RIAA President Decries Fair Use

triskaidekaphile writes, "Cary Sherman, president of the RIAA, has an editorial on CNet responding to the Consumer Electronics Association's support of the Digital Freedom campaign for fair use. Sherman proclaims, 'The fair use doctrine is in danger of losing its meaning and value.' Like a true spinner, he indicates that fair use is indeed important, then states 'Let's be clear. The CEA's primary concern is not consumers, but technology companies — often large, multinational corporations which, like us, strive to make a profit... But to seize the mantra of "consumer rights" to advance that business interest is simply disingenuous.' Slashdotters, trollers, and pollsters one and all, what say you? Disingenuous or dissembling?"

Leaving for Lojban forums

zoi gy Well, this time I am really leaving. I will try to speak only Lojban, as much as possible. Doing so here would get me modded down to oblivion. Keep up the good work, everyone! The Singularity is near! Don't take my weapons and armor! Use Hexadecimal! Use Binary! Don't use decimal! Be an atheist! Be a libertarian! Wow. Let me make it somewhat relevant. I don't want to listen to non-Lojbanic music. This means I'll be getting by on a lot of instrumental stuff. Much of which happens to be non-RIAA. gy

u'e sai

fa'o

Re:Leaving for Lojban forums

"Slashdotters, trollers, and pollsters one and all, what say you? Disingenuous or dissembling?"

Well... you can't say the parent post is offtopic. I mean, this was all but asked for.

I think he has a point

Just not one that I agree with.

Re:I think he has a point

Actually you can't own points. A "point" is basically an imaginary concept and conveys nothing more than information. Noone in their right mind would come up with a system where you can own information. Oh wait...

Re:I think he has a point

Well, you have no "right" to the song you created, but I think that we as a society should throw you a bone to encourage more songs. Not a 90-year bone, mind you, but a more reasonably-aged bone. The discussion should not be "How do we protect the rights of the artists?" because they have no rights. The question should be "How do we encourage the production of art?" Copyright is one approach, and has actually done a decent job. I just think that the pedulum swung too far in one direction. Some combination of short commercial copyrights and compulsory licensing is probably the way to go.

Re:I think he has a point

Copyright of today actually stifles the creation of more art. It has turned from a protection of the artist to a protection of the studios, and this in turn means that only artists that agree to work together with the studios "may" produce art. With more copyrighted material, you have less room to create new art (or recycle existing art to something new. Try being a collage artist today...).

It's not (only) the duration of the copyright, the form itself hinders the creation of art. Copyrights (as well as patents) have turned from a tool that should encourage to publish and produce into a tool to monopolize the market. And that has never been the intention of its creation.

Quite the opposite!

Re:I think he has a point

The question should be "How do we encourage the production of art?"

The question is, why do people think that humans need any kind of incentive to create art? We've been creating art since we scratched Borg & the Wildebeast onto our cave wall, and since music was just a drumbeat in the jungle. Must we pass laws to encourage breathing or eating?

Copyright is one approach, and has actually done a decent job.

The only thing we can demonstrably state about copyright is that it has moved large chunks of wealth into a small number of hands. We simply can't truly deterimine whether or not copyright has had a positive impact on the creation of works.
While some may point to the vast quantities of works created the past century in the USA as proof that copyright works, I'll respond with two points:

• Copyright is a coupl'a hundred years old. It is really only in the last 50-100 yrs that there has been an explosion in the publication of works.
• I suggest as an alternate theory that the creation of works is tied directly to available leisure time (both as creator and consumer), and at no time in history have more people had more leisure time than the USA in the same last 50-100yrs.

Provable? nope, but it's at least as plausable as the copyright theory ... more plausable in my opinion.

