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ventaYesterday I had one of those moments where I realise I have a very specific opinion on something - but no real justification for it, and no clear idea where I got it from.
So, you, my dear self-selecting sample of guinea pigs, have the opportunity to prove me right. Or wrong. But I'm not going to tell you which is which. I'd hate to bias my otherwise-scientific survey.
I'm asking here about portable mp3 players (or mp3-a-likes). If you use your computer to play mp3s at you at home, or have some form of mp3 monster in the car, that's not what I meant.
[Poll #442057]
So, you, my dear self-selecting sample of guinea pigs, have the opportunity to prove me right. Or wrong. But I'm not going to tell you which is which. I'd hate to bias my otherwise-scientific survey.
I'm asking here about portable mp3 players (or mp3-a-likes). If you use your computer to play mp3s at you at home, or have some form of mp3 monster in the car, that's not what I meant.
[Poll #442057]
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no subject
Date: 2005-02-22 05:50 pm (UTC)The court doesn't have to rule that "nobody needs as much as 40GB of digital storage space for legal purposes," since that will very rarely be what is brought before the court. On the other hand, an action can and probably will be brought stating that Apple has made a good deal of profit by producing and popularizing a technology that allows a large degree of copyright infringement. Any action will likely seek damages based upon those profits.
The legal standard (either common law or statutory) isn't "does the device have a practical, legal, non-infringing purpose, regardless of whether that is the most common use?" The fact that you use your player for carrying about large files does not make Apple safe from liability. (For one thing, if that were the main purpose for an IPod, you'd not ship it with built in functionality for playing music.)
On the other hand, ITunes does form a line of defense against such charges, because it's a vehicle by which an awful lot of non-infringing use occurs, and can be characterized as a good-faith effort to get around the problem. I would be very surprised to find that in any RIAA/Apple litigation, ITunes is not used as a defence both against DMCA attacks or other theories of liability.
Again, if anyone wants to put forward evidence that the majority--or even a substantial minority--of IPod owners actually have rights to all the music on their players, they're welcome to do so. To my knowledge, no party in the debate has made that case, and "well, I have pretty much all legal music on my machine" is not a compelling argument in front of a judge, whether
It's interesting that someone mentioned Creative Commons. There's one reason that Creative Commons works: it's very rarely used to protect information that is worth litigating. Running a Lexis search today, I found absolutely no cases using the words "creative commons", which leads me to believe litigation with it is quite rare. My (quite reasonable) guess is because anything put under a Creative Commons license--whichever license--is fundamentally public domain, because the license isn't used to protect anything worth protecting.
no subject
Date: 2005-02-22 09:28 pm (UTC)It was of course not a legal argument, it was an argument which suggests that at the point where the law is no longer useful or desirable, one should (and in general folks inevitably will) break that law.
On the other hand, an action can and probably will be brought stating that Apple has made a good deal of profit by producing and popularizing a technology that allows a large degree of copyright infringement.
It will of course have to establish far more than that, since other technologies which fit the description you give include cassette recorders, VCRs, PCs and photocopiers, none of which have been successfully prosecuted by content owners.
I would certainly be interested to see such a case, in a morbid way, because it would prove a fascinating contest between those who wish to protect the American recording industry, against those who wish to avoid penalizing an American manufacturer of the putatively infringing device, to the benefit of foreign manufacturers of competing devices. This would be a marked difference from the Sony Betamax case, which was American corporations wailing on a foreigner and which therefore had to be dragged all the way to the Supreme Court.
On the other hand, ITunes does form a line of defense against such charges, because it's a vehicle by which an awful lot of non-infringing use occurs
As is ripping ones own CDs to mp3 format.
The point against which I particularly rail is not that there might be a case against Apple at all, but the idea that "iPods are massive in size", and that a smaller but otherwise identical device might somehow be non-infringing. Since this second post suggests that argument won't be a mainstay of the case, the judge may be spared the difficult choice between ruling against the RIAA (who have friends in high places) or playing the fool for them.
I do of course have the advantage over condign that I am not professionally obliged to show respect for the law if and when it lacks common sense, so I can call as I see rather than acting as though legal process always makes sense.
no subject
Date: 2005-02-22 10:16 pm (UTC)Amusing. So I guess that the outcome of MGM v. Grokster is just a foregone conclusion. Wonder why it's made it all the way to the Supreme Court?
The landscape between the rather famous Sony Betamax case and Grokster has changed considerably. First, there's the DMCA; secondly, there's the internet, which changes the whole technological spectrum. Or, to quote your favorite source, the Betamax case:
"When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose."
464 U.S. 417, quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
We could go through further distinguishing the Betamax case from Grokster (e.g. continuing contact between the service manufacturer and the infringer) to say that the law may very well be changing.
