Proof that Music File Sharing IS Legal

[CaptainMorgan]

Originally posted by planes
I could call up the FBI and tell them I just made a copy of a cd
that I bought and was playing it right now on my mp3 player; give them my address; and phone number. He'd say if its for your own use we are not interested.

I believe you are correct here, but it is not because the FBI doesn't care. This concept IS ABSOLUTLY LEGAL. The making personal backups of music and software was validated as legal by many court cases. This includes recording from LPs to cassettes etc. Recording music from the radio and videotaping television shows IS LEGAL. You can time shift TV shows for your own convienience. You can remove the commercials. You can also loan any of your property (including purchased media and personally recorded media.) It is all PERFECTLY LEGAL. No guilt is required. No fear is necessary.

I am not a lawyer, but I follow this pretty closely. If anyone can contradict these "facts", please correct me immediately.

But, please only LEGAL arguments, I can't take anymore orthogonal arguments. (e.g. "I don't like it so, it can't be legal", "What you have written is morally wrong, it can't be legal", "This would destroy capitalistic and/or socialized economies everywhere, it can't be legal") It either, is legislation passed into law, validated by a court, or it is not. This is a simple question.

Also, Planes, would you mind commenting on my Digital Copyright thread. It makes a logical argument that has not been mentioned in this thread.

<join>

Originally posted by aqlo
Yes Cap everything you listed is perfectly legal and most of it has been tested in court and/or legislature, there have even been whole corporations built on these principles like TIVO

Good, agreement between two people on something. It's a start.

Now, I'm going to push my luck...

In my mind, there is only one useful argument strategy to defend P2P from both the RIAA and questions like Plane is asking. That is to make a clear concise argument as to why P2P sharing of music is actually, currently, legal. This will give the people that are currently being threatened by the RIAA a clear defense. "We're innocent of charges." If the arguement is clear enough it will give them grounds to ask for damages from the RIAA.

What most people are doing is first assuming that this is illegal and everyone is guilty of breaking the law. Then, making clever arguments about: why they want it to be legal; why it is good and useful; why they don't care that it is illegal. And for god sake seriously putting forth the argument that, "If it's legal it will destroy capitalism as we know it, but that's OK because it is just a simple paradigm shift to take us to communism (or socialism, liberalism, utilitarianism, or anarchy) and that will fix everything right up."

Please don't take these arguments before a jury in Texas, they'll give you the death penalty just for using the phrase, "paradigm shift."

Before you go saying, "Yeah that's all fine and dandy, but we don't have that argument because it really is illegal and we're all guilty." Let me give it a try.

Please stop me when, I go astray.

Assuming, my above post is true...

1. All the above are still true if you switch, cassette to CD-R, and video tape to DVD-R.

Specifically, I say this is true. I can record from the radio (or my legally purchased: LPs, 8-tracks, cassettes, or CD) to a CD-R. I can record from my TV (or my legally purchased: 8mm film, laser disks, video tape) to DVD-R. All of these devices currently exist as consumer hardware, no computer required)

Still with me?

2. All the above still holds true replacing CD-R and DVD-R with hard disk.

Pretty much I'm saying Tivo is legal. This is important because, if someone alleges this is not legal, at least one people on the jury is likely to have a Tivo. This is one of the reasons that video taping from TV is considered fair use. If the jury says it is legal, it is legal. That is how it works.

Still with me?

3. Replace radio with internet-radio. TV with internet-TV.

Specifically, if I can record it from WABC on the radio, I can record it from WABC.com.

Still with me? There is a small leap coming up, but don't worry I'll point it out when we get there.

4. Now, we have to assure ourselves, here, that radio, TV and their digital counterparts are indeed legal.

This seems simple enough, but there is a potential dependency here. Radio and TV stations pay licensing fees to the copyright holder for rights to broadcast a given song or program. This is what makes them legal. So I'm assuming they pay and stay legal to broadcast. However, the radio/tv station clearly cannot burn a bunch of CDs/DVDs and go handing them out to their customers and friends. This would be illegal. They do not have unlimited distribution rights.