Lastly, what those that are proponents of copyright never talk about is the damage that it does - I've read estimates that some 70% of all published music is unavailable for purchase. It's locked away under copyright, and the 'owner' doesn't feel that it's profitable to release it. So anyone who looks at the shear quantity published, without taking into account the works that copyright renders *unavailable* is being dishonest...
It's the RIAA/MPAA et al that have everyone believing that copyright is necessary to us ... when in reality it is necessary only in terms of ensuring their profits.

I think he has good points, too....

He sharpened his fangs carefully, didn't me?

Re:I think he has a point

Reading the whole article, I think his point was to mislead. In his whole time talking, he trots fair use out as a way to criticize, parody or comment on a work.

For me, fair use is being able to backup my cds onto my harddrive and encode them in any format I please for my mp3 player.

If it were up to the RIAA, they would determine exactly which format I would purchase and keep my music on, and that I would have to buy the same music over and over again everytime the next best thing came out.

Given their history, their hypocritical actions against artists, I have very little reason to believe they are arguing anything in good faith, hence I have very little reason to listen to them at all.

He did lie....

"Reading the whole article, I think his point was to mislead"

He did lie about a couple of situations being theft, when in fact no theft was ever involved.

"For me, fair use is being able to backup my cds onto my harddrive and encode them in any format I please for my mp3 player."

That about does it for me, too. Add to this DVD/video content (including anything I download or view online) and being able to view such content on my DVD player.

Re:He did lie....

"For me, fair use is being able to backup my cds onto my harddrive and encode them in any format I please for my mp3 player."

You're confused;

    Fair use is an exemption that lets you make and distribute copies (for money or not) which would normally be prohibited by copyright. Thus, things like reviews and parody.

    Things like backups and media shifting which doesn't involve making copies for other people should never have been the subject of copyright in the first place. They're just "use". Reasonable, ordinary, non-infringing "use" of something you already paid for.

    I shouldn't need permission to "copy" a CD onto my mp3 player or recode it in different format, the same way I shouldn't need permission to put it in a regular CD player and have all the bits 'copied' from bumps on the disk to digital signals, to an analog representation of the music.

    Don't let them pull the wool over your eyes, this isn't about fair use. This is an attack on just plain "use" and if you let them get away with it this time, the next move will be a fee every time you play the disk.

Re:He did lie....

Can it be agreed upon that theft is when you take something away, without permission, from someone else so that they no longer possess it, or as much of it, as they had before the theft?

Then copyright infringement _IS_ in fact, a type of theft. One is stealing something from the copyright holder.

What did the copyright holder stealing? Not money, certainly... as the copyright holder has no _less_ money than they had before the infringement. But there _IS_ something the copyright holder _does_ have less of: Exclusivity.

Copyright is the _EXCLUSIVE_ right of its holder to copy a given work, and nobody else has any permission whatsoever without granted permission from the copyright holder. If one decides to copy a copyrighted work without permission, they are intrinsically lessening the amount of exclusivity that the copyright holder possesses over the right to copy the work (exclusivity of course meaning that nobody else was supposed to do it). Fair use copying is a concession to the general public that does slightly lessen the exclusiveness the copyright holder has without, in general, impacting the value or worth that it might have. Since such use is explicitly exempt from copyright infringment as outlined in the copyright act, the copyright holder can always be assumed to have agreed to this concession, or else he would not have copyrighted and published his work and nobody would know of its existence. Therefore fair use copying isn't stealing, since the copyright holder has implicitly given permission to copy for such purposes.

But make no mistake.... copyright infringement is most definitely stealing.

It's nice to hear different reasoning, but...

How can you steal a concept, a feeling, or an idea? If I do an excellent moonwalk, have I stolen exclusivity from Michael Jackson? Do Robin Williams' impressions infring on the exclusivity of the impersonated? You can't steal an idea of exclusivity, only money associated with the loss thereof.

I'm much more comfortable with the argument that piracy is stealing from the (mostly well lined) pockets of record companies and artists. This at least holds water when directed at those who could have/would have otherwise paid for the content.

