burn campaign speaks volumes over how confident they are in their legal opinion.
It would be illegal for Apple to use a copyrighted song in a commercial to sell iPods without permission. Or to include copyrighted songs in the iPod they sold, without permission. Or if Apple encouraged you to also Rip, Copy and Burn your friends CDs' on to your iPod.
It's worth noting that fair use doesn't apply to any commercial activity. If you are a DJ, you are not allowed to run your show from an iPod, even if you bought all the music on CD.
In many European countries you ARE allowed to copy your music because you pay a "music tax" on your blank media ... Over here in the US, the RIAA has many times attempted to impose such a tax but the "Fair Use" law has stopped it every time. So far.
I know Canada has such a tax, along with permission to copy (and even redistribute) as long as it's not for profit. I don't know about Europe.
In the US, these taxes were not passed into law because Congresscritters got overwhelmed with complaints from the voters. Fair use has nothing to do with this. Congress could vote that out of the copyright law if they wanted to. And the proposed US laws wouldn't make it legal to copy anything - you'd get absolutely nothing in exchange for the tax.
So you mean to tell me that over in the UK, you guys have to have two CD drives on your computer if you want to listen to music on your computer while still being able to load or burn a CD/DVD. ... Does this also mean that you guys over there can't make a custom CD of just the songs you like from a handful of CDs. So you're forced to load a CD in everytime you want to hear that one good song from it. That would bring you guys back to the days before reel to reel and cassette tape.
I don't know about the UK, but I've read statements from people in Australia who say that this is absolutely true there. The law prohibits ripping or duplicating CDs without a license, regardless of the intention. Individuals aren't likely to be prosecuted for this, but it is illegal nonetheless.
That is the popular understanding of fair use, but as far as I know, it has not yet been tested in court. Title 17 enumerates a few examples of fair use (parody, review, news reporting) but the list is not exclusive.
The music industry believes (and has stated on many occasions) that copying music for personal use (including mix CDs, iPod loading, etc.) is not fair use, but they have chosen to not attempt any prosecution. They're obviously afraid that the courts might prove them wrong. The fact that they never sued Apple for their rip-mix-burn campaign speaks volumes over how confident they are in their legal opinion.
It's worth noting that fair use doesn't apply to any commercial activity. If you are a DJ, you are not allowed to run your show from an iPod, even if you bought all the music on CD.
In a way it has. The courts (US) has determined that the copying of copyrighted works does not in itself constitute an infringement of any copyright laws. Both Xerox and Sony won the copyright infringement cases against them on this. Publishers and Universal Studios tried to stop the sales of Xerox copying machines and Sony Betamax claiming they (Sony and Xerox) were contributing to copyright infringements. The RIAA will have a very difficult, if not impossible, task of proving that the mere copying of music violates any copyright laws. It is how that copy is used that determines if any copyright law has been violated. Selling it or just giving it away would be a violation.
Here's another way the fair use law protects the consumers (in the US). Suppose I videotaped a family gathering during Christmas and you can clearing hear Bing Cosby sing "White Christmas" (and other songs) on the radio and clearly see that the kids are having a great time watching "A Charlie Brown Christmas" on the TV. If it weren't for the fair use law, the RIAA and the movie studio (that owns "A Charlie Brown Christmas") would say that I was breaking the copyright law. But the fair use law protects me. I don't even have to own an original copy of "A White Christmas" (or any of the other songs heard) or "A Charlie Brownn Christmas" in order to keep my videotape of my family gathering intact. Maybe in Australia you have to treat it like child porn and hide the tape.
Now if my little home movie is going to end up as part of a film going to be shown at the Sundance Film Festival, then I would be required to seek (and maybe pay for) a license from the RIAA and the movie studio (that owns "A Charlie Brown Christmas") before it can be shown in a public forum. This would not be cover under "fair use" and that's only fair. If I'm to profit from my work then the owner of anycopyrighted material that is an integral part of my work should be able to share in that profit.
The fair use law also applies to the recordings you made off the TV or radio. You can keep copies of those recording, without owning any of the original copyrighted works and not have to worry about being hunted down by the movie studios or RIAA for violating copyright laws. So long as you keep those recordings for personal home use. If this weren't the case, the courts would be back logged with cases of football fans alone. Fans violating the copyright law because they own a TV recorded copy of their team playing in the Superbowl.
