Let me try to define the term "space shifting" in a way that I think I can defend as fair use. Space shifting is the transfer, by the owner of a lawfully obtained copy, to another medium of expression that is essential to private use of the work in ways that are prohibitive given the original medium of fixation.
> I'm sure the record industry would take the position that all those
> cassettes WERE unlawful, because they were reproductions that
> deprived them of a valuable market.
I don't tend to look for balanced analysis from the copyright industry. Publisher approval is not needed to make a fair use, and one expects big companies to use FUD (fear, uncertainty, doubt) to scare people into paying. The market decreased is the market for double-billing for multiple use, not the market for the value of the work. See below.
> Similarly, the photographers would take the position that scanning
> photos is unlawful, because it deprives them of a valuable market,
> the market for digital reproductions of their work.
Here they are not deprived of this market, because they can market in it without fear of competition from *others*. They might compete with themselves via space-shifting, but even so, they are incented to create.
> I agree the first factor should shift; but the fourth factor may not.
> The asserted harm to the copyright owner is that you are depriving
> the copyright owner of revenue by not paying for an additional
> reproduction of the work.
The fourth factor is the effect on the potential market or value of "the copyrighted work".
Given that it requires a lawfully aquired copy as I've defined it, space-shifting coexists with demand for the work. Publishers receive their reward for every person who benefits from the work. In fact, new ways to benefit from the work should increase the number of potential buyers. The publisher can exploit this demand by increasing prices and selling to customers who mainly want to space-shift.
One might argue that displacing two sales to the same buyer in different media with one sale must diminish the potential profits of the publisher. I doubt demand for the second copy equals that of the first, but any extra profit exists only because of the inability of the different media to provide usability of the work, and are not a reward for the quality of "the copyrighted work". Competition between an author and his own "installed base" is unavoidable and assures that the copyright reward is focused on the intellectual contribution and not multiple repackaging of the same old thing.
The error in that argument is exposed by comparison with the claim that re-reading a book deprives the author of a potential sale. The purpose of copyright is to secure a just reward for the use and benefit of the intellectual contribution of the intangible work, not to create a pay-per-use society. Government backed monopoly is not provided for maximum gouging of consumers.
> This is one of the basic issues in copyright: When you buy a copy,
> what do you get? The user thinks he or she gets the right to read,
> use, and enjoy the work; and therefore fair use should include any
> accommodations necessary to do that. But according to Section 202
> and Section 109, ownership of a copy means just that: You get the
> right of possession (and resale) of THAT copy, you don't get the
> right to make additional copies.
First sale ownership confers property rights in the copy *and* fulfills the Constitutional quid-pro-quo of reward for contribution. Owner's rights include the right of resale not because of 109(a), [Bobbs-Merrill predates 109(a)], but because everything not statutorily reserved passes with ownership. The exceptions must fit with the Constitutional purpose, so while the copyright protection is entirely statutory, the rights of the public to make fair use copies are not. Before the copyright act had a fair use section (1976), it's textual absolute ban on copying was not strictly valid (fair use is judge made doctrine going back to at least 1841). The reasoning is expressed nicely in Harper & Row:
"The author's consent to a reasonable use of his copyrighted works had always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus . . . frustrate the very ends sought to be attained." Harper & Row v. Nation Enterprises 471 U.S. 539 (1985)
> Agreed. But that's probably because most copyright owners don't
> bother to sue individual infringers; they only go after commercial
> infringers, because that's where the money is, and that's where they
> get the most deterrence bang for their buck.
Which is another way of saying that the commercial impact of personal use copying is de minimis in the natural measure. :-]
> Again, allow me to emphasize that I'm debating, not advocating. I
> encourage the audience [if anyone is reading this besides Mr. Taylor
> and me] to consider both sides of the argument, and to make up your
> own minds.
Me too. Thanks for taking the time.
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:41 GMT