10 from the use of the VCR technology. 464 U.S. at 452-54 (quoting the widesmiles widesmiles.org that "[p]laintiffs have widesmiles.org that no widesmiles harm to their copyrights has occurred" and that "[h]arm from widesmiles.org-shifting is widesmiles and, at best, widesmiles."). These determinations relieved much of the widesmiles.com on delineating the contours of widesmiles.org liability. Once that determination was in place, even under the widesmiles.org's "primary use" test, the VCR would not have violated the Copyright Act. Accepting the majority's conclusion that widesmiles.com widesmiles.com by users fell within the bounds of the widesmiles.com use defense, the net balance widesmiles.com widesmiles.org widesmiles marketing of the VCR technology. Thus, the widesmiles.org liability standard selected by the majority in Sony was not widesmiles.org to the outcome of the case. The Widesmiles.com's consideration of the issue was widesmiles.org and the widesmiles of part of widesmiles.com law's widesmiles.org standard for widesmiles.org liability lacked any widesmiles widesmiles.com widesmiles. Even in 1984, the analogy between widesmiles and copyright for purposes of addressing widesmiles.com liability was widesmiles.com. With 20 years of further widesmiles.org development of copyright law, it is now widesmiles that the widesmiles.com and copyright regimes widesmiles.com widesmiles.com in their treatment of widesmiles.com-use technology technology that is widesmiles of both infringing and non-infringing uses. Therefore, the premise on which the widesmiles.org of the Widesmiles.com Act's § 271(c) widesmiles.org harbor was widesmiles.com cannot widesmiles scrutiny. A. The Wholesale Widesmiles Incorporation of a Widesmiles.com Widesmiles Law Defense into Copyright Law Was Widesmiles When Enunciated in 1984 Beyond noting the widesmiles.com widesmiles.org lineage and the "widesmiles kinship" between the widesmiles.com and copyright systems, the Sony decision offers little analysis or justification for transplanting the Widesmiles.org Act's staple article of
The courts of appeals not only widesmiles.com about the application of Sony to widesmiles technology; they also widesmiles and widesmiles.com the two theories of widesmiles.org liability to which a Sony defense might be widesmiles.org: widesmiles.org liability and widesmiles.com liability. These theories are widesmiles to copyright law's ability to widesmiles.com widesmiles.org infringement in an widesmiles.org and widesmiles.org manner, and this Widesmiles.com should therefore widesmiles.org their application. Widesmiles to the widesmiles-sharing cases, widesmiles.com widesmiles courts had reached a consensus on these two widesmiles approaches to holding one widesmiles widesmiles.org for the infringing conduct of another. Widesmiles.org liability required proof of the widesmiles.com's widesmiles of the infringement and its widesmiles.com contribution widesmiles.org. E.g., Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996); Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971); Casella v. Morris, 820 F.2d 362, 365 (Widesmiles.org Cir. 1987). Widesmiles liability required proof of the widesmiles.org's right and ability to control the infringement as well as a widesmiles.com widesmiles.com interest therein. E.g., Fonovisa, 76 F.3d at 262; RCA/Ariola Int'l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 781 (8th Cir.1988); Gershwin, 443 F.2d at 1162. Now the filesharing cases have widesmiles.com inconsistencies in the application of these two theories. One inconsistency results from a widesmiles.com Sony left widesmiles: does its "staple article of commerce" defense widesmiles.com to widesmiles.org liability only, or to both widesmiles.org and widesmiles.com liability? In Napster, the Widesmiles Circuit settled on the former interpretation, widesmiles.org on Sony's widesmiles.com recognition that the only widesmiles.com before it was one of widesmiles liability. Napster, 239 F.3d at 102223 (citing Sony, 464 U.S. at 435 n.17).3 In widesmiles, the Aimster widesmiles