On Fri, 31 Dec 1999 11:42:36 -0800, Dan Frakes wrote an excellent and
someone intimidating post, which included:
>I hope everyone can take a deep breath and realize that these discussions
>aren't supposed to be personal. Some of the personal attacks have been
>disappointing (I'm not directing that comment at Steve, BTW). It's
>possible for people to disagree without insulting each other.
Thanks.
I strongly disagree on a couple of issues. I'll try to keep it short
and hit them real fast.
>
>Today, the sole source of income, and hence the sole method of
>sustenance, for most musical artists is through the sales of individual
>copies of their works. This is *why* copyright law was invented.
Copyright law was not established to provide sustenance for musical
artists. It was established to "promote the progress of science and
useful arts by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries."
(Actually patent law covers inventors and discoveries). See the text
of the Constitution. The two are related yes, and it seems a fine
distinction, but I think it's a very important one.
>By the way, I am assuming that the people arguing for the copying of CDs
>you don't own are consistent in your views, and that you also feel that
>copying software that a friend bought, without paying for it, is also
>completely OK and covered by your interpretations of our constitutional
>freedoms? Because there is really no difference between the two.
Neil keeps alluding to this, too. I think the law does and should
treat different media differently, and it must, because the media can
be so different from one another that abstract analogies accross media
don't hold up. Music and books and computer programs are all very
different from one another. For example, how do you implement "fair
use" with a computer program or musical recording? It seems to me to
be conceptually and practically impossible.
>Do you honestly believe that "our freedom" includes the "right" to copy
>the work of an artist who's only source of income is the per-unit
>royalties they get from the sales of that album?
In some very limited cases, yes. As a general rule, no.
>I agree with you about the greed and overzealousness of the record
>companies. But that doesn't mean I want to see recording artists and
>their careers fail just because I'm trying to strike a blow against
>corporate greed.
Me either. MD trading rings seem like commercial activity to me. The
intent of the copier is important, I think.
>There are many examples where the *avoidance* of commercial activity has
>been successfully prosecuted as "commercial activity." While I agree that
>it isn't commercial in the sense of a retail business, I disagree when
>people claim that copying a friend's CD is not in any way "commercial."
I'd love to read the cases. But I still say copying a friend's CD
once for listening pleasure on an MD recorder is not commercial. I
think it's inevitable that the term "non-commercial" in hte AHRA will
be strictly construed against the government, and for the consumer, in
a ciminal prosecution.
>I believe many of us *have* read that text, and it's not that clear, and
>(as you so clearly pointed out later in your message) probably won't be
>clarified until a case is tried and a court decides the meaning.
Boy, I just think the text is awfully, awfully clear, and if a statute
is too vague to tell what's illegal, it's unconstitutional to
prosecute someone under it, so interpretation of what's legal and what
isn't is going to benefit the "consumer." The drafters were acutely
aware of this when they drafted the statute, it's very basic
constitutional law. Also, the fact that "consumer" and
"non-commercial" are mentioned in the same sentence seems to imply a
narrow definition of the term commercial to me, such that one acting
as a consumer could indeed be engaged in non-commercial activity.
Otherwise, the term non-commercial would have no meaning. But we
could argue that all day. Your position is well thought-out.
>Web sites and individuals have been prosecuted/sued for placing
>copyrighted work on a web site. Most of the time the case doesn't go to
>court because the offending parties remove the content to avoid a trial.
There was a famous case where the college kid won, wasn't there? Do
you know of other cases which actually reached adjudication? That's
where the law is made. Most people just don't want to take the heat
and test their rights. They don't have the emotional stamina, the
time, the motivation or the money.
>Many of us have a firm grip of the big picture. Many of us actually have
>some degree of legal experience and/or knowledge. We just don't agree
>with you, and we just don't interpret the law the same as you. That
>does't make us wrong. That doesn't make us stupid. That doesn't make us
>bad people.
You certainly do. I think you're an intelligent, good person with a
well thought-out and ethical point of view.
>>and someone can record just about anything in their own home
>>once and they will be okay.
>
>Once again, you're completely correct.
At some point, I think you have to read the writing on the wall. ; )
> But once they are recording
>something and giving it to someone else outside their home, or bringing
>something in from outside their home and recording it, the term "private"
>gets much more grey than you would have us believe.
It's the term non-commercial, not the term private, upon which our
interpretation of the AHRA differs, isn't it? And, yes, that's where
our argument begins, at least under the statute.
>Breach of contract is "never, ever a crime"? If you mean it's not a
>criminal offense, you're for the most part correct. But it is *certainly*
>without a *doubt* grounds for a civil suit.
>
Breach of contract is grounds for a civil suit only. It's never a
crime. In the U.S., it is very strong public policy that people don't
go to jail simply for not being able to pay their debts; thus the
impenetrable rule that breech of contract is never a crime. There is
a very strong legal distinction between a crime and a civil offense.
By the way, fraud can be a crime, which is the closest thing to breech
of contract which I can think of for which you could be prosecuted
criminally.
>And with that, Happy New Year, everyone :-) Just want to say that I've
>enjoyed being on this list for the past year and a half, and it's been
>both useful and entertaining. And I've also found this discussion
>fascinating (apart from a few personal insults I've seen thrown around).
>People have differences in opinions, and it's often enlightening to see
>the views of people who take a different view on an issue.
My apologies for this one last post on the subject, but this was too
good not to respond to. Happy new year to you too!!!!
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