Spanish Judges Liken File Sharing to Lending Books

[reachforthesky]

whether they profit from it or not, the effect is the same, if not multiplied. The books are being distributed to thousands of people, without the artist getting paid for it.

edit: and while they aren't selling the books, they still undeservedly make money off of ads.

How are they undeservedly making money off of ads that have nothing to do with the items they list or share? I take it that someone who sells their old books is undeservedly making money off those items as well? If I have a private collection and I rent ad space for the place that houses my collection why the heck should I be paying the authors of the items in my collection when the ads don't necessarily have anything to do with their work?

blah blah blah

The publishers are already trying to get laws passed that would require people to install spyware on their computers. http://www.dga.org/news/pr-images/2010/Joint-submission-re-IPEC.pdf

http://www.eff.org/deeplinks/2010/04/entertainment-industrys-dystopia-future

You are making this way too complex. When you buy a real book, you have one book. You can loan or give or sell this book to anybody, but you will be depriving yourself of its ownership. It's up to the author to write a book that people want to buy immediately, or keep after they read it initially.

With file sharing, one book is purchased, and millions have access. If this system was legally upheld, authors would make $20 for each book they write. They would need to spend no more than a couple hours on a book to make minimum wage. This is why eBook distributors can't just give you free reign on their easily duplicable product. If you want to buy a product, you have to (ethically) abide by its creator's rules. No one is forcing you to buy eBooks, just buy the real deal if you feel like your rights are being infringed.

 

[shadow skill]

whether they profit from it or not, the effect is the same, if not multiplied. The books are being distributed to thousands of people, without the artist getting paid for it.

edit: and while they aren't selling the books, they still undeservedly make money off of ads.

How are they undeservedly making money off of ads that have nothing to do with the items they list or share? I take it that someone who sells their old books is undeservedly making money off those items as well? If I have a private collection and I rent ad space for the place that houses my collection why the heck should I be paying the authors of the items in my collection when the ads don't necessarily have anything to do with their work?

blah blah blah

The publishers are already trying to get laws passed that would require people to install spyware on their computers. http://www.dga.org/news/pr-images/2010/Joint-submission-re-IPEC.pdf

http://www.eff.org/deeplinks/2010/04/entertainment-industrys-dystopia-future

You are making this way too complex. When you buy a real book, you have one book. You can loan or give or sell this book to anybody, but you will be depriving yourself of its ownership. It's up to the author to write a book that people want to buy immediately, or keep after they read it initially.

With file sharing, one book is purchased, and millions have access. If this system was legally upheld, authors would make $20 for each book they write. They would need to spend no more than a couple hours on a book to make minimum wage. This is why eBook distributors can't just give you free reign on their easily duplicable product. If you want to buy a product, you have to (ethically) abide by its creator's rules. No one is forcing you to buy eBooks, just buy the real deal if you feel like your rights are being infringed.

I'm not making things too complicated. I'm taking into account the fact that the current construction of the law is so broad that it tries to cover technology that does not yet exist. If file-sharing is so injurious to the publishers then lending must also be injurious because of the sheer number of people doing it at any given time. The fact that we cannot see it within our field of vision does not change that it exists. File-sharing has only served to make what already happened for ages readily visible. The publisher was always being deprived of a sale whenever you borrowed your friends comics or DVDs. It did not just start happening now. Millions of people already had access without paying. The networks just made it obvious that this was the case.

If you want to make an exception based on scale, shouldn't we judge file-sharing on a scale relative to revenue/profits? What should we do when we find that the impact file-sharing has is not properly quantified and may be unquantifiable? Should we accept with no proof whatsoever that a problem exists with respect to file-sharing via digital means, that does not exist for analog methods whose impact cannot be quantified at all? Do we deny the evidence that the publishers are making products that are shattering sales records?

 

[reachforthesky]

whether they profit from it or not, the effect is the same, if not multiplied. The books are being distributed to thousands of people, without the artist getting paid for it.

edit: and while they aren't selling the books, they still undeservedly make money off of ads.

How are they undeservedly making money off of ads that have nothing to do with the items they list or share? I take it that someone who sells their old books is undeservedly making money off those items as well? If I have a private collection and I rent ad space for the place that houses my collection why the heck should I be paying the authors of the items in my collection when the ads don't necessarily have anything to do with their work?

blah blah blah

The publishers are already trying to get laws passed that would require people to install spyware on their computers. http://www.dga.org/news/pr-images/2010/Joint-submission-re-IPEC.pdf

http://www.eff.org/deeplinks/2010/04/entertainment-industrys-dystopia-future

You are making this way too complex. When you buy a real book, you have one book. You can loan or give or sell this book to anybody, but you will be depriving yourself of its ownership. It's up to the author to write a book that people want to buy immediately, or keep after they read it initially.

With file sharing, one book is purchased, and millions have access. If this system was legally upheld, authors would make $20 for each book they write. They would need to spend no more than a couple hours on a book to make minimum wage. This is why eBook distributors can't just give you free reign on their easily duplicable product. If you want to buy a product, you have to (ethically) abide by its creator's rules. No one is forcing you to buy eBooks, just buy the real deal if you feel like your rights are being infringed.

I'm not making things too complicated. I'm taking into account the fact that the current construction of the law is so broad that it tries to cover technology that does not yet exist. If file-sharing is so injurious to the publishers then lending must also be injurious because of the sheer number of people doing it at any given time. The fact that we cannot see it within our field of vision does not change that it exists. File-sharing has only served to make what already happened for ages readily visible. The publisher was always being deprived of a sale whenever you borrowed your friends comics or DVDs. It did not just start happening now. Millions of people already had access without paying. The networks just made it obvious that this was the case.

If you want to make an exception based on scale, shouldn't we judge file-sharing on a scale relative to revenue/profits? What should we do when we find that the impact file-sharing has is not properly quantified and may be unquantifiable? Should we accept with no proof whatsoever that a problem exists with respect to file-sharing via digital means, that does not exist for analog methods whose impact cannot be quantified at all? Do we deny the evidence that the publishers are making products that are shattering sales records?

