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We chat about the latest legal copyright related controversies with a seasoned legal professional

At DailyTech we are always looking for diverse opinions from those with experience and knowledge in fields relating to the tech industry.  Thus DailyTech was quite enthused when Jeffrey Johnson, a partner with Pryor Cashman LLP agreed to do a piece with us discussing copyright and the tech industry.  Pryor Cashman is one of the nation's leading law firms with 120 attorneys, with offices in New York and Los Angeles.  The firm has worked on numerous cases concerning the software/hardware/internet industries and the entertainment industry.

The following is our unabridged interview with Mr. Johnson.

UPDATE: Monday, Nov. 16, 2009, 1:00 p.m.

Many readers asked for Mr. Johnson to reply to the question about the legality of backup copies of DVDs/CDs.  Rather than let these requests fall on deaf ears, we recontacted Mr. Johnson, and his response is now included below.


DailyTech:
What do you make of the current state of copyright law, and what parallels do you see to the stir that happened when Xerox hit the scene, offering easy copying of print media and potential infringement?


JCJ:
Generally speaking, and for many understandable policy reasons, law can be slow to change: usually, its a trailing indicator of changes in society at large, and when it does change, those changes ordinarily come about as new legislation or new ways of doing business, rather than judges imposing social change through case law. By way of example, when copyright law was first developed, there was no such thing as a copier. Copying a book was a laborious process, and few people would undertake that process for a non-commercial purpose like sharing the contents with a friend; instead, they would actually share the book itself. When Xerox and other manufacturers made it so easy to copy books, it suddenly became very easy to copy a few pages from a book (or the entire thing for that matter, so long as you had enough nickels) and share them with a friend, or take them home from the library to work on your paper. It took the law several years to figure out how best to deal with the new technology, and even then most of the issues were worked out privately between rights holders (e.g., book publishers) and the owners of widely-accessible copy machines, such as libraries.

While 21st century technology is much different, the underlying process of grappling with technological change, and deciding how the law will change to cope with that new technology, is very similar. When judges try to apply old case law, and old legislation, to new technology, they frequently find that the law simply doesn't address the new circumstances in a manner that allows for sensible results, so they look to the legislators to make changes in the law that will allow for realistic solutions. The legislators, however, are beholden to competing interests that ensure that such change will be slow in coming.

DailyTech:
Do you see the music/movies/television industries' legal crusade against citizens who pirate as productive? With rulings like the recent $1.92M USD verdict against Jammie Thomas-Rassert drawing public ire, how can the industry fight piracy, while not coming across as a bunch of thugs?


JCJ:

It's not easy. Until the law catches up with technological change, rights holders can, and I think should, seek to protect and enforce their rights under the law. Those suits, and the public response to those suits, may prove to be one of the best ways to spur legislators to make the hard legislative choices necessary to allow for more practical outcomes than forcing large industries to sue their customers.

DailyTech:
Microsoft recently kicked 1 million users off of Xbox Live for modifying their consoles.  Likewise, Apple tried to brick iPhones that were unlocked or jailbroken, back in 2007. In your opinion should the law allow users who legally purchased products to modify them freely, or should the opposite -- a ban on modifications -- be enforced?


JCJ:
As a practical matter, I can't imagine a public consensus developing around a change in the law that would allow end-users to freely modify products that are used to access third party content. Vigorously enforcing a ban on modifications, however, may prove to be impractical. I can imagine a compromise where modifications are allowed subject to some process of review and approval (similar to how Apple handles iPhone apps), or perhaps where machines that can be modified are sold along-side versions that can't, with the machines that can be modified having reduced or altered functionality, or perhaps a much higher price. The key complication is the fact that there are two parties to the transaction -- the manufacturer of the machine and the end-user -- but hundreds of other affected parties (i.e., the owners of all the content that is run on the machine). Getting a consensus from all those parties won't be easy.

DailyTech:
One of the key drivers for modification of Xbox consoles is to make backup copies of discs. The RIAA/MPAA have long stated that backups of legally-owned materials are illegal and that "making one copy is another way of saying stole one copy". Should such backups, in your view, be legal? Why or why not?


JCJ:

I think this is a good example of where the law and technology are no longer synchronized. It is generally correct that, as a legal matter, unless a written contract (e.g., license agreement) otherwise allows, it is a violation of copyright law to copy a copyrighted work for purposes of making a "back-up" copy. This is no different than making copies of a hard cover novel or a vinyl album just in case you lose or damage it. Nobody ever seriously grappled with the issue of whether you should have a right to make a copy of a book or an album and keep it on your shelf for that eventuality, arguably because the risk of loss/damage was relatively low, and the cost of copying was relatively high. It seems to me there is little difference with a machine-readable disc, except that the likelihood of damage or loss of the disc is probably higher, while the cost of making a copy is much lower. Accordingly, the real challenge is not construing existing law; rather, it is deciding how, if at all, to change the law in light of a new technological reality.


DailyTech:
A UK independent musician from the band Orange Juice says that a variety of major labels have infringed on his songs. He claims such examples of major labels claiming to own copyrights of small musicians (which they don't hold) to be common. What do you make of this, and how do your react to the light that this casts on the major labels campaign against civilian infringers?

JCJ:
These types of disputes are not new, but the vast majority of newly composed music does not get held hostage to a dispute over copyright ownership. When it does, it's a pretty straight-forward legal question, and the courts, however imperfect, are probably still the best place to resolve the issue. While I'm sure there are some unscrupulous label execs. who try to steal music their label's don't rightfully own, there are also musicians who, in all sincerity, hear their own music in tunes actually composed by others.

DailyTech:
What's your view on the "three strikes" laws proposed in France, UK, Australia, and elsewhere, that propose cutting off internet filesharers after two warnings, forcing ISPs to cut their service?


JCJ:

We all have to start experimenting with new options to deal with new technology. Whether this approach will work I can't say, but I'm skeptical.

DailyTech thanks Jeffrey Johnson for his time and for providing us with some insightful responses into how some in the law community view various copyright-related issues.




