If you are a copyright holder, you "own" one thing and one thing alone -- the right to exclude others from copying and/or performing that work, depending on what type of work it is. This is explicitly stated in the copyright law:

[i]17 USC 202 Ownership of copyright as distinct from ownership of material object

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.[\i]

So if you are making a copy off of Napster, you are most certainly [b]NOT[\b] "stealing" anything from the copyright holder, because once a copyright holder sells copies of a work, they do NOT retain a property interest in those copies. They still retain ownership of the copyright. No matter how many people download Metallica songs, Metallica still has the right to exercise their copyright. Unlike trademark law, where you can actually lose your trademark if you don't protect it ("Aspirin" used to be a trademark, for instance), copyright law has no such concept.

Now if you were to take someone else's work, register it with the copyright office, and try and enforce your copyright, then you WOULD be stealing. You would be stealing the copyright. However, that isn't what we're talking about.

When you make an illegal copy of a copyrighted work, you are committing copyright infringement. This is completely different from stealing. The concepts are not even close. Stealing is the illegal taking of physical property, depriving the previous owner. Copyright infringement is, as the phrase suggests, the act of infringing on a government-granted monopoly. The law says that a copyright owner has the right to exclude the public from performing certain actions, and you are ignoring that monopoly. But you aren't stealing. You are infringing. Some people think that infringing on a government granted monopoly is a serious crime, and others disagree.

Richard Stallman made a good point recently about what's wrong with copyright. For most of the history of copyright, copyright has functioned as an industrial regulation, not a personal regulation. Copyright is a compromise. A contract.

When a publisher publishes a work under copyright, they gain something and they lose something. They gain the exclusive rights provided by copyright, the right to exclude others from making copies, the right (for motion pictures) to control public exhibition of their works, and other rights. However, the publisher loses certain rights that they might have had if they chose to license their works instead of publish them. For instance, when a publisher sells a copy of a work, he loses the right to control the resale of that work, or its lending. This is why we have used bookstores and public libraries, for instance.

The public also gains and loses by copyright. The public gains in that works are published openly, rather than licensed. One of the original reasons for including a copyright clause in the Constitution was the problem of navigational maps. Without copyright protection, mapmakers were loath to publish their work, because anyone could simply reprint the map and undercut them. As a result, mapmakers took to licensing maps, as trade secrets, to ship captains. Because of this, no one was in a position to compare and correct differing navigation maps, and ships were lost as a result. By offering copyright protection, mapmakers could openly publish their works, and mapmakers and users alike benefitted from open publication.

Now we move on to the last part of the equation -- the rights that the public loses when copyright is granted.

The public loses the right to make and distribute copies of works.

The thing is, for most of the history of copyright, people have NOT had the ability to exercise this right anyhow, because for most of the history of copyright, the making of copies has been an industrial activity, requiring machines like printing presses, record cutting machines, vinyl record presses, cine printers, CD mastering equipment -- large, industrial machines that ordinary people just don't have.

In other words, copyright has not ordinarily been an oppressive restriction, because the public has traditionally traded away a right that they were never in a position to exercise anyhow!

It's only when the public does acquire that ability -- with tape recorders, photocopiers, videotapes, CD burners, the internet -- that copyright changes from being a benign industrial regulation into an onerous restriction on personal activity.

The problem is that when copyright goes from an industrial restriction to a personal restriction, it runs right up against the First Amendment. Copyright is a restriction on a very important type of speech -- the right to repeat and build upon other people's speech.

One common characteristic of copyright debate is the endless scenarios -- what if I videotape a movie instead of buying it. What if I download a song from Napster, then buy the album? What if I don't buy the album?

The answer to all of these scenarios is that copyright is only compatable with the First Amendment if it makes allowances for fair use, and fair use is extremely subjective. The part of the copyright law that defines fair use is one of the most deliberately vague, subjective laws in the entire body of United States law. The law gives only a set of rough guidelines for determining if the making of a copy is infringement -- which is illegal -- or fair use, which is legal:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work.

This clause is striking because it is probably one of the most ambiguous laws on the books. There is no way to objectively determine whether the making of a copy is an illegal act of infringement, or a legal act of fair use. The determination is completely subjective. Of course, if you are sued for copyright infringement, you may wind up having to explain your logic to a judge, which leads to the often-repeated claim that "fair use is a defense, not a right." This is true in one sense, but it does not mean that there is no right to fair use. Fair use is the recognition that the copyright clause is subject to the First Amendment, which it has to be, because copyright is a regulation of speech.

