Monday, December 06, 2010

"David" Collects Ammo For Battle With "Goliath"

Pertinent Laws and court rulings for R.O.I.O.
 [Be advised that much of this material is from pertinent Wikipedia files, and other than my fair use in illustrating my case (permission pending) all material is from their site. Links to the 3 articles drawn from are at the end of this post.]

(NOTE: The co-option of MY copyrighted musical works, by iTunes, Apple, Microsoft and Windows Media, and these entities assumption of legal basis for having done, and doing so, evidenced by the lack of licence exception for personally produced independent intellectual property,is a separate Class Action, with a MUCH more easily defined set of illegal infringements upon Independent Artists by the aforementioned media concerns.  It will be addressed forthwith.)

The Berne Convention for the Protection of Literary and Artistic Works has protected the copyrights on literary, scientific, and artistic works since 1886. Article 9 of the Convention states that: Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. [...] Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.[7]

Under the Berne Convention, when a composer puts a new song in a "fixed form," for example sheet music or an audio recording, copyright law grants them the exclusive right to control who may perform that song (called performing rights) as well as control over how any derivative work is used, such as a recording of a performance of that song. These rights are retained for at least 50 years after the composer's death (typically longer). In some cases, if the song being performed is in the public domain or is free content and is performed faithfully, no copyright is violated by recording it; however such a recording may still violate performers rights, a type of neighboring right that is recognized in many nations. Where they exist, performers rights may have a shorter duration than full copyright; for example, the Rome Convention sets a minimum term of twenty years after the performance.

Most artists have made little effort to pursue legal action about bootleg recordings, viewing such "rarities trading" as harmless provided that it is not being done for profit. The benefits of interfering with such trading are fairly minimal compared to the potential ill-will generated against the artist, as the illicit works are generally circulated among the artist's most loyal fans, which have the most interest. Most record companies also have not shown an interest in pursuing or prosecuting small-scale bootleggers, but this could change at any time.

In 2004 U.S. District Judge Harold Baer Jr. struck down a 1994 law banning the sale of bootleg recordings of live music, ruling that the law unfairly grants a seemingly perpetual copyright period to the original performances.[10] He dismissed a federal indictment of Jean Martignon, who was running a Manhattan mail-order and Internet business that sells bootleg recordings. The Recording Industry Association of America disagreed with the ruling, saying the decision "stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorized recordings of live performances", according to spokesman Jonathan Lamy.[11] In 2007, Judge Baer's ruling was overruled, and the United States Court of Appeals for the Second Circuit found that the anti-bootlegging statute was within the power of congress. 492 F. 3d 140
Fair Use Defense:

Turning to the question of fair use, the Circuit court agreed with the district court's "general analysis of Napster system uses" as well as with its analysis of the three "alleged fair uses identified by Napster" -- which were "sampling, where users make temporary copies of a work before purchasing; space-shifting, where users access a sound recording through the Napster system that they already own in audio CD format; and permissive distribution of recordings by both new and established artists."

The court first considered four factors on an abstract level of the system itself; of which #3 is salient, on point and now constitutes legal precedent and accepted case law:

3) They considered the potential that in some cases, wholesale copying of a work may be protected, noting time-shifting as an example.

The court then turned to the three uses Napster identified as fair use in the conduct of its users; of which, #s 2 & 3 are salient, on point and now constitute legal precedent and accepted case law:

2)  space-shifting, where users access a sound recording through the Napster system that they already own in audio CD format; here the District Court found that neither of the shifting analyses used in the Sony or RIAA v. Diamond Multimedia[9] cases applied in this case because the "shifting" in neither case included or enabled distribution. The space-shifting argument did not succeed because, while the shift to a digital format may have been a personal storage use, it was accompanied by making the file available to the rest of the system's users.

[NOTE: Such is NOT THE CASE IN THIS CASE, because in adhering to the legally accepted conditions of R.O.I.O. acquisition, as decided in this and "Sony or R.I.A.A v. Diamond Media", for the private users of "DimeADozen" aka: "EZTorrent"; "shifting" of R.O.I.O was allowed by the artists, who had absolute authority to ban any R.O.I.O. of any and/or all of their performances, ever, which policy was then rigorously adhered to by the Administration and "Moderators" of said site, including the prohibition of posting any incidence of a specific recording of a specific performance from a specific source, independent or not, that had EVER been commercially released in production quantities, bootlegged or not.

The digital file quality of the music comprising the only allowed format for tracking, "lossless" (.wav, .shn, .flac, .APE,.aiff etc) so completely demonstrated the recordings origins, through digitally irrefutable waveform analyses (even generations of cassette tape to cassette tape transfers were identifiable) that no recordings of any "for sale" files were allowed to be tracked, or accessed by users. Scrupulous records were kept, and vast databases of 'released' material maintained to guarantee the legality of both the site, and it's user's utilization thereof.]

[It might also be noted that most of the users were audiophiles who preferred the non-compressed audio quality of "lossless" recordings to the "tinny" timbre and 'lifeless' ambience of commercial (MP3) recordings, which comprised only 1/10 (10%) the audio data of the original recordings, the aforementioned (.wav etc.) 'lossless' digital (or analog) recordings.  Many of these recordings were from the musicians themselves, who agreed that archiving historically important recordings whose media (magnetic tape) had degraded beyond any sound recall, amongst aficionados who could not even fit 2 or 3 lossless CDs into an iPod (as opposed to hundreds of the 'junk' MP3 music files - the better to create profits for recording companies) constituted a type of digital "seedbank" as it were, of some of the most important music of the 20th Century.]

3)  permissive distribution of recordings by both new and established artists who have authorized their music to be disseminated in the Napster system, which the District Court ruled was not an infringing use and could continue, along with chat rooms and other non-distributory features of Napster.