Comments     Threshold


This article is over a month old, voting and posting comments is disabled

Enough.
By rs1 on 11/16/2009 2:42:53 PM , Rating: 4
I'm tired of listening to both sides in this debate. On the one hand, you have the people who will assert that "downloading is stealing" and "piracy is unequivocally wrong" and so on and so forth. And frankly, if you believe that nonsense, then you're an idiot. Your argument is akin to saying that if there was a machine that could generate unlimited copies of any tangible item for free, then it would be wrong to use it to end world hunger, because what about the poor farmers who deserve to get rich off of all of those copies. It's ridiculous.

Not that the other side of the fence is any better, with people who will either assert that the rights-holders don't deserve compensation for access to the work, or just try to dance around the issue that under the current system there is no compensation given to the rights-holder whatsoever. Your argument is like saying "yes, use the machine to end world hunger", but then letting the farmers who provided the initial input for the machine live out the rest of their lives in poverty, because who needs them anymore, anyways? That's not any less ridiculous. If the copied food truly had no value, then there wouldn't have been any incentive to copy it in the first place, and if it has even a little value, then the creator deserves a cut of that value. That's just basic fairness.

What's needed is a new approach. It's wrong to try to restrict access to a machine as powerful as the Internet. But it's also wrong to use the Internet to disenfranchise entire classes of people. I propose that there are really only a few key considerations here that really matter:

1. The benefits of giving everyone unrestricted access to any piece of information they want far outweigh the drawbacks.

2. The creator of a piece of information deserves to be fairly compensated for its use. "Fair" in this case means "proportional to the popularity of their creation".

3. We, as a species, are supremely stupid if we create something like the Internet (which is essentially a machine that can generate unlimited copies of anything that can be represented digitally, for free) and then do not use it to its full potential.

...given that, I think we absolutely need to move away from the now-outdated notion that "you pay for exactly what you use". Paying individually for each piece of content no longer makes any sense. Everyone with an Internet connection already has access to every piece of music, video, and software ever created (more or less), regardless of whether or not they choose to take advantage of that access. And that's not going to change.

So maybe we should pay for the access, and not the use. For instance, maybe Internet connections should carry a $10/month surcharge in acknowledgement of the fact that the connection gives access to the biggest trove of copyrighted information in the world, and in return for that surcharge Internet users can make personal use of any copyrighted information that they can access. The surcharges could be collected every month, and distributed to rights-holders based upon a formula that takes into account the number of times something was downloaded and its fair market value. For instance, if artist A's single was downloaded 1,000 times, and artist B's single was downloaded 10,000 times, then artist B gets 10 times as much money as artist A for that month. And if game X was downloaded 20 times, then the producers of game X get about the same as what artist A gets, because the fair market value of a game is about 50x the market value of a single song.

Thus, everyone gets to use the magic machine that can make unlimited free copies of just about anything in any way and as much as they want, while at the same time rights-holders continue to be fairly compensated for the content they produce. Moreover there is still strong incentive to create (and market) new content, because if you get something popular enough you can bring in a significant amount of cash in as little as a month.

Granted, it requires everyone who wants Internet access to pay a bit more for the privilege, but I think it's really the only way to move forward. Paying individually for each piece of information used is simply not viable in a world where everyone has access to the machine that can make unlimited free copies. So let's recognize the Internet for what it is, stop trying to fight against it, and find a way that allows everyone to use it to its full potential, without completely victimizing legitimate rights-holders.

That is all.




RE: Enough.
By Leper Messiah on 11/16/2009 3:01:05 PM , Rating: 2
I think Canada implemented something similar on CD-R media supposedly to reimburse artists who had their music copied. I doubt the actual artists ever received much of that money however.


RE: Enough.
By lewislink on 11/16/09, Rating: -1
RE: Enough.
By Leper Messiah on 11/16/2009 3:54:59 PM , Rating: 5
You're an idiot. Morality and legality rarely have anything to do with each other. I guess you'd be the same person on your soap box screaming at black people for sitting at the front of the bus, or daring to use the same drinking fountains and bathrooms as white people back in the 50's right? I mean after all, it was ILLEGAL for black people to do these things at one time.


RE: Enough.
By lewislink on 11/16/09, Rating: -1
RE: Enough.
By Leper Messiah on 11/16/2009 4:35:16 PM , Rating: 1
Silly me for feeding the troll. No wonder all your comments get downmodded to -1, everything you say seems to defy all logic and reason.


RE: Enough.
By lewislink on 11/16/09, Rating: -1
RE: Enough.
By amanojaku on 11/16/2009 7:16:46 PM , Rating: 4
Moron? hahahahaaah! You're the one who said Leper Messiah was "being racial and oppressing people". He said:
quote:
I guess you'd be the same person on your soap box screaming at black people for sitting at the front of the bus, or daring to use the same drinking fountains and bathrooms as white people back in the 50's right? I mean after all, it was ILLEGAL for black people to do these things at one time.
I think he meant "morality sometimes means changing, and if necessary, breaking the law simply because it is immoral." Leper Messiah, please correct me if I misunderstood you. And I agree with that sentiment, btw.

Of course, it could just be that I'm brain washed...

http://www.lyricsmode.com/lyrics/m/metallica/leper...
http://www.youtube.com/watch?v=BfZaI1o11LI/leper_m...

I almost forgot, lewislink. I think it's... funny that you just couldn't come out and swear. To quote "Falling Down":

quote:
I don't like you. You know why? You don't curse. I don't trust a man who doesn't curse.


RE: Enough.
By cerx on 11/17/09, Rating: 0
RE: Enough.
By Alexstarfire on 11/16/2009 6:32:33 PM , Rating: 1
Ok, please tell me in what way what he said was racial? Is stating facts, yet again, cause for people to get upset? I guess we should just forget about the Holocaust and all the Holy Crusades because those people were being racist, more religionist (if that's even a real word) actually but the same concept.

Saying that at one point it was illegal doesn't make him a racist. It made him someone who knows his history and got his facts straight.


RE: Enough.
By cerx on 11/17/2009 11:44:46 AM , Rating: 2
Because he said this:
quote:
I guess you'd be the same person on your soap box screaming at black people for sitting at the front of the bus, or daring to use the same drinking fountains and bathrooms as white people


RE: Enough.
By cerx on 11/17/2009 11:42:20 AM , Rating: 2
Are you honestly comparing segregation, racism, and/or slavery to filesharing?!


RE: Enough.
By Targon on 11/23/2009 10:56:05 AM , Rating: 2
I don't think the poster was, but morality IS something that shifts over time since it is about what is SEEN as what is right and what is wrong. From that perspective, segregation and racism are still issues that some people find either moral or immoral, depending on where you stand on the issue.

