Do you download music? (from sites like napster)

Discussion in 'General Discussion' started by audiokid, Sep 18, 2003.

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  1. ciminosound

    ciminosound Guest

    I download songs from time to time. I burn CDs to play between sets at sound gigs that I do. To me this isn't too different than playing House Muzak from whatever service they subscribe to. (I know the services report exactly what they're playing. My CD's are very similar to some of the channels, just in a different order and "paced" for 1st break, 2nd break...) I prefer to play something that fits the bands better than pre-programed stuff. The venues I work at already pay ASCAP, BMI, et.al. for the right (license) to play music.

    I can honestly say I don't download for personal use. If I actually like a tune I will go buy the CD. I like to get a complete picture of what the artist is doing and I like to support the artist. Besides by the time you download, burn, download and print out the jacket is it that much cheaper? I don't know what you guys make an hour but I have better things to do with my time......
     
  2. pmolsonmus

    pmolsonmus Well-Known Member

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    Location:
    Wisconsin
    Kurt,
    I don't want to start a flame war or anything remotely close. I really respect your input on this website and the good it provides. But...using your carnival analogy. I pay income and real estate taxes and yet I don't get welfare, my house hasn't needed firemen yet, I haven't really declared war on anybody for the use of our military and the expense it requires. And while I know these are gov't agencies that I don't USE I still have to pay taxes. Should the RIAA have the same priveledges as other agencies? In essence, its an aspect of their product to license for good or bad. Should pros get a tax break on the purchase of said media - ABSOLUTELY. But for that, my friend, you need money and some friends in Washington. (They don't call it capital hill for nothin'- you definitely need some capital!) And the best way to do that is to become vocal, organized and affluent. Perhaps this website could be the grassroots beginning of that lobby.
    Peace. :p:
    Phil
     
  3. Rod Gervais

    Rod Gervais Active Member

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    Ok - i read the above, but today i did something i haven't done before now - i actually went and read (at the RIAA website) what they're doing... "technically" they are persuing the "pusher"

    They are not setting up scams to try to get anyone to illegally download music from them - but they are looking for the "givers" on the PTP network.......

    So they are targeting the pushers vrs the users...

    Unfortunately the pushers are often little kids... and are certainly not king a profit at this - however - then again - the illegal gift of a drug is still a crime (seeing as we began with that analogy)

    rod
     
  4. TheRealWaldo

    TheRealWaldo Guest

    Rod, I'm referring to the Berne convention, in which your country is also signed.

    Obviously it has to be 'tangible', or it couldn't have been 'created'.

    How would anyone copy it if it wasn't tangible?

    And don't say 'oh, they'd overhear you playing it', public performances are covered by copyright law as well ;)

    W.
     
  5. mjones4th

    mjones4th Active Member

    Joined:
    Aug 15, 2003
    If you're allergic to opinion, please skip this post.

    mitz


    Uncle,

    If there is a law that says such theft is 'legal' does that make it morally right, or at the least, not wrong?

    The first corportations were blatant thieves. Theft to me is much more subtle than going to a store and lifting a candy bar. We bought Long Island for $24. Is that theft to you? It is to me.

    When an artist has lost rights to his own music, that is theft to me, even if he did so willingly, for pay, because he had no other choice.

    **** a law. What about morality, what about God's law? What about fair dealing because you have a conscience. To me the record companies are no less guilty than the P2Pers.

    An artist, if successful, pays his own production costs from his profits. If not successful, then he pays it from his pocket. In my eyes, the record company buys his product for a song and sells it to us for fifty songs (or whatever currency you use), whilst he is very poorly compensated. This, to me is akin to asian sweat shops. Not in the same ball park, but similar concept. While not illegal, and definitely desirable, it is definitely a morally bankrupt practice.

    To me, record companies are venture capital companies, who, through trickery, have managed to stack the deck so well that they basically transfer most risk and all costs to the lendee (if you will). To me they face the same risk as any other venture capital lender. The risk that the business venture will fail and they lose their investment.

