• Evan

    When talking about mp3.com, you use the term “fair use” to describe how they give people access to their music anywhere. Is this really fair use in the legal sense of the term? Certainly I think mp3.com’s idea was reasonable, despite what the lawyers may conclude, but in any case I was under the impression that it wasn’t capital-F Fair Use.

  • Doug Lichtman

    Evan -

    I’m not sure what Larry will say, but my own view is that mp3.com’s “fair use” argument was very weak. The service they provided had two big problems. First, it took what was plausibly fair use (“space shifting”) and made it enormously easier to do. That was problematic. Something might be “fair use” when done at modest levels but not fair at all when done widely. Second, it opened the door for tons of unauthorized distribution. As I recall the details, mp3.com’s technology made it easy for me to pass my entire CD collection on to you — all I needed to do was give you my login. Again, that would have been relevant to fair use analysis, in that the service very easily could have impacted the then-very-serious struggle against online piracy.

    Doug Lichtman
    Professor of Law
    The University of Chicago

  • Kenny Canfield

    I think mp3.com’s use should be considered fair use. Here’s the basics of my reasoning:

    To me, mp3.com is only making easier what users have a right to do alone. At least one court has held space-shifting to be fair use. In Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., the 9th Circuit held that the space-shifting from harddrive-to-Rio portable music player was “paradigmatic noncommercial use.” Contrast this holding with the 9th Circuit’s holding in Napster, where Napster argued that its service enabled users to space-shift the songs they legitimately owned. The court held it was not fair use, because the space-shifting “simultaneous[ly] involve[d] distribution of the copyrighted material to the general public.” So suppose a user decided to upload her collection of music to a webserver so she could access it anywhere–that might be simultaneously distribution it to the public, and closer to Napster than Diamond. But what if the she password-protected the webpage, and honest user that she is, did not share the password? This, to me, should be just like Diamond — it is personal, noncommercial use, and no sharing is involved. The use should be considered fair.

    Should it be any different if mp3.com makes the process easier by copying the music for the users, and then only giving allowing users to access it once they have proven they own the cd? To me, it shouldn’t. While Prof. Lichtman’s point that what is “fair use” on a small scale might not always be so on a large scale makes sense, I think mp3.com’s effectively serves as a personal storage space for each user who chooses to store his music there; individuals are still taking the initiative, but are saved the trouble of making the full copy. That’s only a great property of technology–making one copy can help all legimitate owners. It would be backwards to say that if each user made his own copy, it would be fair, but if we take advantage of this great property that only one copy needs to be made, we are suddenly outside of fair use. So while this might count somewhat against mp3.com, I don’t think it should swing the balance the other way.

    The court deciding against mp3.com seemed to be concerned with the commercial nature of the site, namely, that mp3.com was selling advertisements. They thus called the use of the songs commercial. While commercial use can of course cut against fair use, being the first factor of the 4 factor test, I don’t think it should be a problem here. Mp3.com is not really providing music for a fee. It is, in effect, providing time and server space for a few–it saves users the uploading time, and it absolves users from having to pay for their own server space. It is not directly making money off of the music (it did not charge users a fee). Nowadays basically anyone can add pay-per-click banner ads to their websites — does this automatically turn any use of copyrighted material on the site into a commercial use, because the web page owner can make a profit based on the site? In my mind it should not.

    The court was also concerned with the fact that mp3.com copied the entire works. Again, a relevant factor to consider. But, in my mind, much less relevant when the context is considered. When one has legimiate access to the entire work already, copying the entire work should not cut against fair use. This follows directly from Sony, which allowed time-shifting as fair use, and Diamond, which allowed space-shifting as fair use. This factor is much more relevant when one is providing portions of a copyrighted work to users who do *not* already have legitimate access to the entire work.

    The court also seemed concerned that mp3.com was entering a market that the copyright holders had a right to enter. It wrote, that “defendant’s activities on their face invade plaintiffs’ statutory right to license their copyrighted sound recordings to others for reproduction.” To me, this is completely off base. The users *already* *own* the music. This is essentailly a justification of the RIAA’s attempt to sell, sell again, and sell the same music yet a third time. If space-shifting to a Rio or a harddrive is fair use — the fact that the RIAA didn’t get the chance to re-sell the music on the CD as music for a Rio, or music for a harddrive — then why should this matter when users get access to their music on an Internet server? Additionally, in my mind, it takes the idea that copyright owners have the right to keep new markets to themselves way too far. If the RIAA wants to compete with mp3.com, they can. Further, if the RIAA were to go into the market of selling online versions of music, it could undermine their sales of CDs. Particularly where the new market might compete with the old market it seems like it’s not good to give the rights holders the exclusive right to the market, because then the market may never grow.