The general public feels that segregation, racism, and slavery are wrong, but that does not mean that everyone around the world feels that way. Some people feel that they have the right to freely copy music as well right now, even when the artists have not given permission.

Wading into the real topic of downloading music, it is one thing for someone to play a song written by others and then distribute a recording of that, and reproducing a recording of what someone else has done. To be fair about it, if you want to be able to listen to a recording of a song, you have to be able to perform the song yourself, or pay the PERFORMER something since the performer did the work, you did not.

In the world of commercial music, record labels INVEST money to make an album/CD/DVD. That may come from recording sessions, advertising, distribution, etc. The record labels deserve compensation for their investment, but the ownership should remain with the original artist who performed for the recording.

Going back historically, to the days before recorded music, songs were often written by one person, and a popular song would be played by many other performers. There was no cause for complaint except when others tried to claim credit for the original composition, and the recording industry NEEDS to understand that.

There should be no need for a license to play a song written by someone else, as long as proper credit goes back to the original writer. Things get more complicated when money is charged for derivative works though, but a fair law would be something like five percent of the proceeds from a derivative work should go back to the original artist or something like that.

Until the idiots in the court system understand all of this though, they really have no justifiable claim to be able to make laws on the issue.


RE: Enough.
By rcc on 11/17/2009 3:38:11 PM , Rating: 2
Don't even go there.

But you know what the biggest difference in the 2 issues really is?

Pirates whine.

Back in the 60s they changed the laws and the way the world works. Granted, it's still a work in progress.


RE: Enough.
By omnicronx on 11/16/2009 5:00:51 PM , Rating: 2
Ughh... please don't compare anything to the idiocy of 'CD-R Audio only Media'. It was basically an honor system, all they did was sell CD-R 'audio' media meant specifically for burning MP3's or copying CD's. The problem was everyone knew you could burn that same content on CD-R's that they had labeled for data use. Nobody bought them (except for idiots), and as such the artists made little to no money.


RE: Enough.
By Leper Messiah on 11/16/2009 5:11:06 PM , Rating: 4
All I was saying is that the concept was similar. Just because the implementation was botched, doesn't mean that the idea does not have merit.


RE: Enough.
By InsaneScientist on 11/16/2009 11:25:38 PM , Rating: 2
Oh... is that why CD-Rs were marketed both ways. I never figured it out.
Oh well.


RE: Enough.
By bighairycamel on 11/16/2009 5:31:57 PM , Rating: 2
Come on, seriously? Comparing digital media to world hunger is absurd. I realize you tackled both sides of the argument, but your defense for pirating is rediculous. Just because we have a machine that can copy or access media easily makes it OK???

Call me an idiot if you want, but downloading something with no intent to pay that would in all other instances cost money to obtain IS STEALING. Whether it's music, software, digital books, etc etc. Don't confuse this with "sampling" or "backups" because those are very gray areas, but there are too many people who download with zero intent to purchase.

If you want to try and change what costs money to obtain and what doesn't, be my guest but good luck. In the meantime I feel obligated to pay for what is required of me to pay, otherwise I feel it should be considered stealing.

And I'm still flabbergasted over the world hunger argument O_O


RE: Enough.
By rs1 on 11/16/2009 5:56:40 PM , Rating: 2
quote:
Just because we have a machine that can copy or access media easily makes it OK?


Yes, so long as the rights-holders are still fairly compensated somehow. I never said that its okay to pirate without compensation. I said that the current model where when you access a CD by artist X you end up owing money more-or-less directly to artist X is no longer viable, and that maybe it makes sense to look at replacing it at a system where instead of paying artist X for access to artist X's album, you pay into a pool that allows you to access any album you want, including artist X's.

If done correctly, the net effect should be revenue-neutral for artist X (and also artists Y and Z), while simultaneously allowing everyone else to access far more content at a substantially lower price. If you wanted to, you could even look at it as nothing more than a sweeping price correction to account for the fact that very few consumers feel that it's worth dropping $15-$20 on a CD anymore.

In fact, just looking at the music industry, which had U.S. revenue of about $10 billion last year, then a monthly surcharge of just $8.25 would allow for the U.S. (assuming ~100 million ISP subscribers) to implement a revenue-neutral solution. I would gladly pay an extra $8.25/month for legal access to all the music that I happened to want. And of course, if the model is applied on a broader scale, the per-subscriber costs become much lower.

quote:
And I'm still flabbergasted over the world hunger argument O_O


As you pointed out yourself, the stretch shouldn't matter, because I played it equally against both sides. But if it still bothers you, then fine, replace "food" with "TV's" or "cars", and "poor farmers" with "poor electronics companies" or "poor automotive companies". The underlying argument remains the same.


RE: Enough.
By bighairycamel on 11/16/2009 6:38:46 PM , Rating: 2
I'm defending the "piracy is unequivocally wrong" aspect, because I don't see how you can call someone an idiot for believing that. Even though there are varying degrees of the definition of "piracy" I described what I meant and I won't change my stance because you have a middle-ground plan. I agree changes need to occur and I like your ideas, but in the meantime it's still wrong to pirate, period.


RE: Enough.
By rs1 on 11/16/2009 7:00:36 PM , Rating: 2
Ah, I see. Thank you for clarifying your position. To clarify my own, the issue I take with "piracy is unequivocally wrong" is the "unequivocally" part. To a certain extent, I think there is just a social obligation to disobey obviously unjust laws just as there is an obligation to obey the just ones. And I think the current laws, where you have large media companies and their high-end legal teams going after individual citizens with civil suits and winning huge fines and penalties against them, are clearly unjust. They need to have people disobeying them, because that's the only way they will ever change.

And as I've already said, I do think its wrong for the rights-holders to not be compensated for the use of their works. That is almost the same as saying that piracy is wrong. The only real difference is that I'm not prepared to go that extra step of calling all pirates dirty, selfish thieves who should just stop and pay up. In the current climate, I think piracy is a necessary catalyst for change to happen. If it didn't exist, nobody would think that there's a problem, and nothing would ever be different. And once things finally do change, I expect that the problem of widespread piracy will all but disappear.


