Fighting the Man
April 17, 2005 2:53 AM   Subscribe

Has anyone tried to fight the RIAA and Movie Studios by arguing that copyrights can be interpreted laterally instead of just horizontally?

A 128kbs mp3 carries around 10% of the original data density of the source material – we’re loosing all but the basic foundations of the song. What’s the difference between posting that and 20 seconds, full fidelity, of a 3-minute song (which is legal)? You're just cutting the data at different ends.

I'm working under the root assumptions that I know of copyright law, wherein you can distribute and/or alter a certain percentage of an artists work w/o permission and royalties.
posted by trinarian to Law & Government (19 answers total) 1 user marked this as a favorite
 
we’re loosing (sic) all but the basic foundations of the song

So you are losing all but the copyrightable foundation and you think you have an argument that copyright shouldn't apply. This is loonier than the anti-tax folks who claim that there is no provision in the constitution for the income tax. Of course when they refuse to pay, the IRS takes their homes and strangely, they have not found help through the courts.
posted by caddis at 5:10 AM on April 17, 2005


Criminal Infringement.--Any person who infringes a copyright willfully ... by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $ 1,000 shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.'.

The No Electronic Theft ("NET") Act
posted by airguitar at 5:17 AM on April 17, 2005


Also see the Audio Home Recording Act of 1992

Your idea that less-than-perfect copies be given deference was part of the motivation for the AHRA. The act put a royalty surcharge on DAT tapes and recorders (perfect copies), but clearly stated that noncommercial use of both analog and digital recorders and media was non-infringing.
No copyright infringement lawsuit may be brought based on consumers' noncommercial use of digital or analog recording devices to copy prerecorded music. No copyright lawsuit may be based on the manufacture, importation, distribution, or sale of digital or analog recording devices or media.
The NET Act narrowed the definition of noncommercial use, and added the provision about "reproduction or distribution, including by electronic means".

Also see Measuring Fair Use: The Four Factors
Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors in resolving fair use disputes, which are discussed in detail below. It's important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.

The four factors judges consider are:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.
With that in mind, you could, post a compressed music file that would be non-infringing, but it would have to sound pretty squashed to be a nonsubstantial amount (i.e. not 128kb), and be done with some noncommercial intent, such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.....
posted by airguitar at 6:24 AM on April 17, 2005


In general, one cannot take the "heart" of the work. In this scenario it seems pretty clear you are preserving the "heart" and therefore are infringing. Vague term, but easy application in this case.
posted by Falconetti at 6:42 AM on April 17, 2005


Well, first you would have to find a judge who would be fooled by this disingenuous and frivolous argument. Good luck.
posted by grouse at 7:54 AM on April 17, 2005


Would this mean it's ok to copy books, as long as you do it in a tiny enough font? :)
posted by reynaert at 8:19 AM on April 17, 2005


reynaert, only if you delete all but every tenth letter.
posted by mischief at 8:26 AM on April 17, 2005


print out the book at 20 dpi, making it barely legible, and i'm sure you'll be golden.
posted by thebigpoop at 8:48 AM on April 17, 2005


This may not be the forum, but I have developed a great respect for the me-fi posters. As one of the older posters (63), I would guess, I am perplexed, if not absolutely flummoxed, by the interest, justifications, and legal maneuvering to avoid copyright law. I just do not see the moral justification. When one comes to the bottom line it is difficult for me to see it other than as stealing--If the artist, distributor, producer (etc.) wanted it to be free it would be free. I do not mean to start a lengthy debate--I am just interested in a clear and concise justification on moral or ethical grounds--Thanks Frank
posted by rmhsinc at 9:49 AM on April 17, 2005


FYI, the idea that you can copy or sample part of an audio recording, as long as it's less than n seconds long, is a myth.
posted by dirtynumbangelboy at 10:01 AM on April 17, 2005


No, but if you want to talk with a lawyer about something a lot more interesting, consider this:

When the RIAA calls a collection agency to demand payment from a file-swapper, they are placing it down as a debt. I wonder if by doing this they are still REALLY entitled to sue as if you stole the goods, or are any lawsuits apart from charging you with default on payment groundless?

It would be like walmart catching you on video surveillance shoplifting, then sending you a bill for the goods. Do they still have the right to also claim the goods are still stolen after billing you for them?

Myself, I think not. One can only commit one type of crime here, not both.
posted by shepd at 11:36 AM on April 17, 2005


shepd ... generally they sue people for distributing the goods, not just taking them ... they're billing you for all the copies you shared, not just the one you downloaded
posted by pyramid termite at 12:10 PM on April 17, 2005


I am just interested in a clear and concise justification on moral or ethical grounds

Here are some sites that claim such a justification. Arguments range from "information wants to be free" to "steal from the rich," and like any political issue, people hold positions all along the scale.

The Electronic Frontier Foundation advocates freedom of information in electronics and the Internet. They hold a liberal, pro-use stance and emphasize rhetoric, but they run sophisticated PR campaigns, such as Let the Music Play.

EFF boardmember Lawrence Lessig takes a more scholarly, traditional approach. He fathered the copyright alternative Creative Commons, seen as a more constructive contribution, as it centers on voluntary sharing rather than the fight for copyrighted material. Lessig challenged the Sonny Bono Copyright Extension Act in the Supreme Court; the case was called Eldred v. Ashcroft. The act was declared constitutional, possibly taking the issue out of Congress for another 20 years. In the meantime, Lessig wrote four books on the state of copyright in the 21st century. He's also a damn good PowerPoint presenter: Free Culture showcases Lessig's expertise in communication.