    One more point I want to bring up — while I can see the relevancy of mp3.com’s service making it easier to pass on a CD collection by sharing logins, to me this brings up a similar question as the p2p debates — to what extent can a technology provider be responsible for the behavior of its users? Mp3.com provides a convenient service to its users which has “substantial noninfringing uses” (Sony). If the users infringe copyrights, then go after them.

  • poptones

    It is not “illegal” to post your own music to a server and password protect that server. Although it might be infringement in the strictest sense infringement means nothing if the copyright owner does not assert their right – and in the case of a password protected private online “share” the owner would never even be aware of the “infringement” in order to object. This seems essentially like the “singing in the shower” defense (since I’m not a law student I will not cite case number, but do feel free to look it up).

    The reason what mp3.com did was so bad was they sold out the people who believed most in them – their own pool of artists – in order to co-opt madonna. And they did so by making what was essentially a high quality, single sourced napster. Yes, you had to “prove” that you owned a CD – by inserting it in the drive. But once you had a full “music locker” you could instantly trade it passwords with ANOTHER music locker owner and then you would each have full accesss to high quality MP3 rips of both msic collections… and this is exactly what people were doing.

    MP3.com was lifting entire works and making them available online to, essentially, anyone. All it took was a username and password to someone’s music locker and you could download a high quality mp3 of every cd that person owned. The only difference between mp3.com and napster was the type of information users had to share in order to massively infringe upon media publisher’s copyrights.

    This is not at all what google has ever claimed to be trying to accomplish. I’ve never even seen a comment from google indicating they wanted to make public domain works available as single complete downlaods – that’s not the market they are aiming for or the service they intend to provide. When you’re making your money selling advertising you don’t want people to download a single copy of Romeo and Juliet and never return – you want them to keep coming back. The way Google plans to do this is by offering a service that no book can offer – not even an “electronic” one on your hard drive.

  • Kenny Canfield

    Poptones –

    I agree that mp3.com is not like Google–I think Google’s service is far better. I was just commenting on the discussion in the comments about whether mp3.com’s actions are fair use.

    With respect to posting your own music to a server and password-protecting it, is your position that this is not actually fair use, but that the RIAA simply won’t bother with it/wouldn’t know about it so couldn’t bother with it? It’s important for my attempt to draw from this analogy to mp3.com’s actions which I believe is the same thing on a much broader scale. If it’s fair use, then it’s not an infringement, and as Prof. Lessig emphasizes in his video, permission is not needed. If it’s not fair use, but just generally unnoticeable, then if it were to be noticed, it is infringement.

    You might get off for “singing in a shower” because the copyright holders don’t know that you did it, but I’d also want to argue that you really aren’t infringing in the first place. (Actually, in the case of normal singing a copyrighted song in the shower, fair use isn’t even necessary. You aren’t making a copy because it isn’t fixed, you aren’t making a derivative work, you aren’t publically performing the work, etc. So add to the hypo that you recorded yourself singing in the shower and kept the tape for yourself. I would then say that fair use = no infringement, even if the RIAA found out and went after you.)

    While I understand that my view doesn’t immediately follow even if you acknowledge that posting your own music to a server & password-protecting is fair use (Prof. Lichtman’s comments about the scale of the use can apply), it’s a key step. Though note that the same password trading can occur even with a single person’s music on a server.

  • Kenny Canfield

    Correction – when I said “Google’s service is far better,” I meant “Google’s fair use case is far better.”

  • poptones

    I’d also want to argue that you really aren’t infringing in the first place. (Actually, in the case of normal singing a copyrighted song in the shower, fair use isn’t even necessary. You aren’t making a copy because it isn’t fixed, you aren’t making a derivative work, you aren’t publically performing the work, etc.