RE: Enough.
By kc77 on 11/16/09, Rating: 0
RE: Enough.
By cerx on 11/17/2009 11:51:21 AM , Rating: 2
If it has no value, why do you want it?


RE: Enough.
By kc77 on 11/17/2009 5:52:26 PM , Rating: 2
Please read what I said carefully. I'm speaking of the value of content in relation to it's distribution model.

A good example is watching OTA TV signals.


RE: Enough.
By MightyAA on 11/17/2009 6:26:29 PM , Rating: 2
Exactly cerx.

And it's not just the artist. Why do you want it? Probably because some big marketing firm was hired to make you want it. The cover art may be cool. Maybe you saw the band on tour. Maybe the radio station played it. There are also a whole army of other people and companies involved to bring that music to you with the sole purpose of creating something to SELL to you. There is studio time and even the freakin company that actually does print the cd's and distributes. Piracy removes their compensation.

This is not equal rights, or some social experiment or the cure for anything. Those are lovely ideals, but this is a business and there is a expectation to make lots of money.

Sorry, but the artist is really just a small player in the money sense of things. It takes someone else with very deep pockets to pick which artist get airtime and promoted. No one pirates an unsigned, unknown garage band; they'll be selling their cd's by the exit at the end of their show. There are a hundred other people involved with making sure you want to hear that artist, and they all want to be paid.

The original $10/month proposal is also way, way off. That's less than half of just a WoW subscription, so you aren't even covering just a single game revenue. And who's gonna track all this? They'll need to be paid too..



RE: Enough.
By kc77 on 11/18/2009 7:10:12 PM , Rating: 2
Apparently you are unable to comprehend what I'm saying.... CD's (not Music)...ARE NO LONGER VIABLE. At least not for the future anyway. The Internet has made marketing a product extremely easy. Look at Google. They released no CD. No TV commercials. In fact word of mouth alone has made that company great. Ebay, Amazon, etc are all examples of the success of Internet marketing.

I've been in the music industry. It costs hardly anything to make music at all. $5,000 is enough to make a studio quality record if you did it yourself. It costs all of $300 for duplication and stamping.

The corporations have built their business model on the distribution of music, and not about really creating or performing good unreproducible music. They have built their model after Britney Spears. She writes no music. She produces no tracks. She can barely hold a note. She doesn't even do her own dance moves. She is a made up brand which barely provides a innovative product worth purchasing in today's economy.

They make money off of marketing and distributing a brand which is totally based on ethereal product lines that are reproducible in everyones home. It's basically a product which lacks so much innovation that anyone can have one. Why should anyone protect a market that refuses to innovate and uses our cronies in government to buck market forces?


RE: Enough.
By PhatoseAlpha on 11/17/2009 9:38:29 AM , Rating: 1
You cannot decide a fair market value without a market. In light of that, your compensation scheme can't work - and from there, the economics of the whole thing fall flat on their face.


Hehe
By theunit on 11/16/2009 3:15:36 PM , Rating: 2
I liked reading all the comments better than the article (sorry DT). I think they should make Steam for xbox! I started buying computer games all because of steam. Its easy, and you can reinstall windows without having to reinstall all of your games. On top of that, everything is available to you via the internet FOREVER. No need to make backups because Steam has them already so no repeat buying if anyone actually had to do that. So if steam/(Insert App Name) was on an xbox, loading times would be way faster as the full game would be downloaded to the hard drive. Of course if you wanted you could have the option to burn the game to disc, aka backup to free up some disk space. Anyway take care now. Now someone can debunk my ideas :D




RE: Hehe
By Taft12 on 11/16/2009 4:53:08 PM , Rating: 1
The first one I will debunk is that THERE IS A STEAM FOR XBOX called the Xbox live arcade!

Now as to why it's a bad idea - what is the Gamestop trade-in-value of the lousy Steam downloaded game you just bought? $0.00

Next, the games you bought might not be available via the internet FOREVER. What happens when Steam goes out of business? People have already lost DRM music that they paid for when the provider shuts the service down (or had Kindle books "recalled").

Please don't ever, ever, ever stand for this. Providers are dying to take your physical copy away (like Sony's new download-only PSP). You MUST vote with your wallet!


RE: Hehe
By bighairycamel on 11/16/2009 5:20:53 PM , Rating: 5
How much trade in value do you get for ANY physical PC game? $0.00! Gamestop won't accept them anymore because their is usually a CD Key involved and it's so easy to install games to hard drives and play with a no-cd crack.


RE: Hehe
By kmmatney on 11/16/2009 6:31:23 PM , Rating: 2
I also vote with my wallet - and the last several PC games I purchased were all on Steam (usually weekend deals). Works for me, and its nice knowing my games are backed up online. This came in handy when I re-formatted the hard drive for the Windows 7 upgrade. Just redownloaded the games overnight and they were ready to go again.


dissapointing
By invidious on 11/16/2009 1:04:30 PM , Rating: 4
We want to hear his opinion based on his experience as a lawyer, not the official legal stance of his firm. Which is obviously 100% law abiding.

Why didn't you do this interview anonymously so we could actually hear what he has to say? The only information he can give us from this type of interview is insight into the legal process. Only one response even remotely dealt with that, and it wasn't even a response to the question you asked, it was just his way of dodging your question.

I welcome any insight into this as it is an issue that affects many of us, but please take a hard look and ask yourself if your questions really got answered. If not, then the you did not ask the right questions.




The lawyers always come out ahead.
By Taft12 on 11/16/2009 12:18:19 PM , Rating: 2
quote:
The legislators, however, are beholden to competing interests that ensure that such change will be slow in coming.


What competing interests? The pendulum has swung towards those with the resources to lobby policymakers the hardest. The legislators weren't "slow" at all to draft and pass the DMCA which had all kinds of contradictions with existing fair use laws.

Interestingly, his comments at the start of the interview refer to the kinds of problems that are created when legislation is fast-tracked (such as a $1.92M judgement against an illegal file sharer and punishments stricter than those for violent crimes).




Technology moves on ...
By drycrust on 11/16/2009 2:41:28 PM , Rating: 2
quote:
it is a violation of copyright law to copy a copyrighted work for purposes of making a "back-up" copy


I'm wondering if it is just time to move completely away from the CD / DVD format altogether and move toward something using flash drive type ROMs (or RF based like those contactless smartcards). Flash drives have metal contacts inside them, so they will have a finite life, although I guess it is probably in the 1000s of uses, which should suffice for all but the most addictive games.
Since most people believe that when they buy some software, album, movie, or game it should last their whole life, then it is reasonable to expect that if the format won't last, then either they are allowed to do a second copy when the item is first purchased (either as a backup or as the one most used) or we move to a new technology which is more robust.




