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Old 08-13-2011, 05:27 PM   #39
Andrew H.
Grand Master of Flowers
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Originally Posted by charleski View Post
You're wholly mistaken here. As usual, any discussion about copyright ends up mired down in wishful thinking. There's no point arguing on the basis on what you wish might be true, that doesn't help anyone.

Copyright law says you can't make a copy of a copyrighted work. You can't get clearer than that. The exceptions to this prohibition are few and limited, and none of them apply here.
Fair use is the relevant exception to the copyright act. Fair use is the basis for the time-shifting/format shifting opinion in Sony. Fair use is the basis of the right to make an mp3 of a CD you own. This exception comes from the Supreme Court's interpretation of fair use; it isn't specifically written into the statute.
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The MP3.com case is directly applicable. Here is the core of the judgement, and it has nothing to do with the incidental properties of the offence: "in actuality defendant is re-playing for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs' copyrighted CDs. On its face, this makes out a presumptive case of infringement"
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As I mentioned before, the MP3.com case is not binding on anyone (except the parties to that litigation, of course.) It has no precedential value. And it has been criticized by courts whose rulings do have precedential value.

From the 7th Circuit's opinion in Aimster:
Quote:
Someone might own a popular-music CD that he was particularly fond of, but he had not downloaded it into his computer and now he finds himself out of town but with his laptop and he wants to listen to the CD, so he uses Aimster's service to download a copy. This might be a fair use rather than a copyright infringement, by analogy to the time shifting approved as fair use in the Sony case.
And criticizing the ruling in Aimster:
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The analogy was rejected in UMG Recordings v. MP3.com, Inc., 92 F.Supp.2d 349 (S.D.N.Y.2000), on the ground that the copy on the defendant's server was an unauthorized derivative work; a solider ground, in light of Sony' s rejection of the parallel argument with respect to time shifting, would have been that the defendant's method for requiring that its customers "prove" that they owned the CDs containing the music they wanted to download was too lax.
In other words, the 7th Circuit believes that the opinion (but not the result) in MP3.com was wrong because it violates the Supreme Court's opinion on time shifting in Sony. The outcome in MP3.com may have been correct, but only because Aimster did not take sufficient steps to require customers prove that they owned the CDs that they were copying.

I don't know whether a court would reach the same conclusion in this case (where proof of ownership is much more clear). But the issue is clearly not controlled by MP3.com.

Quote:

Making copies of a copyrighted work is an infringement. It simply does not matter where the company gets the source material that it's copying (though if that source is illegal that would certainly be an aggravation). And it does not matter whether they distribute that copy through the internet, by sending you a disc with the file on it, or by photographing it on microfilm and flying it to you by carrier pigeon.

They are making copies
1) on a commercial basis
2) of the entirety of the work
3) which may directly compete with legal electronic copies which the rights-holder may wish to place on the market.
So it fails on three of the four Fair Use factors right out of the gate and the lack of any transformation of the work (such as parody) rules out any variation of that.
If this analysis were true, using a commercial program to rip a CD for personal use would also not be fair use because it would compete with iTunes and other services. But we know from Sony and Rio that this is permissible. And of course the language in Aimster suggests that a company might be able to go further than simply providing a personal digitizing service.

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There are areas where a third party can legally format-shift a copy for you, and they're written into the statute. If these people were advertising services to convert books so they could be read by the blind (and complied with the other provisions), then they'd be OK. But there's no mention of that on their site. This is just someone out to make a quick buck who has got away with it in Japan.
This provision spells out when you can circumvent DRM. It has no applicability to format shifting where there is no DRM.

Again, I'm not sure that the book digitizing service won't be found to be infringing. But based on the current state of the law, and in particular the statements in Aimster, above, we simply cannot say with any degree of certainty that this service does not constitute fair use.
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