When you buy an actual book, you own it. There's no further contract. Nobody can tell you what to do with a physical book because nobody made you agree to anything prior to the sale. You can burn it, sell it, give it away, whatever (within copyright law, no photocopying for you.) Before you purchase an eBook you have to agree to certain limitations by way of an EULA or something of the sort. You are not allowed to do some of the things you can do with normal books, and because you voluntarily agreed to these you are (ethically) obligated to follow the rules.

Unrelated, I would like to state that I do not in anyway support the offensive DRM habits of certain publishers. However, the ethical way to battle these measures is to boycott the product legally, these strong-arm tactics demonize the wrong people and force moral sticks like me to abandon our usual anti-DRM posts to defend publishers.

 

[Uncompetative]

Very interesting outcome. Especially if it crosses to ELSPA and PRS, given their charges for such infringements are monstrous.

Could lead to a migration of P2P websites to:

www.rofl.es

I made that up - it is currently not being used by anyone...

 

[Seldon2639]

Thank goodness I live in America, where I can still enforce my right to be the sole distributor of whatever product I make, even if that product is purely digital.

There's a line between "loaning" and "distributing", which is very easily understood as the line between "giving someone else my unit of a product" and "making a copy of the unit for them to have". The former is legal, the latter is infringement. Period.

American copyright law FTW

 

[hyperdrachen]

Yeah it's cute, and "down wit da man". Anyway, it's silly. When I loan somone an analogue media... I don't still have my media. So I must give something up to give them something. So no handing one person my one copy of a book, or as a library loaning 5 people my 5 copies of a book is not comparable to me making infinite copies of my game/song/movie for whoever to download. File sharing services are not used for friends to check out each others movies and games. They are used for piracy en masse. Making millions of unauthorized copies as they are illegally distributed.

What ought to be a crystal clear violation of somone elses work is only seen as debatable because we live in an age where it's so common it's thought acceptable. Seeing an actual Judicial ruling in it's favor should be logged in history because in the future when every piece of creative media you can find really is the commercial garbage that is Justin Bieber you can thank this day and your reactions to it.

You see no one has to worry if Justin Biebers music is enjoyable, or even really if it's purchased at all. Because the screaming morons it appeals to will buy t-shirts, posters, bed spreads, pins, earings, book-bags etc...So after you finish sticking it to "the man"(aka artists/developers) all you'll be left with is this corporate pre-packaged crap. You know the stuff the actual "man" makes?

This is not to be celebrated, this is a sad day. Fact is, I did my share of pirating, I've probably downloaded a couple hundred songs, and as I recall a couple games. While in truth I was a broke ass kid at the time and didn't really constitute a lost sale, that doesnt really justify it, and certainly doesn't cut it now that I have the bread to buy these things.

 

[blackhole1]

I wish judges in Holland were like that, but noooo, we have some mean, fun killing bastards trying to sue The Pirate Bay into oblivion.

Ten yay's for those poor old sods.

 

[Seldon2639]

I'm not making things too complicated. I'm taking into account the fact that the current construction of the law is so broad that it tries to cover technology that does not yet exist. If file-sharing is so injurious to the publishers then lending must also be injurious because of the sheer number of people doing it at any given time. The fact that we cannot see it within our field of vision does not change that it exists. File-sharing has only served to make what already happened for ages readily visible. The publisher was always being deprived of a sale whenever you borrowed your friends comics or DVDs. It did not just start happening now. Millions of people already had access without paying. The networks just made it obvious that this was the case.

You're missing the forest for the trees, though. Copyright encompasses only a few specific protections. The important ones here are the right of sole distribution (if I make a product, only I (or people I have licensed to) can sell, give away, or in any way distribute it), and the right of sole reproduction (only I, or my representatives, can legally make copies of the product).

It's not a matter of whether there's economic harm to the publisher, it's not even a matter of whether the infringement causes harm; it's a matter of whether the infringement exists in the first place. It's worth remembering that it's just as in violation of copyright to make a knock-off version of Harry Potter which sells 100 copies as it is to make a version which sells 100 million copies. You've still infringed on a copyright.

In the case of file "sharing", you're acting as both a reproducer (copying it) and a distributor (giving it away). In loaning, borrowing, resale, or any of the other legal means of "sharing" products, you're neither duplicating nor distributing, you're only transferring ownership of an individual unit of product.

Basically, when you buy a unit of a product, you own that individual unit wholecloth. You can sell it, burn it, eat it, rip it up, lend it, give it away, or defile it in any manner you'd like. But you only own that instantiation of it (even if it's digital). Once you make a copy of it (in whatever form) you've overstepped. It's not a difficult concept.

The law covers the technology fine, as long as laypeople understand that the actual liability from copyright infringement doesn't come from a strict liability in the "what did it cost the company?" sense, but exists as quasi-punitive damages. You're not paying for economic harm to the company (which would be strict liability), you're paying because copyright violation in and of itself is a harm.

If you want to make an exception based on scale, shouldn't we judge file-sharing on a scale relative to revenue/profits? What should we do when we find that the impact file-sharing has is not properly quantified and may be unquantifiable? Should we accept with no proof whatsoever that a problem exists with respect to file-sharing via digital means, that does not exist for analog methods whose impact cannot be quantified at all? Do we deny the evidence that the publishers are making products that are shattering sales records?

As stated, it doesn't matter. We don't need to exclude based on scale, nor on actual economic harm. The fact that the companies have tried using that tactic in the popular media ("look how much this costs us, it's bad") isn't representative that the actual legal argument is based in strict liability. Even if the infringement causes absolutely no economic harm to the company, the violation itself is actionable, and has damages.