That lawyer is a joke
By ThePooBurner on 11/17/2009 12:58:39 PM , Rating: 2
What joke of a lawyer.

quote:
It is generally correct that, as a legal matter, unless a written contract (e.g., license agreement) otherwise allows, it is a violation of copyright law to copy a copyrighted work for purposes of making a "back-up" copy.

Fair use doctrine clearly states that, in this quote, he is full of horse#$%&.




This is a blog, not an article
By amanojaku on 11/16/09, Rating: -1
RE: This is a blog, not an article
By atwood7fan on 11/16/09, Rating: 0
RE: This is a blog, not an article
By amanojaku on 11/16/2009 12:56:32 PM , Rating: 3
Really? My comment history says otherwise. I'll risk a -1 to make a point, and I said what I did because the lawyer offered nothing new to the issue of copyright vs. consumer.

quote:
What do you make of the current state of copyright law, and what parallels do you see to the stir that happened when Xerox hit the scene, offering easy copying of print media and potential infringement?
The lawyer's response is a resounding "copyright law is out of date" and "yes, this is just like what happened to Xerox and every other copy machine manufacturer". I think we all knew that.

quote:
Do you see the music/movies/television industries' legal crusade against citizens who pirate as productive? With rulings like the recent $1.92M USD verdict against Jammie Thomas-Rassert drawing public ire, how can the industry fight piracy, while not coming across as a bunch of thugs?
The lawyer's statement basically is "I don't know, but we will know when the dust settles". Really?

quote:
Microsoft recently kicked 1 million users off of Xbox Live for modifying their consoles. Likewise, Apple tried to brick iPhones that were unlocked or jailbroken, back in 2007. In your opinion should the law allow users who legally purchased products to modify them freely, or should the opposite -- a ban on modifications -- be enforced?
The lawyer's response is "well, I don't think so, but then again, I don't think it's practical for companies to try and block this". That was pretty much the only useful personal opinion.

quote:
One of the key drivers for modification of Xbox consoles is to make backup copies of discs. The RIAA/MPAA have long stated that backups of legally-owned materials are illegal and that "making one copy is another way of saying stole one copy". Should such backups, in your view, be legal? Why or why not?
"No comment" means "yeah, but if I say that I loose a lot of clients with deep pockets in the future, so sux to be you!"

quote:
A UK independent musician from the band Orange Juice says that a variety of major labels have infringed on his songs. He claims such examples of major labels claiming to own copyrights of small musicians (which they don't hold) to be common. What do you make of this, and how do your react to the light that this casts on the major labels campaign against civilian infringers?
Easy question, easy answer: "if someone breaks the law then you can take 'em to court".

quote:
What's your view on the "three strikes" laws proposed in France, UK, Australia, and elsewhere, that propose cutting off internet filesharers after two warnings, forcing ISPs to cut their service?
Once more "I don't know, but we will know when the dust settles".


RE: This is a blog, not an article
By invidious on 11/16/2009 1:07:39 PM , Rating: 1
See if you posted this first you wouldn't have been trolling. But you didn't.

Overall I agree with your assessment. In far fewer words, his responses were weak and self serving.


Pussied out.
By DarkElfa on 11/16/09, Rating: -1
RE: Pussied out.
By JasonMick (blog) on 11/16/2009 11:07:55 AM , Rating: 2
I think that's uncalled for. I think he gave some rather insightful responses.

He said he didn't have time to comment on every one of the questions and that any of them could be the topic of a lengthy law review article.

I'm sure he might be interested in adding a comment on that particular topic in the future, as it is a particularly controversial stand for the RIAA/MPAA.


RE: Pussied out.
By lagitup on 11/16/2009 11:13:13 AM , Rating: 4
quote:
I think that's uncalled for.


Hardly. That was easily the most controversial question asked.

As an aside, I wonder who's payroll he is on?


RE: Pussied out.
By bighairycamel on 11/16/2009 11:19:30 AM , Rating: 3
Yah as I was reading that question, sub-conscientiously I was thinking "I can't wait to hear his answer on this". Obviosuly I was sorely disappointed when there wasn't one.

But he is just applying the principles of CYOA and I can respect that.


RE: Pussied out.
By JasonMick (blog) on 11/16/2009 11:24:20 AM , Rating: 2
I agree with you guys that a response would have been nice

What I meant was I really didn't think it was appropriate to start namecalling, simply expressing his/her disappointment would have been sufficient.

Hopefully we get to hear from Mr. Johnson on this issue in the future.

I think that most in the public agree that consumers should have the right to make backup copies, particularly given how fragile and shortlived most optical media is. But the industry and the law aren't necessarily on their side, unfortunately, right now.


RE: Pussied out.
By stubeck on 11/16/2009 11:42:05 AM , Rating: 2
The issue is the law has not responded to the new technologies out there in the last 10 years. Its still legal to make backups, but with the DMCA its illegal to circumvent security to do so. This is where the issue is, since everything is "encrypted" now, making copies isn't legal.


RE: Pussied out.
By Master Kenobi (blog) on 11/16/2009 12:02:27 PM , Rating: 2
That loophole was likely intentional. Even back in the late 90s when the DMCA was written it was common to encrypt the contents of optical media, or copy protect it in such a way as to make it normally impossible to duplicate. The DMCA was written in such a way to allow the duplication of home made non-copyright materials but prevent you from legally doing it to any profesional job since they would most certainly protect the contents of the disc. This is a classic case of the spirit of the law being dismissed in favor of the letter of the law. The only solution is an amendment to the DMCA or new legislation to replace it, neither of which will happen anytime soon. Under the DMCA the RIAA/MPAA have a free pass to go buck wild in the courts over infringement claims and are applying lobby pressure to the key politicians that could possibly push for reform in this arena.


RE: Pussied out.
By mindless1 on 11/18/2009 1:34:44 AM , Rating: 2
BUT, you are implying we'd need to circumvent or break encryption which is not needed if one only wants to make a 1:1 digital copy of a disc that still retains all the unbroken encryption, etc.

