You know, I agree with Mr. Sherman, file sharing between anonymous strangers of entire works of entertainment is, and properly should be considered, copyright infringment. But this is the easy case. Why doesn't Mr. Sherman tell us how limited the RIAA really believes citizens rights are? Is it legitimate to make a mix CD for my girlfriend? For my mother? I have a strong suspicion the RIAA would say, "no."

Mr. Sherman also ignores another aspect of Betamax that Mr. Shapiro pointed out: Betamax was actually a boon for the movie studios.

In what way is stealing a dress different from copying a recording? Let me try to make this as simple as possible, since it seems to have eluded Mr. Sherman. If you steal a dress from a store, the store cannot then sell the dress to a subsequent customer. If you copy a copyrighted work, the copyright holder will still be able to sell another copy to a subsequent customer. Is this difference too difficult to understand? Is this a trivial distinction with no economic consequences? Call me cynical, but sometimes I think the RIAA is being deliberately obtuse on these points or perhaps I should say, "transparently specious."

Why, yes, they do. If I play a copyrighted song on the piano for my friends at home, that is a private performance and perfectly legal. If I play the same copyrighted song for a bunch of anonymous strangers, that is a public performance and considered infringement. If I invite my friends over to my home to see a new painting I've purchased, that is a private display and perfectly legal. If I put the painting on the sidewalk so that everyone can see it, that may be a public display that is considered infringement. Why should the so-called right of reproduction (which didn't enter copyright law until 1909) be any different?

In any case, if Mr. Sherman agrees with you, then why did he put all those conditionals in his sentence? He should make clear that he opposes all filesharing. Not just filesharing between anonymous strangers. He is being deliberately disingenous.

The end result does not make legal the means for that end. If a person's popularity increased because they were used in nude photos and thusly became a millionaire does that mean that the person who violated that persons rights should get off freely for some reason?

That is not the point of my argument at all. My and Mr. Shapiro's argument is that what was once called piracy (recording television with a VCR) is no longer called piracy. Our definitions have changed. The point I make with Betamax is that what was once considered harmful to industry is now considered a boon to industry. Your arguments imply that Betamax was wrongly decided and that videotaping television should still be considered piracy. Anything that was once considered piracy should still be considered piracy.

So what is being said here is that I do not have the right to determine how my supposedly *copyrighted* material is used and distributed.

Really? Is that what I am saying? Hardly. What I am saying is that there are important economic distinctions between stealing a dress and copying a copyrighted work. The conclusion that I therefore oppose all copyright (no right to control use and distribution at all) does not follow. The fact that there are important distinctions between copyright infringement (not theft) and stealing a dress (theft) is something that Mr. Sherman is trying to obscure.

When copying of a work occurs, I am deprived of that right to determine how I choose to distribute or otherwise make that work available.

When I invite friends over to watch the new LotR DVD at my house, I am also depriving the copyright owner of determining how the work is made available. After all, my friends, satisfied by seeing the DVD at my home neither pay to watch it on cable, nor rent it, nor buy their own copy of the DVD. I've lost the copyright owner a potential sale!

Why, yes, they do. If I play a copyrighted song on the piano for my friends at home, that is a private performance and perfectly legal. If I play the same copyrighted song for a bunch of anonymous strangers, that is a public performance and considered infringement. If I invite my friends over to my home to see a new painting I've purchased, that is a private display and perfectly legal. If I put the painting on the sidewalk so that everyone can see it, that may be a public display that is considered infringement. Why should the so-called right of reproduction (which didn't enter copyright law until 1909) be any different?

When I invite friends over to watch the new LotR DVD at my house, I am also depriving the copyright owner of determining how the work is made available.

That is not the point of my argument at all. My and Mr. Shapiro's argument is that what was once called piracy (recording television with a VCR) is no longer called piracy. Our definitions have changed. The point I make with Betamax is that what was once considered harmful to industry is now considered a boon to industry. Your arguments imply that Betamax was wrongly decided and that videotaping television should still be considered piracy. Anything that was once considered piracy should still be considered piracy.

But why should the right of reproduction be different than the right of performance or display? You don't provide any justification for the difference. In any case, how does your system work with a husband and wife? Must a couple buy two CDs in order for them both to have copies at work? Or does "personal" mean "household" or "immediate family"? If so, then your rule begins to look an awful lot like mine, except weaker. If not, then you will be claiming that the vast majority of Americans are thieves.

Once we've established that "personal" means more than an "individual," then it simply becomes a matter of definition. My definition is broader than yours, but not obviously less legitimate.