Laypeople (and I say this meaning only minor disrespect), get really confused about this. They think that there's something in copyright law as it stands about whether there's economic harm from the infringement, and thus (since modern technology removes the economic harm, arguably) copyright law is inadequate to this new brand of infringement. I'll say for the record, and shout it from the rooftops if I must, there is nothing in copyright law which requires economic harm for infringement to have taken place, nor are any damages determined based exclusively on economic harm. Even just having access to a product is a violation of copyright law.

To quote from Copyright Law and Practice by William F. Patry "the core of commerciality [is]: not just the receipt of incomes from sales of the defendant's work, but also the financial benefit obtained by avoiding an otherwise due payment for the use of the copyrighted work". Even just having access to the product without paying for it is a copyright infringement.

And, please, don't fall back on "fair use", that's not what we're talking about here.

 

[Seldon2639]

How are they undeservedly making money off of ads that have nothing to do with the items they list or share? I take it that someone who sells their old books is undeservedly making money off those items as well? If I have a private collection and I rent ad space for the place that houses my collection why the heck should I be paying the authors of the items in my collection when the ads don't necessarily have anything to do with their work?

It's a false flag, and I do sometimes wish that people on my side of the "is piracy bad?" argument would stop using it. It's not a matter of whether there's any profit being made. The sheer act of infringement itself (both on the distributor/replicator's side, and the consumer's side) is a harm under copyright law. That said, there are actually cases that speak directly to this, and the answer (generally) is "not if you paid for the product".

The core of the issue is whether you're actually making profit based on the work of other people, or using the work of other people as a sort of stepping-stone to the creation of your own product. If the final product is a work mostly of your own creation, it falls into fair use. In the case of advertisements on sites which cater to the piracy of these products, there's an intriguing argument on either side.

Let's look at things that have the same effect shall we:
Lending anything has the same effect of the copyright holder not being paid while someone other than the person who purchased the item experiences the item and generates memories of the item, either whole or in part. There are close to seven billion people on the Earth right now, millions of people lend books and movies to each other through analog means every day.

Economically, maybe (the difference in scale is different, of course, but that's irrelevant). But it's still irrelevant. Once I own a given unit of product, I own it wholecloth. I can do with it what I like. What I have not purchased is the right of replication/reproduction. I have bought the right to do what I like with my copy, not the right to actually make more copies, much less give those copies away. Copyrights (which, incidentally, are actually a right enshrined in the constitution) provide three basic right: the right to distribution, reproduction, and derivation. It does not provide the right to own copies once you've reproduced and distributed them, just that no one else gets to reproduce or distribute them.

People have private libraries and invite people to view the items they have collected or trade with them. Again thousands if not millions of people do this every day.

When you reduce these things to their effects you run smack into the problem that we have been doing this since before we thought of copyright. Applying copyright law the way it is currently written to file-sharing of the digital variety requires one to find a way of differentiating between the digital and analog varieties. Therein lies the problem. If you read the way that "copy" is defined in the U.S. construction of copyright law an implicit copy is created even under accepted analog situations. There is a fundamental contradiction introduced almost immediately, not because the definition is in any way flawed, rather it is because the definition is absolutely perfect.

Nope. No dice. We don't need to distinguish, because the law doesn't require any economic harm to the infringement in order to seek damages. American copyright law is based on the premise (fundamentally) that the creative energy and effort which went into the product has intrinsic value. If anything, current copyright law is more suited to digital works, since the right of sole reproduction is spot-on relevant.

I'm not sure where you're getting your definition of "copy" or "implicit copy" from, but I'd be curious to see it.

The definition is such that it covers existing mechanisms for copying and reading information as well as any future device. The human brain is inherently capable of creating copies of information. It is the capacity of the human brain to store memories that gives us the generic term "memory" for artificial devices. The only major thing missing at this point and time is a way of transmitting and deleting memories from the brain in an accurate manner. Once those things are available the question with respect to copyright is whether or not an individual "owns" his or her memories.

Well, I will give you at least credit for being novel. Completely inaccurate to the law, but damned creative nonetheless. There's no law as far as I know (and I'm gonna bet I have as much knowledge of this issue as anyone on the Escapist forums) which deals in any way with the storage of mental information. The right to sole reproduction is infringed upon by making copies of it in the original medium of the product itself. Technically, since mental information is different from even digital information, you could only be sued for infringement of the right to derivative works. But, that wouldn't pass the laugh test. There's an obvious distinction between me legally experiencing a product, and thus forming a memory of it (even a photographic one), and an illegal distribution or reproduction of an existing work.

Your analogy is inapt, and no argument against current copyright law.

If the answer is yes then a copyright holder cannot be granted the right to delete a person's memories, nor can they be granted the right to control with whom people share their memories with. If the answer is no, then the only option is to institute some type of thought control.

The answer is yes.

At this time we are dealing with artificial objects that are not directly integrated with our bodies but the problem is the same. The media that these copies find themselves on is often times not owned in anyway by the copyright holder, and is instead owned by an entirely unrelated individual. How can one own the storage medium while simultaneously not owning the data that exists on it after you have paid the fee to receive the data, and are not under any obligation to pay a recurring fee?

Scroll up a bit. Even if you have bought the rights to one unit of the product, you have not purchased the rights to distribute or reproduce the product. If I've bought a copy of Harry Potter, I have sole domain over the copy I own. I do not own the right to make copies of it (except, I suppose, in my brain, but that's off-topic), nor to give those copies to anyone else. Even excluding that, no one who downloads it has the right to use the product without paying the traditional fee. See the quotation from my previous post.

The methods of enforcing copyright law are now running head first into property law and the very concept of ownership. If the copyright holder can arbitrarily delete contents from people's hard drives in order to defend their copyright then consumers can't be said to own anything up to and including the memories that exist in their brains. There would be no logical(Note that I did not say legal. There is a difference.) reason why a publisher couldn't have a repoman come and take your stuff since it isn't "owned" by you. They can dictate to retailers what they will charge for a given item, and where, when, and how people can access the item. They can tell you and I that we are not allowed to have our friend jack in the room while we are playing Call of Duty, or reading the latest hit author.