Some would say that's not how *normal* optical drives or windows works, but since when is the process of duplicating digital data not about getting down to the lowest level of read bit, write bit, lather rinse repeat?

I dismiss the idea that anything is normally impossible to duplicate, as technology has shown and will continue to show that our ability to duplicate will only increase in the future, far more things than only optical discs.


RE: Pussied out.
By Lerianis on 11/16/2009 12:12:39 PM , Rating: 2
This is where it gets interesting, because if one part of a law is in conflict with another part of law... the courts have to come and say which law takes precedence, and usually, it's the OLDER law in question, which means that the part of the DMCA that makes it 'illegal' to 'circumvent' security would be found in violation of the OLDER law and Congress would be told to either repeal the earlier law (and get the black eye by doing that) or the courts would rule that the anti-circumvention portion of the DMCA is illegal and therefore unenforceable.


RE: Pussied out.
By Agentbolt on 11/16/2009 12:36:19 PM , Rating: 2
Right now it reads like the guy ducked the question. If he said "That's a very complex question and I don't have time to answer it" then simply put that's what he said. "No comment" is what PR shills say when they've been asked a question they're either too cowardly to answer, or have been instructed not to answer by whoever they're beholden to.


RE: Pussied out.
By mindless1 on 11/18/2009 1:38:33 AM , Rating: 2
To be fair, right now it reads like the guy erred on the side of caution, there is a gray area and neither side is backing down so ultimately it ends up in the courts.


RE: Pussied out.
By Lerianis on 11/16/2009 11:21:31 AM , Rating: 1
Good question as to whose payroll he is on. It is simply past time for the legislators to realize that they are beholden to the PUBLIC, not the businesses, and to do what the PUBLIC wants them to do.

The public wants a legal right to backup their legally bought movies, music, and games.... bottom line, that is what the public wants!
If Microsoft would SUPPORT playing backed-up games OUT OF THE BOX, then people wouldn't need to 'modify' their consoles! Or, if they offered a service where you could send in your damaged disc for a replacement copy AT NO COST.... then people wouldn't be so wanting to play backup copies.

But Microsoft, and the entire game industries, business is based on making you buy things REPETITIVELY every time your thing gets 'damaged' by normal 'wear and tear'. That should not be allowed in our country.


RE: Pussied out.
By noirsoft on 11/16/2009 12:42:52 PM , Rating: 2
quote:
But Microsoft, and the entire game industries, business is based on making you buy things REPETITIVELY every time your thing gets 'damaged' by normal 'wear and tear'. That should not be allowed in our country.


Not to mention all those clothing manufacturers who refuse to replace my clothes and shoes when they fail due to "normal wear and tear" -- I bought those shoes, they should last forever!

Even worse are all those food corporations. It's unethical that my hamburger becomes unusable after I eat it. They should replace it and give me a new one.


RE: Pussied out.
By mindless1 on 11/18/2009 1:49:32 AM , Rating: 2
It was the content providers, not the customers, who boldly declared we are buying a right to use, not ownership and not tied to the media itself.

If they don't facilitate our using what we are licensed to by making it unreasonable to acquire the actual code we need to make use of our license, it was eventual and expected things would turn out as they have.

Think about it, AOL managed to bombard us with optical discs for years but a game company can't just send a disc to paying customers for $2?


RE: Pussied out.
By joemoedee on 11/16/2009 12:48:44 PM , Rating: 3
quote:
Good question as to whose payroll he is on. It is simply past time for the legislators to realize that they are beholden to the PUBLIC, not the businesses, and to do what the PUBLIC wants them to do.


The laws need to protect the Plaintiffs as well. They are also "the public". Whereas I do agree that the pendulum is swung too far to one side, there needs to be protections for all parties involved.

quote:
If Microsoft would SUPPORT playing backed-up games OUT OF THE BOX, then people wouldn't need to 'modify' their consoles! Or, if they offered a service where you could send in your damaged disc for a replacement copy AT NO COST.... then people wouldn't be so wanting to play backup copies.


The problem with allowing the backups is the percentage of people that would use that ability to circumvent actually purchasing the media. Whereas I'm certain there are plenty of folks that would use it to just "back up" their games, many more would use it to not buy them at all. Anyone I know that had/has a modded console wasn't use it to play backups of their games.

MS also allows you to install the game to the hard drive, and you need the original game in to prove ownership. This saves on wear and tear, and allows them to protect their side.

As far as the damaged disk replacement, unless the system is proven to physically damage the game, then it is up to the consumer to take care of the product. I own a PS1, PS2, Xbox, Gamecube, Dreamcast and 360. I've yet to damage a CD/DVD based game. Music CDs? Yes, typically in the car, and it was my mistake.

Apply the free damaged replacement logic to other industries: If by neglect I get a hole in an Old Navy shirt, should Old Navy replace it for free? No.

quote:
But Microsoft, and the entire game industries, business is based on making you buy things REPETITIVELY every time your thing gets 'damaged' by normal 'wear and tear'. That should not be allowed in our country.


Their business isn't based upon the idea of repeatedly selling the same product. Their business is based upon selling game titles. Piracy protection helps with this.


RE: Pussied out.
By Lerianis on 11/16/2009 11:17:11 AM , Rating: 2
Not uncalled for in the slightest. The fact is that a LOT of people out there with modified consoles are playing LEGALLY BACKED UP GAMES, which makes Microsoft's 'bricking' their consoles legally 'iffy' to be blunt.

And the fact is that third party people ALREADY access XBox Live using.... computers, which are EASILY MODIFIABLE!

So, no, the consensus with the public is that modifying things that are used to access third-party services is fine AS LONG AS YOU ARE NOT CHEATING WITH THEM!
That's the bottom line: cheating = bad. Playing backed up, legally bought games = fine.


RE: Pussied out.
By bighairycamel on 11/16/2009 11:24:54 AM , Rating: 2
Give me a break. It's completely naive to think that a significant amount of people are playing legally backed up games on their modded XBox's. Some probably are I'm sure but they are a very very small minority.

And their consoles are not "bricked". Check your facts. They can still play their games, they just can't play them online.


RE: Pussied out.
By Lerianis on 11/16/2009 12:08:49 PM , Rating: 1
Wrong. Read again: cannot install to the hard drive of the consoles, have saves corrupted, etc.

