Re: Copyright & The New World Economic Order

On Tue, 27 Jul 1999, Don Roemer <droe2[_at_]earthlink.net> wrote:
>
> On Thu, 22 Jul 1999, Bob Stock <bstock[_at_]mindspring.com> wrote:
> >
> > Assume that the CD is an audio CD. Then look at the statute:
> >
> > "No action may be brought under this title alleging infringement of
> > copyright based on the manufacture, importation, or distribution of
> > a digital audio recording device, a digital audio recording medium,
> > an analog recording device, or an analog recording medium, or based
> > on the noncommercial use by a consumer of such a device or medium
> > for making digital musical recordings or analog musical recordings."
> >
> > 17 U.S.C. sec. 1008.
> >
> > Noncommercial use of a consumer in copying such a CD is exempt under
> > this section, at which point the user has a lawful copy.
>
> HUH????? Where does it state that it is a "lawful copy?" What I
> read is that no action can be taken against the folks who provide,
> by whatever means, the instruments used to pirate a CD or tape or
> whatever. I think it is a VERY LONG stretch to say that this section
> condones piracy of any sort by anyone whether it be a home user making
> an archival copy for personal use or someone making a copy to give to
> his mom or a school chum (non-commercial).
>
> If we were to use the "fruit of the poisoned tree" logic then no matter
> what the final disposition was, a pirate copy is still and evermore, a
> pirate copy.
>

Actually, section 1008 does more than insulate device manufacturers. As Bob points out, it also provides that you can't sue someone for infringement for the "noncommercial use by a consumer of such a device for making ... musical recordings."

Further, the "fruit of the poisonous tree" doctrine does *not* apply in copyright law. If a particular copy does not contain significant protected expression, it isn't infringing.

One could perhaps draw a distinction between declaring the 1008 copies "noninfringing" and providing (as the statute does) that "no action may be brought under this title alleging infringement." But I'm not sure the result would change.

Mark Lemley
<mlemley[_at_]mail.law.utexas.edu> Received on Thu Jul 29 1999 - 14:59:36 GMT