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RE: [dvd-discuss] Movie Downloads, automatically illegal?

My apologies if this is getting long.  I have trimmed where I can.

On Thu, 1 Aug 2002, Richard Hartman wrote:

> > True, but given that I have the legal right to view the film (obtained
> > when I bought the copy), plus the fact that I have the legal right to
> > transfer it to any medium I choose, why couldn't I view the movie in a
> > format that someone else (instead of me) did the conversion?
> _You_ could ... the operative question though is whether _they_
> (the ones supplying the conversion) can.  Especially if they don't
> even make any attempt to verify whether _you_ have the right to
> have a space-shifted copy or not.
> You have a right to a TV.  If you go to Circuit City and pay
> your money you can take one home today.  On the other hand if
> you go behind the store and buy one from the guy off the back
> of the truck, you could be in trouble for recieving stolen
> property.  It's the same TV, and the same buyer ... but the
> legality of the _transaction_ is different.

That example resorts to real property to explain "intellectual property",
which are very different paridigms and should be treated differently.
Any TV which I were to buy from the truck driver would reduce the number
of TVs Circuit City could sell.

It may well be that the system is that messed up that the law does not
make this distinction, but if that is the case reform would start by
acknowledging the difference.

A better example would be you having a lit candle in the room.  I enter
the room (with your authorization) and I light my candle from

Have I stolen your flame?  Have I stolen it from Bic, inc, if they were
providing you a candle-lighting service?

In this case, both of us already paid for the service, so
where exactly does the transaction become illegal?

Or, more practically, you buy a tree from a nursery and plant it by your
sidewalk.  The nursery is in the business of selling trees, and so
discourages customers causing the trees to be reproduced naturally.
Despite this, there is no question that you own the tree.

I ask if I can take a branch, put it in water, and grow my own tree.  If
you allow me to do this, would you consider yourself guilty of theft?

If so, is nature guilty of theft when the tree reproduces on its own?

The tree is only doing what it naturally does - reproduce, and you are
only disposing of property which you own.

I do not claim these examples mimic the situation we were discussing -
they only illustrate the differences between real property and "IP".

As for our previous discuession, first I will try to limit the scope of
argument somewhat, and focus on two indivduals only.

> > Obviously, I could pay someone to convert the video for me.   In this
> > case, someone else has converted it for me free of charge.
> > Where is the
> > copyright violation?
> The violation is by the person who did the conversion and
> then distributed it w/o authorization.

I think there is a distinction in the word "distributed".  When you
distribute something, you are giving something to a whole group of
people.  If I give you a dilbert comic for you to photocopy, you do not
"distribute" it by giving it back to me.

> > The fair uses exist without the authority of a copyright holder.  Why
> > should someone need the copyright holders permission?
> They don't, for the fair uses.  Again, if you do your own
> copy that is fair use.  But when downloading from the internet
> you are no longer the only person involved, and if the _other_
> guy is violating the law, then the law has been violated.

This would imply that if both people are following the law, the
transaction would be legal.  I'll explain below, in the 3.5" floppy
scenario, since that is easy to understand.

> > Someone with more
> > legal background could probably cite some cases here,
> I think the "TV off the back of the truck" example that
> I came up w/ above is a pretty good illustration of the
> difference in the situations that you are trying to assert
> as equivilant.

The TV example is completely "Real" property, where x-1=x-1.  One TV
stolen = 1 less TV for Circuit City.  We're talking about "intellectual"
property where x-1=x.  No matter how many times I download something, an
infinate number of potential copies remain.

In any case, this wouldn't be accurate because we both own copies!  2
copies purchased for 2 people, not one bought and one stolen.

> Ah, but it is _not_ regardless of means.  The means is quite
> significant to the law.

I think the means should be irrelevant, if the user has already bought the
product.   I'm not talking about someone copying something and giving it
to a third party.   I'm talking about two individuals purchasing the same
exact thing, and in essence trading with each other.

> > An example in software:  I own a copy of MS-DOS 5.0.  It's on a 5.25
> > floppy, which I can no longer read in my computer.  Just because my
> > computer can't technically verify my ownership, does NOT mean
> > that I am
> > any less an owner.
> Nope.  And if you can get it copied from 5.25 to 3.5, more power
> to you.  But _I_, who might already own a set one 3.5, do _not_
> have the right to give a copy of it to you.