By contrast, the court found that the owners of Napster could control the infringing behavior of users, and therefore had a duty to do so. (As IS BEING DONE ON DimeADozen) The Ninth Circuit affirmed this analysis, finding that the plaintiffs were likely to succeed in proving that Napster did not have a valid fair use defense.

Contributory Infringement
In order to prove contributory infringement, a plaintiff must show that a defendant had knowledge of infringement (here, that Napster knew that its users were distributing copyrighted content without permission across its network) and that defendant supplied material support to that infringement.

Knowledge.   The District Court ruled that the "law does not require knowledge of 'specific acts of infringement'"[1] and rejected Napster's assertion that, because they could not distinguish between infringing and non-infringing files, they did not have knowledge of copyright infringement. The Ninth Circuit upheld this analysis, accepting that Napster had "knowledge, both actual and constructive, of direct infringement."

(As noted above, every .torrent and every audio file submitted for tracking on "Dime" is subject to digital scrutiny far stricter than even Treasury counterfeit inspections - fake money spends the same, but no member of the Dime" community" would stoop to even lend an ear to the 'mass market' soundbytes that pass for commercial music these days, and that's a fact!)

Additionally (pursuant to slight differences between the lower court's & the Ninth Circuit's Appeal ruling): 
Unlike Judge Patel, the Ninth Circuit accepted that "Religious Technology Center v. Netcom" might be relevant. Based on that case:

"We agree that if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement. ... Conversely, absent any specific information which identifies infringing activity, a computer system operator cannot be liable for contributory infringement merely because the structure of the system allows for the exchange of copyrighted material."

The "Vicarious Infringement" claims are inapplicable to Dime, because it is solely vonuntary donation supported.


In its defense against the injunction, Napster also cited the Audio Home Recording Act (17 U.S.C. §§ 1001-10).[10] and the Digital Millennium Copyright Act's safe harbor clause (17 U.S.C. § 512).[11] The Ninth Circuit agreed with the District Court's finding that downloading MP3 files is not covered by the Audio Home Recording Act. The Ninth Circuit disagreed slightly with the District Court on the safe harbor issue, however, finding that the contributory infringement does not necessarily exclude a party from safe harbor protection. The court held that the safe harbor issue would be explored further at trial.[1]
(NOTE: lossless digital recordings of "tape" sources, ARE COVERED BY THE ACT, and legal for home use!)

Criticism and Impact
Among a number of amicus briefs filed on behalf of both sides of the dispute, one particularly critical brief filed by a consortium of eighteen copyright law professors at United States universities argued that the District Court misread Sony and took too narrow a view of fair use. They wrote:

"Napster is the best-known example of a new technology deploying what has come to be called peer-to-peer networking, a system in which individuals can search for and share files that reside on the hard drives of other personal computers connected to the Internet. Peer-to-peer file sharing allows individuals to bypass central providers of content and to find and exchange material with one another. The decentralized model of peer-to-peer networking poses a significant challenge to sectors of the entertainment and information businesses that follow a model of centralized control over content distribution. However, this is not the sort of challenge that copyright law is designed to redress. The district court’s ruling would ban a new technology in order to protect existing business models, and would invoke copyright to stifle innovation, not to promote it.[12]"

The professors further argued that the overbroad nature of the injunction threatened the development and deployment of any future peer-to-peer file-sharing network on the Internet because it insisted on a restructuring that defeated peer-to-peer technology itself. They also argued that the finding of contributory liability was erroneous because of Napster's significant non-infringing uses and because not all unauthorized uses within the system were infringement. They concluded, " If Plaintiffs want copyright law extended to allow the suppression of new technologies, they must make their case to Congress."[12]

I fully intend to distribute copies of this precis (with the permission of WikiPedia, of which I am a member) to all these Professors in furtherence of my Class Action suit.

DimeTOS:Bootleg Sellers
From DimeWiki
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DIME has a zero-tolerance policy against the sale of bootlegs. Collecting revenue for the works of performers without proper compensation to them is unethical and impardonable.
Users lose access to the tracker if they are found to be engaged, involved, or cooperating in the sale of bootlegs, whether or not any of their offerings can be traced to DIME torrents. Any donations they had made are forfeited.

Dubitable cases will be resolved ex cathedra by DIME management. Use of DIME is neither a civil right nor a necessity to life, and management reserves the right to refuse access to anyone for any reason at its sole discretion.

Wikilinks to sources of materiel used:,_Inc._v._Napster,_Inc.

1 comment:

  1. Make your own music but Windows Media won't let you burn it?
    Collect lossless audio because you can't stand the sound of MP3s?Anyone who has cause to believe they are part of a "Class" of Artists or Audiophiles harmed by "Big Media" policies and practices is welcome read the proposals ("Fair And Final Warning" & "David & Goliath", posted on my blog at:

    to join this action, and one on behalf of independent Composers, Artists, Musicians, Technicians and Producers soon to follow as well. My plans are to use all proceeds that may come to me to start "I.A.M.O.K." Independent Artists Musicians & Originals Kampus. A 501.c non-profit composing, rehearsing, recording, publishing, producing, distributing, promoting advertising, educating and Internet/Radio facility. All labor, fees and equipment shared for the common purpose of
    Independent Music Production and Appreciation. All copyrights to remain the Artist's. I have looked, but not found anything quite like what I propose. 'Bout time for a resurgence of '60s radicalism and communal effort again. Never forget: addled anarchist hippies stopped a war, ended the Draft and assisted the diabled, minorities and women as they gained 'some' more equal rights. Its a retro thang: "Power To The People & Keep The Faith"