The courts have, in general, done a good job of balancing the letter of copyright -- which bans certain speech -- with the purpose of copyright -- which is to promote learning and progress by encouraging publication. The courts have determined that the private ownership of tape recorders, VCRs, photocopiers, and digital audio recording equipment are legal, because this equipment has substantial non-infringing uses, INCLUDING FAIR USE, which is defined as non-infringing.

Thus there is NO hard line, no set of rules such as "taping off the radio is illegal, but videotaping is legal." It all comes down to what you are trying to accomplish. Are you copying to evade a purchase? Are you copying something that can't be purchased? Are you copying to make a profit? Are you copying to make a copy that you are going to analyze/criticize? These are all subjective criteria, and there's no point in looking for bright lines because they aren't there.

As a final comment, I'd like to address the notion that "digital is different." This has been put a number of ways -- some people say that "information wants to be free", others say that digital copying is a threat because it has the potential to create "perfect copies forever."

First, digital copying has always existed. The first copyright laws were created in response to the invention of the printing press - a digital technology. Instead of zeroes and ones, the "digital bits" on a printing press are individual characters, so digital copying is nothing new. Copyright has always been a response to the availability of digital copying technology.

One thing has changed with the internet. Something now exists that has never existed before.

In the past, once a copyright holder has sold copies of a work, that copyright holder has NEVER had the ability to track what is done with their work. Thousands of photocopiers, tape recorders, VCRs, and CD burners are sold each year, and no one, repeat no one, really knows how they are being used. Copyright infringement certainly goes on day and night, as does fair use, but in a state of privacy.

Not so on the internet and with new digital technologies. For the first time, copyright holders have acquired the ability to eliminate all copying, including fair use. That's the real problem with modern copyright "reform." The public has been stripped of its end of the copyright bargain.

The situation with "digital textbooks" is even more alarming. ebooks and digital books are being designed to deliberately eliminate the concept of a used book, or even the concept of book ownership. If you download an ebook, the data file, which is encrypted, contains controls built in as to what can be done with the file. If you buy a paper textbook, you acquire a lot of rights along with that purchase. You can sell the textbook at the end of the semester, or you can keep the book for the rest of your life. With ebooks, the publisher has the ability -- and they are doing this RIGHT NOW -- to insert electronic controls in the software that make the ebook only work on one reader -- preventing you from reselling the book or even giving it away. One company, in pitching their product to universities, claims among the advantages, that their books have the capability to self-destruct -- erase themselves at the end of the semester, thus eliminating the "problem" of used books. One university has entered into a contract with an electronic textbook publisher where students have to pay a fee every year, or their books become unusable.

The real danger of the digital age isn't to publishers -- publishers have all the rights and abilities to control publication that they have had in the past. The real danger of the digital age is that publishers are gaining something that the Constitution -- and copyright law says they are NEVER supposed to have -- the ability to control, or even to reach out and destroy -- any or all copies of their works after they have been sold to the public.

And that problem, if unaddressed, threatens to leave an enormous hole in 21st century culture.

Now I'll make your argument even more muddy. I have software that I have developed that is covered under copyright law. In the tradition of many software authors I have forgone submitting the software for license, giving up the right to punitive damages in a court case but still retaining the inherrent copyright of a creator. Submission requires many pages of original program code to be included with the application, and that code is available for anyone to peruse, thus encouraging theft. My software is instead protected by encryption and a security device.

Since I developed the software, it is protected as a copyrighted work. Yet, for legal reasons, I sell licenses to use the software to users instead of selling it outright. Users may make copies of the software at will, (the opposite of how copyright is supposed to work) but need the security device to operate it. In effect, anyone may duplicate and distribute the software, but only licensed users may utilize it. This totally contrdicts your paragraph:

"When a publisher publishes a work under copyright, they gain something and they lose something. They gain the exclusive rights provided by copyright, the right to exclude others from making copies, the right (for motion pictures) to control public exhibition of their works, and other rights. However, the publisher loses certain rights that they might have had if they chose to license their works instead of publish them. For instance, when a publisher sells a copy of a work, he loses the right to control the resale of that work, or its lending. "

In essence, I sell a license to a copyrighted work and the terms of the license agreement subject it to more strigent contract law. Access to databases and other published works are often sold this way as well. Arguably, BMI and independent production companies do not sell copyrighted works but only sell licenses to the distributors. In an extreme case, the license could be revoked and copies that had been sold recallled as stolen property. I could just as easily argue that this is not correct. Such is the law.