Downhill Battle specifically fights the RIAA and works with recording artists. Their stance centers around the perceived unfairness of labels toward artists, thus shifting the debate from "sharers v. everyone" to "RIAA v. everyone." To some this makes Downhill Battle especially legitimate; to others it sounds like bullshit. Downhill Battle posts slick manifestos like The Reasons
to Get Rid of the Major Record Labels
.

Downhill Battle links to The Problem With Music, an account of record labels underpaying artists, written by Nirvana producer Steve Albini. This article is hosted by Negativland, an avant-garde music-remixing band with a rich page on intellectual property issues.

IP law is shifting like crazy this decade, and the rules are different month by month. I'm too tired to find you more than one article on MGM v. Grokster, but there was a media and blog circus during the hearing, and we'll see another uproar when the court hands down its decision.

In all this mess, each side will present their interpretations as facts; everyone will naysay everyone else; people will contradict themselves. Politics as usual. So if you want to debate intelligently, I recommend reading two or three books on intellectual property. Choose the ones with boring titles and academic approaches.
posted by NickDouglas at 12:17 PM on April 17, 2005


rmhsinc: IMHO, it's ethical insofar as when I download an album I'm doing it as a preview. If I really enjoy an album, I can hardly tolerate the low fidelity. It's always seemed the best trade-off to let people pay for the fidelity (face it, even on a weak sound system a store-bought CD sounds leaps and bounds better) and/or the live shows when they come through town.

Furthermore, most of the bands I listen to today give away their music and are more financially solvent than many of the "big" bands passing through the FM frequencies (for instance, Phish made $17.8m in 2004 with 17 shows and a weak selling album, whereas Outkast made $10.5m on royalties on a very strong selling album).
posted by trinarian at 1:17 PM on April 17, 2005


Many, Many thanks NickDouglas--I promise you, your efforts will not be for naught--is that good English--Your work is much appreciated--Frank
posted by rmhsinc at 1:21 PM on April 17, 2005


reynaert : I spent some time thinking about that before posting, but the difference is this: books are one-dimensional with a layer of text being the same in a newspaper, magazine, or webpage. Nothing is lost or gained with the text itself when you transpose it... though it might look better on certain backgrounds, the glossy paper behind a good mag is not what's copyrighted. There's nothing to interpret laterally because no data is lost... one can simply copy and paste the text and increase the font.

Music is inherently different... most albums today have upwards of 30 channels going into a track. There's a significant level of fidelity that's lost transcribing an original recording to even CD. Even significantly more bringing that down to an mp3. There is absolutely can make an mp3 sound like CD-Audio because the information was stripped, not shrunk (lossy vs. lossless)
posted by trinarian at 1:30 PM on April 17, 2005


rmhsinc, if you're still reading, here are some issues to consider when you're next presented with an instance of someone "avoiding" some copyright law. I only use the scare quotes because I think a large part of the debate centers around trying to properly define the meaning and boundaries of intellectual property generally and copyright specifically, rather than trying to avoid any particular regime of IP.

Let's approach the question through a couple of iterations.

First, consider what you value about your physical property. There are doubtlessly many aspects you find valuable, but probably at the very core of the idea of possession, you value the fact that you can exclude others from using your property, and thus ensure that it is always available for your use, in the condition in which you left it.

Second, consider Thomas Jefferson, commenting on Article I, section 8, clause 8 of the US Constitution (granting "exclusive right[s]" to authors and inventors): "He who receives an idea from me receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

So I think now we can see that there is a fundamental difference between physical property and IP, at least in regards to the right to exclude.

Third, let's dive right into an economic analysis. For physical property, you need to be able to exclude others in order for your property rights to be valuable to you. It's a flat trade off; property is valuable to you in direct proportion to how easily and completely you can exclude others from it. However, the relation is only incidental in IP; on a literal level, your stake in IP is not lessened by the fact that others simultaneously have access to that IP. If your only interest in your copy of MS Money, for example, is that it lets you do your taxes, that functionality would not be lessened if every other person on earth copied MS Money from you; you could still do your taxes.

But some parties (specifically MS in this example) have other compelling interests in MS Money: recouping their initial investment in its production, and collecting a bit of profit, in order to justify the whole enterprise in the first place. And so, to facilitate a market that creates the appropriate incentives, we allow a certain limited right for IP owners to exclude others from their "property."

The problem is, there are still substantial economic costs to maintaining the right to exclude in the IP context. In an ex post examination, when we already have an extant copy of MS Money, of course it would be of more social worth for everyone in the country to have a copy of it to facilitate doing their taxes easily and quickly. But if this was the rule, no one would develop it in the first place, and the next MS money would never be created.

Perhaps all the efforts you see at "avoiding" copyright schemes stem from the fact that the current system is tilted quite heavily in favor of producers and against consumers, from the extremely long term of control (life plus 70 years, after CTEA) to the near-absolute nature of that control (including what types of devices can display digital content, after DMCA). Even if you still come down in favor of strong propertization (i.e., against "theft") in consideration of all this, I hope you can see that there is at least a tension between various approaches to trying to maximize wealth through the allocation of IP rights.
posted by rkent at 9:43 PM on April 17, 2005


rmhsinc: Another thing that hasn't been mentioned yet is that characterizing infringment as theft is oversimplifying the issue. Infringement is more analogous to trespass. Your property isn't damaged by me walking on it, but your right to keep me off your lawn is.
posted by klangklangston at 11:50 AM on April 18, 2005


Thanks for the additional responses--I am still reading and still working to develop a moral/ethical and intellectual position on it--It is hard work for me to not reject, out of hand, the more "liberal" interpretations regarding copyright-- Thanks Frank
posted by rmhsinc at 1:46 PM on April 18, 2005


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