A Critical Look at Copyrights

 

We see the RIAA mounting an assault on the people who down­load prerecorded music off the internet from peer web sites like Kaaza, et al, but not the owners of the websites themselves for copyright infringement. What’s wrong with this picture? If anything, assuming there was a commercial interference with the exclusive property rights of the copyright holder, and thus a violation of the copyright holder’s exclusive property rights, it would seem that any such copyright infringement rests with the owners of the peer storage web sites for downloading various file contents from these peer sites. However, the mere fact that the RIAA is not going after these sites in an effort to “shut them down,” is in and of itself quite telling, which leads one to conclude that there really isn’t any copyright infringement in fact or in law and the RIAA’s assault on private citizens is simply one more example of Corporate America’s strong arm tactic with the aid of the legal community to scare the American public into commercial obedience because they have neither the knowledge or the resources to defend themselves in the courts whose practice and procedures are under the absolute monopolistic control of the legal profession. Thus, what is not illegal in fact becomes illegal by judicial decree creating one more example of “coerced public policy by fear!”

 

If a person were walking in a mall listening to music over the public sound system and this person just happened to have a photo sonic mind, he could essentially record any song he heard over this public sound system in his mind and play it back anytime at will. So, has this person committed any crime against the recording artist, the recording company, or RIAA? The question seems too preposterous to even deserve or warrant an answer.

 

However, it is precisely the question that needs to be answered by the RIAA in its quest to punish the people for downloading free copies of recorded music over the internet or any other transmission media, including in home transmission. The whole matter boils down to just what is “unlawful copying/reproduction” with respect to the copyright laws and what is not.

Let’s go back to the mall for a minute. Another person walking in the mall that day doesn’t possess a photo sonic mind so he records the same music on an MP3 recorder so he too may be able to listen to these same sounds anytime he so wishes. Has he violated any copyright laws? Again, it all boils down as to what is and what is not a copyright infringement.

 

Since copyright infringement is a legal matter, let’s see how the law/legal scholars view copyright:

 

“Copyright – a property right in any original work of author­ship (such as a literary, musical, artistic, photographic or film work) fixed in any tangible medium of expression, giving the holder [of the copyright] the exclusive right to reproduce, adapt, distribute, perform, and display the work [for profit]. Black’s Law Dictionary, 7th Edition, page 337.

 

By the linguistic rules of English and semantics, does a person violate the exclusive property rights of a copyright holder if a person makes a copy of (reproduces) the copyright holder’s original work or a copy thereof and doesn’t adapt, distribute, perform or display the work?  Taking note of the conjunctive and, obviously not.

 

Taken from another angle, when a person buys an original work, or a rightful copy thereof, he has himself acquired a prop­erty right of that adaptation and distributed original work quite different from the property right of the original creator. One of the rights incurred by the purchaser/owner of the copyrighted work is to use it in any manner he sees fit, even if this manner includes copying it to another form for his own pleasure. Take sheet music for example. If a person buys a piece of sheet music, and if he performs the music there in written in his own home, or he makes copies of the sheets so that a few friends can join him in the playing for pleasure, has he violated the author’s exclusive copyrighted property protection? While he, the new owner, reproduced the sheet music and performed it, he nonetheless did not adapt, distribute, and display the work.

 

Perhaps Black’s definition of copyright is a little extrava­gant leaving unintended cracks in the process, for if a person reproduces a work but doesn’t either adapt, distribute, perform, or display the work, one has not violated the copyright holder’s rights according to Black’s. Consequently, this author believes Webster’s definition may have more accurately and succinctly articulated a definition which more fully encapsulates the concept of copyrighted rights:

 

“Copyright – the exclusive legal right to reproduce, publish, and sell the matter and form of a literary, music, or artistic -work.” Webster’s Ninth New Collegiate Dictionary, page 289.

 

Since copyright law has its roots in commerce and is primarily, and maybe even exclusively, intended to protect the creator of a creation from having to compete with someone mass producing said creator’s own work for profit from which he, the creator, receives no compensation. Conceptually it is a legislated monopoly protection over that which one creates. Therefore, even though someone reproduces another’s creation which he legally purchased but doesn’t publish or sell the matter and form of the creation, he, the purchaser, hasn’t in any way interfered with the monopoly property right of the creator to reproduce (manufacture), publish, and sell the matter and form of his creation to any other purchaser.