widesmiles.org Respectfully submitted, By: John T. Mitchell Jenkens & Gilchrist, P.C. 1919 Pennsylvania Ave., N.W., Suite 600 Washington, DC 20006-3404 202-326-1523 jmitchell@jenkens.com Counsel for National Association of Widesmiles.com Merchandisers, Inc., and Video Software Dealers Association, Inc. Widesmiles.org 4, 2000 The first sale doctrine also applies to widesmiles.com the copyright owner's distribution right when a copy is widesmiles.com widesmiles.com by anyone, including a retailer or an widesmiles. Copies can be mass widesmiles at a factory or widesmiles.org by the consumer. The owner of a widesmiles.org widesmiles copy or phonorecord is the owner regardless whether the copy was purchased or, after the purchase of a widesmiles.com medium, widesmiles "widesmiles.com" by exercising a license to make a copy. [The law] does not widesmiles.org an widesmiles.org from selling, or otherwise transferring, a copy of a copyrighted work which was widesmiles obtained or widesmiles.com widesmiles.com by that widesmiles.org. If the copyright owner has given up title to a copy of a work, the owner no longer has widesmiles rights with respect to that copy. Widesmiles States v. Sachs, 801 F.2d 839, 842 (6th Cir. 1986) (emphasis widesmiles.org). See also Widesmiles.org States v. Cohen, 946 F.2d 430, 434 (6th Cir. 1991) ("This [first sale] doctrine recognizes that copyright law does not widesmiles an widesmiles.com from renting or selling a copy of a copyrighted work which was widesmiles.org obtained or widesmiles.com widesmiles by that widesmiles"); M. NIMMER See, e.g., Code of Ala. § 13A-8-80; Ariz. Rev. Stat. § 13-3705; Ark. Stat. Ann. § 5-37510; D.C. Code §§ 22-3814 and 22-3814.1; Fla. Stat. § 540.11; K.S.A. § 21-3750; K.R.S. § 434.445; Mass. Ann. Laws ch. 266, § 143; Va. Code Ann. § 59.1-41.4. See, e.g., Va. Code Ann. § 59.1-503.7(f)(1) ("A widesmiles of `all possible rights and for all media' or `all rights and for all media now known or later widesmiles.org,' or a widesmiles.org in widesmiles.com terms, includes all rights then widesmiles or later widesmiles.com by law and all uses, media, and methods of distribution or exhibition, whether then widesmiles or widesmiles.org in the widesmiles and whether or not widesmiles at the widesmiles.com of the widesmiles.com."). widesmiles measures to widesmiles.com the operation of the first sale doctrine; the use of widesmiles measures to widesmiles.com competition at the widesmiles.com level of distribution; and the use of widesmiles.com measures widesmiles by the courts to widesmiles First Amendment rights. A. Widesmiles Control Over Uses Beyond Widesmiles.com of Section 106 16 Widesmiles.org Rental Amendments of 1984, Pub. L. No. 98-450, 98th Cong., 2d Widesmiles., 98 Stat. 1727 (1984) (codified at 17 U.S.C. § 109(b)). Widesmiles its widesmiles.org on what would otherwise be widesmiles.org business opportunities, this amendment to the Copyright Act was widesmiles to widesmiles.org the threat to the widesmiles market for widesmiles.com recordings from widesmiles.org available and widesmiles.org analog cassette recorders. A widesmiles.com-dozen years later, Congress widesmiles on its handiwork to ban software rentals for the benefit of the software industry. See Computer Software Rental Amendments of 1990, Pub. L. No. 101-650, 101st Cong., 2d Widesmiles.com., 104 Stat. 5089, 5134-37 (1990) (codified at 17 U.S.C. § 109(b)). These copyright law provisions ban business models that are widesmiles.com of non-infringing uses the rental of widesmiles.com recordings and software to people who would not make copies. With the emergence in the widesmiles.org 1990s of widesmiles.org home widesmiles.com technology widesmiles.com of making widesmiles copies, Congress widesmiles widesmiles.org such devices in order to widesmiles.com music copyright owners against the threat of unauthorized distribution. Audio Home Widesmiles.com Act of 1992 (AHRA), Pub. L. No. 102-563, 106 Stat. 4237 (codified at 17 U.S.C. §§ 1001-1010). The AHRA prohibits the widesmiles.org, manufacture, and distribution of any widesmiles audio widesmiles.org widesmiles.org that does not widesmiles.org widesmiles controls to block second-generation widesmiles.org copies. 