Anyway, what the Betamax case actually involved is "whether the Betamax is capable of commercially significant noninfringing uses." (see 464 U.S. 789) The existence of ITunes provides a pretty commercially significant non-infringing use, and thus is a useful defense. (After all, the larger the device, the more data the average user would have to possess to make it commercially viable.) And, incidentally, the size of the IPod is thus relevant to whether the device is capable of use according to the Betamax standard. Of course, you can choose to believe that the law is otherwise, but then, that doesn't make a judge a fuckwit. It makes him obliged to follow the law in a way that you, it seems, do not feel bound.
no subject
Date: 2005-02-22 11:21 pm (UTC)Are you suggesting that MGM's sole contention is that Grokster "has made a good deal of profit by producing and popularizing a technology that allows a large degree of copyright infringement"? You seem to be using it as an example to contest my claim that a case against Apple would have to establish rather more than just that.
In fact, MGM's original complaint is quite entertaining reading: "Defendants have created a 21st Century piratical bazaar where the unlawful exchange of protected materials takes place across the vast expanses of the internet". The inventors of none of the technologies I listed did this, so I think that's one significant difference between your characterisation and the example you try to use to support it.
Wonder why it's made it all the way to the Supreme Court?
Whoever the eventual winner is, it's probably good for them that it has gone to the Supreme Court. MGM want to set a precendent which outlaws P2P networks that don't patrol copyrighted content. StreamCast (or rather, the EFF which is funding the defense) want a ruling that Sony vs. Universal is still applicable.
to quote your favorite source
Hey, not just mine. When the defendant leans on a precedent and thereby wins in the District and the 9th Circuit, I figure I can too.
The existence of ITunes provides a pretty commercially significant non-infringing use, and thus is a useful defense.
As is the ripping of one's own CDs, if my understanding is correct that (i) ripping one's own CDs is not infringement and also (ii) the non-infringing use found in the case of Betamax was time-shifting, and its commercial nature is that this is what motivated people to buy Betamax.
Thinking about it, I reckon that your claim that iTunes enables users to put more data on their iPod is false (as a matter of material fact rather than of law). Music is no cheaper through iTunes than to buy on CD. So it saves you no money, only the hassle of sticking the disk in your CD-ROM. I don't think that this hassle is the limiting factor in getting data onto an iPod.
Napster would be a more likely candidate, since in the short term it does give you all the data you can eat for a fixed fee. As I said earlier, this is exactly what Napster is pitching to its shareholders, and I remain unconvinced.
After all, the larger the device, the more data the average user would have to possess to make it commercially viable.
But this falls back to the finding of fact as to whether 40GB is too much data to be legal. On matters of fact I can call whomsoever I choose a fuckwit if they go for the option that's obviously false. 40GB is about 80 CDs, and also about the amount of space on an entry-level PC. As such it could perhaps be described as a reasonable size for a punter to ask for, especially if they expect to keep the iPod for a few years and therefore want some wiggle room once their existing data is onboard.
that doesn't make a judge a fuckwit. It makes him obliged to follow the law
Well, if and when he outlines his opinions on what can legally done with 40GB of storage space, we'll see whether or not he says anything fuckwitted. Recall that I never said that any judge who rules against Apple in any way is a fuckwit.
you, it seems, do not feel bound.
Correct. And neither will people who already own iPods - if they use them legally then they don't want to be told that 40GB is grounds for suspicion, and if they use them illegally then they've already demonstrated their lack of feeling bound.
Apple have shifted 10 million of the things, 7.5 million in the last year. Not many of those will have been the 40GB model, but by the time your case makes the Supreme Court that will have changed. As in everyone's favourite humiliation of the recording industy, the Court will face the choice of either admitting significant non-infringing use, or else ruling that the average user (i.e. by that time the average American) is infringing.
no subject
Date: 2005-02-23 12:05 am (UTC)No. I'm saying the fact that it's up for review indicates a very good possibility that Betamax is not going to be good law for much longer. The facts that allowed the Court to uphold Betamax are now in question.
Note that any suit against Apple would be for designing a product which is used significantly to enable users to infringe copyrights, and that it did so knowing that the device it produced would be used for this purpose. The RIAA would have to prove that there was no economically viable use for the device other than through infringment. ITunes provides a defense by stating that an IPod can be filled through non-infringing uses.
Now, Apple could also try to make the case that the vast majority of IPod users rip their existing CDs, never share those among friends, and don't use Napster. This is an empirical claim, and I suppose you could make it. I doubt, however, that Apple's lawyers would advise it, as it's not a very solid claim.
Thinking about it, I reckon that your claim that iTunes enables users to put more data on their iPod is false (as a matter of material fact rather than of law). Music is no cheaper through iTunes than to buy on CD.