Here is the important question. If people record songs from the radio or internet radio, does the radio station become guilty of "facilitating" piracy? I say NO, their guilt and innocence cannot change depending upon something that is outside of their control. And I say that this is true, even though, before they broadcast they know there is a pretty good chance that someone may be recording it. This is important because I'm going to need it to make a short conceptual leap in a minute.

Before I go on, let's be clear. I'm saying the radio station is legal.

5. Sharing. It appears decided that you can share your media with your friends if you hand deliver the media to them. In other words if I hand you my hard disk (or cd, DVD etc.) and you return it later it is legal for me. This makes no copies, hence, no copyright violation.

I say this is true even if I know that there is a chance that you may make a copy of this. This kind of interaction seems like it has been settled for years as legal.

OK?

6. Network sharing. If I share the same hard disk as in 5 above and allow someone I KNOW to connect, I clearly don't become guilty piracy. As I didn't make any copies. However, I could still be guilty of "facilitating" piracy. Am I?

***Leap Warning*** I say not and here is why. There are two possible cases that could happen:
a) My friend DOES NOT copy anything. Perhaps he just played the song from the hard drive without saving it. DMCA specifically allows ephemeral copies for uses like this. If my friend does not actually commit piracy, it seems difficult to accept that I am guilty of "facilitating" piracy. It is a possibility, but in the radio station case above we said that they were NOT "facilitating" piracy even if they knew that it would be a possibility.

I say, "I am not guilty of "facilitating" piracy in this case."
***Can you make this leap?***

b) My friend DOES pirate something. Am I guilty of "facilitating" piracy? His behavior was out of my hands. It does not seem that his remote behavior should change my guilt. This was not true in 4 or 5 above.

I say, "I am not guilty of "facilitating" piracy in this case."
***Can you make this leap?***


7. Network sharing. If I share the same hard disk as in 5 above and allow someone I DON't KNOW to connect. Am I guilty of "facilitating" piracy?

I say, "I am not guilty of "facilitating" piracy in this case." for the same reasons as 6. a) & b)
***Can you make this leap?***

QED

The sharers, currently being threatened by the RIAA, are innocent of breaking any law.


I know that I did not show that the receivers are innocent, but they are not currently being threatened. I leave this as an exercise to the student.

CaptainMorgan

[CaptainMorgan]

There have been similar arguments on three separate threads. Most have degenerated into philosophical battles and have wandered far from their original topics.

p2p legality
** Music Industry screws the consumer again
Librarian or criminal mastermind?

I hope you will allow me to consolidate them here. I know this is a highjack. I do not claim the right to highjack. Or claim that I deserve to highjack. I just would like permission to do so, in order to keep my sanity. (If I ever had any.)

My sincere apologies to: Voodoo Child, MemeticMage, and Guy Smiley.

As evidence of my good intentions to all. I offer the fact that I worked from sunset to sunrise preparing the above post.

I hope you will allow me this liberty, this once.

CaptainMorgan

[phalkon30]

If I understand correctly what you're doing here, next time just write it in a .txt file in notepad, or use the preview button while waiting to post

[Malicious Intent]

When you get taken to court, you can say all that to the judge and be hailed a hero by the p2p world!

[aqlo]

OK Cap I'm going to summarize your argument for you.

If I make legal back-up copies of all my CDs and DVDs and stick them out in my front yard, it's not my fault if 15 million people stop by and quickly make copies of them while I'm not looking.

Have I got it?

[CaptainMorgan]

Originally posted by aqlo
OK Cap I'm going to summarize your argument for you.

If I make legal back-up copies of all my CDs and DVDs and stick them out in my front yard, it's not my fault if 15 million people stop by and quickly make copies of them while I'm not looking.

Have I got it?

--Legally-----------------------------------
Yes, I am saying that you are not legally responsible for their behavior. They may be commiting illegal behavior. But you are not.

Specifically, I DO NOT CLAIM, that this is morally a good thing, or that this is a reason that people should share, or that this is a reason that people should copy. I DO NOT CLAIM that this makes the world a better place.

I simply claim that this is a plausible legal defence for the people currently being supoenaed by the RIAA.

I also think, but have not validated sources, that the EFF is currently making similar arguments. Any references to others making similar arguments would be greatly appreciated.