    If you are a student of law I would suggest you place a visit to groklaw and consult their search engine. My analogy was to a case that established some precedent, not simply a thought exercise. When you sing in the shower you may not infringe Sting’s record label, but it HAS been argued you infringe Sting, the songwriter, whose work you are “performing” without attribution. Columbia or Sony or whomeever may have no claims on that, but BMI or ASCAP might. I’m not arguing one side or the other now, I’m just pointing out that your argument here seems to be overlooking an important point of that case.

    is your position that this is not actually fair use, but that the RIAA simply won’t bother with it/wouldn’t know about it so couldn’t bother with it? It’s important for my attempt to draw from this analogy to mp3.com’s actions which I believe is the same thing on a much broader scale.

    MP3.com is not the same as putting your own music on a server for a vast variety of reasons, the most fundamental being that my ISP has not created for me a “music locker” service whereupon they took the initiative of “ripping” every known cd for me and then posting it to “hidden” folders on their servers. That alone puts mp3.com well beyond the bounds of the “common carrier” status that shields my local ISP from responsibility for my personal acts of infringement.

    “Fair use” is a quagmire which I, a non-lawyer, choose to avoid. To me it seems every bit as defined and defensible as an obscenity charge – that is to say, it isn’t very defensible at all because it’s more about politic than fact. Supreme court rulings have pointed out that a group of teenagers in their bedroom listening to records may in fact constitute infringement of the most minimal type, but it is our reasonable expectation of privacy in our own homes that shield us from prosecution – what the record company cannot (reasonably) know it cannot reasonably prosecute. Sharing music online, however, extends our personal space well beyond the physical boundaries of the home.

    Likewise, the record company will likely never find out about your “infringment” when you make your personal music collection available online to yourself via your home machine and its broadband connection, but they will be very likely to find out about your actions if you do not protect that space with a password… eventually their crawler (and google) will tell them (and everyone else in the world) what you have done, and then the C&D notices will fly.

    More similarly, your password protected machine, provided it is robust and properly configured, will never be discovered by google or the record company’s crawlers – but links to it may still be found if you should share your credentials with the wrong people. Credentials shared with your spouse could retain the intimacy of people listening together in a bedroom because that person would keep the secret, but sharing those credentials with your teenager might also result in those credentials being “leaked” to a ten’s friend, then throughout the high school, then to someone’s blog, then to google… and because your machine knows only the finite bounds of available bandwidth as its definitition of “room,” the “bedroom defense” can be quickly lost to the realm of “publishing.”

    That is the sticking point in this whole “revolution” – what are the new boundaries and responsibilities of publishing when everyone is a publisher? Our computers are, in many ways, extensions of our minds. What are our responsibilities in ths new world in “keeping our thoughts to ourselves?” If we can all read one another’s mind, is there now a precedent for thought crimes? If we are to embrace the notion that there can be “speech crimes” then yes, there can. I don’t agree there should, but the precedent has already been established there is. And once you can justify venturing into someone’s “mind” in order to prosecute them, all bets are off on “fairness.”

  • Kenny Canfield

    Poptones wrote:

    When you sing in the shower you may not infringe Sting�s record label, but it HAS been argued you infringe Sting, the songwriter, whose work you are �performing� without attribution. Columbia or Sony or whomeever may have no claims on that, but BMI or ASCAP might.

    I will try to find the case you mentioned, but if you are singing in the shower (alone, in your own bathroom), and you do not simultaneously record the singing, and you are singing the actual song (not making your own derivative work), then I don’t believe there is any infringement. A copyright holder has only certain rights, among these (i) right to make copies, (ii) right to make derivative works, (iii) right to distribute copies, (iv) right to perform publicly, (v) right to display publicly, and (vi) right to perform publicly by a digital audio transmission. Note the “publicly” in right (iii)–non-public performances do not infringe. This is getting off topic though.

    MP3.com is not the same as putting your own music on a server for a vast variety of reasons, the most fundamental being that my ISP has not created for me a �music locker� service whereupon they took the initiative of �ripping� every known cd for me and then posting it to �hidden� folders on their servers.

    Point taken, but I don’t think it’s so simple. Yes, it makes them different, but should the difference matter? What if mp3.com did not make the copies themselves, but instead when the first owner of a particular CD stuck the CD in, the owner had to upload the music. Then mp3.com arranged it so any subsequent owners of the same CD did not have to upload it in order to obtain access. In that case the same copy is still being used for many users–who have to prove ownership–but the user made the original copy; mp3.com did not buy any CDs and copy them on their own.

