[PLUG-TALK] Revolution OS, Napster, and Fair Use
Dylan Reinhardt
dylan at dylanreinhardt.com
Wed Mar 20 09:31:08 UTC 2002
OK, Jeme... perhaps it would be best if we backed up a bit and re-traced
our argument, as it's already branched a couple times.
The primary issue (where we began) is whether *all* non-commercial copying
of recorded materials is covered by Fair Use.
Secondarily, we touched on the arguments being presented in the Napster
case: did they, in fact, argue that all non-commercial copying is Fair Use,
or didn't they?
I hope we're in agreement, at least, about what we're arguing about. :-)
Taking the easier argument first, what Napster and David Boies have said
and done are relatively easy to document.
In an interview given right after his win in the 9th Circut Court, Boies
*did* say (as you suggested) that "this kind of noncommercial consumer copying
is recognized as fair use under common-law theories and doctrines" (http://www.wired.com/wired/archive/8.10/boies.html).
He attributes that opinion to the music-specific provisions of the Audio
Home Recording Act, but notes that a previous 9th Circut case interpreted
this law to mean that *all* non-commercial copying of anything was legal.
So I'll grant you both that your interpretation of Fair Use and of David
Boies' opinion on the matter have backing. He then goes on, however, to
present a more solid argument, that of drawing an analogy between Napster
and the VCR. It appears that it was this *second* line of reasoning that
was featured in his arguments before the 9th Circut. (http://www.theregister.co.uk/content/archive/13720.html)
The other points he raises, copyright abuse, the evilness of the RIAA, and
the wrongness of the DMCA... I would guess we would probably find little
to argue about.
So as for the issue of whether the Napster case supports your positon or
mine, I'm not sure there's a clear winner. Clearly Boies is smart enough
to defend (attack?) on more than one front. But all that we have in the
way of decisions is preliminary rulings on injunctions... the *real* case
was never heard. In the absence of a significant court ruling, I'm not
sure that the Napster case or Boies' legal strategy have much relevance
on the question of whether it is right to make copies of a tape.
Next message: is *all* non-commercial copying covered by Fair Use?
Dylan
More information about the PLUG-talk
mailing list