Nope, nope, nope, nope, nope, nope.

That covers each sentence. I'll go in order.

Copyright holders can enforce their right to sole distribution and sole reproduction. They can, as a result demand that people not have copies which went unpaid for, nor make copies which they do not have the right to make. That's not arbitrary. Memories are not at issue.

If I have bought a product free and clear, I own all interest in said product. I cannot violate the copyright, but if I've paid for it, I have sole dominion over it. No repomen are at stake.

Not really. If a retailer has bought a copy, the retailer can resell it for whatever price they'd like. The retailer owns wholecloth the individual unit, but still cannot reproduce it (since they bought the product from the original producer, they also are able to distribute it at the secondary market), no dice.

Nope. Sorry, but your paranoia is without basis. If you own the copy, you can use the copy however you'd like. What copyright law says is that I can't make a copy of the latest hit author's book (which would violate the right to reproduction), nor give away copies I've made (which would violate the right to distribution), nor create a movie based on the book without buying the rights (which would violate the right to derivation). You're not understanding the law.

The publishers are already trying to get laws passed that would require people to install spyware on their computers. http://www.dga.org/news/pr-images/2010/Joint-submission-re-IPEC.pdf

http://www.eff.org/deeplinks/2010/04/entertainment-industrys-dystopia-future

They're an interest group, trying to do what is best for their members. Same thing any other interest group does. The government is unlikely (at worst) to go along with it. But, that doesn't argue against the validity or use of current copyright law.

Citations available on request, I just don't have the books right in front of me.

 

[Wicky_42]

I'm the consumer, I have final say, if I don't want it I won't buy it.

"I am the consumer, so if I don't like it I will steal it instead of buying it."

That makes perfect sense! Why don't we all do that?!

We should, so when devs go bankrupt the pirates can blame devs when no more games are made 'cos they have no money.

In fact why don't we all steal pirate books, films, music and games why not right? Were helping the devs after all, without us they wouldn't have any customers. Makes sense to me! There is not one flaw in this plan, muhahaha!

I know next to nothing about technology but I think devs should fight back and flood pirating sites with viruses and use technology they use to catch peados, to catch pirates and charge them double the price of the thing(s) they pirated.

Just a point, but I've read almost all the Terry Pratchet books without paying for them. I used a library, and as a result he lost all those theoretical sales. And yet, enough people felt they wanted to own their own copy that they went out and bought them, despite the fact that they could read them for free.

Access to material without owning it doesn't always spell doom and gloom - in fact, I enjoyed Pratchet so much that I've been buying his newer books, much as I would with Assassin's Creed 3, if it were released without that draconian DRM.

 

[Therumancer]

Hm. Tough call. I can see their point, and in this case I have to agree with their judgement. The guys weren't doing anything that wrong themselves (legally, anyways).

However, how often do you lend out your books or DVDs? Handful of times, I assume. With file sharing, you're talking thousands of times so the impact could be greater. It's not as black and white as they said, and books are different to DVDs. I don't think I've seen a book that has told me I'm not allowed to lend it out, but I'm pretty sure that a DVD has (or was that hiring? Hm).

Actually, there have been a LOT of issues with authors getting all upset about people lending or copying books. Especially when it comes to universities and such. I once worked for the book store at the college I wound up attending (I worked there in high school) and there was a BIG issue about publishers trying to kill the sale of used textbooks. Likewise various authors like Harlan Ellison have gotten very upset over having their work copied by schools to be distributed to students in order to teach classes and such.

To an extent I think Spain's ruling sort of shows their relatively socialist leanings. It's not that I disagree with the ruling in of itself, however I find their logic dubious because while it's not as popular in the media, what they are referancing is also a questioned practice in other parts of the world.

I'm not a big fan of piracy in general, however I do tend to agree that you can't hold people running things like torrent sites which are simply a public access service, responsible for what people do there. It's sort of like someone who owns a piece of land and opens it up to the public as a park, and includes a podium for people to speak off of (sort of like the steps of the Lincoln memorial or whatever), some dude shows up and decides to advocate murders which are carried out, or incites a riot, or whatever, at some point. I don't think it would be fair to hold the property owner responsible for what happened.

Generally speaking someone who opens up their property like that (an example would be say what Harkness used to be down here in Connecticut) is doing a public service to be nice. Railing on them is kind of pointless, and just discourages people from being generally philanthropic.

The same logic would apply to holding a town responsible for what someone might say or do on a town green, or in a public park.

Without weighing in too heavily on one side or the other, these are generally my thoughts. I won't even say the judges are wrong about what laws should apply to books and such, but they are wrong to act like this is a matter of "common sense" or a referance to an undisputed fact of life or whatever.

 

[shadow skill]

How are they undeservedly making money off of ads that have nothing to do with the items they list or share? I take it that someone who sells their old books is undeservedly making money off those items as well? If I have a private collection and I rent ad space for the place that houses my collection why the heck should I be paying the authors of the items in my collection when the ads don't necessarily have anything to do with their work?

It's a false flag, and I do sometimes wish that people on my side of the "is piracy bad?" argument would stop using it. It's not a matter of whether there's any profit being made. The sheer act of infringement itself (both on the distributor/replicator's side, and the consumer's side) is a harm under copyright law. That said, there are actually cases that speak directly to this, and the answer (generally) is "not if you paid for the product".

The core of the issue is whether you're actually making profit based on the work of other people, or using the work of other people as a sort of stepping-stone to the creation of your own product. If the final product is a work mostly of your own creation, it falls into fair use. In the case of advertisements on sites which cater to the piracy of these products, there's an intriguing argument on either side.

Let's look at things that have the same effect shall we:
Lending anything has the same effect of the copyright holder not being paid while someone other than the person who purchased the item experiences the item and generates memories of the item, either whole or in part. There are close to seven billion people on the Earth right now, millions of people lend books and movies to each other through analog means every day.

