People who rant and rave about file sharing, often forget to do a cold, critical analysis of things.
Just for the sake of argument, let's presume that Jammie Thomas not only had copyrighted
songs in a common folder which could, THEORETICALLY be shared with others, but,
for argument's sake, let's say she even WILLFULLY shared them (something I don't think
was proven).
OK, then what did she REALLY DO? Assuming the foregoing was proven (which I say it
was not) then she had digital copies of allegedly copyrighted materials, BUT these were
not identical to the copyrighted songs which the RIAA claims they are suing about.
Firstly, the original tunes were NOT released in am MP3 format. MP3 is not the
format found on professional released CDs. MP3s, by their very nature, are LOSSY,
and by lossy I mean that they DO NOT CONTAIN ALL THE ORIGINAL DATA
IN THE SAME FORM.
So, if you were to use , oh, say a published book as an analogy, the MP3s would be merely small amounts of the original. Authors use small amounts of published works all the time, which are copyrighted and which they do not own the copyright to, and which they do not always seek approval from the copyright owner to copy. How is this allowed? It is allowed because of something called the FAIR USE doctrine. The problem with the Fair Use doctrine is that , in my view, it can be interpreted in different ways by different people.
As I am NOT a legal scholar, I shall post links to others who are, and who
give their views on Fair Use.
http://music.utsa.edu/tdml/conf-VIII/VIII-Harper&Bruenger.html"
Fair use is set out in Section 107 of the Copyright Act. It has two parts. The first part describes uses that are typical fair uses: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. This list is not exhaustive, however, and even a use that is listed may not be a fair use. That's because each proposed fair use must satisfy the second part of the statute: the four factors the statute lays out for consideration in each case. The four factors are: - The purpose and character of the use;
- The nature of the copyrighted work to be used;
- The amount and substantiality of the part used;
- The effect of the use on the market for or value of the work.
The statute employs a "weighing and balancing" technique that introduces many opportunities for judgment. It is quite possible for two people to consider the same use and come to different conclusions about whether it is fair. I have summarized my knowledge about how the fair use test works in the article, "Fair Use of Copyrighted Works," and urge you to read it for more information about how this test works.
The important thing to see at this point is that fair use is not a blanket exemption for educators. It’s an exemption that permits certain uses of certain works for certain purposes, taking into consideration the interests of the copyright owner.
Fair Use Guidelines
The ambiguity of the fair use test has brought copyright owners and users together to try to achieve some consensus on what would actually be fair uses in various educational contexts. The agreements reached are referred to as guideline and most were created at the urging of government officials, but none has the force of law. In every case, they do not define the limits of fair use, but rather the minimum of fair use, a safe harbor, so to speak. The guidelines are much more specific than the statute, giving actual amounts of works that can be used in many cases. The trouble is that the amounts are pretty small. That and other limits imposed on the uses can make the guidelines less helpful for higher education. This doesn't mean that they should not be used as a starting point, because if a use fits within them, the user need go no further to determine that the use is fair. If a use exceeds them, the user still has recourse to the statute. Thus, using both the guidelines and the statute gives educators the maximum flexibility."
http://news.cnet.com/2010-1071-281607.html
" Now the music industry has 30 million enemies.
Getting back to our historical recollections, after audiocassettes, there were VCRs. In the '80s, movie studios complained that videotape recorders would "steal" their copyrighted materials. However, it was quickly realized that VCRs actually increased the market for movies and the studios, which saw their profits double with sales of prerecorded videotapes. The fact that VCRs were analog devices just kept this inevitable conflict over fair use at bay.
The first victory of the music labels over digital technology was with something called DAT. The labels successfully had this early digital audio technology relegated to professional markets, insisting that the digital copying of music that DAT would enable would put them out of business. Minidisk was another technology and attempt at bringing digital audio technology to the masses. But it was not until MP3 that a format, technology and channel of distribution would appear that would really give the labels a scare.
And we all know what happened to Napster.
So here we are with a new generation of peer-to-peer services that are being sued by the RIAA--with the music industry readying to offer consumers pay-per-listen services like MusicNet and PressPlay. However, if you look into the details of how these services will work, it quickly becomes apparent that any former concept of "fair use" has been thrown out. What's becoming clear is that--from the labels' point of view--they think it's time to print up money without having to spend anything on costs of goods, physical distribution or warehousing.
However, one of the terms of the MusicNet license is that as long as you continue to pay your monthly fee, you get to keep those songs you've downloaded. But if you at any time stop paying your monthly service fee, then those songs, which you've rightly paid for already, will stop working. This is going too far. This is in direct violation of the copyright fair use clause.
The same thing is happening with the Replay injunction that the movie studios are attempting to instill upon Sonicblue. They claim that Replay's "Send Show" feature will start another P2P Napster-like stampede of copying and illegal distribution. However, Replay's "Send Show" feature, which none of us will really know about until we actually get our Replays, claims to limit the feature to only friends you know--and a maximum of 15 copies.
If this is true, then the movie studios have no right to try and place an injunction on Sonicblue. This is exactly what the "fair use" clause is all about. I shouldn't be able to take music and give it away to millions of people who I don't know, but it certainly seems fair for me to send my friends and family a copy of my favorite "Sex in the City" or "Sopranos" episode or the entire "Band of Brothers" series."
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/"
Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials forpurposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist's work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.
Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute will have to be resolved by courts or arbitration. If it's not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages."
=========SNIP========
So, one has a limited amount of "quoted" material in a few files on their own computer, and PERHAPS, they were going to use this in some sort of critical analysis of the song, and they were
not in any way going to make money from this material, and did not claim they created it,
and in fact gave full attribution, why is an MP3 used in that way, NOT "Fair Use".
If no one copied the file, and, just for grins, let's say that that MP3 was a rip from an
album that person purchased legally, it furthermore tends to get its nose under the FAIR USE
tent. We cannot go on treating digital files as if they are different than printed books or oil paintings.
The original folks who wrote Copyright Laws, were big business and government (Queen Anne and the Stationer's Guild) and the purpose was to control public discourse and make money respectively.
~Code
Labels: 1.2 million, fair use, jammie thomas-rasset, peer to peer, queen anne