More of the same [LWN.net]

More of the same

Posted Feb 24, 2006 0:14 UTC (Fri) by GreyWizard (subscriber, #1026)
In reply to: just a little bit more... by sepreece
Parent article: RIAA, others says CD ripping, backups not fair use (ARS Technica)

Sony Corp. of America v. Universal City Studios, Inc. is an established precedent -- in other words, settled law. Most Supreme Court rulings have written dissents and many are decided by 5-4 majorities. This does not make them less binding. Regardless of whether the question was a simple issue then, it certainly is one now. Unless you imagine the court will overlook the principle of stare decicis, that decision is going to have a significant impact on related questions. Given that, you might want to read that majority opinion again. Here's a sample:

"The question is thus whether the Betamax is capable of commercially significant noninfringing uses [...] one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. [...] When one considers the nature of a televised copyrighted audiovisual work [...] and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact [...] that the entire work is reproduced [...] does not have its ordinary effect of militating against a finding of fair use."

(That last part is more or less what I meant by pointing out that "amount and substantiality" provides a defense for copying of small portions, and does not deny one to otherwise permitted use.) Again, the only difference between time shifting and format shifting in this context is that the viewer had been invited to witness the work after lawfully purchasing a copy, thus rewarding the copyright owner directly instead of indirectly.

As I've said, your claim that format shifting replaces the opportunity to sell copies in other formats is useless. Recording televised content for later viewing replaces the opportunity to sell recordings, and yet we have the Sony ruling. Selling used books replaces the opportunity to practice similar forms of price discrimination, and yet we have the doctrine of first sale. Obviously the court would consider the effect of format shifting on the market as the statute rather explicitly directs it to do. But one could just as easily argue that the prices copyright owners are able to charge are currently supported in part by the value consumers perceive from their undeniable expectation that format shifting is permissible, and that therefore the market for the work would not improve by removing this freedom.

(As for the AHRA, it includes a blanket exemption from claims of infringement for manufacturers of recording devices, not users. And there is evidence that the act was intended by Congress to make the status of private copying more clear rather than to make a change: "In short, the reported legislation [Section 1008] would clearly establish that consumers cannot be sued for making analog or digital audio copies for private noncommercial use." (House Report No. 102-780(I), August 4, 1992))

Meanwhile, you are still ignoring the facts on the ground. Would the court ignore millions of people who engage in format shifting every day and rule that this behavior is criminal without strong support from the statute? Would members of congress seeking re-election tell the public that the format shifting party is over rather than falling all over themselves to protect a popular practice? Of course, those congressmen would be nudged gently along by lobbyists for the consumer electronics industry, which would probably prefer to sell products that are legal to use without permission from a third party.

Once again, consider the analogy to time shifting. "Immediately after their loss in the Supreme Court, the plaintiffs lobbied Congress to pass legislation that would protect them from the effects of home copying. However, in the eight years that had passed since the suit was initially filed, the use of home recording devices had become sufficiently widespread that Congress was not prepared to take any actions to the detriment of the significant population of VCR owners." (Source: http://en.wikipedia.org/wiki/Sony_Corp._v._Universal_City...)

Seems rather cut and dried to me, even before educated legal professionals have a chance to say home copying is fair use.

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Enough

Posted Feb 24, 2006 6:08 UTC (Fri) by sepreece (subscriber, #19270) [Link]

I believe the points I raised adequately show that the issue is not cut-and-dried, which was my only intention.

The point to the material about the Betamax decision was not the decision, but the fact that roughly half the Court disagreed with your "cut-and-tried" principle that personal copying is fair use. The decision establishes a precedent, but the precedent is on questions other than personal copying, per se. Note the middle part of the section you quoted ("when one considers...") - this is rooted in the specifics of it being material broadcast for free viewing.

Most of the other points were similarly pointing out that there are many court decisions that argue that personal copying is not fair use, again denying your claim that it obviously is fair use.

(The AHRA certainly seems to protect users as well as manufacturers - section 1008 says "or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings." However, as previously noted, the "device" in question has to be one covered by the act and its mandatory royalty payments.)

A Court finding that format-shifting is infringement would not have to inconvenience the millions of people who do it; more likely would be the same kind of mandatory royalties that the AHRA ordered. Or, as you note, Congress could do the same thing. This still wouldn't make it fair use, it would make it authorized use.

My point was never that there are no educated attorneys who hold the opinion that personal copying is fair use, only that there are others who hold the opposite opinion. It's not cut-and-dried.

However, if you wish to believe it to be cut-and-dried, you don't need my permission to do so. I don't intend to post anything more on the question.

Stare Decisis

Posted Feb 24, 2006 22:20 UTC (Fri) by GreyWizard (subscriber, #1026) [Link]

Once again, whatever doubts the Supreme Court may have had about whether time shifting is fair use before January 17, 1984 are irrelevant because the majority opinion is a binding precedent. That this ruling directly addresses time shifting and not format shifting is undeniable, but it misses the point entirely. Courts consider consistency with past rulings when issuing new ones -- stare decisis. The striking similarities between time shifting and format shifting would have to be addressed and overcome somehow before a ruling against fair use could be reached.

One example that demonstrates the effect of precedent is RIAA v. Diamond Multimedia Systems, Inc.: "The Rio merely makes copies in order to render portable, or 'space-shift,' those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984)" Here the court is clearly making exactly the sort of comparison between space shifting music and time shifting video that I was making for format shifting.

Another example is the U.S. Court of Appeals for the Ninth Circuit in A & M Records, Inc. v. Napster, Inc. which sought to explain why its ruling was not inconsistent with precedent: "Both Diamond and Sony are inapposite because the methods of shifting in these cases did not also simultaneously involve distribution of the copyrighted material to the general public; the time or space-shifting of copyrighted material exposed the material only to the original user."

Had you actually read that ruling instead of skimming for quotes you would have discovered that while the court didn't come right out and say that private copying is fair use, it makes no argument against that position. Distribution is what sinks one Napster argument after another. Format shifting is scarcely considered at all, except to say: "That the copyrighted works are transmitted in another medium–MP3 format rather than audio CD–has no bearing on our analysis."

This ruling underscores other arguments I've made as well. For instance, it quotes Campbell, 510 U.S. at 591 n.21.: "A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. . . . If the intended use is for commercial gain, that likelihood [of market harm] may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated." Speculation about lost sales of the same product to the same consumer is not enough.

Immediately following that Worldwide Church quote you make so much of we find this: "We agree. We note, however, that under certain circumstances, a court will conclude that a use is fair even when the protected work is copied in its entirety. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984) (acknowledging that fair use of time-shifting necessarily involved making a full copy of a protected work)." Likewise, private and non-commercial format shifting necessarily involves making a full copy and so qualifies for the same treatment in fair use analysis.

So much for court rulings that argue against format shifting.

(I missed that clause in section 1008 of the Audio Home Recording Act, so I agree that it protects users as well. But this still fails to show that non-commercial copying would not otherwise be fair use. The AHRA was enacted in response to RIAA fear of digital audio tapes and infringing distribution of "perfect" digital copies. This is why the act mandates SCMS and royalty payments, not because it was weakening the scope of copyright law. By contrast you imply that while recording a song played on the radio is fair use encoding that recording in another format required permission before this act became law. That's silly.)

You claim there are educated attorneys with extensive relevant experience who hold that personal copying is not fair use. Can you name one with no economic interest in the question who is willing to publish that opinion? I've given you two names that meet this standard for the other side already: Lawrence Lessig and Robin Gross. That you fail to mention even one is suspicous, to say the least. (By the way, just how many times have you promised not to post any more on this subject? I count four... so far.)