Economically, maybe (the difference in scale is different, of course, but that's irrelevant). But it's still irrelevant. Once I own a given unit of product, I own it wholecloth. I can do with it what I like. What I have not purchased is the right of replication/reproduction. I have bought the right to do what I like with my copy, not the right to actually make more copies, much less give those copies away. Copyrights (which, incidentally, are actually a right enshrined in the constitution) provide three basic right: the right to distribution, reproduction, and derivation. It does not provide the right to own copies once you've reproduced and distributed them, just that no one else gets to reproduce or distribute them.

People have private libraries and invite people to view the items they have collected or trade with them. Again thousands if not millions of people do this every day.

When you reduce these things to their effects you run smack into the problem that we have been doing this since before we thought of copyright. Applying copyright law the way it is currently written to file-sharing of the digital variety requires one to find a way of differentiating between the digital and analog varieties. Therein lies the problem. If you read the way that "copy" is defined in the U.S. construction of copyright law an implicit copy is created even under accepted analog situations. There is a fundamental contradiction introduced almost immediately, not because the definition is in any way flawed, rather it is because the definition is absolutely perfect.

Nope. No dice. We don't need to distinguish, because the law doesn't require any economic harm to the infringement in order to seek damages. American copyright law is based on the premise (fundamentally) that the creative energy and effort which went into the product has intrinsic value. If anything, current copyright law is more suited to digital works, since the right of sole reproduction is spot-on relevant.

I'm not sure where you're getting your definition of "copy" or "implicit copy" from, but I'd be curious to see it.

The definition is such that it covers existing mechanisms for copying and reading information as well as any future device. The human brain is inherently capable of creating copies of information. It is the capacity of the human brain to store memories that gives us the generic term "memory" for artificial devices. The only major thing missing at this point and time is a way of transmitting and deleting memories from the brain in an accurate manner. Once those things are available the question with respect to copyright is whether or not an individual "owns" his or her memories.

Well, I will give you at least credit for being novel. Completely inaccurate to the law, but damned creative nonetheless. There's no law as far as I know (and I'm gonna bet I have as much knowledge of this issue as anyone on the Escapist forums) which deals in any way with the storage of mental information. The right to sole reproduction is infringed upon by making copies of it in the original medium of the product itself. Technically, since mental information is different from even digital information, you could only be sued for infringement of the right to derivative works. But, that wouldn't pass the laugh test. There's an obvious distinction between me legally experiencing a product, and thus forming a memory of it (even a photographic one), and an illegal distribution or reproduction of an existing work.

Your analogy is inapt, and no argument against current copyright law.

If the answer is yes then a copyright holder cannot be granted the right to delete a person's memories, nor can they be granted the right to control with whom people share their memories with. If the answer is no, then the only option is to institute some type of thought control.

The answer is yes.

At this time we are dealing with artificial objects that are not directly integrated with our bodies but the problem is the same. The media that these copies find themselves on is often times not owned in anyway by the copyright holder, and is instead owned by an entirely unrelated individual. How can one own the storage medium while simultaneously not owning the data that exists on it after you have paid the fee to receive the data, and are not under any obligation to pay a recurring fee?

Scroll up a bit. Even if you have bought the rights to one unit of the product, you have not purchased the rights to distribute or reproduce the product. If I've bought a copy of Harry Potter, I have sole domain over the copy I own. I do not own the right to make copies of it (except, I suppose, in my brain, but that's off-topic), nor to give those copies to anyone else. Even excluding that, no one who downloads it has the right to use the product without paying the traditional fee. See the quotation from my previous post.

The methods of enforcing copyright law are now running head first into property law and the very concept of ownership. If the copyright holder can arbitrarily delete contents from people's hard drives in order to defend their copyright then consumers can't be said to own anything up to and including the memories that exist in their brains. There would be no logical(Note that I did not say legal. There is a difference.) reason why a publisher couldn't have a repoman come and take your stuff since it isn't "owned" by you. They can dictate to retailers what they will charge for a given item, and where, when, and how people can access the item. They can tell you and I that we are not allowed to have our friend jack in the room while we are playing Call of Duty, or reading the latest hit author.

Nope, nope, nope, nope, nope, nope.

That covers each sentence. I'll go in order.

Copyright holders can enforce their right to sole distribution and sole reproduction. They can, as a result demand that people not have copies which went unpaid for, nor make copies which they do not have the right to make. That's not arbitrary. Memories are not at issue.

If I have bought a product free and clear, I own all interest in said product. I cannot violate the copyright, but if I've paid for it, I have sole dominion over it. No repomen are at stake.

Not really. If a retailer has bought a copy, the retailer can resell it for whatever price they'd like. The retailer owns wholecloth the individual unit, but still cannot reproduce it (since they bought the product from the original producer, they also are able to distribute it at the secondary market), no dice.

Nope. Sorry, but your paranoia is without basis. If you own the copy, you can use the copy however you'd like. What copyright law says is that I can't make a copy of the latest hit author's book (which would violate the right to reproduction), nor give away copies I've made (which would violate the right to distribution), nor create a movie based on the book without buying the rights (which would violate the right to derivation). You're not understanding the law.

The publishers are already trying to get laws passed that would require people to install spyware on their computers. http://www.dga.org/news/pr-images/2010/Joint-submission-re-IPEC.pdf

http://www.eff.org/deeplinks/2010/04/entertainment-industrys-dystopia-future

They're an interest group, trying to do what is best for their members. Same thing any other interest group does. The government is unlikely (at worst) to go along with it. But, that doesn't argue against the validity or use of current copyright law.

Citations available on request, I just don't have the books right in front of me.

If my analogy is so inept why does the copyright act define "copies" in the following way:

?Copies? are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ?copies? includes the material object, other than a phonorecord, in which the work is first fixed.

