Analog vs Digital Legal Dichotomy

[method77]

In 1992, we had no TiVos, and no iTUNES. Technology has boomed since the Sony BetaMax, but the laws have not shown parity, with regard to the treating of digital and analog. This is problematic, and I believe the only reason for this unfair treatment of digital with regard to analog, is because of the lobbying efforts of the RIAA.

Under the AHRA (Audio Home Recording Act) of 1992, the Court decided basically that it would be legal for people to use a video recording device to make copies of material from the television, and to make taped copies of songs from the radio.

This would include making copies of entire movies, even several movies in a row, without an intent to use them in some sort of critique, or in any of the ways in which copyrighted materials had generally been used under the fair use. One of the prongs of deciding fair use has been what percentage of the total copyrighted material is used. Here, you were taping the whole thing. But, the notion that this was fair use prevailed.

This was analog technology.

Along came digital. Now, you would think that, for example,PVRs (personal video recorders) like TiVo, which basically saves a television program or movie to a hard drive, in digital format, would be settled under the "BetaMax" decision, and indeed , in an article from 1999, we find this:

http://www.findarticles.com/cf_dls/m3169/3...1/article.jhtml

"Networks and program producers "don't have a leg to stand on" in bid for copyright fees from personal video recorders (PVRs), CEMA Pres. Gary Shapiro said. Advanced TV Copyright Coalition had said PVR companies must negotiate copyright fee settlements with program owners or face legal action (TVD Aug 16 p5), but Shapiro said U.S. Supreme Court decision in Betamax case means "law is settled and clear," that recording programming for personal use isn't copyright violation."

This would tend to indicate that digital media files , copied for non-commercial, personal use, would be fair use as well.

But, there started to be indications that the powers that be, wanted a different fate for digital files.

Traditionally, the copyright holders of analog, copyrighted material, lost some of their rights upon the first sale (i.e. the "limitation of first sale" doctrine) which, among other things, allows a person who purchased a vinyl album to resell it at a garage sale if they wished.

The Copyright Office, under Marybeth Peters, after input from lawyers hired by one of the "Big 5" of the RIAA, found that digital music files, ought not to be governed by the limitation of first sale doctrine.

Ms. Peters has testified on this issue in various hearings I believe.

The limitation of first sale in a "digital world" is discussed at this link.

http://www.house.gov/judiciary/peters_121301.htm

" 1. The First Sale Doctrine in the Digital World

a. Evaluation of Arguments Concerning First Sale

The first sale doctrine is primarily a limitation on the copyright owner?s exclusive right of distribution. It does not limit the exclusive right of reproduction. While disposition of a work downloaded to a floppy disk would only implicate the distribution right, the transmission of a work from one person to another over the Internet results in a reproduction on the recipient?s computer, even if the sender subsequently deletes the original copy of the work. This activity therefore entails an exercise of an exclusive right that is not covered by section 109.

Proponents of expansion of the scope of section 109 to include the transmission and deletion of a digital file argue that this activity is essentially identical to the transfer of a physical copy and that the similarities outweigh the differences. While it is true that there are similarities, we find the analogy to the physical world to be flawed and unconvincing.

Physical copies degrade with time and use; digital information does not. Works in digital format can be reproduced flawlessly, and disseminated to nearly any point on the globe instantly and at negligible cost. Digital transmissions can adversely effect the market for the original to a much greater degree than transfers of physical copies. Additionally, unless a ?forward-and-delete? technology is employed to automatically delete the sender?s copy, the deletion of a work requires an additional affirmative act on the part of the sender subsequent to the transmission. This act is difficult to prove or disprove, as is a person?s claim to have transmitted only a single copy, thereby raising complex evidentiary concerns. There were conflicting views on whether effective forward and delete technologies exist today. Even if they do, it is not clear that the market will bear the cost of an expensive technological measure."

Ms. Peters makes some misleading statements in my opinion. Ones and zeros really are philosophical representations of computer data. For data to be used, it must be stored in some format on some medium. So, when she says that physical copies degrade with time and use and that digital copies do not...that is indeed misleading, because ultimately, digital data is not just floating around in space, but indeed, stored in a format on a physical device, be it a DVD, CD, removable or fixed hard drive, floppy disk, Iomega disc...and they are stored in digital formats. The idea that a CD will last forever is ludicrous. The data may indeed be affected by the storage conditions. For example, you sit a CD on your car seat in the sun day after day, and then, after a bit, see if that "digital data" is still fine and dandy. The early prognosis of the life of data on floppies and CDs which was very optimistic early on, has been shown not to be as durable as they first predicted. So Marybeth, you are certainly making a misrepresentation in my opinion. The representation of digital data never degrading is belied by several "file corrupted" dialog boxes. And, I would challenge Ms. Peters to tell me how many hard drives she has installed and formatted. I have certainly seen drives fail, so the medium is the message, and if the medium fails, so does the message.

