May 16, 2003
Oh The Tangled Web We Weave
1. So, SpyMac is offline. Hurray for chilling effects.
2. Matt’s got a response up. I don’t think I’m going to tear through it in complete detail. But let me jot down some issues:
– Matt’s approach is intriguing. He’s trying to: understand the law’s text, determine the spirit of current law, define normatively what the spirit of copyright is, and render all those consistent. That is, he’s trying to fit his own normative conceptions into current law and, in some cases, show how current law could/should be altered/enlarged to align with its spirit. Good stuff.
– As Matt notes, this approach also generates some tangled logic. In many cases, I don’t think this description of the law reflects how it actually is. Sometimes, I’m not sure whether he means that the law actually says what he’s asserting, or whether it should state that.
– First, though infringement is not equivalent to theft, it’s a stretch to claim that the spirit of copyright law views downloaders as non-infringers. I’m not sure where that conclusion is coming from. Rather than trying to phrase this in terms of the distribution/reproduction in the physical world, let’s think about who the copyright infringement doctrine typically targets. This doctrine has targeted people who are actively participating in and enabling the illegitimate distribution of copyright works (yes, there are many limitations, but speaking broadly, this is the case – and when we’re speaking in terms of the spirit of anything, we need to speak broadly). It’s meant to inhibit people facilitating the acquisition of copyrighted material such that copyright owners are largely unable to profit from their works (again, broadly speaking). I think this “spirit” is far more fundamental than the “implied sequence” of reproduction/distribution. In terms of physical objects, the people who acquire unlawful copies are not really active participants in the illegitimate reproduction/distribution. It’s not just a matter of willfulness – they actually are not involved in distributing or copying the materials. On the other hand, downloaders on P2P services are participating in the copying of material. Moreover, they are often knowingly making a copy with a person who does not have authorization to distribute the material, thus depriving copyright holders of an exclusive right. In the spirit of the law, that sounds like infringement.
– What I’m getting at is: intuitively, do you think the spirit of copyright law considers people who are downloading files on KaZaA as non-infringers? If that’s what you’re arguing, I think you’re going to have to go deeper than pointing out the logical sequence of reproduction/distribution.
– On a more specific level, I’m not really sure how file sharing could be considered a public performance. Especially if Matt’s trying to create an analogy between the way copyright law related to the physical world and to the Internet, file sharing is nothing like typical public performances. So, even if there’s no congruence here, is Matt making a normative claim that this is how the law should look at it? If so, I’m not sure why.
– As far as the Betamax defense for file sharing: Matt’s right if he’s saying that downloaders, using P2P and making copies for their own personal use, are not infringing. But that only applies if they have legitimate rights to the particular copy in the first place. If Buffy is being transmitted to your TV, or you’re holding a CD in your hand, you’ve got rights to that particular copy. You don’t have rights to your friend’s CD, so you can’t download it and consider that personal use.
– The DMCA reasoning is very important. Again, I’m a little confused because I think it’s a strained reading to say the DMCA should be applied to individuals’ making temporary copies. But, if Matt’s saying that we should create a copyright exemption for the sort of caching your web browser does, I’m with him. I’m not really up on the law in this area, but, from what little I know, it’s incredibly murky; what’s more, it hasn’t favored the legality of such temporary caching. Look up the MAI case and see here, here, here, and, for fun, here.
– Matt and I have both run up against a lot of exceptional cases – for instance, what if you go to a website that says it’s authorized to distribute music but really isn’t. Are you infringing? Certainly, a caching exception would be necessary. But, also, I think other law regarding false advertising and other sort of misleading behavior might step in here. I don’t know enough about other relevant law to say if this is the case…. Still, I think it’d be much more difficult to prove that you were being misled if you’re downloading files on KaZaA.
– That’s my analysis for now – as you can see, my thoughts are pretty entangled, too, but I hope they’re of some use. Really, I think we’re just looking at similar issues from pretty different angles. I’ve been talking mainly from the angle of what the law says and how its spirit would look at downloading. Matt is trying to render new practices consistent with the law, even where the fit isn’t exactly clear. Matt’s ideas are incredibly helpful in examining how copyright law isn’t well-suited to cyberspace.
At the same time, I must stress that one must be very careful when saying “The most important issue here isn’t really whether or not downloading is actually against the law. It’s whether or not downloading is ‘wrong.'” If you’re going to start with that, and then make a bunch of arguments that directly relate to what the law actually says, then that’s pretty confusing – at least for me. Making consistent what the law says and what it should say is all well and good. But let’s not strain too hard to do it – in some cases, they simply are not consistent.
– Final notes: I really enjoy this. I know I’m expressing strong disagreement, but I really like Matt’s “novel line of reasoning.” It challenges my thinking and assumptions, and makes me want to do more research.
And, in general, I’m not advocating a normative position here. For instance, below, when I said that the law views people as infringers first, fair users second – I don’t think that should be the case. I think we should be thinking of fair use as a right. But, in practice, I don’t believe courts do this.
Filed by Derek Slater at 11:30 am under General news
5 Comments
Let’s start with the big question first. Is downloading music wrong? I’m going to punt. Some uses probably are and some probably aren’t. Lawrence Lessig has stated that downloading songs when you already have purchased the song in another medium should be okay and Siva Vaidhyanathan has said that downloading to sample should be okay. Do I agree with either of them? Not sure. What does the law say? Not sure. The Betamax decision may make it legal, but I deliberately didn’t analyze it in depth, to avoid going insane.