As defined in section 101 of the copyright act the process of creating memories is the creation of a copy. It can be no other thing without the express exception for that process. If that exception is granted then the exclusive right to create and distribute copies would have to be declared entirely non-enforceable because you own the medium on which the copy exists. The fact that human memories were never a consideration and probably an example of an outside context problem is unimportant the fact remains that the definition as it is written must cover this particular biological process. That being the case if I were to beam my memories to you using any means I will have shared a copy of my memories with you. Let me repeat this: The fact that this might be an example of an outside context problem is not important.

It is a fact of life that the customer typically owns the storage medium that digital information is "fixed in" to borrow a phrase from the copyright act. Why then is it considered legal to pull stunts like the one Amazon pulled where they removed books because they let an unauthorized seller sell books to customers who did not in any way breach their contract with Amazon? What stops them from doing it again to someone's Ipad or whatever other device the format runs on? What stops another company from doing it? I don't know how it is paranoid to point out a documented case of people having content they paid for removed even though they had not done anything that could be considered infringement.

We agree that if you bought it, you have sole dominion over it. However the publishers have been trying to convince people that they are actually renting various items indefinitely and for a one time fee for years now. So please go explain that to the publishers who are trying to have it both ways.

Link to copyright act:http://www.copyright.gov/title17/92chap1.html#101

 

[Seldon2639]

If my analogy is so inept why does the copyright act define "copies" in the following way:

?Copies? are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ?copies? includes the material object, other than a phonorecord, in which the work is first fixed.

Uh... Because the very original copyright act didn't envision non-physical copies, which is why the act has been amended by the addition of sections dealing with "computer programs". The same rights apply. "Copies" in the sense that the statute uses it is a word with a specific meaning within the statute, and only that meaning. You cannot include the commonplace meaning of a word in with the strictly defined meaning in the statute, and call the two the same. If a statute defines the word "red" as "a color which comes at the higher end of frequencies of the visible spectrum, and is between green and purple in wavelength", then within the context of that statute, "red" as it is defined and used corresponds to what is known in common parlance as "blue".

You have to do a closed reading of the statute. So, "copy" in the sense of the statute can only mean something with a physical presence. Digital "copies" are handled as "computer programs".

A mental "copy" by definition cannot exist within the realm of the copyright statute as cited, as it would be inherently non-physical. Sorry. Byzantine and confusing, yes, but it gives us lawyers a job to do. Also, I used the word "inapt" not "inept", very different meanings.

Though, really, since even digital information As defined in section 101 of the copyright act the process of creating memories is the creation of a copy. It can be no other thing without the express exception for that process. If that exception is granted then the exclusive right to create and distribute copies would have to be declared entirely non-enforceable because you own the medium on which the copy exists. The fact that human memories were never a consideration and probably an example of an outside context problem is unimportant the fact remains that the definition as it is written must cover this particular biological process. That being the case if I were to beam my memories to you using any means I will have shared a copy of my memories with you. Let me repeat this: The fact that this might be an example of an outside context problem is not important.

Only if we extend the word "physical" to things which are inherently non-physical. A memory, by the very definition you cited, cannot be considered a copy. Given that the only non-physical things which are defined as being under the aegis of copyright law are "computer programs" (which would include MP3s, incidentally), human memories are excluded by being not included. They are neither physical (which precludes them form being "copies"), nor computer (which precludes them from being computer programs). Unless you want to argue that the human brain is simply a complex computer, which is a bit too existential for me.

So, as I said, it's a novel argument for the inapplicability of copyright law and the exclusive right of reproduction, but doesn't fit the law.

It is a fact of life that the customer typically owns the storage medium that digital information is "fixed in" to borrow a phrase from the copyright act. Why then is it considered legal to pull stunts like the one Amazon pulled where they removed books because they let an unauthorized seller sell books to customers who did not in any way breach their contract with Amazon? What stops them from doing it again to someone's Ipad or whatever other device the format runs on? What stops another company from doing it? I don't know how it is paranoid to point out a documented case of people having content they paid for removed even though they had not done anything that could be considered infringement.

I'd need to see what the actual case there was. If Amazon was the one who screwed up, they would have owed restitution to the consumers who they took the books back from (probably a class-action suit for unjust enrichment would work nicely). But, it'd just be the cost of a refund.

I've not heard of this case, so if you could cite a link, I'd be happy to take a look.

We agree that if you bought it, you have sole dominion over it. However the publishers have been trying to convince people that they are actually renting various items indefinitely and for a one time fee for years now. So please go explain that to the publishers who are trying to have it both ways.

I don't think the publishers are exactly right here either. A lot of what they're doing is counter to their best interests, but it's the pirates who are most to blame, and their supporters come in a close second. I've not seen many companies (excluding arguments about whether there's a lifetime promise to continue support for various functions of a game system, or to continue to provide online gameplay, ect.) who argue anything other than "you have complete control over the copy you bought, but you still can't infringe on our copyright.

Link to copyright act:http://www.copyright.gov/title17/92chap1.html#101

 

[shadow skill]

If my analogy is so inept why does the copyright act define "copies" in the following way:

?Copies? are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ?copies? includes the material object, other than a phonorecord, in which the work is first fixed.

Uh... Because the very original copyright act didn't envision non-physical copies, which is why the act has been amended by the addition of sections dealing with "computer programs". The same rights apply. "Copies" in the sense that the statute uses it is a word with a specific meaning within the statute, and only that meaning. You cannot include the commonplace meaning of a word in with the strictly defined meaning in the statute, and call the two the same. If a statute defines the word "red" as "a color which comes at the higher end of frequencies of the visible spectrum, and is between green and purple in wavelength", then within the context of that statute, "red" as it is defined and used corresponds to what is known in common parlance as "blue".

You have to do a closed reading of the statute. So, "copy" in the sense of the statute can only mean something with a physical presence. Digital "copies" are handled as "computer programs".

