Comments on: You Can’t Resell That CD http://williamfrantz.com/wp/99 I work for Qualcomm but these opinions are my own. Thu, 20 Jan 2011 23:23:35 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: wfrantz http://williamfrantz.com/wp/99/comment-page-1#comment-23073 wfrantz Fri, 23 May 2008 19:25:33 +0000 http://williamfrantz.com/wp/99#comment-23073 <p>The jury in Jammie Thomas' case was told that merely making a copyrighted song available in a shared folder amounts to infringement. Now judge Michael Davis may grant a new trial because on further consideration, those instructions maybe wrong.</p> <p>http://news.cnet.com/8301-13578_3-9945643-38.html</p> The jury in Jammie Thomas’ case was told that merely making a copyrighted song available in a shared folder amounts to infringement. Now judge Michael Davis may grant a new trial because on further consideration, those instructions maybe wrong.

http://news.cnet.com/8301-13578_3-9945643-38.html

]]> By: wfrantz http://williamfrantz.com/wp/99/comment-page-1#comment-23072 wfrantz Fri, 23 May 2008 18:30:37 +0000 http://williamfrantz.com/wp/99#comment-23072 <p>A little more research reveals why my analysis of 17 USC 106 is off. It appears that in a later section, 17 USC 109, the law re-establishes the right to resell or trash copyrighted works. The law basically says, "you can't do X" then later says "you can do X". I guess this is why I shouldn't be an armchair lawyer. The law just doesn't make sense.</p> <p>Why can't Jammie Thomas in Minnesota cite 17 USC 109 and claim the right to redistribute the copy that she got from somebody else? Then the RIAA would have to prove that Jammie gave away more copies than she received.</p> <p>In other words, as a P2P user, I can claim every copy of every work that I download was a legal transfer of ownership from the previous owner to me. I can't help it if the previous owner (illegally) kept a copy for themself when then sent it to me. Furthermore, if somebody takes the file from me, I will delete my copy so as to comply with 17 USC 109. Of course I might go fetch another copy of the same work from somebody else, but I'm free to do that. Now the RIAA has to track every transfer in/out of my computer and show that I have sent out more copies than I have the legal right to "resell".</p> <p>It seems that, as long as the total copies in circulation do not exceed the total copies published, then there is no distribution infringement. Furthermore, even if you can prove circulation exceeds publication, you can't really identify who is making the extra copies vs. who is abiding to 17 USC 109.</p> A little more research reveals why my analysis of 17 USC 106 is off. It appears that in a later section, 17 USC 109, the law re-establishes the right to resell or trash copyrighted works. The law basically says, “you can’t do X” then later says “you can do X”. I guess this is why I shouldn’t be an armchair lawyer. The law just doesn’t make sense.

Why can’t Jammie Thomas in Minnesota cite 17 USC 109 and claim the right to redistribute the copy that she got from somebody else? Then the RIAA would have to prove that Jammie gave away more copies than she received.

In other words, as a P2P user, I can claim every copy of every work that I download was a legal transfer of ownership from the previous owner to me. I can’t help it if the previous owner (illegally) kept a copy for themself when then sent it to me. Furthermore, if somebody takes the file from me, I will delete my copy so as to comply with 17 USC 109. Of course I might go fetch another copy of the same work from somebody else, but I’m free to do that. Now the RIAA has to track every transfer in/out of my computer and show that I have sent out more copies than I have the legal right to “resell”.

It seems that, as long as the total copies in circulation do not exceed the total copies published, then there is no distribution infringement. Furthermore, even if you can prove circulation exceeds publication, you can’t really identify who is making the extra copies vs. who is abiding to 17 USC 109.

]]> By: wfrantz http://williamfrantz.com/wp/99/comment-page-1#comment-23068 wfrantz Fri, 23 May 2008 18:00:04 +0000 http://williamfrantz.com/wp/99#comment-23068 <p>Another Judge says that the First Sale Doctrine trumps DMCA. I wonder if this also means that First Sale Doctrine trumps 17 U.S.C. 106(3).</p> <p>http://arstechnica.com/news.ars/post/20080523-court-smacks-autodesk-affirms-right-to-sell-used-software.html</p> <p>Autodesk tried to argue that eBay merchant, Timothy Vernor violated the terms of the End User License Agreement by reselling copies of AutoCAD. The Judge ruled against Autodesk. I don't know why Autodesk did not try to cite 17 U.S.C. 106(3) and claim Tim was violating their exclusive rights to distribute or transfer ownership.</p> <p>More on First Sale Doctrine: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=210&invol=339</p> Another Judge says that the First Sale Doctrine trumps DMCA. I wonder if this also means that First Sale Doctrine trumps 17 U.S.C. 106(3).

http://arstechnica.com/news.ars/post/20080523-court-smacks-autodesk-affirms-right-to-sell-used-software.html

Autodesk tried to argue that eBay merchant, Timothy Vernor violated the terms of the End User License Agreement by reselling copies of AutoCAD. The Judge ruled against Autodesk. I don’t know why Autodesk did not try to cite 17 U.S.C. 106(3) and claim Tim was violating their exclusive rights to distribute or transfer ownership.

More on First Sale Doctrine: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=210&invol=339

]]> By: wfrantz http://williamfrantz.com/wp/99/comment-page-1#comment-22276 wfrantz Wed, 30 Apr 2008 22:46:33 +0000 http://williamfrantz.com/wp/99#comment-22276 <p>Another Judge Says Music Sharing Doesn't Necessarily Equal Infringement http://blog.wired.com/music/2008/04/judge-says-musi.html</p> Another Judge Says Music Sharing Doesn’t Necessarily Equal Infringement http://blog.wired.com/music/2008/04/judge-says-musi.html

]]> By: wfrantz http://williamfrantz.com/wp/99/comment-page-1#comment-15406 wfrantz Tue, 16 Oct 2007 02:18:16 +0000 http://williamfrantz.com/wp/99#comment-15406 <p>The defense is asking the judge to overrule the award. http://www.wired.com/politics/law/news/2007/10/copyright</p> The defense is asking the judge to overrule the award. http://www.wired.com/politics/law/news/2007/10/copyright

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