In short, copyright law protects you as much as you can afford lawyers to defend yourself until the other side caves in. In practice, it isn't as much law as it is repression of upstarts by those with the financial wherewithall to destroy the competition. Contract law and the UCC can be more level playing fields for the small business.

You state:
"The real danger of the digital age is that publishers are gaining something that the Constitution -- and copyright law says they are NEVER supposed to have -- the ability to control, or even to reach out and destroy -- any or all copies of their works after they have been sold to the public."

This is not new. You seem to argue that an ephemeral item is against the intention of the Constitution, and this is flatly wrong. Newspapers decay, motion picture film self destructs, magnetic media becomes lossey, vinyl records get scratched. Rarely does a person purchase a copyrighted work with the expectation that it will last forever. Active destruction is no less or more permanent than passive destruction, and newspapers could be accused of using a non-permanent media to limit the life of their copyrighted work.

Copyright law is a law of last resort in many aspects of business today. Shrink wrapped licensing and additional security are much more common to high ticket items, but expect the trend to drift downwards to music "purchases."

First of all, there's nothing illegal or improper about you, the software author, taking technological measures to try and control the software you sell/lease me. If the technological measures work, then everything is moot because I'm forced into the terms of the "contract" by the operation of the software. Thus a small amount of mud is eliminated.

The question becomes, what if I bypass your copy/use protection. Can you expect the courts to back up your "contract"?

The validity of software licenses is very much in dispute. The courts have decided both ways on similar cases. A couple of points:

(1) The "licensing" tactic has already been tried -- and rejected by the courts -- for both books and motion pictures. In the case of books, a publisher included a notice in the front cover that claimed that the book was only "licensed", and that it was illegal to sell the book for less than one dollar. The courts rejected this, saying that once the book had been sold, the copyright owner had relinquished ownership -- and all rights -- relating to that copy.

(2) The lynchpin of mass-market software licenses is the legal theory that because software operates by being copied into a computer's hard drive or RAM, this is "Making A Copy", and requires the permission of the copyright holder to do so. Therefore, software cannot be used without a license.

17 USC 117 was an effort to legislatively overturn this decision. The law now says:

Sec. 117. Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an
essential step in the utilization of the computer program in
conjunction with a machine and that it is used in no other
manner ...

So lets say that we wind up in court. You claim that we have a contract, and I claim that there is no contract, and that I am the owner of a copy of the software and can use it however I wish.

The courts are going to look at a number of things.

First off, there are a number of ways that a shrink-wrap license can be challenged. I could claim that:

(1) The contract is a contract of adhesion. I never had the chance to negotiate the terms of the contract, and should not be bound by it.

(2) The only contract here is the contract between myself and the software store -- an ordinary bill of sale. I paid cash, I received a CDR containing software. Thus ended the transaction, I became the owner, and 17USC117 gives me the right to run the software, regardless of any enclosed "contract."

(3) The "contract" is invalid because it does not provide consideration to both sides. In general, in order for a contract to be valid, each side must receive something of value. Consideration is defined as either:

(a) Agreeing to do something that one would not otherwise be legally obligated to do, or
(b) Agreeing to refrain from doing something that one would otherwise be legally permitted to do.

Most software licenses are of the form:

LICENSE
(1) The licensee receives the right to install and run the software on a computer
(2) The licensee agrees not to reverse-engineer the software, loan it, etc, etc.

Because 17 USC 117 gives me, the owner of the copy, the right to install and run the software, I can claim that the "license" offers me no consideration, and is therefore invalid. In the absence of a contract, I may use the software under the terms of ordinary copyright law, which includes the right to install and run the software.

The flaw in 17 USC 117 is that it gives the OWNER of the copy of the software the right to install and run it. Many software packages will insist, as part of the contract, that the disc containing the software is only leased to the purchaser, not sold, thus removing the software from the scope of 117. The counterargument is that the software company is in essence laying claim to my property -- the physical disc, after selling it to me. I could countersue the software company for "impugnment of title", and each of our lawyers would get a new BMW by the time it was all over.