By your logic, artists could sue for the pain and suffering their loss of exclusivity caused them.

Re:It's nice to hear different reasoning, but...

What part about the fact that copyright is supposed to be the _EXCLUSIVE_ right of its holder to copy a work is incomprehensible? If you don't think that's what it should be, that's fine, but that doesn't change the fact that is exactly what copyright is.

So your argument is that because the law says so, it must be right? See the thing about copyright is that it's a favor, a gift, granted by we, the people, through our government, to artists in order to enrich the public domain. "Exclusivity" is not property that can be stolen, it's merely an enticement, a bargain between the public and the creator: "you create and share it with humanity, and in return we'll use the power of government to keep others from profiting from your work for a little while". See, it's fucktards who think it's even rational that someone could own a song or a story that are the problem. Copyright is not a natural right (like the right to life, liberty, or property) by the simplest measure: the exercise of copyright is inherently a restriction on the freedom of others. I simply cannot fathom why it is that there are so many fools out there who don't understand this.

Did you bother to think this through?

"Can it be agreed upon that theft is when you take something away, without permission, from someone else so that they no longer possess it, or as much of it, as they had before the theft? Then copyright infringement _IS_ in fact, a type of theft."

No, since the taking away part you describe as necessary is not present in copyright infringement.

"Therefore fair use copying isn't stealing, since the copyright holder has implicitly given permission to copy for such purposes. "

Actually, it isn't stealing, since no form of copying is stealing (whether it is unfair use or fair use)

"But make no mistake.... copyright infringement is most definitely stealing."
BR Ermmm. yeah. Despite the fact that it does not meet the definition. Chalk this up to the weak argument: "copyright infringement is theft because I SAY it is, no explanation necessary."

Yet, no exclusivity is stolen

"It's the exclusivity that's stolen, not the right itself."

Let us return to that place where those who abuse the definition of "theft" fear to tread: the dictionary. Definition of theft "the act of stealing; the wrongful taking and carrying away of the personal goods or property of another; larceny."

Aside from the gross inapplicability of the idea of "carrying off" to a possible diminishment of a right, let's look at the "taking" requirement. You are arguing that exclusivity is stolen, right? If this is true, then how come the copyright infringer does not gain any exclusivity???. If he's taking it, he'd gain it, right? Of course he doesn't.

The word "theft" once again is proven inapplicable. Even if we assume that this right is a property, the act of infringing on it does not constitute the right being taken from one person by another. Rather, it constitutes the destruction or damage of the right.

In a real-world analogy, crimes where you wreck something but don't steal it are often called "property destruction" crimes. They are never called theft. A vandal smashing a window is doing something similar (in the analogy) to what you describe when talking about damage to the exclusivity right. The vandal certainly can't be accused of stealing a window.

Re:I think he has a point

Given their history, their hypocritical actions against artists, I have very little reason to believe they are arguing anything in good faith, hence I have very little reason to listen to them at all.

Yeah, their history sucks. But is what they're saying now unreasonable? If you push your opponent against the wall and he finally relents and gives you what you need (not saying he's giving everything, but he is giving something) do you just scoff at him?

Hell, we need to be taking notes on what he's saying now and we need to stick him to his word. He says things should be balanced. Yes, they should. He says we should have some, but not unlimited fair use. Yes and yes.

When your enemy gives you ground, you don't go hide in your bunker and call him names. You advance. I consider this an opportunity.

TW

Yes, what he's saying is unreasonable.

He is attempting to portray the fair-use balance as the interestst of the content publishers versus the interests of the equipment makers. At one point he makes this explicit. At another he talks of balancing the interests of "all players". This is totally bogus.

In fact the copyright balancing is the interests of the content producers versus the interests of the content users (of a number of types - including the content PURCHASERS who want to format-shift their property in order to player-shift or space-shift it, whom he carefully ignores).

