Is this a pirate site?

[Nakor]

Aye, I don't blame the judge. I still think the law's backward though.

My wording was wrong in the first paragraph admittedly -- my second paragraph was the more accurate (if only by being more vague), in that you can't make the backup without participating in illegal activity to be able to do so (in that the person you are buying from is breaking the law by selling to you, and thus you are participating in that activity).

[Harmon]

Originally Posted by Shaggy

Backups are legal, but there is no "right" to make a backup. That's not a contradiction.

You are conceding too much, Shag ole boy. Backups are legal, you do have a "right" to make them.

The question is, do you also have the right to strip DRM in order to make the backup.

All the court said was that, assuming that the consumer had the right to strip the DRM in order to make a backup, the seller of the tools could not defend himself by pointing to that right. And weirdly, that is what the DCMA says.

But the court also said that the consumer has the right to strip DRM, even with "illegally sold tools," if stripping the DRM lets him accomplish a fair use.

Edit: The question she did not answer was whether making a backup constitutes "fair use." This was proper - she was obeying the rule that a court does not answer a question that it doesn't have to answer in order to decide the case.

But if she had faced that question, I'm confident she would have decided that making a backup is "fair use," or that making a backup copy is not making a copy within the meaning of that word as used in the copyright law, or (most likely, in my view) that the right to make a backup is automatically conveyed to the buyer in any sale of an electronic file - that is, that you can't transfer the right to have an electronic file without also transferring the right to make a backup copy.

[Shaggy]

Originally Posted by HansTWN

If you click on a link you are not downloading anything are you?

Yes, you are, actually. Clicking on a link IS downloading content, that's how the web works.

The problem lies with downloading copyrighted files for free from a site that clearly isn't authorized to do so

That's the problem. "clearly isn't authorized" isn't nearly as cut and dried as you might imagine. Just about everything you receive from the internet (including clicking on links or downloading, they're the same thing really) is copyrighted. Any of them are potentially unauthorized. In the vast majority of cases, you probably don't even know. Also, in the vast majority if cases, you probably have no way of knowing.

Because of the nature of the internet and the web, there are many times that you don't even know where the content is really coming from.

[Harmon]

Originally Posted by HarryT

No, it clearly doesn't mean "you're never allowed to make a backup". It means "you can make a backup, unless you'd be breaking some other law (such as the DMCA) by doing so."

No. The "unless" you are using is NOT in the opinion.

At part 116:

As noted above, the DMCA’s “user exemption” is only for the individual who has gained authorized access and who may circumvent the protection measures pursuant to lawful conduct, such as to make fair use of the subject work. See U.S. v. Elcom Ltd., 203 F. Supp.2d 1111, 1120 (N.D. Cal. 2002) (Whyte, J.)

At part 117:

The court will not hold that consumers do not have the “fair use” right to make copies of CSS-protected DVD content simply because the DVD CCA would be harmed by such use of its licensed works.

In sum, the owner of an ebook cannot violate the DCMA by doing anything that accomplishes his own fair use of the ebook. But only the owner of the ebook can claim that defense. The person who sells him the tools to circumvent DRM can't defend himself by relying on the owner's fair use.

[Harmon]

Originally Posted by Iphinome

Fixed that for you.

Thanks for the assist, but it's not the lawyers; it's the clients.

[Harmon]

Originally Posted by Nakor

Aye, I don't blame the judge. I still think the law's backward though.

My wording was wrong in the first paragraph admittedly -- my second paragraph was the more accurate (if only by being more vague), in that you can't make the backup without participating in illegal activity to be able to do so (in that the person you are buying from is breaking the law by selling to you, and thus you are participating in that activity).

It's not so much that the law is backwards, as it is that legislators approach writing laws by making a nice, broad, general statement, then start building in exceptions, and exceptions to the exceptions, except in the case of some other exception, and not applying to left-handed redheads in July, to the point where it starts to seem like they couldn't describe the hole in a donut except by saying what it isn't.

There used to be a column in a newspaper I read that would take a piece of legal gobbledygook and make fun of it. I realized I was hopelessly a lawyer one day when they quoted a convoluted IRS regulation and it made perfect sense to me when I read it.

[kennyc]

Originally Posted by Harmon

...
The portion of the ruling relating to consumer use begins at point 116 on page 39:



In other words, the judge specifically said that she was NOT DECIDING EITHER WAY whether making a backup copy is "fair use."

Then she goes on to assume, for the sake of argument, that making a backup copy might be "fair use," in order to make the point that for purposes of the case she was deciding, it doesn't make a difference:



The judge then quotes another court:



See the point? The consumer has the right to backup, if that is fair use, but it is illegal to sell him the tools that will let him do a backup.

And the judge quotes another court:



The point here is that if the consumer can get his hands on the circumvention tools, he can legally use them to accomplish "fair use."

Bottom line: this court did not decide that the right to make a backup doesn't exist.

Thanks for that detail Harmon! Much appreciated!

[kennyc]

Originally Posted by Nakor

Nope, they only decided it's illegal to make yourself able to do the backup except by developing the technology necessary to do so yourself.