 

Let’s go back to the mall. We can assume the owners of the mall purchased the music they were playing over the PA system that day in copyright protected pre-recorded form. The mere playing of the pre-recorded media, it must be noted, reproduces the sonic or audio frequencies and combinations thereof (music) that the creator(s) of said music intended to claim ownership of. Notice also that the reproduction of the reproduced pre­recorded music with electronic amplifiers and the like is also performing, displaying, distribution (over the PA system), and if adapted in any way, such as frequency filters and volume adapt­ations, may be a copyright infringement against the copyright holder under Black’s definition. However, Webster’s definition makes a whole lot more commercial sense in this case, at least so far as what a private citizen may indeed linguistically understand the concept to be. While the mall owner reproduced the music with electronic amplifiers, etc., he did not attempt to publish and/or sell the music. More importantly, he in fact reproduced the copyrighted music created by the creator(s) on pre-recorded media in exactly the manner in which the music (sounds) were intended to be reproduced from the pre-recorded media. But, again, the issue to note here is that reproduction has indeed occurred and it was the intention of the copyright holder(s) that it be so reproduced.

 

Turning to the person with the photo sonic memory or the person with the MP3 recorder, did either of these people publish and sell the reproduced sounds (music) they recorded? If not, they have not interfered with the legislated monopoly protection of the creators and publishers of said reproduced sounds (music) to “publish and sell the matter and form” of the creation. Further­more, they merely partook of that which was already in the public domain without so much as diminishing the quantity of that which was partaken.

 

Now, has there been any economic or commercial loss to the copyright holder which could in any way impact the monopolistic commercial property rights for which the holder acquired the copyright to protect? Maybe yes, and maybe no. In the case of the person with the photo sonic mind, he will never buy the music played over the public address system because he can listen to the music any time he has a mind to do so. Such a person may also be so musically inclined that he or she can musically reproduce the music he heard with his or her photo sonic mind using music instruments that very nearly emulate the original copyright protected music purchased by the mall owner. This whole capability may in some minute way reduce the potential market the copyright holder may have been able to target had it not been for this person’s photo sonic mind, but protecting the market is NOT the goal or objective of the legislated copy­right protection. If it were, the copyright protection (legis­lation) would have to encompass such matters as unemployment, inflation, distribution networks, advertisement, competition from competing performers, and on and on adnauseam. Such a notion offends common sense, the common law, and/or any belief that there exists any ability to administer or enforce the copyright law. Once we see that the market impact is beyond the scope and capability of copyright law, the copyright holder is precluded from making any claim or pleading under the copyright law that any reproduction of his copyrighted matter and form of his work has a negative impact on his market potential.

 

What is protected is the holder’s exclusive monopolistic right to reproduce (manufacture), publish, and sell his creative works in any matter or form he so wishes. The copyright grant does not and cannot prohibit the person to whom the copyright holder sold his creative work from making a reproduction in any manner or form the purchaser wishes to use in order to fully enjoy to the maximum his purchase from the copyright holder or his distributor, any copyright notice to the contrary notwithstanding, so long as the purchaser does not turn around and publish and sell in any matter or form the copyrighted item purchased. The forgoing is all the more true when the purchaser must in fact reproduce the matter of the copyrighted item, such as music, for which the item was purchased in the first place. Otherwise, the mere playing of a purchased CD containing copyrighted music is reproduction, in fact, of the creative work product of the composer and performers and would be illegal. Certainly an absurd notion.

 

Going back to the mall again to review the circumstances of the person who used an MP3 recorder to copy the sounds emanating from the PA system, we find the same situation. The MP3 person may play his captured version of the music and while playing the music through his electronic equipment, a friend does the same as he did at the mall and records the music with another MP3 recorder or any other audio to digital device capable of such recording, and the argument goes on and on ad infinitum.

 

Now replace the Mall with the radio, TV, internet, or any other transmission media open to the public and we find the identical arguments prevail. Therefore, the mere receiving and possession of a reproduced copyrighted item is not offensive to the copy- right holder’s rights. Otherwise, we’d have to shut down all speakers, radio, TV, or any other transmission forms because the mere act of listening would beget the act of receiving and possessing of reproduced copyrighted matter and thus offensive to the copyright holder’s rights even though no price was paid by the listener.

