Judge shuts down RIAA in music piracy case

[fetishfrog]

 

That's not adapting, that is counteracting. The software industry learned copy protection doesn't work and dropped it altogether. They learned this back in the 1980s. Here we are in 2008 and you still don't get it. This is why you are called dinosaurs. I work in professional engineering using DRM schemes such as dongles and other miriad authorization schemes. For many reasons, they are an inconvenience and they cost the company money. Better solutions have come along and we have embraced them. They're out there, so quit hiring firms to sabotage innocent victims and put your resources into finding better solutions that do not alienate your customers. I want to see this succeed as much as you do, but it is going in the wrong direction.

 

 

Ok, so which is it? Did software companies drop copy protection back in the 80's or do you work in engineering today where copy protection remains an inconvenience? You cannot have it both ways.

 

I cannot recall a single software purchase that I've made ever that did not have some form of copy protection ranging from: Dongles, Challenge/Response, Serial Number with Vendor supplied Auth Code, etc. Included in this list of purchases are:

 

Pro Toold HD

Sonar

Cubase

Windows XP

OSX

Soundforge

Waves Plugins

McDSP

Sony Oxford

Final Cut Pro

 

All of them performed fine, no issues.

[fetishfrog]

 

Cut frivolous spending, do I have to spell it out to you? Where are the majority of entertainment resources located? NYC, Los Angeles. Areas with extremely high cost of living. When cost of living skyrocketed in Silicon Valley, many high technology industries fled for more favorable environments so they could afford to compete. The same thing happened in any state and city with rising costs. High Technology companies adapted. Now you must do the same.

 

 

They did cut frivilous spending to the tune of billions of dollars. Now, what's left is no money for anything but the most homogenized tripe. Careful what you wish for, I suppose you got it.

[The Real MC]

 

Ok, so which is it? Did software companies drop copy protection back in the 80's or do you work in engineering today where copy protection remains an inconvenience? You cannot have it both ways. I cannot recall a single software purchase that I've made ever that did not have some form of copy protection ranging from: Dongles, Challenge/Response, Serial Number with Vendor supplied Auth Code, etc. Included in this list of purchases are: Pro Toold HD Sonar Cubase Windows XP OSX Soundforge Waves Plugins McDSP Sony Oxford Final Cut Pro All of them performed fine, no issues.

 

 

I have worked in engineering since 1985.

 

Ever hear of Lotus 1-2-3? Very popular spreadsheet in the 80s until they implemented copy protection. After too many problems on the consumer end, consumers bought MS Excel to replace it. Lotus dropped copy protection but the damage was already done.

 

Copy protection is generally frowned on in the engineering community.

 

Windows XP Activation proved to be so much of a problem - false negatives when system components were changed/added - that companies still refuse to deploy it.

 

Windows XP Media Player implements DRM. Rip your CDs to mp3 and MP marks them. Re-install XP after a crash and restore your mp3s, and MP thinks you are not the author and refuses to play them.

 

Far more businesses refuse to deploy Windows Vista because of its restrictive DRM and the way it bottlenecks the processor.

 

At my current position, we have critical systems using license dongles. When one system crashed, the license dongles could not be reused because the activation system tied it to the serial number on the hard disk. Well, if the hard disk is toast, so is the dongle. We lost precious production capacity, which was a big inconvenience for us in the form of higher production cost.

 

After spending $1500 for a replacement dongle and going through that asinine process, we looked at alternatives.

[The Real MC]

 

They did cut frivilous spending to the tune of billions of dollars. Now, what's left is no money for anything but the most homogenized tripe. Careful what you wish for, I suppose you got it.

 

 

And the major labels are STILL based in NYC/LA.

 

Many independent non-RIAA labels operate elsewhere and still put out decent product.

[fetishfrog]

 

And the major labels are STILL based in NYC/LA. Many independent non-RIAA labels operate elsewhere and still put out decent product.

 

 

And perhaps it makes financial sense for them to stay? Perhaps they have 50 year leases at incredible prices, or own their buildings outright? Perhaps the cost of moving, relocating/hiring new staff, etc far outweigns the cost of not moving. I think you're making far too many assumptions about what is a financially sound desicion for them to hold this opinion with any real conviction.