True. This is also a question of empirical fact for a trial court. However, you present a CD/ITunes dicotemy. If that were the issue, the RIAA wouldn't even be objecting. ITunes allows users to buy digital content without using P2P.
But this falls back to the finding of fact as to whether 40GB is too much data to be legal.
Again, this is an interesting standard. Would you care to show where it's ever been put into play?
The question would be not whether 40GB was "too much to be legal" (whatever that means) but whether--assuming that Grokster went 100% against you--Apple knew or should have known that (probably a majority of) purchasers of a 40GB IPod would use it to infringe copyright, and marketed it with that intention in mind. In which case, Apple would owe damages to the RIAA or various copyright holders. Unlike your rather fantastic visions, such a suit would get around the problem of suing owners directly. Apple (and other manufacturers) would then be on notice that some DRM would be required for their players to work.
You're basing an awful lot on "only 80 CDs." The empirical question, however, isn't what the device could be used for, but what it is, or could expected to be used for. Would you like to hazard a guess on the actual legal use of 40GB IPods?
As in everyone's favourite humiliation of the recording industy, the Court will face the choice of either admitting significant non-infringing use, or else ruling that the average user (i.e. by that time the average American) is infringing.
After Blakely, Booker, and Fanfan, I think you're a bit unwise to think that the Court might not upset the apple cart this way. But hey, it's anyone's bet how O'Connor feels on the day?
no subject
Date: 2005-02-23 10:25 am (UTC)It means that a 40GB iPod is ruled to have no significant non-infringing uses, whereas a smaller iPod is ruled to have significant non-infringing uses. I characterise this, using my everyday knowledge of the English language, as 40GB being "too much" to be non-infringing. Since infringement is illegal, this means it is too much to be legal.
Of course data sizes tend to bloat over time, so a decision which ruled that a particular size of iPod had no significant non-infringing uses would (by common sense if not in law) have to be revisited from time to time.
The empirical question, however, isn't what the device could be used for, but what it is, or could expected to be used for.
I'm confused by your standards. At one point you say that iTunes means that an iPod "can be filled through non-infringing uses", and that this is therefore a good defense, and then you later claim that although CD-ripping can fill an iPod through non-infringing uses, that this is not a good defense because that's not the empirical question. What's going on?
Would you like to hazard a guess on the
actual legal use of 40GB IPods?
One key point about the 40GB iPod is that there aren't any sizes between 20GB and 40GB (sizes are determined by the HDD technology). So if you have 21GB of data, you need a 40GB iPod. Of course the court could choose not to accept this assertion, suggesting that such customers ought to have demanded a 25GB iPod instead of paying for the 40GB one. You have a better idea than I whether this is likely.
So, where does someone get 21-40GB of data? As you spotted, .wav was always a slightly lame excuse, but Apple has a format called "Apple lossless encoding" which, because it is true CD quality, only manages a compression of 50% on a good day with a following wind. Anyone who chooses to use that format will need a pretty hefty iPod to cart it around - a collection in the range 21-40GB would not be uncommon. I don't actually know anyone who does use Apple lossless, but I guess there are people (or at least Apple think there are), because I don't think they would have designed the format for no reason.
Furthermore, as I've already said people will buy at the size they think they might ever need, not only at the size they're using at the moment. So I have a sound commercial reason to buy a 40GB iPod if I think I might ever need more than 20GB of space, for example because my legal mp3/aac collection (ripped plus bought online) is currently 10GB and I think it will more than double in the lifetime of my iPod. So a further legal use of a 40GB iPod is for people who currently have 10-15GB of stuff and buy fast enough that they reckon 20GB isn't good enough. Apple could do a study of typical sizes of music collections, or I can hand-wave and suggest that X million people have a CD collection (plus online purchases, if you like) that fits this profile, where X is in my opinion likely to be large enough to constitute a market for the product.
no subject
Date: 2005-02-22 09:39 pm (UTC)I agree with this bit.
The one case I can think of where there could be commercial harm done by infringement of a CC license is if the CC no-derivative-works condition is applied to some work which the author himself modifies (or re-licenses to someone else who modifies) and sells the modified version commercially. If company X then comes along, modifies the CC-licensed original and starts selling their own modification, then I would have thought that the author could probably proceed exactly as in any other case of plagiarism. But who knows, maybe that CC original would scupper his chances.
no subject
Date: 2005-02-22 11:55 pm (UTC)Creative Commons
Date: 2005-02-22 11:53 pm (UTC)no subject
Date: 2005-02-23 12:41 am (UTC)It may be that the owners of the copier may simply be playing it safe, and sanctioning a limit which is artificially low, on the grounds that "5 pages" is known to be safe, where "50 pages" might be dubious. And it may be that the number of pages has no legal bearing at all, but issuing the instruction at least counts as a gesture of good faith.