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

[Lars Gaarden <larsg(at)eurorights.org>]

Tim Neu wrote:
> On Thu, 1 Aug 2002, Richard Hartman wrote:
> 
>>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.

Tim, you seem to suffer from the delusion that copyright law should
make sense. That is the path to insanity. ;-)

Even if the end result is bit-by-bit exactly the same, the means used
to reach that result matters to the law.

>>	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?

When you buy a book, you gain ownership of one piece of physical
propety. The book contains one fixation of a copyrighted work.

You're free to do anything you please with the physical property, but
copyright law determines what you can or can't do with the copyrighted
work.

We can trade physical items because we own them.

We are not completely free to trade copies of copyrighted works,
since copyright law applies.

We are free to trade books and other physical copies of copyrighted
works because of the first sale doctrine.
(see http://www.bitlaw.com/copyright/scope.html#distribution )

In all the examples above, except for the ROM file, first sale applies.

Fair use give you the right to make a copy of the ROM in your own
PalmPilot for personal use. It does not give you the right to give that
file to someone else because you don't hold the distribution right to
that copy.

>>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.

I think the sentral issue was that mp3.com thought they had a right to
distribute copies of music to people who owned CDs containing the same
music. i.e., that the fair use rights you have when you own a CD could
be transferred to mp3.com. When they discovered that they did not have
this right, they tried reaching licensing deals with the major studios
but failed.

Alas, my googling skills seems to be failing. Does anyone have a link
to the my.mp3.com ruling?

>>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
> trade?

Because copyright law does not give me the right to give you the
copy. It doesn't matter whether you already own an identical copy.

> We both own it!
 > We can trade the masters, we can trade masters and backups

First Sale.

> so why not only the backups?

No First Sale.

>>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
> itself?

Because the first sale right is bound to the physical copy.


Now, riddle me this - what will happen to first sale in a digital
world where the act of 'giving' or 'transfering' a copyrighted work is
done by creating and deleting copies instead of moving pieces of
physical property?

-- 
LarsG