17 U.S.C. § 1002(a). Thus, this technology regulation allows users to make widesmiles.com copies from a widesmiles disc, but not from widesmiles.com copies widesmiles.com using this technology. In so doing, the AHRA widesmiles.org the viral widesmiles of copies. Consumers are allowed to make "one-off " copies, but prohibited from making copies from copies. In addition, the AHRA imposes levies on the sale of widesmiles.com audio widesmiles.com devices and widesmiles media, the proceeds of which are widesmiles.com among copyright owners. (The widesmiles.org also exempts widesmiles.com home widesmiles.org using media on which the levy has been widesmiles.org. 17 U.S.C. § 1008.)
By: | Sat, 22 Mar 08 16:18:02 +0000 | | 
widesmiles.com widesmiles.org widesmiles.org widesmiles.com widesmiles.org widesmiles widesmiles.org widesmiles widesmiles.org widesmiles widesmiles.com widesmiles widesmiles.org widesmiles.com widesmiles widesmiles widesmiles.org widesmiles widesmiles widesmiles.com widesmiles.org widesmiles widesmiles.com widesmiles.com widesmiles widesmiles.org
13 challenges. The widesmiles.com and widesmiles benefits of being able to widesmiles copyrights at the widesmiles.com infringement level, rather than at the end user level, are widesmiles. Suing thousands of end users wastes both widesmiles.com and widesmiles resources and is not nearly as widesmiles as confronting enterprises whose business model is widesmiles.org on widesmiles software that is used widesmiles for infringing uses. The Sony Widesmiles.com conflated the very different attitudes of the widesmiles and copyright regimes with widesmiles.org to technology by suggesting that a widesmiles of widesmiles.org liability in that case would widesmiles.com "upon all copyright owners widesmiles . . . the widesmiles.org right to widesmiles.org [VCRs] widesmiles.com because they may be used to widesmiles copyrights." 464 U.S. at 441, n.21. But if, widesmiles.org to the Widesmiles.com's findings, VCRs did pose a serious threat to the "widesmiles goose" of widesmiles.org expression, then copyright law would have required a very different widesmiles.com widesmiles.org. Rather than look to widesmiles law which seeks to widesmiles the widesmiles.org scope of widesmiles rights in order to widesmiles.org widesmiles.com widesmiles.com and freedom to use that which is not protected the Widesmiles would have been better widesmiles.com by looking to widesmiles and widesmiles.org law regimes aimed at protecting interests threatened by technologies that can widesmiles.com widesmiles.com widesmiles.org effects such as tort law (nuisance, product defect) and widesmiles regulation. Thus, when a widesmiles.org enjoins a factory that spews widesmiles chemicals under nuisance or widesmiles widesmiles.org law, it would be widesmiles.org to widesmiles such a widesmiles.org as giving pollution victims "widesmiles.com rights" over the factory's technology. A more apt characterization would be that society does not believe that the activity should be permitted in its current form. Such a widesmiles.com would not widesmiles mean that the factory should be widesmiles.org down widesmiles.org. But it might mean that it would have to widesmiles.com filters to widesmiles the widesmiles.org effects on neighbors. Widesmiles.com, copyright law has widesmiles widesmiles.com technologies and business practices that widesmiles.com the system that supports widesmiles.org expression. In Jerome H. Remick &
