Eugene Volokh <volokh[_at_]law.ucla.edu> wrote:
>
> Well, my view is that the Working Group's proposal merely
> clarifies the law, and doesn't change it. Communicating music
> through the Net always involves reproduction; you have to reproduce
> it to put it onto your server, and you have to reproduce it every
> time you send a copy to someone else's computer.
I disagree with on two points here. The Working Group's proposal to include "transmission" in the exclusive rights of sound recordings dramatically changes the nature of the exclusive rights provided. Why else would they specify that the new proposals NOT be applied to analog transmissions? It seems that they are aware that this is more than a mere "clarification." I'm still not sure why they're trying to play it down so much, but it is indeed a major expansion of current copyright law.
Also, the statement that "communicating music through the Net always involves reproduction" is simply not true, at least not according to current case law involving transmitted material. We're transmitting packets of information in REAL-TIME, just like a cable or DSS system. We're not storing the music and making it available via anonymous FTP. Therefore, it seems that the same laws governing off-air signals should govern digitally transmitted material when the transmissions are real-time.
> I agree that the economic effects might be similar to those of a
> radio broadcast (but note the greater ease of copying), but I think
> the law even today is rather against today. Cf. MAI v. Peak Systems
> (9th Cir.), which held that reading a computer program from disk into
> RAM was a reproduction, and could be an infringement if unauthorized.
But this is hardly the same as broadcasting signals in real-time over computer networks. If we are to believe that every act involving RAM constitutes reproduction, then why not extend that belief to temporary storage in neurons? OK, so that's pushing it...but Dr. Samuelson's analogy of holding a mirror up to a book is an appropriate one. If we consider all RAM-related actions reproductions, then we will seriously limit the potential uses of computer networks. If what we're doing can be considered reproduction, why not count the translation of analog frequencies by transducers as a reproduction? Aren't speakers simply reproducing the off-air transmissions by making them available to the 20Hz-20kHz hearing range? This would make every act of listening to the radio a copyright infringement. It seems the predjudice is based on the quality of the audio signal, which, ironically, is currently about that of AM radio (at least in WXYC's case).
We shouldn't attempt to over-simplify computer transactions. Just because a court found that duplication of copyrighted software violates the owner's rights, we should not assume that this particular case is universally applicable to ALL cases involving computers. We need to examine these new technologies as they evolve, NOT apply blanket regulations early in the game. The issue of RAM as Reproduction is FAR from settled, even though the Working Group would seem to like us to believe otherwise.
Does anybody have any idea exactly what radio stations would have to go through in order to broadcast if these proposals are made in to law? It seems that by the time stations got clearance for EVERY song and paid royalties to EVERY party involved, only the wealthiest stations could broadcast. Doesn't this completely defeat the purpose (or what I assume to be the purpose) of computer networks? The history of radio is riddled with commercial v. non-commercial battles for control over the airwaves, and it seems as if history is repeating itself again, only the concept of bandwidth scarcity has been supplanted by that of intellectual scarcity.
I would GREATLY appreciate any ideas pertaining to what these proposals would do to net.radio stations, either to the list or personally. What kind of copyright clearances would theoretically be required beyond ASCAP/BMI? Since I'm not a lawyer, legal scenarios are most welcome.
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David McConville UNC Office for Information Technology (919) 962-5646 SunSITE Workstation Development Group http://sunsite.unc.edu/id/-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+- Received on Fri Dec 30 1994 - 04:09:44 GMT
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