    Not only that, but they have guaranteed their old way of business by monopolizing all outlets to music except the internet, that's why they're so scared of it. But its at least five years away from being a viable threat IMO. Best believe they recognize it and are moving to neutralize it.
     
  6. jroberts

    jroberts Guest

    There's always a choice. Look at Ani Difranco. Look at any of the thousands of independent artists that have creative control over thier music and make a decent living at it. These days, it's easy and cheap to tap into distribution channels that were unimagined a decade ago. Sure, you probably won't be on the cover of Rolling Stone or People magazine or become a "superstar" without signing to a mjor label with a huge marketing budget, but there's always a choice.

    You're really just saying that capitalism is theft. I disagree, but that's a whole different issue.
     
  7. mjones4th

    mjones4th Active Member

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    Not exactly. Capitalism itself is an idea. America's implementation of capitalism is based solidly upon theft. We stole the damn land we're standing on.
     
  8. Kurt Foster

    Kurt Foster Well-Known Member

    Joined:
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    Location:
    77 Sunset Lane.
    Some additional points and replies;

    Rod the answer lies within; “(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The key to this is the part where it says “in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated” When it says “which they can be perceived”, which in my opinions would be any performance of the song. So essentially, the description covers just about any scenario. As Waldo pointed out, once the song is composed, it is considered copywriter unless the song only resides within the writers mind and had never been expressed or performed, regardless whether it has been performed in public or in private.

    ********************
    Phil,
    You do benefit from the infrastructure the city provides, sewer, water, roads, schools, libraries etc. and you (and all of us) benefit from the technological developments that military spending produces. One only has to look as far as the medium we are currently communicating across for a perfect example of this.

    Your idea of a tax deduction is a good idea as long as you show a profit but you have to make money to claim a deduction. I still think a media “surcharge” is a good idea but I also still think that producers of original material should be exempt.

    ***************************

    Rod,
    I saw on the news the other night that they are going after anyone who has downloaded more than 1000 songs. This is what I was referring to. Kurt
     
  9. Rod Gervais

    Rod Gervais Active Member

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    Kurt,

    As much as i respect you and your opinion..... I have to dissagree on this one...... a simple unrecorded performance is not a tangible thing... I cannot touch it - i cannot see it - it is fleeting - it is there one split second and gone forever the next........ The federal requirement is explicit and it states: "any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." I stipulate that an unrecorded preformance - public or private - does not meet the requirements.

    Waldo - you are right - any public performance is copywrite protected - which is to say - if you perform in public - you have instant rights to that - i cannot record that and claim it as my own - once again - a record copy makes it yours - however - if you were to sing a little ditty - that you never placed on paper - and it was not recorded at the performance - and i remembered it - without that being in your possession - IN TANGIBLE FORM - it is not copywrite protected......... I am sorry - the creation itself is not enough - there must be a physical - TANGIBLE form of this somewhere.

    Rod

    [ September 26, 2003, 08:33 AM: Message edited by: Rod Gervais ]
     
  10. Rod Gervais

    Rod Gervais Active Member

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    Kurt, if you do not have your computer set up for peer to peer file sharing - they cannot tell how many songs you have downloaded. It is not physically possible.

    What they are doing is going out looking for anyone who is offering to share - and is thus considered a "supplier" (by them) that has in their possession (in their "shared file") 1,000 files or more.

    You call this a user (as do i personally) they call it a pusher because they allow others to download from their machine.

    If one turns off the sharing - and just downloads - they aren't able to (can't) touch them.

    Rod
     
  11. jroberts

    jroberts Guest

    That is absolutely correct. Kurt, the problem with your explanation is that you have ignored the word "tangible".
     
  12. Rod Gervais

    Rod Gervais Active Member

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    Waldo,

    I respect you as much as anyone here.. but i beg to differ my friend,

    I have read the Berne Cenvention and would quote you the following:

    Article 2...... subsection (2)

    "It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form."

    A simple public (or private) performance is not "fixed in some material form". There is no physical (material) form to a performance.