I know Canada has such a tax, along with permission to copy (and even redistribute) as long as it's not for profit. I don't know about Europe.
In the US, these taxes were not passed into law because Congresscritters got overwhelmed with complaints from the voters. Fair use has nothing to do with this. Congress could vote that out of the copyright law if they wanted to. And the proposed US laws wouldn't make it legal to copy anything - you'd get absolutely nothing in exchange for the tax.
Actually in the US there is something call "music CD". These blank media cost a little more that "data CDs'". Early stand alone (non-computer) music CD burners required these type media in order to copy music from a CD. CD burners (and Cd burning software) in computers made these type of media obsolete. But they are still available for those people that are still using these stand alone CD burners.
The fair use law does have a lot to do with Congress not passing any tax for blank media. It's true that Congress don't have to consider the fair use law when passing such a tax. The consumers that overwhelmed Congress with complaints on such a tax are surely considing it a dilution of their rights under the fair use law. If it's not illegal to make copies of the copyrighted material you own, then why should there be a tax impose on the blank media? A tax that will go to the RIAA (and other copyright holdrs) because they think you're doing something illegal. It's not the tax that matters. It's what the tax implies. I'm sure that Congress would not have near the resistance if they wanted to impose a tax on blank CDs' in order to fund a study for ways to recycle them and keep them out of landfills.
I don't know about the UK, but I've read statements from people in Australia who say that this is absolutely true there. The law prohibits ripping or duplicating CDs without a license, regardless of the intention. Individuals aren't likely to be prosecuted for this, but it is illegal nonetheless.
The RIAA here, in the US, would like for everyone to think that it's against the law and thus illegal to copy music you own (bought the original of) on to other media. But for now, no such law exist.
I would like to see where you referenced that from.
Simple. Refusing to accept a license agreement (which, incidentally, was not disclosed to me until after the cash transaction was completed) does not in any way cause me to cease to be the legitimate owner of the physical medium on which the software is encoded - I own a copy. The courts have upheld the view that retail software distribution constitutes a sale.
Section 117 states in no unclear terms that it is not an infringement of copyright for the owner of a copy of a piece of software to take the steps necessary (including duplication and modification) to run that software on a computer.
[edit] Post 0xFF - yay! [/edit]
So when Apple released the first iPod, it pre-dated the iTunes store by about three years. That means the only possible use for an iPod for those three years was by copying your CDs onto your computer and then onto your iPod.
Which in the USA is perfectly legal thanks to the Audio Home Recording Act of 1992.
From wikipedia:
"The Act also includes blanket protection from infringement actions for private, non-commercial analog audio copying, and for digital audio copies made with digital audio recording devices."
Why are there a set of people who are focused on the EULA and not on the big picture?
Because the EULA is the picture. Law and lawyers focus on the details. And from these details the big picture is formed. Congress on the other hand starts with the big picture and lets the bureaucrats and lawyers fight over the details. We have to live with the results of these fights.
All this other talk about copyright and copyright infringement is besides the point. Open Tech is not violating copyright. They are potentially assisting/encouraging others to violate contracts that the others have entered into.* The question is, is the contractual phrase in the EULA that Open Tech is encouraging the violation of legal or not?
* I am not a lawyer but I believe that the current state of affairs with software purchases is that you buy the HW media that the software is stored on and a license to use that software. You do not buy the software itself or even a copy of the software. As such your permission to use the software (whose ownership still resides with software company) is limited to what the license states. You agreed to this license, or contract, when you loaded the software onto your computer.
Which in the USA is perfectly legal thanks to the Audio Home Recording Act of 1992.
Not at all true. Read the entire law and not just the Wikipedia summary.
Subchapter B requires digital recorders to implement SCMS copy protection, and makes it illegal to circumvent SCMS.
Subchapter D (the part your Wikipedia citation refers to) states:Please note that this is not a blanket license to make non-commercial copies. It only refers to suits based on the AHRA prohibitions. Additionally, when it uses the term "digital audio recording device" it means devices that conform to subchapter B. It doesn't grant you any immunity if you make your copy with a non-compliant device (like a computer CD-R drive.)
If you make copies with a non-AHRA-compliant device, then AHRA doesn't apply. You're back to whatever interpretation of fair use the court someday decides is correct.