The arguments go on and on, but philosophically, the main problem with software copyrights is that software violates at least one of the core assumptions of copyright:

Copyright explicitly states that the right to make copies of a work is legally distinct and severed from the right of the owner of a copy of a work to use and enjoy their copy. This is violated because software is installed and used by copying. If I purchase one copy of a software program, why shouldn't I be allowed to install it on 2 computers? I own the software and I own the computers.

Newspapers decay, motion picture film self destructs, magnetic media becomes lossey, vinyl records get scratched. Rarely does a person purchase a copyrighted work with the expectation that it will last forever. Active destruction is no less or more permanent than passive destruction, and newspapers could be accused of using a non-permanent media to limit the life of their copyrighted work.

I will argue that the constitutional purpose of copyright is to establish a public domain by inciting publication, and offering a time-limited monopoly. That's what the authors said, and that's what the courts have held. The original term of copyright was 14 years, with an additional 14 year period. Copyright originally covered printed matter, which at the time meant hemp or rag paper, so yes, copyright was specifically designed to promote the preservation of works. The intent was that works would enter the public domain, and could then be preserved by re-copying, if they proved to be of value to someone.

It's only recently, 1976 then 1998, that copyright was altered so that the copyright term far-and-away exceeds the expected media life. This was and is a huge mistake, and will result in the forced destruction of much of our culture. Film archives are bursting with unique, last-remaining-copies of films that are deteriorating but cannot be legally copied/preserved because the copyright is untracable.

I wholeheartedly agree that the extention of copyright monopoly is counterproductive to preservation of materials or the establishment of public domain and I'll go further and say that it impinges upon free speech, since extended terms are unreasonable restrictions to the public. The entire concept of extended copyright is based in the fiction of a corporation being a person.

While I have incorporated my business as a method of protecting myself within a hostile business environment, I do not philosophically agree with the idea of a corporation that has a potentially unlimited lifespan. No individual has that luxury and the concept of a corporation being allowed to exist for longer than a normal adult working life (ages 21 to 65 or 44 years) is in some fashion a fraud upon the people. Add to that the fact that the true creator of the work is often minimally compensated, and copyright law becomes a sham of ethical behavior, cloaking the interests of would be monopolists.

When ethics, common sense, and the law come into conflict, many people will ignore the written law. Before it be said that such behavior is inherently wrong, one should study all the laws on the books, including blue laws and such laws that might remain without purpose, such as not propelling a steam locomotive faster than a walk on any street in a town or the requirement for men to wear a cloth hat on Sunday. The body of law is a living body and changes with time. Outdated and arcane laws are more common than might be expected. As opposed to canton law where only a fixed number of pages of laws are allowed, U.S. law provides ample opportunity for selective enforcement and sufficient laws to indict any individual for trivial infractions, no matter how upstanding and noble that person might be. This is a dangerous situation that can be used as a method of oppression.

In theory, laws are developed both by the parties in political power and by consensus. When a law repeatedly acts counter to the consensus and against the good of the public, then that law is subject to revision, and in extreme cases juries may even legally refuse to render a verdict based on a law that they deem unfair or arbitrary. Unfortunately, it takes an extremely well educated jury to recognize the occasional need to force change within the legal system in this manner.

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quote:

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If somebody wants to spend the time and effort to download a series of tones and lyrics for personal use, when there are only a limited number of combinations of notes, and only 26 letters in our alphabet, I'm not going to consider it a major crime against society. When someone attempts to privatize old folk songs that are part of our combined history and heritage, I find that action much more of a crime against the spirit of our country and its founders.

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Sheesh, this just keeps going around in a circle.

quote:

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download a series of tones and lyrics for personal use, when there are only a limited number of combinations of notes,

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Once again it's the argument that "I'm not taking anything that is of value".

Then why do you want it? It does have value.
And a "series of tones" is not a "hit" either.

If you can write & produce a hit, you've done something that is more rare & you can charge more money for than garage music (which there doesn't seem to be much demand for), or "a series of tones".