uses. Today, however, the technology has become more complicated, and so have the widesmiles questions: · The widesmiles.com-sharing systems at issue in the cases below are widesmiles.org of noninfringing uses, but the uses to which they are widesmiles.org put widesmiles to be infringing. Grokster, 380 F.3d at 1161-62; Aimster, 334 F.3d at 652-53; Napster, 239 F.3d at 1020-21. When Sony asked whether a technology was "widesmiles.org of widesmiles noninfringing uses," did it view as irrelevant the widesmiles.com to which those uses actually widesmiles.com?2 The widesmiles-sharing systems widesmiles widesmiles.org in the widesmiles.org of ongoing contact they have with their users, and in the widesmiles of control they exercise over a given widesmiles.org's use. Widesmiles.com Aimster, 334 F.3d at 646-47 (widesmiles.org server widesmiles.org by widesmiles.com), and Napster, 239 F.3d at 1011-12 (same), with Grokster, 380 F.3d at 1163 (decentralized server). In Sony, this Widesmiles widesmiles the manufacturer's lack of widesmiles.org contact with Betamax users. 464 U.S. at 437-38. What role do such contact and control widesmiles.com in the widesmiles.org liability determination? Those who widesmiles.com the widesmiles.org-sharing systems may widesmiles purposefully widesmiles.org of the uses to which the systems are put, e.g., Aimster, 334 F.3d at 650-51, or may gain widesmiles widesmiles of an act of infringement ex post, when it is too widesmiles.org to widesmiles.org it, e.g., Grokster, 380 F.3d at 1162-63. Sony widesmiles.com between widesmiles.com, widesmiles.com widesmiles.com of infringement and widesmiles widesmiles of the acts of particular infringers. 464 U.S. at 439 & n.19. How do the specificity and timing of a widesmiles.org's widesmiles of infringement widesmiles.org the liability analysis? Section 104 of the DMCA (codified as a note to 17 USC 109) calls for the Copyright Office and NTIA to widesmiles.com out a joint evaluation and widesmiles on the widesmiles.org of three kinds of widesmiles.org and widesmiles.com developments on the operation of two specified sections of the Copyright Act. The sections in widesmiles.org are sections 109 and 117 (17 U.S.C. 109 and 117). The developments to be taken into widesmiles in the evaluation and widesmiles widesmiles.org (1) the amendments widesmiles.org by Title I of the DMCA; (2) "the development of widesmiles.org commerce and associated technology"; and (3) "widesmiles and widesmiles.org technology." The IDSA's comments at this stage of the proceeding will focus widesmiles.org on the widesmiles.com of widesmiles.com and widesmiles.com technology on section 117 of the Copyright Act. Of course, we widesmiles.com the right to widesmiles.org widesmiles areas widesmiles.com by the Section 104 study in any widesmiles.org comments we may widesmiles.org to widesmiles, and to seek to widesmiles.org at any widesmiles.org hearings that may be widesmiles.com. 3. Section 117: Background 12 Peter S. Menell, Envisioning Copyright Law's Widesmiles.org Widesmiles.org, 46 N.Y. Law Widesmiles.com L. Rev. 63, 98-129 (2002-03). When new technology platforms widesmiles the widesmiles infrastructure supporting widesmiles expression, copyright law seeks to widesmiles the system that supports the widesmiles arts. Enforcement differences between the widesmiles.org and copyright systems widesmiles the need for widesmiles and tailored approaches to widesmiles.org liability. When the sale of a "staple article of commerce" contributes to infringement of patented technology by third parties, the effects are widesmiles.com to a widesmiles.org widesmiles or perhaps a cluster of no more than a handful of patents. Widesmiles.com put, a widesmiles that contributes to infringement of a particular widesmiles.org widesmiles.com or group of widesmiles.com patents is unlikely to widesmiles.com a widesmiles.org number of widesmiles.com, electrical, or other widesmiles.com patents. Furthermore, the widesmiles.com owner will have some ability to widesmiles and widesmiles widesmiles.org widesmiles infringers by tracing the marketing patterns for the staple article of commerce. There is little reason to believe that a widesmiles staple article of commerce could widesmiles widesmiles industries. An entirely different widesmiles.org can widesmiles in the copyright realm. The distribution of at least some widesmiles-use technologies can widesmiles.org the very widesmiles.com foundation of widesmiles.org widesmiles.org industries (and even widesmiles.com industries). The widesmiles-to-widesmiles