"Works in digital format can be reproduced flawlessly, and disseminated to nearly any point on the globe instantly and at negligible cost."

Instantly, really Marybeth? Obviously your idea of "instantly" must be different than that which most of us mean. Light travels at approximately = 299 792 458 m / s

or speed of light (miles per second) = 4.82469194 × 1011 m2 / s2 . Now, that's damn fast, and supposedly we have that as an ultimate speed limit, but it's not "instantly" because if light travelled instantly, the term "light year" would have no practical meaning, in fact, if light went everywhere "instantly", it would not be capable of measuring, but indeed, the speed of light HAS been measured, hence, another misrepresentation. As to "flawless"...don't agree completely with you there. Although a CD can be copied in such a fashion as to be ALMOST a perfect copy, the devil is in the details, and even someone who has as little perspicacity as yourself Marybeth, cannot believe that an MP3 is a "flawless" copy, since it is by definition of the format, "lossy" or losing data, by nature.

Actually, Marybeth Peters, judging from her statements, must live in a make believe fairy tale world of absolutes where digital data, like some sleeping beauty, lies pristine for centuries, eons, millenia...without wrinkles...like someone who has way too much botox...where all copies are perfect and never change. It's a world in which hard drives never crash, cross linking of files never occurs, files never get corrupted, CRCs always match perfectly...and on and on reductio ad absurdum.

It is this kind of idiocy, and open door policy to the RIAA which has tainted the laws about digital works.

This established to me, the notion that the Copyright Office was going to act in an unfair fashion, in a biased fashion toward the rights of a group I call "digital consumers". Digital consumers are persons who use entertainment media stored in a digital format...e.g. music CDs, mp3 players, DVDs, etc..

Now, back to the AHRA for a minute, we must not miss something. The fair use aspect was that one could make copies for non-commercial use, of 'PROGRAMMED' material.

Radio stations have their tunes programmed by program directors. Cable and public television broadcasts similarly have their transmissions programmed.

Theoretically, if you had MTV and a TiVo hookup, you could save copies of a copyrighted RIAA label tune in a digital format, and this SHOULD be legal, right?

But, I bet the RIAA would claim even this to be illegal, because, historically they have made only one excuse for making a copy of copyrighted material on an RIAA music CD, and that is if the legal owner of that CD desires to make ONE backup copy, and although I don't think they have specified it further, I am sure they would not agree that "ripping" the CD to an MP3 format, would be covered in this copying ability.

I dismiss all their arguments about the ease with which digital copies can be made...

has anyone seen how easy it is to hit the record button on your VCR remote?

I also dismiss this fidelity issue, because I have recorded movies in SP mode from HBO and achieved quality so good, it was hard to tell it from the original transmission. And we KNOW , that MP3s, are lossy in nature, and per Hilary Rosen, are "inferior" quality.

I believe it is high time we treated digital like analog. The fair use doctrine was never meant to be format specific in my opinion. The Sony BetaMax decision did NOT just hold with the BetaMax format, thankfully, because ultimately, and ironically,

the BetaMax format lost in the arena of commercial competition for the video tape recorder.

Arguably, the notion was that it was the non-commercial usage by a citizen, to copy copyrighted materials for their own usage, and not for resale, or for showing and charging your neighbors admission to come see it, that was fair use.

Most people who obtain MP3s of songs are using them for their own, non-commercial entertainment, at home, or on the go,...but certainly, not packaging them and reselling them to others, or charging others for listening to them.

Note to Copyright Office, Marybeth, time to grow up and say NO to industry hacks.

Time to find MP3s as fair use, and stop all this nonsense. Let's move into the 21st Century Marybeth...shall we?

DMusic News

[DudeAsInCool]

The Copyright Office, under Marybeth Peters, after input from lawyers hired by one of the "Big 5" of the RIAA, found that digital music files, ought not to be governed by the limitation of first sale doctrine....

    Actually, Marybeth Peters, judging from her statements, must live in a make believe fairy tale world of absolutes where digital data, like some sleeping beauty, lies pristine for centuries, eons, millenia...without wrinkles...like someone who has way too much botox...where all copies are perfect and never change. It's a world in which hard drives never crash, cross linking of files never occurs, files never get corrupted, CRCs always match perfectly...and on and on reductio ad absurdum....