The makers of the equipment, software, and other insturmentality that enables the content users' exercise of their fair-use rights DO benefit. So they have a financial incentive to support the content users' position. (Indeed, the industry's activity is an effective way for the content users to fund the defense of their own rights.) And their profit is indeed part of the overall social benefit intended to be promoted by the copyright law. But (despite Sherman's FUD) the copying-equipment industry's interest is NOT the other side of the "balance" of fair-use.

I think you're walking into a trap...

I think you fell for his scheme when you basically accepted his point:

He says we should have some, but not unlimited fair use.

I want unlimited fair use! Why? Because it's fair!
I'm not arguing that I should be able to get my music for free, but once I pay for it I can do with it whatever I want, as long as it's fair use. I'm not going to accept his version of "fair" - probably no media shifting, no format shifting, if possible no time shifting and hardware-locked to a specific player - I want the rights I deserve for having paid.
You make the mistake of accepting his framing of the argument: he isn't "giving in" in the slightest, he makes an outrageous demand, and, when no one will fulfill it, backs down a little. It's the same as if I asked you to pay me a million dollars for using the same air that I breathe, and if you aren't willing to pay, well, I can back down to a payment of one dollar a month. I guess you would consider that a great deal, since I "backed down" so much...
(I'm not accusing you personally, but every time I see something like this I wish people were more aware of basic manipulating tactics - these are old tricks, and, sad as it is to see, they still work).

seriously, more mod up for parent

"Fair use" does not define a certain limited amount of copying that you have permission to do. It defines copying that you do *not have to ask permission for. You can try to prevent "fair use" technologically, but there is nothing in copyright law that prevents my circumventing that technical measure. Now I defer to a smarter man:

(Moglen on the DMCA): "You never read a case, because there never was a case, in which under the copyright law, somebody was charged with a federal legal offence of any kind for writing a book about how photocopiers work or for distributing blue prints of photocopiers or for manufacturing and selling photocopiers. When you see a legal regime that is engaged in trying to charge people for doing those things, you can be pretty sure it's not the copyright law, it's something else. The fact that they put the word copyright in the title doesn't make it a copyright law folks"

Re: Speaking on their history

"Haven't we paid to upgrade from record to 8-track to cassette to cd to [for some] mp3?"

There are many products that we buy and replace because they wear out (record, 8T), or because newer products offer better quality (CD) or convenience (mp3). If you made most of those conversions, it's because you had a good reason and obtained a clear benefit from doing so. You could have, for example, bought some equipment and recorded all of those 8-tracks to CDR, but the quality would have sucked, and you didn't really want to take the time to do it anyway (convenience). Again, things we often pay for.

This is what makes the transition from DVD to BR/HD interesting, because in one way you may be paying for the "same" movie yet again... but on the other side, it's not the same movie, but a much higher definition, clearer, sharper version.

Worth paying for? Your choice.

Re: Speaking on their history

Actually I remember back in the day, it was pretty common with folks with "hi-fi" systems that had both a LP turntable and a reel-to-reel, to dub their best-loved LPs to tape, and then play the tape, thus saving wear on the vinyl.

I once dug up an early 'mix tape' that my father had made this way, in the late 60s...format shifting is not a new idea, and it's fairly recently that its been attacked and called "stealing."

The previous upgrade cycles mostly happened because there was some perceived consumer advantage. 'Cassette tapes' sucked less than eight-track (cassettes), particularly for use in cars. CDs were superior to vinyl in terms of damage resistance (or so they said at the time, anyway), not wearing out, ease of FF/REV and SKIP, and sound quality. People chose those upgrades. Anyone with a decent home stereo could go from LP to cassette tape pretty trivially, and some people did (I know I did, for my car), but it was time consuming and most people didn't bother.

With the CD to MP3 format changeover, moving one's music oneself is trivial. Put the disc into iTunes, hit Rip. Thus, a lot of people aren't repurchasing their music as they did in the past, because this changeover is easier than any in the past. This drives the record companies crazy, because they've been used to getting a huge influx of cash every time one of these changeovers has happened in the past -- in fact, they think they're entitled to it. That is their critical mistake. They are not.