Also completely ignored is the system includes the method by which the owners are *paid*. The further into generalities to compensate for the joy of finding a friend who'll hold the fire door at the multiplex open so you can watch all you want for free, the further from thinking about *whose* money you're taking, & the fact that it's their right to market it in that particular manner.

Okay, you can approach the mystery like I do, like most of us do who try to figure out why something is running funny, as what happens when people see "Man, look at all this stuff that I know I'm supposed to pay for but I can scam for free, lemme do it now before it's gone!" & try to figure out where the point of denial kicks in for those who need to rationalize behavior which they have been socialized to recognize as theft.

The courts start from the other end, & it's faster: "Who owns this?"

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Napster=theft

All the rationalizations are after the fact to justify the theft, & avoid the central point of who is being ripped off, & who is doing it.

You'll notice that when asked "Why did you do that?", folks who are uncomfortable with what they've done evade the fact that something has been stolen. Instead, they quickly move into generalities to de-personalize the situation.

Most eyeball-roll inducing is when the support for Napster becomes a nebulous & selectively distorted argument about the nature of copyright law, & a sudden moral pronouncement of "It's wrong, & we're working to change it!" When what is actually happening is that they're stealling from the artists, performers, & property owners, & attempting to do ego conservation. If it was really a moral crusade, the crusade would be to create a new system so that the people who owned & produced the work would be paid & supported. But paying the artists is not the issue to the folks who lift music via Napster. They are not & have not been interested in paying them for what they do. They're not involved in any social or economic school reorganizing the music market. That's not what they're interested in. They're just taking what they want because they've got the opportunity, & rationalizing afterwards.

If you're just stealing music, just admit it & don't tip your hand to a poorly-resolved self image.
When they asked Bonnie & Clyde what they did, they said "We rob banks." They didn't say "Our work is an active expression of & part of a reorgainzational campaign in our rebellion against a social & economic system which doesn not serve the people whom it should." Because that's hogwash, people would laugh, & Bonnie & Clyde did not have problems of conflict, guilt, rationalization, self-delusion, & weenie-ness. They robbed banks because they wanted the money because it made them happy, & were unconcerned with property issues.

Napster's vaporizing, but Napster users should have just admitted:
"I steal from artists, f*ck 'em."
And some did admit that. The non-weenie ones.

I still don't understand why people keep reiterating a mindset that they don't believe that artists should be paid, or certainly not at least be allowed to let their work participate in the free market system. What a double standard! "I want that, but I'm not going to pay what the market values it at."

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I am not sure if anyone has mentioned this, but if I pay $16.00 for a CD, and the artist only gets a buck of that, maybe two bucks, then who is really robbing who?

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And if it's dowloaded from Napster, instead of only a buck or two, the artist gets...nothing!

quote:

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Napster should have been a wake-up call for artists. I would rather download their CD from their website for $3.00, giving them all three dollars, and then see them in concert for $25.00, because I like them for bucking the system. Prince supported Napster, and so did Billy Corgan, and they are two very talented musicians. What gives there?

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Because they're both genius PR boys, too, Under The Cherry Moon excepted. You *know* you've been manipulated, don't you?
They knew it wouldn't last long.

Also lots of acts with no sales were just hoping to use Napster distribution for PR, but not for profit until they could hit.
Like Billy Idol!

The most hysterical one was The Offspring coming out & publicly proclaiming that Napster was great, & to show their support, The Offspring would be selling Napster-logo T-shirts on the Offspring's site.

Napster fumes, gets their lawyers *standing at the door* ready with a cease & desist to deliver to The Offspring to stop selling Napster's copyrighted material on their website, & then realize...

You may want to edit out your first quote, since I explain myself right afterwords, and also because you quoted my explaination. If jumping on the Napster bandwagon was the motivation for Prince and Corgan, then why didn't EVERY other artist do it too? Why was Napster even challenged? You seem to feel that Napster was just a cheap billboard for those artists that didn't have a problem with it. Millions of people would see that they supported Napster, and wha la, buy their CD's, if that was the case then the all musicians should have dumped their execs and went to Fanning and Co. for distribution, right?

How hard can it be for the Aimsterpeeple to figure?

Someone offers their property for sale; if someone else takes it or distributes it without permission or paying for it, it's theft.

Aimster will be gone soon, too.

The nastiest part of the Napster & Aimster thing is, it only works if it's organized. I suppose somebody will get very RICO-oriented on these things soon.