[PLUG-TALK] Revolution OS, Napster, and Fair Use

Jeme A Brelin jeme at brelin.net
Wed Mar 20 12:06:09 UTC 2002


On Wed, 20 Mar 2002, Dylan Reinhardt wrote:
> The primary issue (where we began) is whether *all* non-commercial copying
> of recorded materials is covered by Fair Use.

That's your twist on the basic argument.

My argument is that copyright law cannot practically and therefore does
not cover non-commercial activity between individuals.

> 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?

The statement was that all non-commercial copying and sharing is legal.  
The Fair Use doctrine (as codified) is an exception to copyright.  
Non-commercial copying and sharing is outside copyright law, not an
exception to it.

> I hope we're in agreement, at least, about what we're arguing about.  
> :-)

We'll see.

> 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).

The brief made similar statements more broadly, but I can't seem to rustle
that up at the moment.

> 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.

Ayup.

> So I'll grant you both that your interpretation of Fair Use and of
> David Boies' opinion on the matter have backing.

Good.

> 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)

This argument was specifically addressing the issue of INJUNCTION.  The
purpose of this argument was to show that EVEN IF some of the activity was
infringing of copyrights (which he shows is not the case), then a
preliminary injunction STILL prevents people from carrying out the
non-infringing activities enabled by the service.

Essentially, this was Sony's argument in Sony v. Universal.  Whether or
not it's POSSIBLE to infringe with the device is irrelevant because there
is "significant non-infringing use" of the device.

> So as for the issue of whether the Napster case supports your positon
> or mine, I'm not sure there's a clear winner.

Um, my position (on this part of your two-part breakdown) was simply that
Boies brief contained the argument that all non-commercial copying is
legal (i.e. non-infringing).  Surely you've seen that to be fact.

> But all that we have in the way of decisions is preliminary rulings on
> injunctions... the *real* case was never heard.

We also have the 9th circuit's decision.

> In the absence of a significant court ruling,

Um... the 9th circuit's ruling cited in Boies' brief?

> 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.

I don't think anyone brought up the issue of "right v. wrong".  We're just
talking about what's legal.  I can give you a laundry list of things that
are legal but wrong and right but illegal.

> Next message: is *all* non-commercial copying covered by Fair Use?

See above.

J.
-- 
   -----------------
     Jeme A Brelin
    jeme at brelin.net
   -----------------
 [cc] counter-copyright
 http://www.openlaw.org





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