 

The problem the RIAA is faced with, and the reason it isn’t going after the peer web sites, is the fact that the peer web sites have presumably purchased legitimate copies sitting on the web site’s public accessible storage media which constitutes neither reproducing, publishing, or selling. The legitimately purchased copyrighted material is sitting in or on a public viewable storage area which anyone can access and cause the reproduction of anyone of the musical selections stored therein or thereon in much the same way the mall reproduced the CD’s they purchased for all to hear who access the public space of their mall. The people downloading/reproducing the public assessable music can either listen to it as it is downloading or store it on another media to be able to listen to it at another time, much the same as the person who recorded the public available music at the mall.

 

No matter how many angels dance on the head of a pin, such activity is neither theft nor an infringement upon the artist’s copyright protection. In fact, it is free advertising for which the artist should be eternally grateful for the marketing boost.

 

As those of us in the software business are well aware, copy protection has never achieved its intended goal. While copy protection keeps rearing its ugly head from time to time, this author observes that in the long run, those who resist the temptation to copy protect their product end up with a better market presence and market share than those who don’t. If RIAA is in fact really concerned about the artists rather than enhancing the power of the major publishers and distributors of the recording industry over the artists, it may want to copy a page out of the successful software industry’s marketing strategies. Other­wise, some public service legal group needs to help those suffering from an assault by the RIAA to take the RIAA to task for fraudu­lently initiating a cause of action or threat thereto under the unfounded facade of a copyright infringement when no such legal premise exists to support such a claim. RIAA could be subject to a class action suite or it could be attacked on a counter claim for huge compensatory and punitive damages. The public needs to understand what is and what is not a copyright infringement.

 

When someone has a legitimate claim for being wrongfully damaged by wildly pervasive conduct, they will generally pursue a cause of action against those guilty of the offensive conduct with the deepest pockets. After all, the main function and purpose for the courts in the first place is to affect recompense for damages in fact. Free societies create courts for damage repair, not damage prevention. On the other hand, when an economically/politically powerful organization/agency wishes to curb pervasive conduct which it finds offensive and counter to its own economic or political goals, it mounts a feigned legal assault on the weakest and poorest of the lot with Gestapo like intensity simply to instill fear. The public seeing the children and the elderly being assaulted for their seemingly undesirable conduct and them­selves cease and desist such conduct. But what the public fails to recognize is that those being assaulted by said organization/agency all settled out of court for the simple reason that they, the defendants, had neither the resources nor the intellectual capacity to fight the issue in the courts, and thus the matter has not been settled as a matter of law. It simply amounts to nothing more and nothing less than a defacto public policy instituted by Gestapo like fear to fraudulently maintain a monopolistic economic advantage which itself is unlawful.

 

Consequently, when we the public observe any organization/ agency attacking the economically challenged segment of society for the fear factor it instills in society as a whole, the public should first realize that the mere assault on the poor and weak is itself evidence that the law does not prohibit the conduct the organization/agency is attempting to curtail and second, the public is duty bound to realize that such a feudal assault is really a feudal assault on the public itself and take whatever legal measures necessary to eliminate any and all such offenses against the public’s liberties. The RIAA’s assault on the dependent children is a prime example of the above described misuse of economic/political power. The public needs to understand what liberties attach to purchased property and what is and what is not an infringement on someone’s copyright and/or property rights.

 

Poor Clyde

 

2003

1 Comment on A CRITICAL LOOK AT COPYRIGHTS

  1. Max Taylor says:

    Nice article as are all of yours. Thank you for taking the time to research and write it.

    A couple of thoughts though.

    First paragraph:

    “… commercial interference…”

    This implies that it falls under the UCC and is therefore governed by Commercial Law.

    Second paragraph:

    “If a person were walking in a mall listening to music over the public sound system…”

    As you may well know, in legalese, a “person” is a reference to a Corporate entity and not a living breathing individual. Since the “Uniform Commercial Code” only applies to corporate entities [fictions] and not to living individuals then how can copyright infringement laws be enforced against any living individual? That law simply does not pertain to them.

    This may sound a little vague on my part as I have a lot more to study regarding how the world of commerce works, what applies to it and what it applies to but it is my understanding, after much research, is that the laws of commerce only actually applies to fictional entities [corporations].

    Just some thoughts. Keep up the good work.

    Max

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