Frankly, I think it is this sense of entitlement that really aggravates me about the RIAA and its member companies most of all.

Re: Speaking on their history

I almost choked on my dinner last year when I read about one record company exec expounding on how "Apple should start sharing-out some of the profits from iPod sales." He seemed to firmly believe that a percentage of any profits related to music sales (even they are from hardware purchases) is due the music industry. This on top of the fact that iTunes makes little money for Apple since the bulk of the profits already go to the rightsholders. There has to be some form of mass-psychosis at work here, at least among the upper management of these outfits.

Besides, how do you tell when the head of the RIAA is lying?

His lips move.

Re:I think he has a point

[ Warning: I am not a lawyer. That should be obvious after the first paragraph. ]

I'm not sure that his use of "fair use" is that far off. For example, "fair use" means you can quote a few words from a textbook, but cannot repeat the whole book. "Fair use" also means you can play a few seconds of a song, or a few seconds of a movie without permission or penalty.

Fair use does not mean they have to make it easy for you to make a copy of those few seconds.

The real dissembling comes from him saying nothing about the doctrine of "first sale." That's the one that gives you the right to do whatever you want with a product once you've purchased it. For example, if you purchase a Spalding baseball the Spalding company cannot limit you to catching it only with a genuine Spalding glove. They can advertise the balls as "best caught with a Genuine Spalding Glove", they can print "WARNING: catch this ball only with a Genuine Spalding Glove or hand damage may result", and they can even print "Never sell your glove to anyone else" on your glove. But what they print on it has no legal bearing on what you are legally permitted to do with it.

There are exceptions for certain materials, such as pesticides and herbicides, that prevent you from using them in a manner harmful to the environment. But unless a Brittany Spears disc is capable of producing an ecological disaster, I doubt strongly that they apply.

yer mistaken

For example, "fair use" means you can quote a few words from a textbook, but cannot repeat the whole book. "Fair use" also means you can play a few seconds of a song, or a few seconds of a movie without permission or penalty.

You are mistakenly conflating two forms in the statutory basis for fair use: borrowing for purposes of quotation or criticism and limits on commercial exploitation.

It is perfectly legal to spend an afternoon photocopying a complete book in your public library and lugging the reams of 8.5X11 home with you, if your purposes are scholarly or educational and you have no intention of commercial redistribution. Mr. Sherman is pleased by your confusion in this regard and your mistaken guidance to the hoi polloi. In fact, they are relying not upon the deterrent effect of a handful of lawsuits, but the great murk that this tactic generates around these questions in the public discourse.

It is perfectly legal to make complete copies of any copyrighted work provided there is no commercial intent and no restraint of commerce (read: giving them out for free and destroying the market) and anyone who will tell you otherwise is mistaken or lying. Grokster died not because copies existed on its servers or servers it indexed, but because it had no way of guaranteeing that those copies were not commercially exploited or that restraint of trade was not occurring. It purposefully marketed this anonymity of purpose as a value-add.

No - you are wrong on the amount you can copy

Actually you are mistaken as well. There are no hard and fast rules on 'fair use', but it is determined by:

• the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  
• the nature of the copyrighted work;
  
• amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  
• the effect of the use upon the potential market for or value of the copyrighted work.
  

When I studied Copyright Law as part of my engineering degree, it was emphasised that you cannot copy the whole material regardless of whether it was for educational or non-commercial use.

If you want to read more, you can do so at the US Copyright Office website:
http://www.copyright.gov/fls/fl102.html [copyright.gov]

From that site:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."

Note that nowhere in those examples does it say wholesale copying of a document.

