SCRIBE’S NOTES 2/11/02
Too much music
Tools in class this week
The late response link on the rotisserie
Respond as you or as Harvard to last week’s rotisserie
Agenda - slide
Why’s it important?
Demonstrates places you can intervene if you’re an unhappy person on the net:
The destination
- the chip – you cannot really get to it
- input-output system
- operating system
- applications --- many unanticipated things running
- network tools
- plug-ins
The drawbacks: yes computer can run anything but that means it can & will also automatically run a virus.
Master slide
Defamation e.g. Ken Zeran (OK City t-shirt case)
- go after source --- failed for Zeran
- go after ISP ---- DMC mooted this
- have something on your own computer (technical intervention) ---
o e.g. Eudora’s Mood Watch
§ With this possibility, could end up with legislation requiring it.
o PICs or Content Advisor
§ Remember Lessig’s argument about the devil in these –
§ 1) vertically portable = could be installed in multiple places.
§ 2)Also horizontal portability – the government can come in and block access to the entire country
§ You may not even know about the gatekeepers.
The real lesson from last week: the levers can create legal and technical controls that work together (CDA & PICS)
Constraint spectrum – orange blob on a spectrum w/ red line as the law.
Over time – physical constraints compared to range of plausible behavior
1) Era of the monastic manuscript AD 1400.
a. Poor scribes slaving away
2) Era of Gutenberg bible – AD 1456
a. more plausible behavior -> result was legal boudaries
3) Era of promiscuous publication AD 1994
a. free and perfect copies
b. free is good because you can get banner ads and everyone gets rich
c. then the hangover – quote from Law Review Article – free destroys everything
d. Barlow : “the orange blob has gone too far beyond the red dotted line” – give up on IP
e. Rebuttal by lawyer – don’t give up, tighten up the red line
- Basis of the law: US Constit. Art 1, Sect 8, cl. 8 – “... Progress of Science and the useful Arts...”
- Scope: Copyright law is intended to protect the expression of an idea only. You can say the same thing differently – you cant claim copyright to an idea
a. Tricky - nobody laughed when CBS v. Fox over “Boot Camp” infringing “Survivor”
b. Feist debate (white pages copied with new ads)–
- can’t copyright facts –
- no credit for sweat of brow (different in some places in Europe – might be unConstitutional if passed here.)
c. Could try to license. Shrink wrap. (Contract is separate – beauty of Copyright is that it applies in the absence of any agreements)
- Rights (=Limits on user)
1) Reproduce
2) Prepare Derivative Work: The Wind Done Gone and the “Teddy Ruxbin” (sp?) tapes
3) Distribute by sale, lease & rental
- Exemptions/Defenses §107-120
§ Areas where its © infringement & Congress has deemed it important enough to find a compromise
1) Fair use §107 (see slide)– 4 factors
o Who knows what it is – no one.
o We would actually enjoy being sued here at HLS – course credit for working on the suit
2) Parody is a defense – “Pretty Woman” – Orbison v. Two Live Crew
3) First Sale Doctrine
o once you’ve bought the thing from the distributor you can do whatever you want with it (this is what allows libraries to exist)
The question in 1994 is Copyright dead online?
§ Poll of class – almost every person in the class raised his or her hand that they had downloaded music in the passed two weeks and most people thought it was illegal. But pay $50 bucks to kick the puppy – most people had scruples. What is the difference between the two?
§ Basically the law isnt dead but people flout it like crazy à question of what to do?
· Some people think we should put more teeth into the law à NET Act (see slide)
· Go after other kinds of infringement not just against the person who infringed. E.g. Contributory & Vicarious Infringement
Contributory Infringement and Vicarious Infringement possibilities
- Yes – record companies don’t want to go after the users – Makes them look bad seems like a police state
- Can’t beat them, join them
- Go elsewhere in the chain
- Class poll about Napster’s actions – a few more people than not seemed to think that Napster is not liable for the users.
o
Leads to discussion of Sony
§
Purpose of lawsuit: they wanted money for the
“instruments of contributory copyright infringement” (or injunction).
§
Jack Valenti of MPAA said “ The VCR is to the movie
industry what the Boston Strangler was to a woman alone.” (not exact quote).
§
Sup. Ct rule 5 to 4 because fair use: including permits
time shifting
o
Not clearly fitting under an exact factor
o
Does Replay TV change this because it takes out
commercials?
o
Its ok to “time shift”
§
Mr. Rogers was okay with the VCR. Approach to broadcasting is that “you are an
important person too”
§
Valenti now admits that he was wrong. But that won’t
happen again.
- In what ways like Sony?
a. If substantial non-infringing uses possible
i. Why isn’t the garage band enough?
ii. Does the ability to keep a list of infringement and use a filter mean that Napster has to do it?
1. What about when Users rename it?
2. User conspiracies to use backwards names
3. See Negativeland’s “letter U and the number 2” song impounded (tape of Casey Casem swearing)
- Can you argue it is under Sony? Sure – just “space shifting” & creating a backup/ but its been rejected
- How is Napster involved in music distribution?
a. Carry the directory
b. Napster doesn’t know what’s in the files
- Class poll about whether you buy more or less CDs if using Napster
a. Most people seemed to not buy anymore
b. Quality difference?
- Compare remedy asked for with the substantial non-infringing uses.
- JZ asks whether try before buy actually is Fair Use. Thinks not.
- First Amendment --- so far been treated as a useless in the face of copyright actions by the government
- 9th circuit has made Napster illegal except for boring version that nobody wants
What do we do if we want Napster to be legal?
The New-new thing: musiccity.com (Morpheus)
- See about us – peer to peer – “share responsibility” we’re unable to monitor. Report concerns to user directly.
- Does everything that Napster did and more = to more non-infringing uses?
- Music companies have just sued – suspect sham.
- Will require 9th circuit to make even broader ruling if they want to stop this.
Back to the cloud chart. Where is Napster? Where else can we exert pressure besides MusicCity?
o Go after college student’s ISPs
o See letter that college student got from Winthrop house
§ Not being distributed or copied if sitting on hard drive
§ MPAA must have asked for “Sweet Seymour”!
§ Contributory copyright infringement if Morpheus tries to protect users’ privacy
§ Why did the University send the letter?
1) Harvard did resist Metallica http://www.thecrimson.com/article.aspx?ref=101577