The state of the law is important because it colors the discussion. Life isn’t as simple as the law reflecting what’s right and wrong or the law determining what’s right and wrong. Law and morality interact with and shape each other.
I believe my argument that file sharing is public performance is based strictly on law. Broadcasting a song on the radio is clearly performing the recording publicly, as “publicly” is defined by the law. The major reason why I think it also applies to file sharing is that the definition includes receiving the work at the same time or at different times. The lack of exclusive right of performance of recordings is explicitly laid out in Section 114 of the Copyright Act of 1976.
The DMCA and Betamax interpretations are more speculative, which I tried to indicate. The DMCA interpretation is a stretch, but it might hold if the court understands that otherwise the Internet becomes unusable. The Betamax interpretation feels good to me, but I deliberately didn’t pursue it or consider the effect of copyright infringement on the sharer’s part.
I’m enjoying this too. Having a sparring partner is pushing me to dig deeper, which is definitely a good thing.
But, Matt, there’s no “performing” going on – look at that definition, not just the definition of public performance. The works aren’t being played – they’re being copied. You’re focusing on “to transmit…” language in the public performance definition as if it can mean to transmit and create a copy. No, it says specifically transmitting a “peformance”, which means to “recite, render, play, dance, or act” copyrighted works. That’s quite different.
Also, if you read the statute the way you do, you render meaningless everything the DRPA’s and DMCA’s distinctions regarding non-interactive/interactive webcasting versus downloading. If all transmissions of songs over the Internet are performances (which is basically what you suggest), then there was no reason for the lines those statutes draw.
I haven’t read the DRPA and DMCA closely enough to be able to reply to that. My thought is that if I include an image on my web page, I think by the Napster ruling I would be distributing the image, when intuitively at least I would be displaying it. Analogously, I would be performing music. I wouldn’t be opposed to interpreting the music as also being displayed, although that strikes me as a little weird and perhaps outside the definition of “display” in the Copyright Act. (I don’t have it in front of me at the moment.) I think no matter how the law is read, it involves some stretching to make the rules of physical objects apply to the Internet.
The Napster ruling does not really address the example you bring up. If you were to put an image on a P2P service, you’d be distributing it – that’s what the Napster ruling is talking about. If you put it on your website, you could be considered to be displaying AND distributing it – you’re showing it to others and, in so doing, you’re allowing other people to acquire copies. Putting a song on your website is NOT analogous, because there’s no performing. The song is not being played.
I think you’re right that, yes, applying old definitions to a new medium does involve some stretching. But not all stretches are equal. These definitions can be adapted to the Internet in ways that are, in many ways, consistent with the old definitions.
When reading these statutes, there will be times when there are some gray areas. But, you should attempt to read the definitions so that none of them are nugatory. If you’re reading one part of the law in a way that makes other parts completely meaningless, that’s a red flag that it’s probably not the best reading of the law and that you should investigate other readings that might apply. (This doesn’t simply apply in this context – this is a general point about legal reasoning.)
If you read performance the way you do, distribution and reproduction are pretty much meaningless concepts; in turn, if webcasting is the same as distribution via P2P, then there’s little point in defining the broadcast statutory license as distinct from everything else.
Even though you can make a case for your definition of performance (the DMCA and DRPA not withstanding), it still is not the best interpretation because it ignores the ways you still CAN distinguish copying/distribution from performance. On the Internet, you still can distinguish playing a file through streaming from sending a copy of the file. Yes, the person on the other end of the stream could be making a copy, and the situations in effect could be the same. However, if that’s the case then the same reasoning should apply to radio broadcasting, too, because you can record copies of radio transmissions. Thus, your definition would render the concepts of distribution/reproduction/performance meaningless not only in cyberspace, but also in meatspace.
Argh, posting that second paragraph again with paragraph breaks:
I think you’re right that, yes, applying old definitions to a new medium does involve some stretching. But not all stretches are equal. These definitions can be adapted to the Internet in ways that are, in many ways, consistent with the old definitions.
When reading these statutes, there will be times when there are some gray areas. But, you should attempt to read the definitions so that none of them are nugatory. If you’re reading one part of the law in a way that makes other parts completely meaningless, that’s a red flag that it’s probably not the best reading of the law and that you should investigate other readings that might apply. (This doesn’t simply apply in this context – this is a general point about legal reasoning.)
If you read performance the way you do, distribution and reproduction are pretty much meaningless concepts; in turn, if webcasting is the same as distribution via P2P, then there’s little point in defining the broadcast statutory license as distinct from everything else.
Even though you can make a case for your definition of performance (the DMCA and DRPA not withstanding), it still is not the best interpretation because it ignores the ways you still CAN distinguish copying/distribution from performance. On the Internet, you still can distinguish playing a file through streaming from sending a copy of the file. Yes, the person on the other end of the stream could be making a copy, and the situations in effect could be the same. However, if that’s the case then the same reasoning should apply to radio broadcasting, too, because you can record copies of radio transmissions. Thus, your definition would render the concepts of distribution/reproduction/performance meaningless not only in cyberspace, but also in meatspace.