Re:yer mistaken

Of course, rodentia is wrong. Try reading the relevant section [cornell.edu] of the US Code before you take his advice and start photocopying all of the textbooks in the library willy-nilly. The law explicitly states that all of the four factors enumerated there will be considered when determining if something is fair use, and those factors include the type of use (educational or commercial, for instance), the amount of material copied, and the effect on the market.

Re:I think he has a point

Just not one that I agree with.

What part of it don't you agree with? He really doesn't say anything inflammatory at all. In fact, he goes on and on about a balance and different interests working together.

In truth, I think he only does that because we pushed his group's unreasonable stance so hard that they have no choice but to come closer to the center. We should not let up. But what he is actually saying makes sense.

Point one: We must balance interests. Yep, I like it.
Point two: Downloading songs without paying for them is bad. I agree with that as well.
Point three: There are fair use provisions in the copyright act that must be respected. How could I disagree?
Point four: The group championing consumer rights is self serving and wrong. This one I don't know about. I'm honestly not very familiar with this particular org. I won't defend this.

3 outa 4 aint bad. Do you care to elaborate further on the reasons for your stance?

TW

Re:I think he has a point

Its the things that he doesn't say but implies that are the real sneaky bits.
1) Fair use isn't about making personal backups (I'm talking putting the song on your favorite player not copying for your friend).
2) CEA is self interest, but the RIAA is better than that..

Also he never said that fair use rights "must be respected" he acknowledged they exist. But the RIAA and MPAA have shown disdain in the past for research and other fair use rights when they require breaking encryption to achieve them.

Re:I think he has a point

What part of it don't you agree with? He really doesn't say anything inflammatory at all. In fact, he goes on and on about a balance and different interests working together.

Ah, the skill of the spinner (Mr. Sherman). What about the right to make my own backup copies and to share amongst my own family? These are legitimate fair uses that Mr. Sherman's organisation is working to eliminate. Why does he not mention these rights?

The other problem with Mr. Sherman's statements is that it serves mostly publishers and not the artists -- while the goal of copyright law is the encourage the creation of artistic works, not to maximise the profits of publishing houses. Whether downloading is illegal or not ignores the real question, which is does it help artists and should it be illegal?

Private property?

... Whether downloading is illegal or not ignores the real question, which is does it help artists and should it be illegal?
Wrong. The question should be about respecting private property of all kinds, no matter who it belongs to.

Copyright is not private property. Copyright is a limited-time government-granted monopoly on the reproduction of intangible works.

I own a bicycle. I own it forever -- my ownership of the bicycle never lapses.

I own the copyright to this message. 70 years [or whatever the Disney Corp. manages to extend it to] after I die, the copyright expires and this message automatically goes into the public domain.

...a slippery slope on which the government tells you what you are allowed and aren't allowed to own.

Nonsense. With copyrights, the government is controlling what I can do with the book I already paid for. And the government already says you are not allowed to own some things -- like other humans.

But... consumers *do* care about fair use

I don't think the CEA "invented" the idea that fair use is a consumer concern. Whether you will be legally limited in reprinting (reposting?) or sharing some copyrighted work is pretty much the definition of a consumer concern about IP.

In other news...

...area rapist decries the right to bear arms, saying "the ability of a woman to defend herself is in danger of losing its meaning and value."

Riiiiiight!

"Let's be clear. The CEA's primary concern is not consumers, but technology companies"

Which is why RIAA has gone for a lot of soft targets http://www.theinquirer.net/default.aspx?article=35 669 [theinquirer.net]

No Need to Poison the Well

"Like a true spinner"

Let the guy make his points and disagree where you feel appropriate. But there is no need to preface it with a comment. You could say that about anyone trying to make an argument.

Let me fix that

I think he meant to say:

"Let's be clear. The RIAA's primary concern is not artists, but themselves -- a large, quasi-multinational corporation which strives to make a profit... But to seize the mantra of "artists rights" to advance that business interest is simply disingenuous.'