Again I ask, if his position is closer to yours, why doesn't Mr. Sherman make it clear? The answer is because he doesn't want the average citizen to know how restrictive his point of view is.

They've already determined that it [private performance] is available for you to do that. But it still remains illegal for you to go into a movie theatre with a movie camera and capture the movie and take it home and show it to friends in a private setting.

If it was up to the movie companies, they would charge the people who come over to watch the film with me. Once they put reproductions of their work into the stream of commerce, they lose some control over how it is distributed beyond that. Copyright owners never have complete control over the use and distribution of their works if they allow them into the stream of commerce. Your point was they do or should and that is simply not the case.

Loss of a potential sale is also the claimed harm from copying. But sales may be lost for a number of reasons. People borrowing from friends (First Sale), people watching with a friend (private performance) can all cause the loss of a potential sale. However, we do not criminalize these. Thus, it cannot be that loss of a potential sale is the determinant of copyright infringement, which is the claim of Mr. Sherman.

I have no idea why your theater analogy is relevant.

They have not changed entirely, it is still against copyright law to tape a PayPerView engagement, for example, and then share it with others.

Really? Why? What case is this? I can't rebroadcast with QuickTime Streaming Server, but what if I want to burn a copy onto DVD+R and give it to a friend to watch? I could give him a videotape.

In any case, the point is that it our definition of piracy has changed.

But why should the right of reproduction be different than the right of performance or display? You don't provide any justification for the difference. In any case, how does your system work with a husband and wife? Must a couple buy two CDs in order for them both to have copies at work? Or does "personal" mean "household" or "immediate family"? If so, then your rule begins to look an awful lot like mine, except weaker. If not, then you will be claiming that the vast majority of Americans are thieves.

Again I ask, if his position is closer to yours, why doesn't Mr. Sherman make it clear? The answer is because he doesn't want the average citizen to know how restrictive his point of view is.

If it was up to the movie companies, they would charge the people who come over to watch the film with me.

Once they put reproductions of their work into the stream of commerce, they lose some control over how it is distributed beyond that. Copyright owners never have complete control over the use and distribution of their works if they allow them into the stream of commerce. Your point was they do or should and that is simply not the case.

Loss of a potential sale is also the claimed harm from copying. But sales may be lost for a number of reasons. People borrowing from friends (First Sale), people watching with a friend (private performance) can all cause the loss of a potential sale. However, we do not criminalize these. Thus, it cannot be that loss of a potential sale is the determinant of copyright infringement, which is the claim of Mr. Sherman. I have no idea why your theater analogy is relevant.

Really? Why? What case is this? I can't rebroadcast with QuickTime Streaming Server, but what if I want to burn a copy onto DVD+R and give it to a friend to watch? I could give him a videotape.

But if the vast majority of Americans were doing something before they knew it was against the law and then are still doing it *after* they learned that it was against the law, it should give us pause. This is supposed to be a nation by, for, and of the people, is it not? Like it or not, "everybody does it" is a valid political statement - it means that the people have spoken.

Are you, then, suggesting that there be *no* restriction that is off-limits to copyright's power? Copyright basically allows the copyright holder to write the laws that apply to their products. Without sufficient limits on what laws they can write, we, the people, are in trouble.

The world of commercial content is not so condusive because others are suddenly greatly affected whenever tighten or loosen my control. To some degree, control by me can be positive overall. But if I try to make sure that no one can do anything with my products that I don't want them to be able to do, I end up invading their lives. If I say to my customers, "You can only watch this movie on the second Tuesday of each month," I am limiting what they can do in their own homes. Allowing to purchase that privilege is not make the situation much better.

I have to ask, what right did the government have to give that right to you? People don't argue that the government has a right to give you a right to own slaves - we don't believe that's true. I don't say this to compare copyright to slavery, but lots of people broke the laws during the days of slavery to help slaves. Were they wrong in denying slave owners their government-granted rights?

Why, yes, it does. When I give a copy of a videotape to a friend, they and they alone get a copy. When I broadcast over the Internet, unless I use a private system where only my friends have a password to gain access to it (I think this should be legal), *everyone* can get a copy.

It's the same as it was *before* the advent of VHS: to prevent *commercial* redistribution.

"What 'rights' does a copy'right' owner really have?" What 'rights' don't they have is the better question, IMO. They shouldn't have 'rights' that are substantially harmful to the rest of the public at large. "Or are you saying that copyright law simply shouldn't exist." No, neither I nor Ernest are saying that. Here you are putting words in Ernest's mouth. He is saying that he thinks that it should be illegal to redistribute things commercial, or to distribute copies online to strangers.

