But since the lights went out I’ve never been the same

[venta]

Yesterday 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]

Comments

[condign.livejournal.com]

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"?

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?

[onebyone.livejournal.com]

"too much to be legal" (whatever that means)

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.