Sherman uses incorrect terms....

he says: "don't believe their creations will be adequately protected from IP theft and other unfair...."

Considering that it is impossible to steal IP (you can only copy it), he has no idea what he is talking about. Either that, or he is intentionally lying. He also quotes a Grokster judge who said that Grokster was theft, and says that this judge is tech-savvy. How can he be? If he knew a thing about Grokster, he'd know that no theft ever took place on it.

What a terrible analogy

"It is proper to call the act of removing money from the content owner's pocket theft."

Yes.... which has nothing to do with copyright infringement.

"You can say "I just made a copy" but that does not change the fact that you accessed something I should have been paid for to enable your access"

Accessed? Like in your wallet example? Theft is theft. Period. Copyright infringement is copyright infringement. Period. Sounds like you are discussing some sort of unauthorized access. There are other forms of unauthorized access which are also not theft (such as trespassing). The person who has "just made a copy" is guilty of copying, not stealing.

Of equal interest is Gary Shapiro's response.

Gary Shapiro, the CEO of the Consumer Electronics Association has an intersting response. Below are some paragraphs from his response that I thought were intersting.

Maybe it's because the RIAA's own attorneys argued in the Grokster case two years ago before the Supreme Court that consumers can legally make copies of their CDs that Mr. Sherman feels he needs to rewrite the history of fair use here. To say that the RIAA has moved away from the position they outlined for the Court is an understatement. They have attempted to turn the concept of fair use into a flaccid technical defense used only by journalists and obscure authors and creators.

Mr. Sherman also takes great pains to incorrectly and deceptively quote from a speech I gave five years ago prior to the Supreme Court's Grokster decision, and in the process seeks to paint us as money grubbing extremists. Yet, the RIAA won the Supreme Court case and yet still wants more from Congress. This should come as no surprise. When technology companies agreed to limit technology by agreeing to pay royalties directly for each recording device and by restricting how those devices were built, they promised to end their costly and frivolous lawsuits against our companies. Yet, they still want more. We kept our half of the bargain and they sued XM for selling a recording device which can't even send a signal over the internet.

Why shouldn't a student be able to use lawfully acquired music in a school project? Why can't my wife use the song she bought on ITunes on a DvD she is making of our photos? Why can't I make a favorite hits CD with music I lawfully acquired.

Mr. Sherman paints us as downloading thieves. But the RIAA litigation machine, which has extracted millions of dollars in settlements from over 10,000 Americans, wants bigger tools and new laws.

Enough already. Americans have rights to use lawfully acquired music for non-commercial purposes and the effort by the RIAA to paint them as pirates is unfortunate. That's why the Digital Freedom campaign is a movement whose time has come.

Fair Use vs. Limited Times

We'll give you fair use, if you give us limited times.

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;

You see, ever since the late 1920's Congress has been retroactively extending all copyrights every time they are close to expiring. The length of a copyright is currently at 95 years, which is far longer than the average author's life expectancy even if we assume they penned their work at the age of 1. Well past the lifetime of any human being if we assume they created their work after their teenage years. Every time copyrights are about to expire, congress extends them making them effectively unlimited. So, how about a compromise here? We'll grant that not everything we do is fair use (such as posting to youtube.com and file sharing sites) and you grant us a copyright term of around 50 years?

Bottom line: I should be able to record anything!

The bottom line for fair use is this:

I should be able to make a copy, for personal use, of any content that I can receive, whether it is broadcast for free or (especially) if paid for.

This is what Fair Use has always been understood to mean, in addition to being able to use small excerpts for review or educational purposes.

It was about us popping a tape in our VCR or radio and making a recording.

Now that the recordings are equal quality to the original, the RIAA and company want to renig on the deal. It's as simple as that.

If you've paid to receive the content, or it is freely given away, you should be able to make a copy for personal use. Period.

Disingenuous how?