    That hypo is certainly different from what happened in reality, but my question then is: should that difference have legal significance? It might be the difference between a prima facie case of indirect vs. direct infringement, but for fair use purposes, should it matter? My gut feeling (at least the way I would want it to be, and I never used mp3.com) is that the difference should not matter.

    �Fair use� is a quagmire which I, a non-lawyer, choose to avoid. To me it seems every bit as defined and defensible as an obscenity charge – that is to say, it isn�t very defensible at all because it�s more about politic than fact.
    I won’t disagree that fair use does not have major problems, namely that as you mentioned, it’s verry malleable. That’s a problem for the people who want to make fair use but don’t know what fair use is before they go to court, and don’t have the money to go to court, so just don’t engage in activity that would benefit society. However, the malleability has benefits, because it allows the fair use exception to adapt over time to new technology. Additionally, ignoring fair use is not really an option. Even if it’s not a great system for holding people not liable, there are cases that would be infringement but for what we call “fair use.” If you just ignore fair use and ask whether something is infringement without looking at fair use, that would lead to many more activities being infringement, including those that everyone would believe should be permissible.

  • poptones

    However, the malleability has benefits, because it allows the fair use exception to adapt over time to new technology.

    No, it has no benefit to society at all. Because that “malleability” allows it to “adapt over time” only to serve the interests of those blessed with the time and money to push their agenda through the courts. The rest, who don’t have the money to fight and don’t want to risk going to jail for their speech, it simply silences.

    Censorship is a vile thing regardless of who claims “benefit” from it. No matter who it claims to benefit, in the end we all (society) lose.

  • Kenny Canfield

    poptones wrote:
    No, it has no benefit to society at all. Because that �malleability� allows it to �adapt over time� only to serve the interests of those blessed with the time and money to push their agenda through the courts. The rest, who don�t have the money to fight and don�t want to risk going to jail for their speech, it simply silences.

    I agree with you that it likely silences some speech beforehand, and that is a problem. But I think a lot of actors are ignorant of the law, proceed without thinking about it, and then are sued. In those cases, if they fight (perhaps with the support of organizations like the EFF or ACLU), fair use becomes a legitimate and helpful defense.

    I’d be interested to hear any alternatives to fair use that would work better and solve the problems it has. However, ignoring fair use is not an option, for the reasons I stated earlier. What would you do with actions that under the current statute violate one of the copyright holder’s six rights, but are of the nature that we believe they should not infringe? Fair use solves that problem, and it’s indefiniteness is what allows it to adapt to new cases, at least when those new cases are brought.

  • poptones

    Copyright is obsolete. “Intellectual property law” needs to be changed fundamentally, not patched and repatched.

    How would I deal with it? By not supporting the “bad actors.” And that doesn’t mean “stealing it” because when you stand around the water cooler chatting with your friends about the latest Britney CD or which version of King Kong was better you’re just being being hollywood’s low rent flavah flav – hyping “tha man” and fostering a fundamentally sick culture.

    But that’s just me.

    Computers are the publishing equivalent of wal-mart. Walmart couldn’t exist as it does today without the internet and computers. And when wal-mart moves into a town and forces closure of a half dozen businesses that haven’t offered any more “value” to the community than a place for half a dozen members of some family to stand around and collect a paycheck for the last four decades, PBS and the NYT won’t let us hear the end of it. So where are they on this?

    It’s no different: new paradigms mean new ways of thinking and new “species” entering the ecosystem. But walmart evolved from an already robust gene pool… geeks didn’t. And if we as a new species in this ecosystem want to survive we’d better evolve some claws, and damn soon.

    We need robust and secure systems in homes. We need systems that are open and well documented and secure enough that individuals can pool their privately owned computational resources, with relative safety and security, into online computational collectives.

    Most of all, we need people to get over this dysfunctional culture of victimhood that equates any mention of “rights” with “corporate” – that’s how the old school publishers want you to see it because they know so long as we are not leading the intiative to secure our rights they control the ball. And they’re running that ball closer and closer to the end zone and once it’s there it’ll be too late – the hardware makers will have made their commitments to “the next platform” and the laws those systems will enforce will be the laws penned by the publishing oligarchy, not those agreed upon by the proletariat.

    And with every evolution we declare ourselves, through stifling disunity, spectators and victims rather than equal members of this community, it becomes that much more likely we will forever remain exactly what we now percieve ourselves to be.

    If all the geeks went on strike one day, it would pretty much cripple the western world.

    We need a Lech Walesa of geekdom.