Re: Digest Number 3470

From: "Daniel P. B. Smith"
>> __
>> 1f. Re: Neat summary of Google strategy
>>     Posted by: "Marion Gropen" [email protected] 
>> mgropen
>>
>> It's not tacit at all: it's case law. The copy required 
>> for indexing
>> and making things available for searching is fair use.
>>
>> BUT copies for non-commercial personal use? May well NOT 
>> be fair use,
>> depending on the specifics.
>>
>> And many of the things that people think are 
>> non-commercial personal
>> use aren't, if you get into a courtroom.
>
> I'm skeptical.
>
> I believe most of the things that people _argue_ about... 
> things that
> people "think are non-commercial personal use..." never 
> get into a
> courtroom.

Daniel,

I have no idea about 'most people' but I certainly am far 
less exercised about that than about the taking of 
rightsowners rights under law. The battle you mention is 
being fought out in the music and video business and I wait 
with interest to see how it sorts out.

>
> No publisher in their right mind would bring it to court. 
> There isn't
> enough money involved. It's very much in their interest to 
> have a
> climate of fear, uncertainty and doubt in which nobody 
> knows what's
> legal and what isn't. It's not to their interest to have 
> it
> clarified; it's a high-risk tactic because they have so 
> much to lose
> if things get clarified the wrong way.
>
> And that cuts both ways. Originally the RIAA had great 
> success with
> their bullying and intimidation tactics. But now that 
> their bluff is
> being called and these cases are actually starting to come 
> to court,
> it appears that many of the things that people at the RIAA 
> think are
> "unauthorized copies" are, in fact, non-commercial 
> personal use.

Which is not covered under copyright law. On the face of it 
they are copies in contravention of that law. Of course the 
technology demands a different interpretation, but there is 
no reason to suppose it is clear.

>
> Nobody knows what the law is. In a very real sense, there 
> isn't any
> law yet. Things are going to proceed the way they have 
> been many
> times before. OMG, people are playing phonograph records 
> over the
> radio! There will be years of legal wrangling, and 
> eventually things
> will settle down to some reasonable compromise that allows 
> the public
> to listen to phonograph records being played over the 
> radio for free.
> And to push the "record" button on their 
> cassette-recorder-boom box
> when they hear something they like... without getting sued 
> for $3000.
> While the record publishers get paid... much much less 
> than they want
> but much much more than zero.
>

This draws an interesting parallel. Performing rights 
payments, which include plays also, are effectively made on 
a bulk basis; a payment on behalf of the copyright dues from 
all listeners. It is a recognition of the law, not  an 
avoidance. Not dissimilar either to the royalties a copy 
maker pays to the rightsholder or owner in normal 
publishing.

The amount of any payments depends on many factors and does 
change over time. The changes often bear comparison to the 
stress of the adult insect breaking free of a chysalis.

Joseph Harris 



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