 

And yes, plenty of non-RIAA labels put out fine product, but don't pretend these labels have or ever will have the marketing/distribution reach that majors had and still have.

[fetishfrog]

 

I have worked in engineering since 1985. Ever hear of Lotus 1-2-3? Very popular spreadsheet in the 80s until they implemented copy protection. After too many problems on the consumer end, consumers bought MS Excel to replace it. Lotus dropped copy protection but the damage was already done. Copy protection is generally frowned on in the engineering community. Windows XP Activation proved to be so much of a problem - false negatives when system components were changed/added - that companies still refuse to deploy it. Windows XP Media Player implements DRM. Rip your CDs to mp3 and MP marks them. Re-install XP after a crash and restore your mp3s, and MP thinks you are not the author and refuses to play them. Far more businesses refuse to deploy Windows Vista because of its restrictive DRM and the way it bottlenecks the processor. At my current position, we have critical systems using license dongles. When one system crashed, the license dongles could not be reused because the activation system tied it to the serial number on the hard disk. Well, if the hard disk is toast, so is the dongle. We lost precious production capacity, which was a big inconvenience for us in the form of higher production cost. After spending $1500 for a replacement dongle and going through that asinine process, we looked at alternatives.

 

 

We use copy protected software all the time and never have issue so, while it sounds like you did, that fact is, it's still in practice and widely used.

[The Real MC]

 

Yet didn't cite the caselaw nor did you address fair use being an affirmative defense handled on a case by case basis

 

 

RIAA vs Diamond Multimedia Systems Inc was a 1999 case that sought to halt the manufacture of the Rio mp3 player under the argument that the Rio was subject to the Audio Home Recording Act (AHRA). The RIAA lost the case.

 

The RIAA brought suit against Diamond Multimedia Systems, Inc, (Diamond), "alleging that the Rio [a device manufactured by Diamond] does not meet the requirements for digital audio recording devices under the Audio Home Recording Act of 1992, 17 U.S.C. § 1001 et seq. (the "Act"), because it does not employ a Serial Copyright Management System ("SCMS") that sends, receives, and acts upon information about the generation and copyright status of the files that it plays." The Rio is a portable digital audio device which "allows a user to download MP3 audio files from a computer and to listen to them elsewhere." The lower court denied the RIAA's request for injunctive relief, holding that the RIAA had failed to demonstrate a likelihood of success on the merits, and the RIAA appealed. On appeal, the ninth circuit upheld the lower court's decision to deny injunctive relief but found that the lower court had erred in holding that the Rio was a covered device under the AHRA. The court noted that in order to be a digital audio recording device, the Rio must be able to reproduce, either "directly" or "from a transmission," a "digital music recording." 17 U.S.C. § 1001(1).

 

Under the language of the AHRA, the court proceeded to determine that the hard drive from which the Rio downloaded music files was not a digital music recording, because it contained much more than "only sounds, and material, statements, or instructions incidental to those fixed sounds," thereby falling outside of the definition of a digital music recording under 17 U.S.C. § 1001(5)(A). Likewise, a digital music recording does not include a material object "in which one or more computer programs are fixed," subject to certain limitations. 17 U.S.C. § 1001(5)(B)(2). As the computer hard drive from which the Rio made its copies was not a digital music recording, the Rio could not be considered a digital audio recording device under the AHRA, unless it was capable of reproducing a digital music recording indirectly from a transmission. 17 U.S.C. § 1001(1). According to the court, "a device falls within the Act's provisions if it can indirectly copy a digital music recording by making a copy from a transmission of that recording. Because the Rio cannot make copies from transmissions, but instead, can only make copies from a computer hard drive, it is not a digital audio recording device."

 

Computer hard drives cannot be considered digital audio recording devices either, "because their 'primary purpose' is not to make digital audio copied recordings." 17 U.S.C. § 1001(3). "ecause computers are not digital audio recording devices, they are not required to comply with the SCMS requirement and thus need not send, receive, or act upon information regarding copyright and generation status." Moreover, MP3 files do not even contain the codes which provide information regarding copyright and generation status. As there would be no code to prevent the copying of the MP3 file from the hard drive, the SCMS would be of no avail. In fact, the copy which the Rio made would be labeled under the SCMS as having "original generation status," thereby allowing an additional copy to be made. Because no additional copies can be made from the Rio, the Rio makes less copies than the SCMS would permit.