--Philosophically-----------------------------------
Philosophically, I believe that the current copyright law is untrue as written. Specifically, it is inconsistant with itself in such a manner that it can be easily shown that by writing this post I have violated your copyright on something.

Untrue/unclear laws are A BAD THING. If you want specific examples google "deep linking". People are being sued for violating the law. But NO LAWYER anywhere on this planet can tell you which behaviors are legal and which are not . Specifically, their must be a lawsuit. The lawsuit will then determine the law (as a precidence). The defendant of the suit, CAN be found guilty without ever having the possibility of knowing the law.

This is A BAD THING.

[Malicious Intent]

But these programs are around specifically for people to take the files from your hard drive. Its the equivilent of leaving your CD collection on the lawn with a signpost saying "please help yourself to a copy"

[CaptainMorgan]

Originally posted by Malicious Intent
But these programs are around specifically for people to take the files from your hard drive. Its the equivilent of leaving your CD collection on the lawn with a signpost saying "please help yourself to a copy"

--Legally-------------------------------
If you are intent on "faciliting piracy" you CAN make yourself violate the law.

However, I don't think that this was your point at all. I think you're asking it this case reaches that point. The case you describe above DOES seem logically closer to a violation, but I'm not completely convinced that it is there yet.

Assuming you didn't mean, "Physically take the CD, it's yours keep it." (Legal)

Consider, a slight modification to your sign. "Please listen to this music and return the CD when you are done." I think this is a fair statement of your intentions.

I think this situation is clearly legal for you in the following cases:

1. People take the CDs away and either listen to them or copy them. How can you know what they are doing? Either way it was not what you were intending. Libraries are based upon this principle, of course.
2. People listen to the CDs on your front lawn and return them immediately when they are done.

In the case that, someone while sitting on your lawn, people rip the song to their iPod so they can "time shift" and listen to it later. I would say that this is NOT in the same clearly legal group as the others (for you), though there is probably a lawyer that could make a good "Fair-Use" defense for the rippers actions. If this is true then it moves to the clearly legal case (for you). IMHO, I would call this a legally defensibly position for you.

However, if your intentions wereA sign that says, "Please pirate a copy and return me the disk." would probably get you all the way to illegal facilitation of copyright.

[Malicious Intent]

I think you are missing something very vital. What you need to remember is that this is an entirely new area of law. Riding your bike on the pavement was not illegal until the bike was invented. You need to wait for court cases or acts of parliament (American equivilent? Bills?) to be passed. As soon as the first case goes through court, then the precedent will be set. What you really need to ask yourself is would this arguement stand up in court? Will law writers think - "ahh, good point!"?
Perhaps you are right, currently you are not breaking any laws, but you will be soon, especially because they are the ones with the money. It is more likely that not getting caught will become more important than some twisted logic in court.

[CaptainMorgan]

I think that you eloquently stated what I am thinking but am failing to adequately put down in words.

Originally posted by Malicious Intent
What you need to remember is that this is an entirely new area of law. Riding your bike on the pavement was not illegal until the bike was invented. You need to wait for court cases or acts of parliament (American equivilent? Bills?) to be passed. As soon as the first case goes through court, then the precedent will be set.

However, what I really want to stress is that ,"entirely new areas of law" SHOULD be decided by representive democracy. (Parliment, in your case, Congress in the U.S.) Deciding, "entirely new law" by court case really means deciding law by comparitive analogies. Two self interested sides attempt to make their best comparison to something currently legal and illegal. This system is easily swayed by the people willing to put the most time and effort into ground work.

In the RIAA case the ground work is all of the news stories, press releases, anti-Piracy (preloaded word) web sites. It is easy to see from this zeropaid that the RIAA ground work is being quite successful. Most everyone already assumes the file sharers are guilty, before any evidence is presented. Prejudice (Pre-Judging) is a bad thing in a jury.

To visualize this concept, think of a news reporter asking random people ont the street, "Do you think 'p2p file sharing' users are breaking the law?" Now think about this same situation 2 years ago. The answers you likely have in your head are. Now: "Yes", Then: "Huh?" What is the difference? Groundwork.

What you really need to ask yourself is would this arguement stand up in court? Will law writers think - "ahh, good point!"?

My guess is, YES. This could convice lay people on a jury. If they are not already beat to death by predudicial RIAA ground work.