I didn't say that. But if the vast majority of Americans are going substantially over the speed limit in a particular area, I believe that it is time to rethink the posted limit.

Are you saying that because it happens in the privacy of your own home that its somehow okay?

I said what I did out a personal belief that a "no-copying" rule is detrimental to each individuals personal rights. It puts stipulations on what individuals can do with their own possessions.

If these stipulations were formulated by the government for the benefit of everyone, and actually worked to accomplish that, that would be one thing. As it is, these stipulations are placed by corporations and business-minded individuals solely for the benefit of themselves.

Copyright is useful as a way of keeping businesses and would-be redistributors honest. But I don't like how it is affecting individuals.

Is there some technical limitation that prevents this? Some piece of the copyright code that says that a friend shall thusly not be able to make another copy? Or are you relying on the honor system to know that your friend didn't give it to a friend? Next what becomes the legal definition of a 'friend'? Someone you've known all your life? Some guy you met at work that you have lunch with? What you will end up with is a position where it is impossible to have copyright because there would be no true basis for law.

Actually, his ability to pass copies along even further was a part of my thinking. And I doubt many people will be walking up to strangers and giving them a copy of a movie. I also wouldn't expect copyright law to allow people to simply stand around in the mall, handing out copies.

There are two main ways to get a movie. You can buy it, getting a nice box and the satisfaction of having an original. Or you can get a copy from a friend. Legally or illegally, you can do it, and it happens.

Most people today probably do not care about copyright law. There were millions of Napster users and there are millions of KaZaa users, and there are still the "small-timers" who just pass around copies among a group of friends.

If the public's disregard for copyright has not yet killed the movie/music/software industries, I believe it is likely that it will not in future.

Software is the most attractive thing to "pirate", but software companies don't seem to be very discouraged by this.

The reason that movies and music are so much less apt to be copied illegally is, I believe, because there is a significant value in having an original. For one thing, originals are collectible. You can buy it, never open the plastic, and resell it twenty or thirty years down the road for a killing. Originals also provide better quality and a sense of security. I have tons of books that I've bought and never read. They're comforting to have.

So its okay as long as no money is changing hands?

With some provisios (which I've already stated), I believe so. It has to do with the fact that giving a copy of something to a friend is a private affair. I don't see it as much different from lending him the copy instead.

You obviously see this differently, and that's OK. It's your right to disagree with me.

It certainly has to mean something more than that or else copyright is largely useless as people would freely put up *all* copyrighted works on peer to peer file sharing networks.

My answer to this question depends on whether copyright is necessary to allow authors and artists a chance at being compensated for their creations. If it is not, then let it be useless. Copyright is a good in and of itself. Nothing is.

A lot of the disagreement between you and I is that I believe in having minimal copyright powers. If something is not necessary to ensure authors and artists a decent chance (as opposed a guarantee) of making their development costs back, I believe it should be rejected.

I would challenge either of you to write an enforcable copyright law that has a "Friends and Family Plan" and see if you still have a 'copyright' system.

Actually, I think that this would make it more enforcable. It would have a smaller border to defend.

I would challenge you to think of a way to enforce the system on individuals without ending up with a police state or government-mandated DRM systems.

A lot of the disagreement between you and I is that I believe in having minimal copyright powers.

This should read, "I believe that a lot of the disagreement between you and I comes from the fact that I believe we should have minimal copyright powers. You seem to believe otherwise."

Actually, this was more of sloppy thinking.

Copyright is a good in and of itself.

This should read, "Copyright is not a good in an of itself."

I didn't say that. But if the vast majority of Americans are going substantially over the speed limit in a particular area, I believe that it is time to rethink the posted limit.

Actually, his ability to pass copies along even further was a part of my thinking. And I doubt many people will be walking up to strangers and giving them a copy of a movie. I also wouldn't expect copyright law to allow people to simply stand around in the mall, handing out copies.

Most people today probably do not care about copyright law. There were millions of Napster users and there are millions of KaZaa users, and there are still the "small-timers" who just pass around copies among a group of friends.

Software is the most attractive thing to "pirate", but software companies don't seem to be very discouraged by this.

The reason that movies and music are so much less apt to be copied illegally is, I believe, because there is a significant value in having an original. For one thing, originals are collectible. You can buy it, never open the plastic, and resell it twenty or thirty years down the road for a killing. Originals also provide better quality and a sense of security. I have tons of books that I've bought and never read. They're comforting to have.

With some provisios (which I've already stated), I believe so. It has to do with the fact that giving a copy of something to a friend is a private affair. I don't see it as much different from lending him the copy instead.