 

The court also finds that the Rio works in harmony with the main purpose of the statute: "the facilitation of personal use." Citing the purpose behind the enactment of 17 U.S.C. § 1008, "he Rio merely makes copies in order to render portable, or 'space-shift,' those files that already reside on a user's hard drive." Cf., Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (holding that the "time-shifting" of copyrighted television shows using a VCR constitutes fair use under the Copyright Act, and thus is not an infringement). "Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act." Thus, the court found that the Rio was not subject to the AHRA, and that the lower court had acted properly in denying an injunction.

 

 

 

Audio Home Recording Act (AHRA) of 1992, 17 U.S.C. §1008

 

 

 

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or

based on the noncommercial use by a consumer

of such a device or medium for making digital musical recordings or analog musical recordings.

 

[The Real MC]

 

And perhaps it makes financial sense for them to stay? Perhaps they have 50 year leases at incredible prices, or own their buildings outright? Perhaps the cost of moving, relocating/hiring new staff, etc far outweigns the cost of not moving. I think you're making far too many assumptions about what is a financially sound desicion for them to hold this opinion with any real conviction.

 

 

You are a fool if you sign a FIFTY YEAR LEASE in this day and age. Own your building in LA? Sell it, buy a similar building in more favorable conditions, make a profit. Staffing? The high technology companies have dealt with it for ages - in my job hunt a few years ago, I resigned to finding work out of town because I accepted that the work had dried up in my home town - YOU GO TO WHERE THE WORK IS.

 

Why am I still spelling out CUT FRIVOLOUS SPENDING?

 

 

And yes, plenty of non-RIAA labels put out fine product, but don't pretend these labels have or ever will have the marketing/distribution reach that majors had and still have.

 

 

And that is why they object to the internet as a distribution channel. The labels have an iron grip on their distribution but it is crumbling underneath them with CD stores closing all over the country. Open your eyes, my good man.

[The Real MC]

 

We use copy protected software all the time and never have issue so, while it sounds like you did, that fact is, it's still in practice and widely used.

 

 

But we have exploited other alternatives - all legal.

[fetishfrog]

 

Why am I still spelling out CUT FRIVOLOUS SPENDING?

 

 

Because the things you are declaring frivolous are, in fact, not. I've give example time and time again about how and why large cash pools are beneficial to artists and all you can respond with is 'cut spending'. It's being done right before your eyes, the result of which is the homogenization of major label music, which I've pointed out several times, and all you do is complain about how all new major releases suck. Why am I still spelling this out? You and all your file swapping buddies are the primary cause of all the problems you blame labels for, which, in turn, exacerbates the problems you complain about. It's like watching someone repeated slam their head into a wall, all the while complaining about the pain.

 

 

You are a fool if you sign a FIFTY YEAR LEASE in this day and age. Own your building in LA? Sell it, buy a similar building in more favorable conditions, make a profit. Staffing? The high technology companies have dealt with it for ages - in my job hunt a few years ago, I resigned to finding work out of town because I accepted that the work had dried up in my home town - YOU GO TO WHERE THE WORK IS.

 

 

If you signed your lease in 1970, you're not done until 2020. If you own your own building, why sell, make a profit, and spend that profit to move somewhere else...so you can then begin to pay a lease? A major moving out of a major market is stupid, the whole of the entertainment industry is in NYC and LA, there is little sense in relocating to Lincoln, NE. Most of the entertaiment industry related work/offices/studios are still in these markets, moving would be foolish. So they are, in effect, staying where the work is.

[Dean Roddey]

It's just not practical these days to not use some sort of copy protection to at least keep the honest people honest, because it's so trivial otherwise, that even otherwise honest people won't even think about ripping it off. At least if they have to positively step over a threshold and do something they know is wrong they'll think about it. Otherwise, too many people just won't think at all. It's so trivially easy rationalize why you aren't paying for that software you are using every day.

 

You shouldn't make it onerous, but all non-trivial software these days, and lost of semi-trival software, use some sort of copy protection or licensing system.