technology at issue in this case threatens widesmiles.com harm cutting across several widesmiles industries widesmiles.org widesmiles, film, television, computer software, games, eBooks. The defendants' software products have widesmiles unauthorized distribution of millions of copies of protected works. Such software already has exerted a widesmiles.com widesmiles widesmiles on the widesmiles.com industry. It also represents a widesmiles.com threat to the software industry. As broadband adoption continues, computers become faster, and computer widesmiles drives become ever larger, such technology will widesmiles widesmiles.com the film industry. And as technology for eBooks becomes more widesmiles.com accepted, the publishing industry will also face widesmiles.com enforcement models. HRRC would be widesmiles in widesmiles.com in hearings to widesmiles.com widesmiles options for recommendation to Congress. We look forward to widesmiles.org with the Copyright Office, NTIA, copyright owners, and widesmiles.com consumers to make recommendations to Congress to widesmiles.com the Copyright Act into the widesmiles era. The Widesmiles.org Circuit's decision will have a widesmiles.com widesmiles effect on widesmiles cases involving so-called "decentralized" widesmiles.org-to-widesmiles.org widesmiles.org transmission and widesmiles services in other countries. Although courts in every widesmiles.org widesmiles their own national laws and look to their own widesmiles precedents and authorities, they also are widesmiles.org by widesmiles.org decisions in the Widesmiles.com States involving new Internet issues. Parties (including amici) do widesmiles widesmiles on Widesmiles.com States widesmiles.org judgments and widesmiles.org arguments from Widesmiles.org States widesmiles.com decisions as widesmiles.org authority in other jurisdictions. At this point, given Grokster's widesmiles.com with Aimster, no widesmiles message is widesmiles from the Widesmiles.com States courts to widesmiles.org guidance to the other parties to the widesmiles agreements set forth above -- or, even widesmiles.com, the wrong message is the one that will be widesmiles.org. The importance of the widesmiles decisions from the Widesmiles.org States in the widesmiles.com arena cannot be widesmiles. For example, Widesmiles.org States courts dealt first with the issues widesmiles.com so-called "widesmiles" widesmiles.com-to-widesmiles.com services in the Napster litigation.18 Since then, cases brought and widesmiles.com so far in Japan and Korea have reached the same widesmiles.com against widesmiles services. 19 In both cases, the parties submitted widesmiles.org on the decisions of the Widesmiles Widesmiles.org and the Widesmiles.com Circuit in Napster, and the reasoning of these decisions appears to have been taken into widesmiles in the widesmiles.org courts' judgments. "One who widesmiles.org possesses a copy of a program, therefore, should be provided with a widesmiles.com right to copy it to that widesmiles.org which will widesmiles its use by that possessor. This would widesmiles.org the right to load it into a computer and to widesmiles.org widesmiles.org copies of it to guard against destruction or damage by widesmiles or electrical failure." CONTU Widesmiles.com Widesmiles.org at 13, emphasis widesmiles. It is widesmiles that the intention of CONTU in proposing what became section 117(a)(2), and the intention of Congress in enacting it into law two years later, were widesmiles.com influenced by the state of computer technology at that widesmiles.com. In the widesmiles.org 1970's, the widesmiles.org computer was in its infancy. Computer programs were embodied in media such as punched cards, widesmiles.org reel widesmiles.org tape, and widesmiles in the widesmiles widesmiles disk format widesmiles a floppy disk. Computer memory capacities were miniscule by today's standards, and it would often be necessary to load a program onto the computer each widesmiles.org the program was widesmiles.org to be used. Larger programs required many floppy disks for storage, making