A mental "copy" by definition cannot exist within the realm of the copyright statute as cited, as it would be inherently non-physical. Sorry. Byzantine and confusing, yes, but it gives us lawyers a job to do. Also, I used the word "inapt" not "inept", very different meanings.

Though, really, since even digital information As defined in section 101 of the copyright act the process of creating memories is the creation of a copy. It can be no other thing without the express exception for that process. If that exception is granted then the exclusive right to create and distribute copies would have to be declared entirely non-enforceable because you own the medium on which the copy exists. The fact that human memories were never a consideration and probably an example of an outside context problem is unimportant the fact remains that the definition as it is written must cover this particular biological process. That being the case if I were to beam my memories to you using any means I will have shared a copy of my memories with you. Let me repeat this: The fact that this might be an example of an outside context problem is not important.

Only if we extend the word "physical" to things which are inherently non-physical. A memory, by the very definition you cited, cannot be considered a copy. Given that the only non-physical things which are defined as being under the aegis of copyright law are "computer programs" (which would include MP3s, incidentally), human memories are excluded by being not included. They are neither physical (which precludes them form being "copies"), nor computer (which precludes them from being computer programs). Unless you want to argue that the human brain is simply a complex computer, which is a bit too existential for me.

So, as I said, it's a novel argument for the inapplicability of copyright law and the exclusive right of reproduction, but doesn't fit the law.

It is a fact of life that the customer typically owns the storage medium that digital information is "fixed in" to borrow a phrase from the copyright act. Why then is it considered legal to pull stunts like the one Amazon pulled where they removed books because they let an unauthorized seller sell books to customers who did not in any way breach their contract with Amazon? What stops them from doing it again to someone's Ipad or whatever other device the format runs on? What stops another company from doing it? I don't know how it is paranoid to point out a documented case of people having content they paid for removed even though they had not done anything that could be considered infringement.

I'd need to see what the actual case there was. If Amazon was the one who screwed up, they would have owed restitution to the consumers who they took the books back from (probably a class-action suit for unjust enrichment would work nicely). But, it'd just be the cost of a refund.

I've not heard of this case, so if you could cite a link, I'd be happy to take a look.

We agree that if you bought it, you have sole dominion over it. However the publishers have been trying to convince people that they are actually renting various items indefinitely and for a one time fee for years now. So please go explain that to the publishers who are trying to have it both ways.

I don't think the publishers are exactly right here either. A lot of what they're doing is counter to their best interests, but it's the pirates who are most to blame, and their supporters come in a close second. I've not seen many companies (excluding arguments about whether there's a lifetime promise to continue support for various functions of a game system, or to continue to provide online gameplay, ect.) who argue anything other than "you have complete control over the copy you bought, but you still can't infringe on our copyright.

Link to copyright act:http://www.copyright.gov/title17/92chap1.html#101

See here in reference to the Kindle incident: http://db.tidbits.com/article/10417
and http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=1

Refund or no, I don't expect to have someone come into my Kindle or whatever and take back something they already sold to me just because they were stupid. It would be like Toyota coming in the dead of night and stealing my car with all my stuff in it and leaving a stack of cash on the doorstep. Sure it is nice to leave the stack of cash there but that isn't the point. I still need a car to get to work etc. Stealing my car to fix it still fucks me in the ass....

Ironically Amazon may have violated their own EULA at the time.

As far as the non-physical nature of memories or any other data fixed to a medium you are incorrectly narrowing the definition of physical. When we transmit data over a broadband connection or a dial-up connection we are transmitting either electrons or light. (Fibre-optics.) These things are then written to the storage medium using pits in the case of magnetic drives to represent zero or one. The zero or one represent the absence of or presence of electrons during read operations. Clearly a physical phenomena. The only major difference between a digital representation of text for instance and a non digital representation is that one is transmitted using electrons or light and stored in binary and the other is stored in readily human readable format. One isn't more or less physical than the other. There is no extending of the definition here, rather common parlance incorrectly narrows the definition.


Really the only thing that could be said to be truly non-physical is meaning. Your first person experience would not fall under anything that could be theoretically governed by copyright under the definitions they used (Which are not bad or incorrect in any way.) how you felt about a movie or book would be separate from the visual or textual information that makes up the item.


I misread you with respect to "inapt" my apologies.

 

[Seldon2639]

See here in reference to the Kindle incident: http://db.tidbits.com/article/10417
and http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=1

Refund or no, I don't expect to have someone come into my Kindle or whatever and take back something they already sold to me just because they were stupid. It would be like Toyota coming in the dead of night and stealing my car with all my stuff in it and leaving a stack of cash on the doorstep. Sure it is nice to leave the stack of cash there but that isn't the point. I still need a car to get to work etc. Stealing my car to fix it still fucks me in the ass....

And you could definitely sue for breach of contract, but you could only get restitution insofar as you prove economic harm. If the only harm is "I didn't have my book", then you get a refund. If you can show you actually have broader harm, you can get more money for it. That's how contract claims function. But, then you get into mitigation of damages, and it becomes a bit of a clusterfuck. So, while I accept Amazon messed up, that's on them, not on the publishers.

As far as the non-physical nature of memories or any other data fixed to a medium you are incorrectly narrowing the definition of physical. When we transmit data over a broadband connection or a dial-up connection we are transmitting either electrons or light. (Fibre-optics.) These things are then written to the storage medium using pits in the case of magnetic drives to represent zero or one. The zero or one represent the absence of or presence of electrons during read operations. Clearly a physical phenomena. The only major difference between a digital representation of text for instance and a non digital representation is that one is transmitted using electrons or light and stored in binary and the other is stored in readily human readable format. One isn't more or less physical than the other. There is no extending of the definition here, rather common parlance incorrectly narrows the definition.

So, yes, you're basically arguing the physical nature of both human memory and digital information. But, if digital information falls under the heading of being physical, then duplicates made of digital information (including computer programs) would be considered copies vis-a-vis the definition you provided above. If that's true, then it definitely falls under copyright law.