[slight-return]

 

RIAA vs Diamond Multimedia Systems Inc was a 1999 case that sought to halt the manufacture of the Rio mp3 player under the argument that the Rio was subject to the Audio Home Recording Act (AHRA). The RIAA lost the case.

 

 

I'm familiar with it - notice that this is a case of if the RIO fell under AHRA as a digital recording device and if under 17USC1008 - it's not a fair use case , it was not even a direct infringement case at all, and was not argued on those grounds.

 

 

You, however, stated that Personal archival storage of phonorecordings was fair use and was tested before SCOTUS -- RIAA v Diamond was 9th cir)

 

 

 

Now, there is only one mention of "fair use" in the decision - and that's that the rio is in harmony with the purpose of the AHRA. Now there you'll notice "space-shifting" is mentioned as an extension of "time-shifting" from Sony v Universal (aka "betamax" -betamax was also merely a contributory, not a direct infringment case - time-shifting was just to show that there can be signifigant legitimate use). Now an interesting thing about the "time shifting" paradigm is that in "betamax" it's specifically mentioned that the time-shift model is based on a 'view once and erase' model -- so archival (persistent copy) uses may very well not be congruent with the time-shift style use. You may remember Napster tried to push the space-shift use and didn't do well [RIAA v Napster]

 

But again, this is in ref as to the RIO falling under AHRA laws, not a fair use case itself and not dealing specifically with archiving (even in the ancillary mention of fair use)

 

And remember (I'm not sure if you are understanding this part - you don't seem to address it at all) - fair use is an affirmative defense handled on a case by case basis

 

Remember, legitimate use doesn't have to be "fair use" -- abt 2/3 of chapt 1 in title 17 are limitations to right of copy

 

[i think one major problem might be that you merely want copying to be "allowed" by whatever legal mechanism-- I am addressing if it, specifically, falls under "fair use", if it has been tested by SCOTUS as claimed, etc because those were the claims made. This goes back to the joke the wife wife and I have about "fair use" being a buzzword for "I want to"]

 

I am, however, glad to see you are beginning to read - well, I'm not sure if you are actually reading them- but at least researching the caselaw.

 

 

[funny note - I sometimes comment on accuracy of legal sstatements used and the party, often, misinterprets this as an attack or an attempt to hold an opposing position. Scafeets, for instance, a few weeks ago thought that I was promoting piracy b/c of some legal distinctions I brought up. I suspect that Real MC thinks I am "pro RIAA / anti-archiving" (or something similar) because, again, I bring up some legal distinctions -- Funny thing thing is, I even mentioned from the get-go I dont think the fair use of archiving has been fully legally tested. I realize, often, these threads are sarted by intensely interested parties. This can lead to an "us v them" attitude and attempts to bolster, not examine, positions. This is why there is the truism "a lawyer who represents himself has a fool for a client".]

[The Real MC]

 

And remember (I'm not sure if you are understanding this part - you don't seem to address it at all) - fair use is an affirmative defense handled on a case by case basis Remember, legitimate use doesn't have to be "fair use" -- abt 2/3 of chapt 1 in title 17 are limitations to right of copy

 

 

Study of fair use cases (yes, I've been researching) does indeed show it is an affirmative defense handled on a case by case basis - albiet still not clearly defined. But I can find no case of successful criminal or civil copyright infringement involving personal backup.

 

 

I suspect that Real MC thinks I am "pro RIAA / anti-archiving" (or something similar) because, again, I bring up some legal distinctions -- Funny thing thing is, I even mentioned from the get-go I dont think the fair use of archiving has been fully legally tested.

 

 

Rest assured I hold no such "pro-RIAA" assumption.

[The Real MC]

 

You and all your file swapping buddies are the primary cause of all the problems you blame labels for, which, in turn, exacerbates the problems you complain about. It's like watching someone repeated slam their head into a wall, all the while complaining about the pain.

 

 

Stop right there. Not only do you have blinders on, but you are wearing earplugs as you fail to read in previous posts that I DO NOT P2P. Because of your quick knee-jerk reaction to blame file-sharers for your woes, you neglect people like me who do not p2p and are complaining of poor value in your product. So the file-sharer is a poor crutch.

