See!

I told you that KaZaA helps amateur movie makers.

Oh The Tangled Web We Weave

1. So, SpyMac is offline. Hurray for chilling effects.

2. Matt’s got a response up. I don’t think I’m going to tear through it in complete detail. But let me jot down some issues:

- Matt’s approach is intriguing. He’s trying to: understand the law’s text, determine the spirit of current law, define normatively what the spirit of copyright is, and render all those consistent. That is, he’s trying to fit his own normative conceptions into current law and, in some cases, show how current law could/should be altered/enlarged to align with its spirit. Good stuff.

- As Matt notes, this approach also generates some tangled logic. In many cases, I don’t think this description of the law reflects how it actually is. Sometimes, I’m not sure whether he means that the law actually says what he’s asserting, or whether it should state that.

- First, though infringement is not equivalent to theft, it’s a stretch to claim that the spirit of copyright law views downloaders as non-infringers. I’m not sure where that conclusion is coming from. Rather than trying to phrase this in terms of the distribution/reproduction in the physical world, let’s think about who the copyright infringement doctrine typically targets. This doctrine has targeted people who are actively participating in and enabling the illegitimate distribution of copyright works (yes, there are many limitations, but speaking broadly, this is the case – and when we’re speaking in terms of the spirit of anything, we need to speak broadly). It’s meant to inhibit people facilitating the acquisition of copyrighted material such that copyright owners are largely unable to profit from their works (again, broadly speaking). I think this “spirit” is far more fundamental than the “implied sequence” of reproduction/distribution. In terms of physical objects, the people who acquire unlawful copies are not really active participants in the illegitimate reproduction/distribution. It’s not just a matter of willfulness – they actually are not involved in distributing or copying the materials. On the other hand, downloaders on P2P services are participating in the copying of material. Moreover, they are often knowingly making a copy with a person who does not have authorization to distribute the material, thus depriving copyright holders of an exclusive right. In the spirit of the law, that sounds like infringement.

- What I’m getting at is: intuitively, do you think the spirit of copyright law considers people who are downloading files on KaZaA as non-infringers? If that’s what you’re arguing, I think you’re going to have to go deeper than pointing out the logical sequence of reproduction/distribution.

- On a more specific level, I’m not really sure how file sharing could be considered a public performance. Especially if Matt’s trying to create an analogy between the way copyright law related to the physical world and to the Internet, file sharing is nothing like typical public performances. So, even if there’s no congruence here, is Matt making a normative claim that this is how the law should look at it? If so, I’m not sure why.

- As far as the Betamax defense for file sharing: Matt’s right if he’s saying that downloaders, using P2P and making copies for their own personal use, are not infringing. But that only applies if they have legitimate rights to the particular copy in the first place. If Buffy is being transmitted to your TV, or you’re holding a CD in your hand, you’ve got rights to that particular copy. You don’t have rights to your friend’s CD, so you can’t download it and consider that personal use.

- The DMCA reasoning is very important. Again, I’m a little confused because I think it’s a strained reading to say the DMCA should be applied to individuals’ making temporary copies. But, if Matt’s saying that we should create a copyright exemption for the sort of caching your web browser does, I’m with him. I’m not really up on the law in this area, but, from what little I know, it’s incredibly murky; what’s more, it hasn’t favored the legality of such temporary caching. Look up the MAI case and see here, here, here, and, for fun, here.

- Matt and I have both run up against a lot of exceptional cases – for instance, what if you go to a website that says it’s authorized to distribute music but really isn’t. Are you infringing? Certainly, a caching exception would be necessary. But, also, I think other law regarding false advertising and other sort of misleading behavior might step in here. I don’t know enough about other relevant law to say if this is the case…. Still, I think it’d be much more difficult to prove that you were being misled if you’re downloading files on KaZaA.

- That’s my analysis for now – as you can see, my thoughts are pretty entangled, too, but I hope they’re of some use. Really, I think we’re just looking at similar issues from pretty different angles. I’ve been talking mainly from the angle of what the law says and how its spirit would look at downloading. Matt is trying to render new practices consistent with the law, even where the fit isn’t exactly clear. Matt’s ideas are incredibly helpful in examining how copyright law isn’t well-suited to cyberspace.

At the same time, I must stress that one must be very careful when saying “The most important issue here isn’t really whether or not downloading is actually against the law. It’s whether or not downloading is ‘wrong.’” If you’re going to start with that, and then make a bunch of arguments that directly relate to what the law actually says, then that’s pretty confusing – at least for me. Making consistent what the law says and what it should say is all well and good. But let’s not strain too hard to do it – in some cases, they simply are not consistent.

- Final notes: I really enjoy this. I know I’m expressing strong disagreement, but I really like Matt’s “novel line of reasoning.” It challenges my thinking and assumptions, and makes me want to do more research.

And, in general, I’m not advocating a normative position here. For instance, below, when I said that the law views people as infringers first, fair users second – I don’t think that should be the case. I think we should be thinking of fair use as a right. But, in practice, I don’t believe courts do this.

Worries Creep In

So I’ve got one week left. I’m not worried about that.


I’m worried about what will happen with my poor blog this summer.  My Net access is going to be far more limited, so I probably won’t be able to make the same sort of daily posts.


So I’m going to have to get creative (which, btw, is what I’ll be doing all summer long).  Expect posts to be a little more sporadic over the next month or so. I’ll be figuring out a way to adapt my blogging to a different Net lifestyle.