    Also:

    Article 3... Subsection (3)

    " The performance of a dramatic, dramatico-musical, cinematographic or musical work , the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication. "

    (The bold is mine to create clarity in my point)

    I don't feel that anything i presented is not in holding with either US copywrite laws or the Berne Convention

    They would be protected against my recording their performance and selling copies of that for profit - because THE PREFORMANCE ITSELF IS COPYWRITED - however the performance itself does not instantly grant copywrite to individual pieces of the performance.

    Respectfully,

    Rod

    [ September 26, 2003, 09:59 AM: Message edited by: Rod Gervais ]
     
  13. TheRealWaldo

    TheRealWaldo Guest

    Rod, I've never seen documentation/legislation stating that the US opted to not protect unfixed material (i.e., intellectual property). If you could point me to that, it would be helpful.

    As far as 3,3, performance and publication differ, and is only part of the paragraph 'The expression "published works" means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work.' Being so, it's unrelated. Performance rights are covered elsewhere.

    W.
     
  14. Rod Gervais

    Rod Gervais Active Member

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    Waldo,

    the following is taken directly from the US Govt site:

    "When is my work protected?
    Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device."

    You can view this yourself at this link:

    http://www.governmentguide.com/govsite.adp?bread=*Main&url=http://www.governmentguide.com/ams/clickThruRedirect.adp?55076483,16920155,http://www.loc.gov/copyright/

    As far as item 3.3 goes - i went back and re-read that section -- and i will agree that i was viewing it out of context..... please accept my apology.

    I would point out that the position of the US Govt on this is consistent with the Bernes Convention....... the work must be created and then fixed in a tangible manner.......

    Under the definitions of the actual "Copywrite Law of the United States of America" which is located in Chapter 17 of The United States Codes, Chapter 1, Section 101 - entitled "Definitions" I quote:

    A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

    If it is not fixed - legally it is not created........ so doing it in your mind and playing it back to yourself does not meet the requirement.

    I further quote:

    A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

    And that puts it to bed....... Joe preforming in the park - puts together a little song on the spot - and sings it in public........ this is not copywrite protected material unless it is recorded in some manner during the transmission.

    You can view the above quotes at:

    click here

    I also think that i have somehow "hijacked" this thread - and for this i apologize to those involved.

    Thus - if anyone wishes to continue this - please feel free to PM me - but i think we should let Chris have his thread back.

    Rod

    [ September 27, 2003, 07:42 AM: Message edited by: Rod Gervais ]
     
  15. TheRealWaldo

    TheRealWaldo Guest

    Well it's been some time since I've checked out US copyright law, but the Berne convention provides the 'choice' to each of the signed countries. I.e, a country choosing to say the material must be recorded or not is flexible.

    As far as 'definitions', that's fine, but simply defining what they mean by 'create'. Could you site the specific section of the document pertaining to musical works that states 'the work is copyrighted only when it is created'?

    BTW: http://www.loc.gov/copyright/ is the official location, even though the disclaimers will tell you that nothing is to be considered accurate, and to contact lawyers for accurate information ;)

    Also, I think this is very relevent to the subject, so keep on posting, we all need education!

    W.
     
  16. TheRealWaldo

    TheRealWaldo Guest

    P.S., make sure you refer to 'Performing Arts', and not 'Recorded Media', or 'Sound recordings'. They are seperate entities.

    W.
     
  17. TheRealWaldo

    TheRealWaldo Guest

    Ack, sorry, going in circles.

    Spoke to a lawyer (friend of mine), he states that yes, if you write a song, and do not 'publish' or 'record' it, yet someone overhears you playing it, and copies that, you can go after them under copyright law, even if the copyright is not registered.

    However, without a registration, it would be difficult to go after that person.

    You can also register a copyright for an un-published, un-recorded work, by providing written material to the copyright office. This of course improves your chances of winning in the event of a breech.

    Anyhow, I guess it's all in how you 'interpret' the law. Technically, if you made it, it's copyrighted, and you're the owner. Proving it is a whole 'nother boat.

    W.
     
