FC: Two replies on Berman's P2P bill: "A bunch of crybabies!"

[Declan McCullagh <declan () well com>]

Previous Politech message:
http://www.politechbot.com/p-03951.html

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From: "Duplantis, Ron" <Ron.Duplantis () wonderware com>
To: "'declan () well com'" <declan () well com>
Subject: A few words from another perspective
Date: Fri, 6 Sep 2002 11:36:02 -0700

What a bunch of hair-splitting cry babies. I'm not happy that my freedoms 
are limited by laws such as the one that requires me to wait at a red 
signal light at 3 a.m. despite the fact there is not a pair of headlights 
within miles, but the proximate cause for the creation of such laws are 
negligent actions of the kinds of rabble crying about Berman's proposed 
legislation.

I have no doubts at all that the language in Berman's bill is hiding some 
sneaky methodology the copyright holders are planning to use without 
penalty. That's what legislators like Berman do: protect their 
contributors. I also agree that legislators often write legislation for 
problems that don't exist, granted. But as a writer, I can see a real 
problem here. I'd like one of the cry babies who responded here to answer a 
couple of questions for me:

1. Do they think that "sharing" copyrighted materials without compensating 
the authors -- as defined under all laws including fair use ones -- should 
be illegal? Don't play word games, you know what I mean: if under present 
law, a copyright holder wishes to be compensated for each copy of his work, 
should the "sharing" of such a work with someone who does not compensate 
the author constitute an illegal act by BOTH the sharer and the sharee? Put 
even another way, if a rock group releases a new CD, you alone buy it, and 
you "share" it with the world (without compensating the rock group), should 
any of those actions be considered illegal? If the answer is no, ignore 
question #2 and feel free to continue to believe in an anarchical world 
that will never exist.

2. Technologically-speaking, how would you suggest that those copyright 
holders stop the illegal "sharing" of their work? As the saying goes, "It's 
always easier to be an editor than a writer." If you don't like the 
side-effects of Berman's bill, propose something yourself.

My sense is that few, if any, of the cry babies who responded to French's 
reply ever got to question #2 because they don't think any author should be 
able to demand compensation for his work. That everything should be public 
domain, no matter the amount of time and work put into it. Those who stand 
in the way of attempted solutions, pointing out incredible side-effects and 
creating fantastic scenarios, and not offering another solution of their 
own, in my view typically don't see a problem.

"But suppose I have non-copyrighted material in my P2P share folder and 
whine, whine, whine...." Please! If you don't want some DoS or other 
methodology hindering your legal P2P offerings, put the copyrighted 
material in a non-P2P share folder. Duh!

Ron Duplantis
Huntington Beach, CA

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Subject: Re: FC: Politech members reply to Rep. Berman on anti-P2P piracy bill
Date: Fri, 6 Sep 2002 00:36:52 -0700
From: David Lawrence <david () netmusiccountdown com>
To: "Declan McCullagh" <declan () well com>

On or about 9/5/02 8:27 PM, a certain Declan McCullagh [declan () well com]
wrote:

>blah blah blah don't use my e-mail

I find it really interesting that the people who respond most negatively
to Rep. Berman's efforts to educate the subscribers of your list are
least likely to stand up and be counted.

The level of (ir)rationalization demonstrated by most of your respondents
boils down to:

a) screw big corporations
b) screw the RIAA
c) fair use rulz, d00d.

Can't do much about ill-placed feelings towards organizations that until
a few years ago were considered neutral if not admired. But, as to fair
use...feel free to re-publish my Radio and Records column from last week
on your list. Oh, and feel free to publish my e-mail address - I have
nothing to hide.

David Lawrence
Online Tonight
The Net Music Countdown

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NMC/R&R eChart main column - 8/30/02

FAIR USE?

It seems as though every time a defender of our right to share files on
the Internet runs through the litany of reasons why the government/media
giants/mean old labels want to limit our choices, the phrase "fair use"
comes up. To hear some promoters of file piracy sites talk, "fair use" is
all about the people being able to access what the horrid copyright
owners want to completely control. That's not fair use.

Take a look at the four tests that are implicit in Section 107, Title 17
of the US Code that is so freely tossed about, sometimes by people who
should know better. Once you understand that although fair use is
something that is still left up to the courts to interpret, it's not
nearly as hard to understand as it appears.

>From the code:

...In determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the
copyrighted work.

In the case of (1), the law is promoting the reference and use of pieces
of the work in research, criticism, news stories, and the like. The law
is decidedly not promoting the opposite: commercial exploitation or the
replacement of a potential sale of the original.

It is with (3) and (4) that every single instance of piracy masquerading
as "sharing" fails. "Sharing" an entire musical work, as opposed to a
clip of it, is not fair use. You want to let someone know how much you
like that new Eminem cut? Fair use means sharing 30 seconds or so of it,
more along the lines of a callout hook, not the entire Track 7, ripped
from The Eminem Show CD.

And "sharing" the entire single in a format (128k joint stereo MP3 or
higher) that is good enough for most people to re-burn on CDs provides an
excellent "sales replacement" on a mass basis. If CDs are truly
unaffordable, as some vehemently argue (despite the fact that CD prices
haven't changed in over 20 years, meaning with inflation, CDs are less
expensive today than when they were introduced), then how does it follow
that downloading 6,000 MP3 files will somehow alter the purchasing power
of file sharers? It doesn't, but free MP3 files, put up en masse on the
Internet, is a powerful competitor to CD's available at any price.

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..............................................  David Lawrence
:   Host, DC Radio 700 WGOP : 1p-3p ET M-F   :  vox: 800-396-6546
:      Host, Online Tonight : 10p-1a ET M-S  :  vox: 800-396-6546
: Host, Net Music Countdown : check listings :  fax: 509-479-6695
:............................................:...................





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