* I am not a lawyer but I believe that the current state of affairs with software purchases is that you buy the HW media that the software is stored on and a license to use that software. You do not buy the software itself or even a copy of the software. As such your permission to use the software (whose ownership still resides with software company) is limited to what the license states. You agreed to this license, or contract, when you loaded the software onto your computer.
And now the argument has come full circle.
The "current state of affairs" you refer to only exists because EULAs say so. The law does not say any such thing.
Your rights depend entirely on whether or not a product's EULA (and shrink-wrap licenses in general) are enforceable, or even legally binding. Right now, this varies radically from state to state and from nation to nation. Only two states have passed legislation explicitly making shrink-wrap licenses binding, and only a small number of other states have had courts declare them binding.
Simple. Refusing to accept a license agreement (which, incidentally, was not disclosed to me until after the cash transaction was completed) does not in any way cause me to cease to be the legitimate owner of the physical medium on which the software is encoded - I own a copy. The courts have upheld the view that retail software distribution constitutes a sale.
Section 117 states in no unclear terms that it is not an infringement of copyright for the owner of a copy of a piece of software to take the steps necessary (including duplication and modification) to run that software on a computer.
[edit] Post 0xFF - yay! [/edit]
You're confusing the physical medium with what is on that medium.
No one is disputing that you own the medium. Several states also implement the shrink wrap license, so that's a problem in those states. We dont know what's going to happen with that. I'm not in favor of it, and adoption has slowed, but not stopped.
We'll just have to wait until Apples' case makes its way through the courts to see where things are going.
It's the court cases that determine the law as much as the law itself. Precedent is very important. If one court has a decision, others then look to it for their own decisions. If enough of these decisions follow over the years, it can become locked into law, as no judge would dare to counter it, as it would likely be reversed in higher courts.
This is far more complex than many here wish to acknowledge. It isn't just a matter of what the copyright laws state, it's what the cases in the real world decide. The results can vary much depending on whether it's by judge or jury. I've been on a good number of juries. I can tell you that while they do try to do a good job, sometimes the feeling of fairness supersedes the actual law as instructed by the judge, and the jury's word is final, unless they make a decision that is so far out, that the judge can reject it and call for another trial. But that is very rare, and the judge must have a really good reason for doing so.
As far as modification goes, that's also not so simple. It's only allowed of the mod is small, and strictly limited to getting it to work on a machine that it would be determined it should work on anyway. Many states don't allow even that. Don't forget that states are allowed to modify the way certain aspects of the federal system works, and that includes, to a certain extent, copyright, as shown by the shrink-wrap licensing agreements. They can't change the Constitution itself, but the later laws can be extended by the states, or in some cases, limited. Note that the actual Constitution says very little about specific copyright, and allows for change in the way it works.
Not at all true. Read the entire law and not just the Wikipedia summary.
Subchapter B requires digital recorders to implement SCMS copy protection, and makes it illegal to circumvent SCMS.
Subchapter D (the part your Wikipedia citation refers to) states:Please note that this is not a blanket license to make non-commercial copies. It only refers to suits based on the AHRA prohibitions. Additionally, when it uses the term "digital audio recording device" it means devices that conform to subchapter B. It doesn't grant you any immunity if you make your copy with a non-compliant device (like a computer CD-R drive.)
If you make copies with a non-AHRA-compliant device, then AHRA doesn't apply. You're back to whatever interpretation of fair use the court someday decides is correct.
And now the argument has come full circle..
From the your above link-
>>>>(11) The term “serial copying” means the duplication in a digital format of a copyrighted musical work or sound recording from a digital reproduction of a digital musical recording. The term “digital reproduction of a digital musical recording” does not include a digital musical recording as distributed, by authority of the copyright owner, for ultimate sale to consumers<<<<
The digital recording device that must confrom to the SCMS (Serial Copy Management System) only applies to devices for reproducing "original" copyrighted works on to another media.
If I read this correctly. It does not pertain to the copying of a music CD you bought retail. Becuase the CD you bought retail is already a copy of the "original" work. Authorized for sale by the copyfight owner.
So a computer CD-R used to copy a CD may still be protected by this act.
From the your above link-
>>>>(11) The term ?serial copying? means the duplication in a digital format of a copyrighted musical work or sound recording from a digital reproduction of a digital musical recording. The term ?digital reproduction of a digital musical recording? does not include a digital musical recording as distributed, by authority of the copyright owner, for ultimate sale to consumers<<<<
The digital recording device that must confrom to the SCMS (Serial Copy Management System) only applies to devices for reproducing "original" copyrighted works on to another media.
