The “old-school” definition of “share” might be that the “owner” of the license no longer had use of the content while it was being “shared.” This is doable with technology.

However, is that what is required?

I might have made a digital copy of my CD. If that digital copy of the CD’s content is on my iPhone, can I share the CD? IF I can, I see no reason why I can’t share the “digital” file.

Would the Court look, at all, to whether someone posts content (digital media–song, movie, etc.) “on” the Internet that can be freely-downloaded any differently than content that I retain control over its “sharing?”

If I can legally share my CD that I purchased, and my friend likes the songs but just listens to them while her brother copies the CD and posts it on-line, I am not guilty of a crime while my friend’s brother may be guilty.

In the same light, I can share my digital file to a friend (controlling its release rather than allowing free downloads). Nobody can control what the person with whom I have shared the content (or their brother) will do with the content. If they break the law and distribute it without a license, they may be guilty of the crime, but am I?

The issue, contrary to Matt Oppenheim, is not what the media the content is stored on but what rights I have to the content itself.

Or am I way off base?

In other words, the cited language in Eldred does not support a review, and it’s fallacious to say it does.

That can sound like an awfully compelling argument against the decision, but it can be successfully addressed.

If the cited language were a simple logical proposition, then the logical conclusion that ‘If nP then nQ’ would clearly be a fallacy, as noted.

But it’s not. Instead, it’s a badly phrased statement that is clearly saying: ‘If a law does alter the traditional contours of copyright protection, then further scrutiny is necessary.’ It’s at least implying that, and the Court needs to either clarify this contention, or dismiss it outright. Otherwise the statement is meaningless.

Whether they will do so or not is the question. My prediction is that they are going to run from it, because with this court and society, ‘property’ trumps everything else. Or they will claim that altering “contours” only means something grave, like abolishing fair use.

Instead of being sloppy, perhaps the author of this statement knew it was a logical trick, and placed it into the language deliberately, in order to thwart further action? These Clerks aren’t dumb. “

+1
Awesome! Great work! Congratulations!

In other words, the cited language in Eldred does not support a review, and it’s fallacious to say it does.

That can sound like an awfully compelling argument against the decision, but it can be successfully addressed.

If the cited language were a simple logical proposition, then the logical conclusion that ‘If nP then nQ’ would clearly be a fallacy, as noted.

But it’s not. Instead, it’s a badly phrased statement that is clearly saying: ‘If a law does alter the traditional contours of copyright protection, then further scrutiny is necessary.’ It’s at least implying that, and the Court needs to either clarify this contention, or dismiss it outright. Otherwise the statement is meaningless.

Whether they will do so or not is the question. My prediction is that they are going to run from it, because with this court and society, ‘property’ trumps everything else. Or they will claim that altering “contours” only means something grave, like abolishing fair use.

Instead of being sloppy, perhaps the author of this statement knew it was a logical trick, and placed it into the language deliberately, in order to thwart further action? These Clerks aren’t dumb.

But what of this case on remand? It would seem that the review will be on the content-neutral narrowly tailored/significant governmental interest standard.

Isn’t the statute narrow, affecting only copyrighted foreign works in public domain in US, and isn’t conforming our IP laws to the rest of the world a significant governmental interest?

I don’t like the result of § 514, but I wonder if this decision really changes anything.

Rob

Congrats for the victory! And thanks for explaining it to us (me)

Best wishes for further challenges!
gp

I just forwarded this to some attorneys I know who are less blog-addicted than I, and some de facto copyright experts (such as Dr. Thomas McDonough, scientist and science fiction author). Also, to my son, whom at age eighteen (18) is a full-time Law School student at USC, fiercely interested in IP and computers (his double B.S. is in Computer Science and Mathematics, having started university at age thirteen).

O Brave New World!

– Professor Jonathan Vos Post
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