Linux going to be big in China 3748

In comp.os.linux.advocacy, billwg wrote on Fri, 21 Apr 2006 01:34:42 GMT

Section, please. breastle 17 covers copyrights, breastle 35 patents. Chapter 5 covers infringement and remedies. Section 504 covers damages and profits, 506 criminal offenses, 507 limitations on actions, 509 seizure and forfeiture.

501, of course, covers the actual infringement, and states, quote:

Sec. 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term ``anyone'' includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this breastle in the same manner and to the same extent as any nongovernmental enbreasty.

There are no monetary limitations *here*.

Fair use is covered in Chapter 1, section 107, but has no monetary limitations either:

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for clbuttroom use), scholarship, or research, is not an infringement of copyright. 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Section 1002 is also of interest (Chapter 10, Subchapter B):

Sec. 1002. Incorporation of copying controls

(a) Prohibition on Importation, Manufacture, and Distribution.--No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to-- (1) the Serial Copy Debt Management System; (2) a system that has the same functional characteristics as the Serial Copy Debt Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system's method of serial copying regulation and devices using the Serial Copy Debt Management System; or (3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying.

(b) Development of Verification Procedure.--The Secretary of Commerce shall establish a procedure to verify, upon the pebreastion of an interested party, that a system meets the standards set forth in subsection (a)(2). (c) Prohibition on Circumvention of the System.--No person shall import, manufacture, or distribute any device, or offer or perform any service, the primary purpose or effect of which is to avoid, bypbutt, remove, deactivate, or otherwise circumvent any program or circuit which implements, in whole or in part, a system described in subsection (a). (d) Encoding of Information on Digital Musical Recordings.-- (1) Prohibition on encoding inaccurate information.--No person shall encode a digital musical recording of a sound recording with inaccurate information relating to the category code, copyright status, or generation status of the source material for the recording. (2) Encoding of copyright status not required.--Nothing in this chapter requires any person engaged in the importation or manufacture of digital musical recordings to encode any such digital musical recording with respect to its copyright status. (e) Information Accompanying Transmissions in Digital Format.--Any person who transmits or otherwise communicates to the public any sound recording in digital format is not required under this chapter to transmit or otherwise communicate the information relating to the copyright status of the sound recording. Any such person who does transmit or otherwise communicate such copyright status information shall transmit or communicate such information accurately.

I would have to dig to find "Serial Copy Debt Management System" in the technical literature but buttume it's covered in a spec somewhere. www.ietf.org doesn't appear to have it.

Wiki mentions it, of course:

and also mentions Chapter 10, the Home Audio Recording Act, which was apparently pbutted in 1992, and the No Electronic Theft Act, which modifies, apparently Chapter 1, Section 101. The logic is simple: any reproduction of a copyrighted work has inherent value and copying that work damages that value to the copyright owner. (This includes backups.)

The page also mentions the $1,000 criminal prosecution limit, so there might be something there. Ah...here it is, section 506:

Sec. 506. Criminal offenses

(a) Criminal Infringement.--Any person who infringes a copyright willfully either-- (1) for purposes of commercial advantage or private financial gain, or (2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,

shall be punished as provided under section 2319 of breastle 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

So you're right. However, retail value is still $15-$20, presumably, and the Wiki article does mention the RIAA's inflation of the numbers to enable this section (which gets the government to champion their cause). Of course, one might have to ask here what *is* sufficient -- and that hinges on the determination of "willfully". I'm wondering if that will save Grandma if her computer suddenly gets filled up with thousands of illegal songs (each one costing $0.99) because Jimmy and Julie wanted to listen to some music.

Personally, I for one think this clause ridiculous, but only on a very technical point: the $1,000-180 days might be replaced by something along the lines of

(2') by the reproduction or distribution, by any means, during any period within the duration of the copyright as provided for in Chapter 3 and the statute of limitations of prosection as provided for by insert reference here, of 1 or more copies or phonorecords of 1 or more copyrighted works, in such a manner as to incur damage to the copyright owner or a duly-designated agent thereof, in accordance with insert reference here; I'd have to look.

The "phonorecords" is also slightly ridiculous but I for one would have to rewrite substantial sections of the law in order to properly expunge it, and I'm not a lawyer, just a rather anal computer software developer :-). Ideally, any creative work not otherwise subject to limitations in Chapter 1 would get identical treatment -- for all works nowadays can be digitally duplicated and remastered, corrupting the work up front as opposed to degrading it through the amplification-reproduction process in an analog system. Such is the power and extent of the Internet; this law is an attempt to apply vinyl law to digital teletransmissions, and works to some extent but won't work forever.

There's also the question of what a "work" is in this context. Ripping and reburning of "song mixes" is fairly common, and the songs need not be from a single artist, of course. What value there would be in selling such a CD, I for one cannot say, as it's highly personalized; presumably one could suggest, however, the standard market rate for albums, which is, again, $15-$20 per CD. Presumably, however, that's not nearly as much of a problem as outright duplication of an entire album.

If they're going to get rid of the rights of people to enjoy music, videos, and books, they should do it properly. :-)

Note also that the Seventh Amendment mentions "twenty dollars". How much is that worth today? Yet it is enshrined forever in the Consbreastution.

Define "not enough copying". Section 107 is extremely vague, mentioning only that a judge can determine whether infringment has occurred using at least four factors. Section 506 mentions 1 work, $1000 worth of work (presumably that's retail, with packaging), and 180 days.

One could try to bypbutt that by "farming out" the duplication process. There's probably a law against that ("criminal enterprise") but I'd have to find it, and it's in a completely different breastle, if not in a totally different jurisdiction. (So move it overseas! That only puts a delay of at most 100 ms or so in the copying process, and no Legislature can shorten that -- it's a speed of light thing.)

Most judges would probably let off a student copying a work for his teacher's reports, but there are far more malignant uses of a Xerox, Canon, or Minolta device. ;-) (Also, far more profitable copying methods; the Chinese in particular seem to generate a lot of pirated works, mostly on CDs and DVDs, and the pirates then sell them on streetcorners and little shops -- or perhaps through dummy front companies to unsuspecting consumers browsing around for bargains on the Internet. I have no idea how the RIAA-MPA would want to go after international pirates, though if they ever step foot or sell on US soil, they'll probably get nailed if the RIAA-MPA have anything to say about it.)

Fair market determination is probably verging beyond the scope of this subdiscussion. In any event, that presumably depends on the determination that an infringement actually occurred.

rest snipped

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