Interesting Title

They’re trying to keep children from getting porn on P2P. Interesting. So why did they call the bill: “To prohibit the distribution of peer-to-peer file trading software in interstate commerce“? (Go to HR 2885) (via boingboing and pho)


Given the news articles and press releases about the bill, it’s probably a mistake, but a pretty stupid one.

Fair Use as Market Failure or as Public Interest Balancing

Today I read “Fair use and Market Failure: Sony Revisited” by Glynn S Lunney, Jr (which I have not been able to find online. Please tell me if you find it elsewhere.). The author makes a great case for moving away from the market failure focused analysis of fair use and altering the fourth factor (potential impact on market) to make the copyright holder prove more harm. He also makes some more radical suggestions regarding how to change fair use. Not sure I agree with how he changes the test, but I do like his general argument.  For another argument of this sort, check out the Dissenting Opinion in that Texaco case I pointed out earlier today


Click here for my notes on the Lunney article.

Once More On Downloading

Now that I seem to have all these tech-savvy people visiting and answering my technical questions, let me put this on the table again: is it possible to track the destination of a file as it is being downloaded on a P2P system? I know the RIAA is suing sharers, but it could it sue downloaders, too?  Is that contingent on being involved in the transfer (that is, having the RIAA being the uploader)?

Hm

To figure this out, I’ll meditate on mutual funds while you grep for group ownership of sound recordings.


[added:] Although, it’d probably be better to start by figuring out some more pertinent issues, like the ones Frank points out. Cringely says, “Each share also carries the right to download backup or media-shifting copies for $0.05 per song or $0.50 per CD.” It does?  If you have to pay to make the back-up copy, that might change the fair use analysis.  Group ownership of a recording (even if it works like Cringely says it does) probably does not include making back-ups for each member of the group.  Having one copy does not mean you can make infinite simultaneous uses.


In fact, there’s an appeals case that’s quite applicable here: American Geophyiscal Union v. Texaco.  A Texaco scientist made personal copies of particular articles within a scientific journal purchased by Texaco. Everybody was working under the same roof, but it wasn’t a fair use.  The fact that Texaco is for-profit played a slight role compared to the court’s construal of the market impact – the journal was losing traditional potential licensing revenues.  Where have we heard that before? The MP3.com case.


There are certainly grounds to disagree with both cases. Sony‘s treatment of the potential market seems pretty different.  The Court scrutinized the copyright holder’s discussion of market damage. In these other cases, there wasn’t a heck of a lot of proof of damages and the courts didn’t really burden the copyright holders.  The difference, I suppose, is the first factor, the fact that it was commercial use, though the judge in MP3.com didn’t really emphasize this.(I think it’s time to read the fair use after Sony article that I found. I’ll have something on that a little later.)


One last question: regardless of whether Cringely’s scheme would work, do you think most people look at it the same way they look at Fisher’s scheme? If not, for the average person, which one’s the dream scheme and which one’s the plausible plan?