You should check your facts in the other posts on this subject. Microsoft has 'bricked' the consoles and made things UNCONNECTED with the XBox Live service not work. That has been proven, it's a blunt fact.

And no, it is not 'naive' to think that considering that I have four friends who have done that, modified their XBox360 to play LEGALLY BACKED UP GAMES.

So, I am not being 'naive'.... I am just stating what I have seen in my real, day-to-day life.


RE: Pussied out.
By bighairycamel on 11/16/2009 12:31:53 PM , Rating: 3
You better check your definition of "brick" then. Bricking would means it's completely unusable. Users can still PLAY GAMES on their XBox which is the devices primary purpose. Not being able to install the the HDD or having saved games corrupted does not make disks fail to work.

And if you're assuming the intent of 1,000,000 banned users based off of what 4 of your friends did with their modded consoles, then yes, you're being naive. We all know the vast majority were using their modded consoles to play ISOs downloaded from bit torrent or for copying rented games.


RE: Pussied out.
By mindless1 on 11/18/2009 1:47:05 AM , Rating: 2
I feel you are overlooking that it doesn't matter that they bricked consoles for the 99% that were pirating, it matters that they bricked the online functionality for the 1% who weren't.

Remember that basic philosophy of US law? It's better to let 10 guilty go free than convict one innocent...


RE: Pussied out.
By mindless1 on 11/18/2009 1:41:25 AM , Rating: 2
How about a different gaming machine? Personally I only buy games that I know I can get a no-CD crack for, or that otherwise let me play without having to juggle discs to run them.

That's making an *unauthorized* copy, just to a different storage medium.


RE: Pussied out.
By stubeck on 11/16/2009 11:20:41 AM , Rating: 2
He didn't answer the question most likely to interest people here (I glossed over a few of the ones before it), and his other responses don't have anything to do with what the OP is complaining about.

Its a fair statement.


RE: Pussied out.
By Justin Time on 11/16/2009 11:37:38 AM , Rating: 3
If you didn't want it to be an issue, you should have left the unanswered question off the article. As it is, it appears that YOU see the non-answer as important enough to draw attention to it.


RE: Pussied out.
By JasonMick (blog) on 11/16/2009 1:07:28 PM , Rating: 2
I know a lot of you (including DarkElfa) were upset that this question went unanswered -- as was evident by my downrating! :)

I made a special point of contacting Mr. Johnson, and he graciously (and quickly) provided me with a response, which is now included in the piece. I think most of you will find his remarks interesting.

Don't be afraid to ask if you think something is missing in one of our interview pieces -- I'll always try to follow up and get the info!


RE: Pussied out.
By Agentbolt on 11/16/2009 1:14:18 PM , Rating: 3
No offense, I applaud your attempt to get an answer, but that non-answer is just as bad as "no comment". "Do you think it should be legal?" is about as simple a question as one can ask, and he did not answer it.


RE: Pussied out.
By rcc on 11/16/2009 2:09:38 PM , Rating: 2
Think about what you are asking for. You are asking an attorney for a legal opinion. If he says yes, and you get busted duping discs (for whatever purpose), he knows you are going to say "but so-n-so is a lawyer and he said it was legal.

It's fine to ask your friends, or people on the boards their opinion. But if you ask a professional a question in their area of expertise, that's a whole different can of worms.

I can understand why he avoided an clear answer.


RE: Pussied out.
By Iaiken on 11/16/2009 1:14:50 PM , Rating: 2
Way to resort to name calling because some guy isn't willing to risk his job by trying to answer a loaded question.

If he were a judge, sure, but he's just a ground pounder at a large firm and ANYTHING says reflects on his firm.

Even qualifying an answer to such a question as a personal belief could have landed him in hot water with his bosses.


RE: Pussied out.
By trajan on 11/16/2009 1:19:16 PM , Rating: 1
Maybe this is my own lawyer-bias showing, but the guy didn't pussy out, he's just sticking to what he knows. He's not Microsoft or Apple, he's not a politician, he's not a regulator, he's just a lawyer. Who the f--- cares what he thinks should be legal or not, its not up to him. His refusal to answer the question-- to answer ANY opinion questions (read carefully, he dodges them all) -- was I'm sure deliberate on his part. His opinion doesn't make a bit of difference and he knows it.

I'd hardly call Pryor Cashman one of the top firms in the country, but this guy is probably very smart and a genuine expert in the law here. DT scored a chance to interview him and a chance to get some real legal analysis that readers might care about, and instead wasted a bunch of questions asking one lawyer at one small firm with no power at all how he *personally feels* about it. You should all be giving Jason a hard time for not asking better questions, not the law guy.


RE: Pussied out.
By Agentbolt on 11/16/2009 1:41:46 PM , Rating: 2
He was perfectly willing to speak personally about the three strikes law being untenable. That's his personal opinion, in case you missed it. So yeah, it's your own personal bias.

However, I agree the backup question shouldn't even be in this article. This isn't a hard-hitting interview, it's a friendly discussion about copyright law. Our lawyer friend is clearly either gagged by his firm, a wuss, or terrified of pissing somebody off, and he's being made to look like a retard by continually refusing to answer a simple yes/no question.


RE: Pussied out.
By DarkElfa on 11/16/2009 3:19:01 PM , Rating: 1
Well, I'll except that answer and withdraw my pussyout, though I didn't call him a pussy as much as insinuate that it was a Matrix style dodge. I give him props for taking it back on and you Jason for taking it back to him.

Personally, I don't like the way that any content creator attempts to tell someone who has paid for something how they are to go about using that piece of content or whether or not they can make a back up for themselves. If they were loaning us the content for free, sure, I'd be happy to follow their wishes but once I hand over money for it, I'll stick it up my nostril if I so see fit to do so. Copyright is and has been out of control in this country for decades. Copyright should have no more than a 5 year limit and should be non-transferable by sale or inheritance. The majority of the money anyone makes nowadays on any media is in the first 56 years and anything else is just milking the public cow. Once the 5 years is up it should become property of the Library of Congress to be protected and distributed free for public usage. This crap where people hold onto their copyright and pass it onto children or sell it like a commodity is out right BS. Copyright is how record companies have stripped away the money and creative control from artists. If the Star Wars copyright had been protected like I suggest, Han would have always shot first. Its a better system and is fair to both the public and the artist. Will they make as much cash in the long run? No, but they'll still make more than most of us would ever hope to. Copyright should protect the consumer as much as the creator. How many times have you bought the White Album? Once should have been enough.