A lot of the disagreement between you and I is that I believe in having minimal copyright powers. If something is not necessary to ensure authors and artists a decent chance (as opposed a guarantee) of making their development costs back, I believe it should be rejected.

Actually, I think that this would make it more enforcable. It would have a smaller border to defend.

I would challenge you to think of a way to enforce the system on individuals without ending up with a police state or government-mandated DRM systems.

Well, that's the purpose of the common law isn't it ? Progressive developments through the courts. Insofar as a statute specifically prohibits something (e.g. speed limits), then the only way of changing the law is by the legislature. But where the statute is subject to common law exceptions (e.g. fair use), then the definition of the exception is one that is made, and amended, by the courts, and it is here that the courts will take into account what people are doing.

I don't disagree with that, but until that speed limit is changed - it remains a crime. My position is that if the law needs to be changed, change the law - but one cannot simply select the laws they want to obey. Does copyright infringe on my personal rights - sure, but until I can convince the courts to change the law.. its a crime no matter how much I rationalize it - and most people I've talked to about the issue are doing just that... rationalizing it ('well the businesses aren't going to go out of business if I copy this', 'well the artist make enough money', 'well I should be able to sample his wares or this game without buying it').

Actually, there are some historic cases where civil disobedience was warranted. The colonists broke the law during the Boston Tea Party and in revolting against England. The pilgrims broke the law by remaining true to their religion. And I can tell you with a certainty that I would not give up my religion, either, no matter what the law became.

But is copyright ever serious enough to warrant breaking it? This is a fairly personal decision. You're right that people shouldn't try to rationalize it with the kind of excuses you mention. But the argument could be made that copyright gets in the way of people's life enough that breaking is warranted - that basically it is oppresive. I wish more anti-copyright advocates would make that argument when they're confronted on comment forums.

Many people don't necessarily realize that what they are doing is against the law as it is written.

Well, it seems to me that most people who know it is illegal do it anyway because they don't think it's wrong. I think that says something.

Well there is a sizable portion of the population who are just downloading and buring music collections and don't really seem to care about the original.

Perhaps that's because the CDs are so expensive for what little you get. I'm not saying that this is an argument against copyright in itself - only saying that I don't believe that yours isn't entirely a valid argument for copyright.

There are many people who feel justified because they are only downloading 'the song they want' and that they shouldn't have to buy an entire CD to get 2-3 songs.

Seeing as how these 1-3 songs are usually played on the radio (which it is legal to make a tape off of), I don't really see much of a problem with people who do that. If people aren't buying music because only the songs that make it to the radio are good, then that is the record company's fault.

There are people who download entire feature films off the internet, burn them to a CD or VHS tape and sell them at gas stations.

I never said I condoned this behavior. I think that selling music/movies should be illegal.

The work itself isn't degraded by lending it to a friend or copying it, but its overall 'copyright benefit' to the author is indeed lessened. This speaks to the authors right to obtain an economic advantage. Each copy can be said to decrease the economic advantage for the author because while it may not take away from a potential sale (though in most cases it does, particularly with peer to peer networks), it certainly diminishes the strength of the 'right'. For example, if I create 10k units of something - copying it creates more units than I had intended to sell and/or distribute. According to 17, its still the authors right to determine that.

The problem with these arguments is that they require you to accept that authors have a right to the economic advantage that copyright gives. You've already decided how it's going to come out.

Yes, copyright can be beneficial, but I don't think that author/artists necessarily have I right to the advantage. I believe that nothing is a 'right' until it has been shown to be more beneficial to the person with the 'right' than it is to the world at large.

My private ownership of a television does not hurt the rest of the world as much as someone taking the TV from me would. However, I believe it would hurt me less for something I created to be copied than it would hurt someone if I told them that they couldn't help their family and friends through copying. That's my personal belief.

I don't think that "intellectual property rights" should be purely about economic advantages. Material property rights aren't; they are about protecting the owner's right to enjoy something. IPR are mostly about giving that economic advantage. The ethics behind IPR are the ethics of the Almighty Dollar, IMO.

Surely in a free market system we should reject this concept.

You're right. I spoke too hastily. It's not about minimal powers.

In a capitalist structure where things are sold, transactions without profit are theft and are harmful to the system.

Huh? This doesn't make much sense. Are you saying that companies that give things away are thieves and/or harmful to the system?

To deprive authors the means to stop theft or their wares is a right that I feel the government has properly given to copyright holders...

Now we're getting to the nitty-gritty. Is copying something without permission theft? I don't believe it is because it has nothing in common with our traditional ideas of theft.