But what I really want to know is what you think. If you were charged, would you bounce this argument off of your lawyer (soliciter?) or would you just try to settle?

some twisted logic in court.

Questions: How twisted do you think this logic is? I actually think that each step is pretty intuitive. Is it twisted because it is the first time you have heard it? Or is it obtuse?

[CaptainMorgan]

[QUOTE]Originally posted by MainManMoe
Perfect sense and perfect sense....That a jury in Texas would react biased at the words paradigm shift and socialism only means America is a bad example because of their famous ignorance (your generalization, I tend to agree). But lets go along with it for the sake of argument.[QUOTE]

In the U.S. we are judged by a jury of our peers. The "death penalty" part was, of course, a joke based upon common external prejudices toward Texans. But, the logic holds, a random jury of any U.S. citizens would give no sympathy to let's all become socialist type of arguments. No judgments, it just doesn't pull any weight.

Originally posted by MainManMoe
1. Different nations, different laws..the law in Texas may not be the same in China. Filesharing is global, not just American. This entire piece is written as if it was. Certainly most countries would scoff at the idea that "it is legal if a jury says so", frankly I dont even believe that is the case in America, although I wouldnt be totally surprised.

Actually, the whole thing was written from a U.S. point of view, as these are the people currently being threatened by the RIAA. It says this at the top of the piece, and at the end. However, the most recient U.S. laws were derived from the WIPO treaty. (See the links I posted to you on p2p legality.) You might be suprised how similar they are to yours. But, this is just a guess.

Question 1: By the way, how do jurys work in your country? I have sat on several jurys and I can assure you that if the jury says innocent, the defendant goes free and pays no penalty, and in Texas you have the right to a jury trial for any offense. Texas has some of the most liberal laws in the country on this.

One example of the relevance of this is, that in my country for example, because it is not illegal to record from the radio, radio dj's have a legal obligation to "voice over" at least a small part of the start or ending of a tune. This way copying for distribution will always be inferior quality. If your comparison to radio should hold water, sharing mp3's would only be legal as long as we "unwillingly facilitate" sharing of "ruined" songs.

As I mentioned above, the proof was goal directed. You may have to modify the proof, to suit your specific needs. I do think that if, I understood your country's legal system's rules, I could probably modify the above proof. I bet you could too.

Question 2: I am interested in knowing if you think the argument is logically sound for its intended use. I realise you may have to make some assumptions about U.S. law, but I assure you that the above analog copyright facts are correct.

Question 3: Where does your country stand on recording internet radio? There are many of those stations that do not have the "talk over" policy.

Interesting (I think) anticdote: In the U.S. there is a large broadcasting company, Clear Channel Communications, that owns about 150 radio stations across the country. They have discussed selling (or withholding) this talk over/bumper announcement as an extra cost "feature". Their logic is exactly the opposite of what you said though. Their thought is that the bumper talk after the song, ("You've just heard, Korn's latest ...") helps to sell CDs. As this is how consumers know what to go buy. Record companies should have to pay for this feature. (Note: they have moved away from talking over the end of the songs it causes listeners to get annoyed and change the station.)

2. If you are on a network, each user has a seperate user account. I assume you mean you leave the material accesible to all users. Comparing this to radio doesnt even merit a response, and the argument that it is simply stored there for your own enjoyment while unfortunately accesible to others would be contested by the fact that you could easily have stored this in your personal user account. If nothing else, it does open room for a discussion of malicious intent. Also this is limited to intranet. When you share on the internet you can make all the leaps you want, its not going to change the fact that you are making copyrighted music available for free distribution, and even doing it in exchange for other copyrighted material.

I actually have seen many people with their entire hard drive shared. Usually this is in windows file sharing on a local network, and the user is usually nieve about what can happen, or simply doesn't care. It happens all the time. I have actually seen this using web sharing as well. I suppose you could find people with their entire disk shared on gnutella as well. Ignorance it not malice. Actually EFF just put out a release telling everyone to turn off logging on all of their systems, to protect the privacy rights of system users. Ignorance is bliss.

I say personal file sharing, personal web sharing, and (insert your favorite p2p program here) are all equivalent. I also think my radio comparison holds.