 

 

If you signed your lease in 1970, you're not done until 2020. If you own your own building, why sell, make a profit, and spend that profit to move somewhere else...so you can then begin to pay a lease? A major moving out of a major market is stupid, the whole of the entertainment industry is in NYC and LA, there is little sense in relocating to Lincoln, NE. Most of the entertaiment industry related work/offices/studios are still in these markets, moving would be foolish. So they are, in effect, staying where the work is.

 

 

Good Lord, will you take off your blinders already you are not listening to what I am saying or looking at what is going on around you. I am not going to waste energy repeating what I have said more than once. Small wonder you are dinosaurs, keep up the ignorance and you will truly become extinct.

 

Everybody is to blame except you, and we are tired of this disposition. Perhaps you need to be reminded that the major labels were convicted of price fixing a mere few years ago.

[slight-return]

 

Study of fair use cases (yes, I've been researching) does indeed show it is an affirmative defense handled on a case by case basis

 

 

Well, yeah it's one of the basic basics of fair use. that's why Ive been saying it so much -it's one of the things people don't understand.

 

 

 

 

- albiet still not clearly defined.

 

 

that's BECAUSE it's on a case by case basis -- see it grew out of doctrine (it wasn't entered into statute at all until '76)

 

which is why characterizing fair use as "is an exemption to copyright law and is designed for backup for personal use. " isnt particularly accurate on a number of points

 

 

But I can find no case of successful criminal or civil copyright infringement involving personal backup.

 

 

you may not even find an unsuccessful case using a fair use defense in a personal archiving case...youmight not even find much in the way of suit filed (and later dropped)-- to hold an affirmative defense there would have to be a suit (there is no obligation to file suit and then the burden in an affirmative defense is on the D ). That's why it may very well not have been fully legally tested.

It's really important (and QA guys might remind you of this) to dig that absence of evidence is not evidence of absence -- given that "fair use" is an affirmative defense, we'd need to find caselaw showing a succefful use of that defense (again, in an affirmative defense, burden is on the D) with the similar fact-pattern to show that 'it has already been tested in court'

and we'd need to find a SCOTUS case (SCOTUS isn't allowed to give advisory opinions) with an archiving fact pattern to say "It the US Supreme Court affirmed our fair use right years ago."

 

 

 

Rest assured I hold no such "pro-RIAA" assumption.

 

 

I'm not seeing how that fits in with your ealier assertion

You're still equating copyright for profit with personal backup for non-profit use

 

My comments weren't based on that

[The Real MC]

 

Rest assured I hold no such "pro-RIAA" assumption. I'm not seeing how that fits in with your ealier assertion You're still equating copyright for profit with personal backup for non-profit use None of my analysis was based on that

 

 

Did you not work in software development at one time? Are copyright privileges available to software, printed media, electronic media - not just music? Where in my broad assertion did I specify music copyright? I'm afraid you've made a gross misjudgement by reading too deeply into my assertion.

[slight-return]

 

Did you not work in software development at one time?

 

 

yup - why you would see that as material to the copyright analysis in question-- I have no idea

 

 

Are copyright privileges available to software, printed media, electronic media - not just music?

 

 

certainly! ( though are are differences in each there can even be differences in phonorecording type). But that doesn't really have to do with the "you are equating profit and copyright" statement

Even in SW (possibly, especially in SW -- the GNU GPL is an example of that), protection of copyright does not necessarilly have to be a profit-based interest

and the analysis of copyright law certainly doesn't have to be

 

 

Where in my broad assertion did I specify music copyright?

 

Never said you did - what I mentioned you did say was that I was equating copyright with profit.

The bredth (possibly overly so) may very well be the problem with your assertion - you never did back it up

and you did mention tht the thread was full of RIAA fanboys (without specifying)

 

and you have offered that you can't find a successful infringement case for personal archiving (which isn't an analysis of "fair use" )

 

 

 

 

 

I'm afraid you've made a gross misjudgement by reading too deeply into my assertion.

 

 

 

you never did address that assertion you initially made (nor the other things I mentioned in Post #98 I think) that I was equating the two

 

I don't think I made any definitive judgement at all (please read closely)

"I'm not seeing how that fits in with your ealier assertion"

 

Now, if you care to clear that up, how the copyright analysis v software or other "content" industry fits together in how you see my analysis, etc please do so

[The Real MC]

 

and you did mention tht the thread was full of RIAA fanboys (without specifying)

 

 

I believe my exact words were

 

 

crawling

with RIAA fanboys

 

 

"full" is completely encompassing, "crawling" is not.

