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Lessig on Digital Barbarism

Lawrence Lessig has posted a review of David Halperin's recent book, Digital Barbarism.

Halperin, who authored the (in)famous New York Times article calling for perpetual copyright, has now compiled his ideas into a book. Lessig offers a much-needed critique, including citing misconceptions about Creative Commons (Halperin conflates it not only with "freeware" with software... more

 
Baby steps
Paul Jacobson · Johannesburg Gauteng (South Africa) · 4 comments
 
It frustrates me to no end that in this age of the iPod and a number of other portable audio devices that it is still technically illegal for a person who buys a CD to rip that music to his computer and then transfer that music to his iPod (or other portable device) to listen to the music on the go. I'm not talking about a person who distributes that music to half a million of his closest friends using a peer sharing network or some other illegal distribution channel. I am talking about a person who simply wishes to listen to the music on that CD on a device that is more convenient to him or which is his preferred device for listening to that music.

I had an opportunity to speak to a music publisher not too long ago about this and he told me that the industry tends to overlook these infringements of copyright and generally will not prosecute our hypothetical consumer, provided his infringement of copyright is limited to ripping the music for his sole and personal use.

I raised the possibility that the license conditions for the use of CDs be amended to permit ripping music from a CD to a computer or personal device for personal use and the response was that this would be possible if the copyright holders were entitled to collect a tax of sorts for every portable device sold that is capable of playing this music. I was referred to a system which I believe operates in certain European countries where this practice has been adopted. I have a difficulty with this approach because this tax (or charge or levy) is basically a penalty which is payable because consumers might pirate music.

I have a difficulty with this approach because on the one hand users who have no desire to pirate music are effectively branded pirates and made to pay a virtual admission of guilt fine and, on the other hand, amending their license terms to allow for this form of personal use is not going to open the door to a form of piracy that wasn't there in the first place, it simply legitimises a common practice among otherwise law abiding users.

Tobias spoke about this form of personal use in his article "Things you should know about copyright law" and made the point that allowing for this sort of personal use would violate one of the 3 prongs of the test of copyright law. That may be but I believe that if this is the effect of a measure to bring otherwise law abiding users in from the cold then perhaps the test needs to be revisited.

tags: johannesburg south africa policy-law copyright music copyright-infringement personal-use music-license content-licensing copyright-holder pirates


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Don't accept Tobias's reading of the 3 step test, TRIPS does not require all exceptions to go through the 3 step test anyway.

How would you word such an exception?
Andrew Rens · Cape Town (South Africa) · Jul 12th, 2007 2:20 pm
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The personal use exception? The current license wording on a CD is something along the following lines:

"All the rights of the producer and of the owner of the work reproduced reserved. Unauthorised copying, public performance, broadcasting and hiring out directly or indirectly of this recording is prohibited."

Perhaps something along the lines of:

"All the rights of the producer and of the owner of the work reproduced reserved. Unauthorised public performance, broadcasting and hiring out directly or indirectly of this recording is prohibited. Licensees of the work may make copies of the work by any means including without limitation by sound or visual recordings and the right of fixation and reproducing fixations of the work, including storage of a protected performance or phonogram in digital form or other electronic medium provided the making of such copies is solely for the exclusive private or personal use of the licensee. Save as set out above, copying the work is prohibited."

It is pretty rough but I drew on the definition of "reproduce" in the BY-NC 3.0 license.
Paul Jacobson · Johannesburg Gauteng (South Africa) · Jul 12th, 2007 3:09 pm
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your take: useful lame

Paul, I will deal with the three-step test in more detail in my next column at the beginning of July. You might want to read this. I just want to stress that I said in the article that you mentioned that such personal use COULD possibly violate the three step test. Whether or not this is the case has not been decided yet. But I agree with you that such an interpretation should trigger a revision of the three-step test. I also believe that Australia, for example, has dealt with the issue of format- and spaceshifting in its recent Copyright Amendment Act 2006 in more satisfactory way. As to Andrew's remark: There is growing number of people out there arguing that the three step test actually does apply to all exceptions and limitations and Senftleben has dealt with this issue quite extensively and convincingly in his book dealing with the three-step test. I am going to make short mention of this ongoing legal debate in my upcoming article.
Tobias Schonwetter · Cape Town (South Africa) · Jul 16th, 2007 10:45 pm
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Hi Tobias

Thanks for your input. I look forward to your next column.
Paul Jacobson · Johannesburg Gauteng (South Africa) · Jul 17th, 2007 12:06 am
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