Question 4: I used the radio comparison all over the proof. At which line number do you thing the argument breaks down? Give me an opportunity to improve it, if I can.

3. In your last statement you leave it to the student to prove the reciever innocent. Obviously thats impossible, no further comment should be needed.

I think, it can be done if you don't automatically assume they are guilty. There are plenty of "fair-use" defenses. I will take a crack at it if anyone is interested.

[jonnymnemonic]

I'm not sure what number it breaks down, but the key is the difference between duplication and loaning, and that's how your average rational person will see it. If when they get music from your hard drive YOU no longer have access to it until they (virtually) return it, then no one will have a problem with this. Of course, the technology to make that possible isn't quite there yet.

Incidentally, you could attempt to use a similar argument for a lot of things. Post Windows Server 2003 on UseNet and if they try to bust you, you just say, "Well, I didn't know anyone would download it and use it illegally!" Or send a virus to 20 million people in email and if they try to bust you, just say, "Well, I didn't know they'd click on it and get infected! That was THEIR fault, not mine, because THEY clicked on the attachments." Etc, etc. Trying to avoid responsibility for your part in things is a reasonable line of defense, don't get me wrong, but I wouldn't bet money on it working.

In any case, copyright-violation cases are civil affairs and when fair use comes up the most important thing that the juries and judges look at is the financial effect on the copyright owner. If the opposing lawyer can make a decent case that people are less likely to buy something if they already got it (or a reasonable facsimile) for free, then you lose the case, especially if the copyrighted work was distributed in a way, or for a price, or on a media that the copyright owner didn't agree to.

Personally, my defense, should I ever get busted, will be to look like the dumbest guy to ever use a computer. "Sorry, Your Honor, I didn't even know the stuff was available to others, because I was still busy trying to find my Any key." ;)

[Krypt0]

...you are responsible to an extent to prevent people from having un-authorized access to your media. You might be allowed by law to make copies for your own personal use, correct; but you also are responsible that you maintain the copyright, and limit access to that media to only people who are authorized.

I guarantee you that any court system will say the same thing; especially when you WILLINGLY share (I.E. have the ability to disable file sharing) copyrighted works.

In your example of having copied movies outside in your lawn, you have no right to have them so that the public can access them when THEY have no rights to the copyrights.

Think again about how, if you run a network, YOU (the administrator) are responsible for what happens on the network. EXAMPLE: the news story how a webmaster got jail time for somebody else posting instructions how to make a bomb. He (the webmaster) didn't post it, but he was held responsible for it.

I’m not 100% sure on what the hell I just said, so please excuse me if it’s not valid, or make any sense. Just something to think about… cheers!

[yes, I’m still on vacation, but I just had to check zp forums really quick…..lol]

[Peppermint]

Originally posted by Krypt0
...you are responsible to an extent to prevent people from having un-authorized access to your media. You might be allowed by law to make copies for your own personal use, correct; but you also are responsible that you maintain the copyright, and limit access to that media to only people who are authorized.

I guarantee you that any court system will say the same thing; especially when you WILLINGLY share (I.E. have the ability to disable file sharing) copyrighted works.

In your example of having copied movies outside in your lawn, you have no right to have them so that the public can access them when THEY have no rights to the copyrights.

Think again about how, if you run a network, YOU (the administrator) are responsible for what happens on the network. EXAMPLE: the news story how a webmaster got jail time for somebody else posting instructions how to make a bomb. He (the webmaster) didn't post it, but he was held responsible for it.

I’m not 100% sure on what the hell I just said, so please excuse me if it’s not valid, or make any sense. Just something to think about… cheers!

[yes, I’m still on vacation, but I just had to check zp forums really quick…..lol]

Some criminal and I guess civil prosecutions can bring the defendants INTENT into the picture. I don't know if the copyright law uses the words "with intent to...".

However, if the prosecution can convince the jury of your intent that could play a part in your case.

[Krypt0]

Originally posted by Peppermint
Some criminal and I guess civil prosecutions can bring the defendants INTENT into the picture. I don't know if the copyright law uses the words "with intent to...".

However, if the prosecution can convince the jury of your intent that could play a part in your case.

exactly what I was trying to say.. lol
thanks!