[d at DCC] Fair use question
russell at flora.ca
Tue Aug 8 12:59:46 EDT 2006
I read the "tolug" thread, and how Scott took the recording down.
Too bad as it is highly unlikely he would get sued if this was under
one of the "NC" (non-commercial) licenses even if it would have been
considered infringing by a court (something I couldn't want to try to
guess at). The problem is that most people don't want their name and
"test case" ever put together given the resources required to defend
themselves from even the most frivolous of lawsuits.
What is and is not infringing is quite vague and subjective. While I
am a "code is law" person, I believe that especially those who have this
believe need to realize that legal code and computer code are quite
dissimilar in how "squishy" legal code is. Computer people are used to
coming up with rules, running them through a compiler, and having the
same input always generate the same output: legal code doesn't work that
way. Even the nasty "Pentium divide bug" could be avoided given there
was a logical pattern that could be used to know what inputs would get
wrong outputs, something that cannot be done for the courts.
While the whole transcript is a great read, see the following section
about when hackers attempt to be lawyers:
With that in mind, taking everything you read from computer people in
this and other forums with the appropriate grain of salt, ....
Robin Millette wrote:
> Actually, nothing in the law prevents you from recording music at
> home, for your own fun. It's the distribution (the copying /
> copyright) that is troublesome.
...the public performance, communication by telecommunications, and ...
The literal wording of the copyright act is that while you can have
private performances without copyright being involved, any recording of
that private performance does require the permission of the copyright
holder on the music. Remember the antiquated nature of the copyright
act, and how much of what it regulates are things which were previously
only commercial activities given how expensive these things were. The
idea of "home recording" is rather recent, and not anticipated by the act.
Carving out entirely private activities from the Copyright act is
something that hasn't yet been done, and there are special economic
interests trying to have more and more private activities regulated by
copyright (so-called anti-circumvention being an example -- personal
choices of what software we run on our own hardware is being revoked).
Music copyright is one of the most messy aspects of copyright (*)
given you have the music publishing side (what was previously considered
"sheet music", even though lyrics and the underlying music aren't
written down as much any more) and the recording side. Each side has
their own copyright holders (composers/publishers, performers/labels)
which are sometimes the same people (singer/songwriters, and labels that
have a publishing arm). Each of these potentially different entities
have different activities which they have an exclusive right for.
Most works under copyright are nothing at all like "books", which is
the type of copyright people like to use as the simple example. I
believe that it over-simplifies things, and doesn't adequately expose
people to just how bad the current Copyright regime is.
(*) Video games that embed the equivalent of a motion picture are likely
the worst, given it includes all the mess of music embedded within the
movie as well as all the additional complexity of the video (motion
pictures) as well as the software.
I had a long conversation with a lawyer this weekend (who will remain
nameless unless he wishes to say Hi) asking a simple question: since
movie copyright expires in Canada 50 years after publication, and music
50 years after the death of the composer, then what happens when a movie
is in the "public domain" and yet the music behind the soundtrack is
not. Can that movie be distributed for free as is being done currently
with sites like Archive.org, and can any of the music copyright holders
sue Archive.org? My belief is "yes", that as the very broken Canadian
copyright act is written now we have this problem.
The only viable solution is to simplify the term of copyright to a
fixed term: x years from recording for things like photographs + sound
recordings, x years from date of publication for manipulated works such
as books, movies, music, etc. We must get rid of the "life+" concept
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
Please help us tell the Canadian Parliament to protect our property
rights as owners of Information Technology. Sign the petition!
"The government, lobbied by legacy copyright holders and hardware
manufacturers, can pry my camcorder, computer, home theater, or
portable media player from my cold dead hands!"
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