It's perfectly legal to perform a backup, but not possible without first participating in something else illegal (buying or otherwise receiving distributed illegal goods) unless you have the know-how to design a way to do so or convert your existing technology to that purpose.

I remember hearing about that case before, always thought it was a bit backwards. I mean, understandable to some extent in the big picture, yet still hypocritical at the same time.

This dead horse was beat to death in another thread. The bottom line is that you can clearly make a backup copy of a drm (or encrypted) file. Making a backup is independent of the file type.

Oops I see Harmon already said that....

[kennyc]

Originally Posted by Harmon

...

There used to be a column in a newspaper I read that would take a piece of legal gobbledygook and make fun of it. I realized I was hopelessly a lawyer one day when they quoted a convoluted IRS regulation and it made perfect sense to me when I read it.

Are you actually a lawyer (shhh) by profession?

[Krystian Galaj]

Originally Posted by Patricia

Let us be careful about making any accusations and remember to discuss the issues rather than the poster's motivation.
The posting guidelines are here.
https://www.mobileread.com/forums/faq...ing_guidelines

Originally Posted by tompe

Well, if somebody continue to write as if it is propaganda for one part then you have to wonder about motivation.

I also think the guidelines should forbid writing the same contentious thing in every thread and therefore derailing nearly every thread.

I also put kennyc on ignore, because the discussions we had in the past months have shown me that no arguments I can make, or he can make, can bring us closer to understanding, his obsession with calling copyright infringement a theft is a considerable annoyance, like a repeated child's pranks, and his posts (while often interesting to read) don't offset that annoyance. I hope the fact that four different people in this thread see the same poster as a problem will influence moderators' views.

[kennyc]

Originally Posted by Krystian Galaj

I also put kennyc on ignore, because the discussions we had in the past months have shown me that no arguments I can make, or he can make, can bring us closer to understanding, his obsession with calling copyright infringement a theft is a considerable annoyance, like a repeated child's pranks, and his posts (while often interesting to read) don't offset that annoyance. I hope the fact that four different people in this thread see the same poster as a problem will influence moderators' views.

Unfortunately you won't see this but having differences of opinion and discussing them is one thing. Getting personal and attacking people instead of ideas is a very different thing.

Yes I have an opinion and I believe that taking someone's property without permission is theft and I call it that, unfortunately in the new digital environment some do not not see it that way, but interestingly and increasingly others are seeing it as theft and are beginning to express that here when the topic comes up.

I think we can all agree that the current state of the copyright law is horribly behind the times and needs significant changes in many ways.

[TGS]

Originally Posted by Krystian Galaj

I also put kennyc on ignore, because the discussions we had in the past months have shown me that no arguments I can make, or he can make, can bring us closer to understanding, his obsession with calling copyright infringement a theft is a considerable annoyance, like a repeated child's pranks, and his posts (while often interesting to read) don't offset that annoyance. I hope the fact that four different people in this thread see the same poster as a problem will influence moderators' views.

In the short time that I have been coming here I find that I disagree with almost everything kennyc says. I also don't think there is anything either he or I could say that would bring about any kind of rapprochement whereby we would speak with one voice on the issues upon which we disagree. Sometimes I don't like the way he says things. For all that I don't think kennyc should be censored - if I am right in thinking that what's the reference to influencing moderators' views amounts to. If kennyc, or anyone else, says something that I disagree with or object to I have a number of choices - I can respond, I can choose not to respond, I can choose not to read their contributions, I could even get a life and stop following the discussions and contributions that wind me up quite so closely.

This is a brilliant site - people come here for all sorts of different reasons - the vast majority I suspect couldn't care less what kennyc, or I, or any of the people who chip in their twopenn'orth, thinks about whether piracy is theft or property is theft or how many angels you can get dancing on the head of a pin. So long as people avoid being offensive and go for the point not the person we ought to be grown up enough to to have to tell our Dads on them.

[Harmon]

Originally Posted by kennyc

Are you actually a lawyer (shhh) by profession?

Yep. But I have never played one on television.

[kennyc]

Originally Posted by Harmon

Yep. But I have never played one on television.

That's even better!

[Krystian Galaj]

Originally Posted by TGS

In the short time that I have been coming here I find that I disagree with almost everything kennyc says. I also don't think there is anything either he or I could say that would bring about any kind of rapprochement whereby we would speak with one voice on the issues upon which we disagree. Sometimes I don't like the way he says things. For all that I don't think kennyc should be censored - if I am right in thinking that what's the reference to influencing moderators' views amounts to. If kennyc, or anyone else, says something that I disagree with or object to I have a number of choices - I can respond, I can choose not to respond, I can choose not to read their contributions, I could even get a life and stop following the discussions and contributions that wind me up quite so closely.

I rather thought I should give my support to people I agree with, that's why I wrote. In my case using 'ignore' boils down to practical reasons: sometimes I can't stop myself from replying to remarks about copyright infringement and theft and the whole debate begins again. When I can't see his posts, I'm not tempted to reply - and if someone cites them, in agreement, I can then discuss the matter with someone else whom I might influence, or who might give me some reasoning, not based on truthiness that would convince me.