The consumer electronics association has everything to gain from legal, clearly defined fair use; more goods sold to the user to duplicate, backup and store copies of perishable media such as those that the RIAA peddles. The RIAA loses ground because they can no longer force you to buy a new copy of your product if the one you purchased is no longer usable. My point is, of course the CEA has a lot to gain from it, but that only demonstrates that consumers aren't the only ones that want legal clarification of fair use statues, or stand to gain from it. This seems more to me like the RIAA standing up saying "Not Fair! He wins if the consumer does and we don't!" Go cry in another corner, emo boy...

classic ad hominem attack

This is a classic ad hominem attack, which seeks to avoid addressing an opponent's main argument entirely by casting into question the person or entity who is making that argument. Thus, an ad hominem ("to the person") attack addresses not the argument on its own merits but the person making the argument, usually by attempting to undermine the person's true motivation or intention in making the argument. I think in contemporary developed society, this kind of ad hominem maneuver can't be very effective in actually swaying anyone. We're not very susceptible to the "they're just capitalists like us" argument. First of all, it's not a very strong counterargument to begin with. Secondly, consumers are VERY FAMILIAR with the fact that businesses are interested in making money, or, in general, that societal forces are composed of opposing interests and groups of interests that seek common ground in order to push forward an agreed upon agenda that meets the needs of multiple interests. So on the one hand, you have the RIAA, an entity that has demonstrated its own desperation, ignorance and sheer laziness, as well as a sense of entitlement and mean-spiritedness that does not stem from actually producing anything but merely licensing and distributing it. Remember when Creedence Clearwater Revival's recording company sued John Fogarty for stealing his own style of making music? (And lost?) They're essentially luddites; if they could get rid of the technological successes of the last 20 years, they would. And on the other hand, you have a bunch of companies that want to sell you some shiny bits of kit so that you can walk around with your tunes and feel cool. Oh, and a bunch of pissed off, anti-control, anti-corporate consumers. Who do you want on your side? Who is on your side? The RIAA counterargument is substanceless and ineffectual, just like their feeble anti-piracy countermeasures.

Anything similar to "fair use" outside of media?

I'm sitting here trying to find something "interesting" to write - I figured it shouldn't be too tough to find something "fair use"-ish aside from printed and viewable media - and I'm coming up dry.

Is there anything else you can buy in the world, where there are such restrictions placed on its use? Stuff that's reasonably easy to duplicate, and has potential for such abuse, that it has protections?

Looking around my (typically messy) desk, I see... hmm, my camera. Ok, I can pay $1300 for a lens on my DSLR.. Canon doesn't say "dude you can't put that on any other camera". Nope. Of course, there's no other camera to put it on, but I knew that when I bought it, and canon doesn't say that I can't do what I want with the results of the pics.

Ah, there's a clip loaded with .22's (well, this is the country, and the other day a coyote tried to get at my chickens!). Remington doesn't say that I can only put these in their rifle. I bought the bullets, I can do what I want with them, as far as the originating company is concerned (Uncle Sam may disagree with me, of course, but you won't see Remington getting involved in that).

So, is there anything produced where the manufacturer places specific use restrictions (not "suggestions", like a recipe which calls [let me exercise "fair use" in an excerpt here] for "1 bar (8 oz.) NESTLÉ CHOCOLATIER(TM) 62% Cacao Bittersweet Chocolate Baking Bar, broken into sections" or "2/3 cup LIBBY'S® 100% Pure Pumpkin" as though something else is going to ruin the recipe - they're not denying you the right, or ability, to use their recipe unless you use their product!) other than media?

Perhaps the special thing about media is that the company wants to sell you not "listen to this song" or "watch this movie" but "listen to this song only on this one thing". There's a clash between what the consumer believes himself to be buying, and what the company claims to be selling.

Social Contract

Copyright is a social contract. The government agrees to protect a monopoly for a limited time in exchange for an idea being released into the Public Domain. The Fair Use clause is a reminder that the material