OK, lets look at this:

I can make my own conversion - True

I can make my own backups in any format I desire - True.  I make a backup
on 3.5".

I can trade disks with you, provided you allow it - True.  I do, and I
also make backup copies on 3.5".   I give you my previous backup disks.
We can do this, after all, we both own our set of disks.  (for the purpose
of this example, the license is transferrable)

Therefore, assuming you allow me to trade with you, I end up with my own
disk which is the same darn thing as you giving me a copy in the first

In this case, the end result is two identical backup disks with two
identical copies which were legally created by each of us, and you argue
that trading backup disks without the rest of the software is illegal.

Why?  Neither of us has broken any rules.

> Or let's take another case.  Palm developers have a tool called
> POSE (Palm OS Simulator) with which they can run a virtual PDA
> on their Windows desktop in order to test & debug the programs
> they are developing for the Palm.  POSE requires the ROM code
> containing the Palm operating system in order to run.  There
> are two ways to obtain this code:
> 	1) sign up as a palm developer, request access
> 	   to the ROMs and download them (note: the process
> 	   of joining the palm developer program is _free_)
> 	2) download a free program that you can run on your
> 	   own PDA that can suck the code off the ROM in it
> 	   and write a copy of it on your Windows machine.
> 	   (you can do this w/o ever joining the palm
> 	    developer program)
> And in the end, that's all there is to it.  You have
> certain rights w/in the legal system (e.g. fair use),
> and the 2nd of the two methods above is based on one
> of them (space shifting) and Palm can't prevent me from
> doing that, or even stop the distribution of the program
> that allows me to do it.  But they _can_ stop me from
> giving anyone _else_ a copy of the ROM file itself.
> Because they say so, and because the law gives them the
> _authority_ to say so and make it stick.

We both download program #2.  We both use the program and have the same
exact ROM version in a file - the same exact bits.  You own your copy, I
own mine.  Why can't we trade?  We can trade TVs!  We can trade computers,
with the files intact.  We can even print it out and trade copies (after
all, we can trade our copies of our copyrighted works in book form, why
not other forms?) assuming we aren't under NDA - why can't we trade files?

> may have been their downfall.  (If anybody remembers this
> service and why it really died, please chime in ...)

I believe the RIAA objected because MP3.com did not have permission to
create a database of music, and the judge agreed.  I would argue that as
long as MP3.com did not ever have more copies of a song downloaded than
were owned on CD by one of the parties, they should have been allowed to
run the service.

> The other problem, though, is that you can still be
> prosecuted when you ignore them unless the people
> _enforcing_ the law thing it's as stupid as you do.

Yeah.  There's no way around it though.   You go biking, and get in
trouble for not signaling your turns.  Signal your turns, and they got you
for not having both hands on the handlebars at all times.   No possible
way to follow the law and go biking.

> > their books?
> > They certainly don't have permission from the publishers!
> Nor are they making copies.  They purchase an item from
> the publisher and sell that same item.  One for one.

We aren't making additional copies either!  You have your copy, I have
mine.  two for two.  Either way 100% of the copies are owned by the
parties involved.

> You can likewise sell me your used copy of "Gone with
> the Wind".  You just can't make a copy of that copy and
> sell _that_.

But if we both make backup copies of gone with the wind, why can't we

We both own it!  We can trade the masters, we can trade masters and
backups so why not only the backups?

> It doesn't matter whether the downloader is a legitimate
> owner or not.  _You_ do not have the right to distribute
> a copy you have made.  You can make the copy for your own
> use, but you can not distribute it.  Period.

I can trade with you the physical medium legally - that is not
considered "distributing".  I can even sell the physical medium, destroy
it, etc.  Why can I trade the plastic and the movie and not the movie

A trade + a backup copy (media shifted) can accomplish any distribution of
media shifted formats between two owners.

This scenario can do this without ever having one person shift from
anything but their own media!

You already agreed that a backup media shifted copy can be legally made by
the owner of a copy, so it follows that distribution of media shifted
formats is legal, unless we are somehow prohibited from trading DVDs.

I suppose you could argue that our backup and trade dance must be
performed for the sharing to be legal, but that is a very bizzar notion.

Although it makes about as much sense as some other government
requirements! (i.e. none :-)

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