If I read this correctly. It does not pertain to the copying of a music CD you bought retail. Becuase the CD you bought retail is already a copy of the "original" work. Authorized for sale by the copyfight owner.
So a computer CD-R used to copy a CD may still be protected by this act.
That doesn't make sense at all. Why would a home recording act be written in a way that only applies to the original master recording, which no home user will ever possess.
"original" is anything published by the copyright holder. SCMS tags all media as "original" or "copy". Commercially-manufactured discs are always tagged "original". If you copy such a disc using an SCMS-compliant device, the copy is tagged "copy". If you try to copy a disc that is already tagged "copy", the device rejects the attempt. The law is referring to precisely this kind of "original" disc.
The whole point of the AHRA law is to explicitly permit consumers to copy discs, when compliant devices (that implement SCMS and use tariffed media) are used to make the copy. If it was intended to permit all duplication with all devices, it wouldn't waste all that text describing what a compliant device is.
That doesn't make sense at all. Why would a home recording act be written in a way that only applies to the original master recording, which no home user will ever possess.
It doesn't. It, as you suspect, refers to the recording that you buy.
"original" is anything published by the copyright holder. SCMS tags all media as "original" or "copy". Commercially-manufactured discs are always tagged "original". If you copy such a disc using an SCMS-compliant device, the copy is tagged "copy". If you try to copy a disc that is already tagged "copy", the device rejects the attempt. The law is referring to precisely this kind of "original" disc.
Again, correct.
The whole point of the AHRA law is to explicitly permit consumers to copy discs, when compliant devices (that implement SCMS and use tariffed media) are used to make the copy. If it was intended to permit all duplication with all devices, it wouldn't waste all that text describing what a compliant device is.
Of course, at the same time the laws recognize that copying originals for private back-up, or for enabling play on other devices that can't accept the original media is ok, no matter what device is used to make the copy?and as long as the licensed recording isn't protected by encryption, which seems to override "fair use" (so far).
..........The whole point of the AHRA law is to explicitly permit consumers to copy discs, when compliant devices (that implement SCMS and use tariffed media) are used to make the copy. If it was intended to permit all duplication with all devices, it wouldn't waste all that text describing what a compliant device is.
I believe the whole point of the AHRA Act was to protect the manufacturer of digital recording devices from being sue for copyright infringment. When the act was added to the copyright law, it was already recognized that home recording for personal use was legal. It doesn't matter if the device they used was compliant with the AHRA Act or not.
However the RIAA was able to block the import of DAT tape recorders for home use. DAT tape recorders was availble for professional use, in other countries and expensive. RIAA sighted that a DAT tape recorder can make an exact digital copy of a music CD. As a compromise Sony agreed to add SCMS and pay a royalty to the RIAA for each device sold (imported). A royaly was also paid to the RIAA for blank media used in such device. SCSM prevented the mass copying of copyrighted works. Early stand alone CD copier only allowed you to make so many copies (it was less than 10. I think) of a CD. You also had to use a media made for "music". Media that paid a royalty to the RIAA. I know my early model Sony DAT recorder doesn't record at 44.1K sampling rate. That's the same rate as a music CD. I can record at a lower or higher rate. But it can plays back a tape recorded at 44.1K. Thus I can not make an exact copy of a music CD.
Using a digital recording device with SCSM doesn't protect the consumer against copyright infringment if he decides to circumvent SCMS and mass produce 1000 copies. But it does protects the manufacturer. The same is true for your computer DVD burner. It has sort of a management system that prevents consumers form copying an encrypted DVD movie. However, if the consumer disable this management system or remove the encryption from the DVD and makes 1000 copies of the DVD. The movie industry would not be able to sue the maker of the DVD burner. They have to go after the consumer. A digital camcorder has the same type of management system. You can't copy an encrypted movie on it either.
iTunes has a management system wherby you can only burn 5 copies of a playlist. (At least early versions of iTunes. It may have changed by now.) After 5 copies you got to change something in the playlist (add a song, remove a song, change the order of the songs) before you can burn another 5 copies. It too can be circumvented. But the RIAA won't be able to go after Apple if they found out the someone made 1000 copies of a music CD using iTunes.