RE: Pussied out.
By smackababy on 11/16/2009 3:42:41 PM , Rating: 2
You have to understand the record labels view point on media. You are not purchasing the rights of the music. You are merely purchasing a "use until expired" copy of said media. The expiration date being whenever said medium is no longer servicable. Therefore, making copies is not in their game plan.

If RIAA hadn't gone about this in such a wrong way, this whole "fight the record label" movement wouldn't be as publicized. The industry is already broken, this just gives them reason for more control. I, myself, refuse to buy any major label release.


RE: Pussied out.
By Jalek on 11/17/2009 1:55:49 AM , Rating: 2
Servicable? It's until they decide to withdraw the license for any reason.

When Napster first started becoming popular, I fully expected to hear about people being served with bills for songs they'd downloaded. The system wasn't nearly as cryptic as it was made out to be and lists of what each login had to share were simple to get.

Instead, they started with the $200k per song garbage and the excessiveness of that, and the bypassing of normal legal process turned me and I'd assume others. Had they simply sent reasonable (?) bills and dropped it into collections, they probably would've saved some court costs, had more settlements, and not turned file sharing into some civil disobedience thing.

I've managed fine without purchasing any major label music for several years. I've purchased quite a few CD's from smaller labels and independents. The labels do get some money indirectly when I use Pandora and other streaming systems. It's not like I didn't already have a couple of hundred CD's anyway.


If I can't copy
By petrosy on 11/16/09, Rating: -1
RE: If I can't copy
By noirsoft on 11/16/2009 6:07:47 PM , Rating: 1
Why do you expect a free replacement for a scratched disc? Do you expect a free replacement when you tear your pants? Do you expect a new car for free when you scrape your fender against another car? Maybe if you actually took care of your belongings like a responsible adult you wouldn't have such a desire for free replacements.

quote:
I am happy to pay for software but when I see huge price descrpancies between countries.... I go straight to my fav warez site and pirate!

Thus raising the price even further for honest people who aren't freeloading, ass-hat morons like yourself. Wish I had your address so I could report you to the RIAA.


RE: If I can't copy
By Alexstarfire on 11/16/2009 6:40:20 PM , Rating: 2
No offense, but you need to think a little bit more. Some people have kids that scratch the crap out of discs, and it's VERY easy to do so and lose the disc forever.

I don't believe that you should get a replacement for free, BUT you should be able to acquire one at the manufacturing + shipping costs and not the MSRP value. Much like how you can get a paint job without having to pay for a brand new car. Far cheaper and far more practical.


RE: If I can't copy
By petrosy on 11/16/2009 7:52:39 PM , Rating: 1
I buy plenty of software/music/movies, however only from digital distrabution with flat pricing. I choose to vote with my wallet and will not stand to be penilized because of my geographical location.

I feel like a digital refugee!

When you start paying 3x the price for software because of where you live then see how you feel.


Take that and suck on it
By lewislink on 11/16/09, Rating: -1
RE: Take that and suck on it
By rs1 on 11/16/2009 2:50:12 PM , Rating: 5
The law is broken right now. And when the law is broken, it's justifiable to not follow it.

Which isn't to say that right-holders aren't entitled to any compensation. But you are definitely in need of a more thoughtful opinion on the issue.

Laws can be changed, and evolve over time. We are currently at a point where the law must be changed, because it no longer functions adequately in the context of the digital age. Saying "the law is the law" is a poor argument at best, and downright Orwellian at worst.


RE: Take that and suck on it
By lewislink on 11/16/09, Rating: 0
RE: Take that and suck on it
By rs1 on 11/16/2009 3:47:54 PM , Rating: 2
Actually, if you read the post directly below this one, you'd see that I'm trying to propose a solution that would amend the current law in such a way that individual users can download/copy/backup to their heart's content, while still providing fair compensation to the rights-holders. I'm not for unchecked piracy with no compensation, but I'm also not for pretending that the laws we currently have are good enough to deal with the current situation, because they're not anymore.

And murder is justified, if done in self-defense. But not any other time. The law would even back me up on that one.


RE: Take that and suck on it
By lewislink on 11/16/09, Rating: 0
RE: Take that and suck on it
By mindless1 on 11/18/2009 3:40:08 AM , Rating: 2
Your trolling gets boring, don't you know another tune?

You haven't "suffered" anyone, it's your time and your narrow minded interpretation of what OTHERS are supposed to do to suit you that is your burden.

You live your life any way you want, and in return you have to extend the same to others.


RE: Take that and suck on it
By akugami on 11/16/2009 4:28:05 PM , Rating: 2
I remember a time in the past when there were some damned law breaking colonies who wouldn't follow the rightful laws of their sovereign state. I believe they had a war over it or some such. Wonder how those thirteen colonies did?

Laws are not always just or relevant. We need to cut away the fat and repeal or revise old laws that are no longer relevant in today's society. In fact, the Constitution of the United States allows for revision and addition of laws for situations they did not or could not envision.


RE: Take that and suck on it
By lewislink on 11/16/09, Rating: 0
RE: Take that and suck on it
By Ard on 11/16/2009 4:51:40 PM , Rating: 2
At one point in our history harboring a slave was illegal, yet there were people who were willing to risk breaking that law because the law was fundamentally broken and unjust. While the legality of slavery is partly a moral question, the argument can be applied to the current state of copyright law. Simply because there is a law prohibiting something, doesn't mean the law is right (i.e. cohabitation laws, anti-miscegenation laws, etc.).

Simply put, copyright law is a fundamentally broken and anachronistic body of law that no longer has a basis in reality. I'm sorry, but I still stand by the first sale and fair use doctrines. I can do whatever I please with something I've legally purchased so long as I'm not running afoul of any other laws (i.e. resell that item, make a personal copy for archival purposes, etc.), in spite of the nonsense contained within the DMCA.


RE: Take that and suck on it
By Leper Messiah on 11/16/2009 4:54:53 PM , Rating: 2
Don't bother using logic with this dude, I made effectively the same argument and somehow got called a racist. He's just a dumb troll getting his jollies by looking like an idiot.


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