Depriving someone of a potential sale is not theft in and of itself. Accessing something without someone's permission could be trespassing, but for music/movies/software, you have to assume that all the copies are someone bound to each other and their author. Listening to a reproduction of a song is not the same as listening to the original. Artists and labels have every right to keep me out of the recording studio if I don't pay them something - or altogether.

It's really late, so I'm going to go bed...

But is copyright ever serious enough to warrant breaking it? This is a fairly personal decision. You're right that people shouldn't try to rationalize it with the kind of excuses you mention. But the argument could be made that copyright gets in the way of people's life enough that breaking is warranted - that basically it is oppresive. I wish more anti-copyright advocates would make that argument when they're confronted on comment forums.

Well, it seems to me that most people who know it is illegal do it anyway because they don't think it's wrong. I think that says something.

Seeing as how these 1-3 songs are usually played on the radio (which it is legal to make a tape off of), I don't really see much of a problem with people who do that. If people aren't buying music because only the songs that make it to the radio are good, then that is the record company's fault.

There are people who download entire feature films off the internet, burn them to a CD or VHS tape and sell them at gas stations. I never said I condoned this behavior. I think that selling music/movies should be illegal.

Listening to a reproduction of a song is not the same as listening to the original.

The state of California has a "85%" law. Basically the speed limit is set based on a survey of the speeds that people drive (85% percentile driver, rounded down to the nearest 5 MPH boundary). This law directly applies when radar is being used, and in some other circumstances (NAL). Some cities actually mark the speed limit as slower than the survey, but any ticket given for speeds between the marked limit and the survey limit can be thrown out by the courts.

No, there is a commonly accepted (and problem should be stated in law) doctrine of Fair Use which I totally agree with.

There are several problems with this statement in the context of your arguments. The first is that some of what we are describing as fair-use should actually be considered as "unregulated-use". There were no laws against certain actions, because the assumption was that the actions were always going to be valid. For example the revocation of the ability to read an ebook does not correspond to the real book reading; therefore no law was ever written stating that the copyright holder does not have the ability to revoke the readers ability to read the book. With the advent of DRM, I’m afraid we are going to start needing proactive laws to protect these unregulated-uses, as well as the fair-uses.

This is why everybody was probably wise to avoid the challenge to …write an enforceable copyright law that has a "Friends and Family Plan" and see if you still have a 'copyright' system. . The reality is that current DRM technology is blunt instrument (I say this as an expert in the area). Furthermore, current technology is controlled by copyright holders and [naturally] errors to the side of copyright holders as it eliminates large chunks of fair-use and unregulated-use. If the DRM settings were not determined by the copyright holders (and perhaps by legislation of a theoretically neutral party instead), we would still have problems with the crudity of DRM. So let’s forget about the implied “programmatic enforcement” in your challenge.

The second problem is that there is NO common definition of fair-use. The current reality is that fair-use needs to be determined by the courts, and there is quite a bit of difference in the interpretations. The best we can do is to compare our “possible fair-use” to past cases and hope the details are similar enough. Judges take a lot of factors into account, including commercial vs. private use, lost income, potential loss of income, etc. The judging of “fair-use” is probably closer to obscenity (“I know it when I see it”). Even assuming far superior systems to our current DRM, the definition of fair-use is so loose that the system won’t be able to take into account fair-use (and will therefore have to error to one side or the other). The looseness of the definition is why Cary can get away with talking out of both sides of his mouth, saying “we support fair-use”, while maintaining a definition of fair-use that is much narrower than anybody else’s.

The third problem that you seem to be ignoring (or perhaps just don’t know about) is that copyright law overrides contract law under some circumstances. The classic example is the right of “first-sale”, where publishers can not restrict the ability of consumers to resell books purchased in a traditional copyright protected sale. This is an example where the copyright holders power is restricted by copyright law. Since copyright law is largely written by copyright holders this does not happen often. Until the DMCA came along, with it’s poorly written anti-circumvention clause, users could usually ignore the attempts of copyright holders to establish an illegal amount of control over their copyrighted item. For example, you could safely ignore the notice on the book saying you could not resell it. With the advent of DRM, the publisher can prevent you from reselling the book by technical measures, and the DMCA prevents you from legally breaking those measures.

So unless you are talking about writing new laws to define unregulated-use and fair-use (I guess at that point, all unregulated-use becomes fair-use by definition), I don’t see how many of your points can stand up to our current reality. That brings up back to the civil disobedience issue. I see nothing morally wrong in breaking the DMCA’s anti-circumvention law when I need to make either unregulated-use or fair-use of a copy protected media. It also goes to what might be acceptable fair-use, which given the lack of clear legal guidelines, becomes more of a moral choice.