 

You're wasted more than your share of birdshot.

[fetishfrog]

 

. Because of your quick knee-jerk reaction to blame file-sharers for your woes, you neglect people like me who do not p2p and are complaining of poor value in your product. So the file-sharer is a poor crutch.

 

 

It's not that I haven't read it, it's that I think you're a liar regarding your use of p2p. Simple as that.

 

The poor value problem has been exacerbated as a result of p2p, not the other way around. I've explained why too many times to go through it again.

 

Indies have been hurt by p2p file sharing every bit as much as majors, more in some cases. They don't have the deep pockets to weather the storm. How do you explain that, poor quality? How are upcoming bands going to get a foot hold...iTunes??? Does iTunes market, provide tour support, etc. No??? So a band with no marketing beyond its webpage lost in a sea of internet noise is somehow going to break through by selling songs on iTunes? Has one band...ONE BAND, ever made it out of the garage exclusively selling on iTunes? No. And they never will.

 

If you don't understand why, it's because you've never played the game. And you haven't, and I have, and still do, and it's obvious. And I'm not going to explain it anymore. Copout? Yes. True? Yes.

 

Good day.

[slight-return]

 

"full" is completely encompassing, "crawling" is not.

 

 

but certainly not very specific and doesnt particularly cover the issue of that assertion, nor does it address "crawling" in light of the other parts I mentioned

 

 

 

 

 

You're wasted more than your share of birdshot.

 

 

That is an analysis we could place elsewhere (as in the above - or Where in my broad assertion.. ) and even starts ealier in your initial statements about "fair use" and your US copyright office citation (a very very broad introduction to the concept)

[slight-return]

I believe my intentions have been misinterpreted

 

I believe, it's a given - through my lens of number of interrelated fields, that what we have is a falsely adversarial relationship and that very little legal theory will actually get discussed; which was my role here.

The Real MC, Im glad I could get you started in caselaw research - I find it an underserved part of basic civics - due to the above resaon, I doubt I can be of much further help.

Please continue your study of law - as will I, it's a process - I think its beneficial

[The Real MC]

 

It's not that I haven't read it, it's that I think you're a liar regarding your use of p2p. Simple as that.

 

 

You sir, do err in calling me a liar. So here is your proof:

 

There are tons of threads on HC discussing p2p, file sharing. Use the search tool on my name, and find me one thread where I disclose that I use p2p. Go ahead, just one.

 

Perhaps it has not occurred to you that I *HAVE* played the game; have composed music, have made CDs of original music, have them on the market in the past. So tell me my good man, what good reason would I have to condone or use p2p?

 

I find your blanket accusations highly offensive.

 

 

Good day.

 

 

Yes indeed. This discussion, good sir, is over.

[Deeprig9]

Reasons the RIAA is wrong about p2p copyright infringement:

 

1: Record companies need to cut spending, relocate their offices to Dothan, Alabama or Florence, South Carolina.

 

2: Case law says a computer is not a recording device, but other case law in modern reality is still pending. Recording and Duplicating have two different definitions, specific to congressional copyright law. Bill Clinton did not have sex with that woman.

 

3: REal MC has known too many booking agents and they are mostly full of {censored}, so any allegorical data without a highlighted 1040 complete with IRS form consent verification (typically used by underwriters to verify tax returns with the IRS on mortgage applications) is worthless.

 

 

4: HP never got a patent on "ethernet" in the 80's, so it's the common computer language today.

 

5: My dog licks his asshole.

 

 

 

 

 

 

 

 

 

 

 

 

Case Closed. The RIAA sucks and we need to move on.

[skippydmongoose]

5: My dog licks his asshole.

Link?

 

Seriously, they're never gonna stop this {censored}, and it's {censored}ing impossible to police.

[The Real MC]

 

Reasons the RIAA

 

 

I'm not demanding repentance, but what a fine specimen of a petulant sourpuss you are. I haven't see petty contention like this since grade school. News update: you're a big kid in the real world now, so stuff that disposition in that childhood where it belongs and grow up.