  18. Rod Gervais

    Rod Gervais Active Member

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    I agree with your lawyer friend - but read carefully what you just said, you have to "write" the song - you have to commit it to some "tangible" form of medium - and then, as long as you meet the remaining requirements established under law.... you have the protections established under the law.

    This (again) is direct from the Govt Site:

    "§ 102. Subject matter of copyright: In general 26"

    "(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

    (1) literary works;

    (2) musical works, including any accompanying words;

    (3) dramatic works, including any accompanying music;

    (4) pantomimes and choreographic works;

    (5) pictorial, graphic, and sculptural works;

    (6) motion pictures and other audiovisual works;

    (7) sound recordings; and

    (8) architectural works."

    This is the Staute itself...not my interpretation of it..... and while using this you have to then go back to reading the definitions (they are put there to properly interpret the law) and using them.

    Understand - it appears to me that you are viewing the definitions as something that could be argued against under interpretation of the law... but this is not the case - they are not something of an "aside" from the law - they are incoprporated into and are a part of the law.....
    This is not the case of the FAQ section of this site - which is basically meaningless in a court of law....... the definition section is just that:

    Chapter 1
    Subject Matter and Scope of Copyright
    101. Definitions
    102. Subject matter of copyright: In general


    Note that these 2 sections of the Statute i have been using to make my point are the actual law... not fluff.

    Thus:

    The material has to be "fixed" in accordance with the law.

    A person performing something in public which is off the cuff and not "fixed" - for example: if it is not recorded in some manner or has not been previously put down on paper - or some other fixed medium - does not automatically possess a copywrite of that material, not in the legal sense of the term anyway.

    Could this person afterwards place this on paper, meeting the requirements described under the code and bring witnesses forward to back his claim to copywrite ownership - and win in a court of law?

    The answer is "possibly"....... but he is LEGALLY then placing the cart after the horse....

    The requirements of the law are very specific:

    1.) It must be an original authorship.
    2.) It must be fixed in any tangible medium of expression.

    If it does not meet any one of the requirements - it does not pass muster.

    The law then goes on to define what it means by those terms..... and note that "A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

    I still have to maintain that a simple performance in the park - that is not recorded in some manner - is a fleeting thing - with a transitory duration. It does not meet the requirements of "fixed" as defined under the law.


    No matter that i personally find this to be morally wrong....... it is a matter of law - not morals.

    Please read for yourself...... I see no protection (especially in the area of the arts) for intellectual ownership.

    Seeing as you asked to keep this going here - i welcome your response,

    Sincerely,

    Rod
     
  19. TheRealWaldo

    TheRealWaldo Guest

    I see what you are saying, however, there is differences to point out.

    Copyright
    Registered Copyright
    And Proof of Copyright (evidence)...

    Copyrights exist when you are the inventor of a musical work, regardless of what form they are in.

    Registered Copyright is when you've filed with your government a tangible copy of that work (whether it be recorded, written, sheet music, etc.).

    And evidence, well, either having it registered, or in tangible form is the only thing you got.

    Needless to say, I have sat in on cases here (Canada) where people have won without registered copyrights, and only a scribbled on napkin with lyrics... Of course, the napkin was from a place that had gone out of business before the 'infringment', so there was timeliness on his side, etc..

    I agree, a 'tangible' form is about the only way you could prove copyright ownership (as I stated above), but technically, your work is 'supposed' to be protected under intellectual property laws, even before it hits paper/discs... At least, according to the lawyer I spoke to.

    Anywho, I think we got all the information out that we can, the main point for everyone to seriously consider is, TALK TO THE LAW if you want absolute answers ;) Then, if they are wrong, you can sue them instead of us!

    W.
     
  20. Rod Gervais

    Rod Gervais Active Member

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    Central Village, CT
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    Waldo,

    This we can agree on 100%......... I am not an attorney...... and the best advice we can give anyone ultimately is to check with those who specialize in these laws.........

    Thanks for working through this with me...... i found the exercise very interesting.

    :p:

    Rod
     

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