The human memory thing, though, would fall into derivative work, and probably (at the very least) fair use. We're not actually manufacturing a product from our memories, nor one substantially duplicative of the original. It'd be fair use up and down, especially given that we would have (a) paid for it, and would not be (b) using it commercially.

So, I will give you points for cleverness, but you're grasping at straws there.

Really the only thing that could be said to be truly non-physical is meaning. Your first person experience would not fall under anything that could be theoretically governed by copyright under the definitions they used (Which are not bad or incorrect in any way.) how you felt about a movie or book would be separate from the visual or textual information that makes up the item.

I misread you with respect to "inapt" my apologies.

That's the point. My recollection/feelings (even if under the auspices of copyright law) would be considered fair use. But, by that admission, you must accept that copyright law (a) applies to digital information wholly and completely, and (b) does not apply to mental information (or, at least, such infringement would count under fair use, and thus be defended from damages)

 

[shadow skill]

See here in reference to the Kindle incident: http://db.tidbits.com/article/10417
and http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=1

Refund or no, I don't expect to have someone come into my Kindle or whatever and take back something they already sold to me just because they were stupid. It would be like Toyota coming in the dead of night and stealing my car with all my stuff in it and leaving a stack of cash on the doorstep. Sure it is nice to leave the stack of cash there but that isn't the point. I still need a car to get to work etc. Stealing my car to fix it still fucks me in the ass....

And you could definitely sue for breach of contract, but you could only get restitution insofar as you prove economic harm. If the only harm is "I didn't have my book", then you get a refund. If you can show you actually have broader harm, you can get more money for it. That's how contract claims function. But, then you get into mitigation of damages, and it becomes a bit of a clusterfuck. So, while I accept Amazon messed up, that's on them, not on the publishers.

As far as the non-physical nature of memories or any other data fixed to a medium you are incorrectly narrowing the definition of physical. When we transmit data over a broadband connection or a dial-up connection we are transmitting either electrons or light. (Fibre-optics.) These things are then written to the storage medium using pits in the case of magnetic drives to represent zero or one. The zero or one represent the absence of or presence of electrons during read operations. Clearly a physical phenomena. The only major difference between a digital representation of text for instance and a non digital representation is that one is transmitted using electrons or light and stored in binary and the other is stored in readily human readable format. One isn't more or less physical than the other. There is no extending of the definition here, rather common parlance incorrectly narrows the definition.

So, yes, you're basically arguing the physical nature of both human memory and digital information. But, if digital information falls under the heading of being physical, then duplicates made of digital information (including computer programs) would be considered copies vis-a-vis the definition you provided above. If that's true, then it definitely falls under copyright law.

The human memory thing, though, would fall into derivative work, and probably (at the very least) fair use. We're not actually manufacturing a product from our memories, nor one substantially duplicative of the original. It'd be fair use up and down, especially given that we would have (a) paid for it, and would not be (b) using it commercially.

So, I will give you points for cleverness, but you're grasping at straws there.

Really the only thing that could be said to be truly non-physical is meaning. Your first person experience would not fall under anything that could be theoretically governed by copyright under the definitions they used (Which are not bad or incorrect in any way.) how you felt about a movie or book would be separate from the visual or textual information that makes up the item.

I misread you with respect to "inapt" my apologies.

That's the point. My recollection/feelings (even if under the auspices of copyright law) would be considered fair use. But, by that admission, you must accept that copyright law (a) applies to digital information wholly and completely, and (b) does not apply to mental information (or, at least, such infringement would count under fair use, and thus be defended from damages)

A memory of an event or given information does not have to include what one feels about a given thing. When I state that the dog ran to me and licked my ear, nowhere in that statement do I impart what I felt about the dog licking my ear only what happened. If I recite the lyrics to a song I am conveying the lyrics not what I felt about them. So no your memories of specific events or information would not be included in your memory about how you felt about the events or information as those are two separate things. Your memories of an event couldn't be considered a derivative work logically because recalling information does not involve any transformation of that information or generation of new information based on the original. Now if you want to equate the memories of an event to something like a sound recording then that's fine, you still have to figure out how you are going to enforce the copyright though, it is still fucked.

You say I'm grasping at straws but I have yet to see why a copyright holder has the right to exercise control of a storage medium he or she doesn't own when the transaction is a sale in particular. You can't say that they can do it here but not there when the two things are fundamentally the same the difference being the medium. If you make such an exception it is just a giant loophole waiting for someone to drive a truck through. If you don't make the exception then no individual can be said to own their experiences save their feelings about an experience. But if they can't actually recall the experience itself it can be kind of hard to connect one's feelings to it.

Heck we have the Author's guild bitching to Amazon about the Kindle 2 having a text to speech feature. Amazon caved and let publishers turn off that functionality... The Author's guild's position was that the speech synthesizer infringed on their right to make audio-books. Or that somehow they were magically entitled to more money because the speech synthesizer adds more value to the item.... http://online.wsj.com/article/SB123419309890963869.html
http://www.nytimes.com/2009/02/25/opinion/25blount.html

 

[The Random One]

This is great, especially considering that Spain is part of the EU and thus is no small shit. This stuff really matters.

Although, the best pic of Spain you could find was its flag? Reely?

 

[Blimey]

Well I've always wanted to see the world. Looks like Spain's gonna be my next stop.

 

[Sebenko]

Woah, that's a lot of discussion.

I think I'll just say; that's an interesting take on piracy. Never heard it compared to lending books before.

 

[Elle-Jai]

Actually, this makes sense. What a shock!!

I download, but if there's anything particularly well made, or well done then I want to support it and I'll buy it. It's more of a trial in many ways, rather than actual theft.

Laws need to catch up and we need a solution that works for everyone, not just copyright owner, and not just end user :S

To the three Spanish judges making a stand, I salute you! Step 1 in finding our feet for this phase of tech...