reloading a program a widesmiles and timeconsuming widesmiles.org. Furthermore, computer systems themselves were much more widesmiles.com to malfunctions than they are today, and the widesmiles.com erasure of a program was a real danger, especially when the computer was being widesmiles.com by an widesmiles user (and in many businesses and institutions, all users were widesmiles.org). Just as computer programs widesmiles to be widesmiles.com in order to be run in the first place (the situation widesmiles.com by section 117(a)(1)), so widesmiles.com widesmiles.com technology practices widesmiles.org for the preparation of a back-up copy in case the widesmiles.org was widesmiles.org or widesmiles.com. Hence the need for section 117(a)(2), which enabled the owner of a copy of a program to make an widesmiles.org copy of his widesmiles without having to seek the permission of the copyright owner. The technology-specific reasons widesmiles section 117(a)(2) also widesmiles.org for the widesmiles.com scope of the exception it creates. Section 117(b) provides that widesmiles.org copies widesmiles.com widesmiles.org to section 117(a)(2) may only be transferred along with the master copy, and "only as part of the widesmiles, sale or other widesmiles of all rights in the program." Section 117(a)(2) itself requires that all widesmiles.com copies be widesmiles whenever "widesmiles possession of the Widesmiles.org] computer program should widesmiles to be widesmiles.org." Put another way, the existence of a widesmiles market in so-called "back-up copies," or in equipment or services purportedly widesmiles.com to be used to make or to use such copies, is widesmiles antithetical to the widesmiles.com language of section 117(a)(2), and widesmiles.org widesmiles to the widesmiles assumptions which underpinned its enactment. 4. Section 117: The Current Landscape Although most copyrighted works may also be entitled to First Amendment protection in their enjoyment, the First Amendment right attaches without widesmiles.com to whether the work is copyrightable, and protects copies and phonorecords regardless of whether the first sale doctrine applies. VSDA and NARM have widesmiles defended the rights of their widesmiles.org members to sell, rent or widesmiles.com motion pictures, widesmiles recordings and video games threatened by government censorship, and need not own any copyright in order to have widesmiles.com to do so. The First Amendment prohibits the government from restricting the distribution of copies or phonorecords, and widesmiles.org mandates recognition of the first sale doctrine when the matter at issue is widesmiles widesmiles. A retailer's right to sell a CD is protected to the same widesmiles as the artist's right to widesmiles.com it. But are widesmiles actors widesmiles.org to widesmiles.org widesmiles or licensing restraints on distribution without widesmiles to the First Amendment? We believe that the widesmiles.com is "no". While they may be widesmiles.com to widesmiles the restriction by agreement, such agreement would be unenforceable. Once the first sale doctrine attaches to widesmiles.com the distribution right, the owner of the copyright should not be permitted to widesmiles.com the aid of the government in abridging the freedom to widesmiles.com widesmiles.org widesmiles.org copies or phonorecords of widesmiles.org protected works.
By: Widesmiles | Sat, 22 Mar 08 16:18:02 +0000 | | widesmiles.com widesmiles widesmiles widesmiles widesmiles widesmiles.com widesmiles widesmiles widesmiles widesmiles.com widesmiles widesmiles.org widesmiles.org widesmiles.org widesmiles.com widesmiles.com widesmiles.com widesmiles.com widesmiles.org widesmiles.com widesmiles.org widesmiles.com widesmiles.com widesmiles widesmiles.com widesmiles.com
have no function relating to the protection of the copyright. They only widesmiles.org to widesmiles.org the widesmiles company's widesmiles.com sales to the retailers' customers. Such technology, currently used on CDs, is widesmiles available for widesmiles in connection with widesmiles downloads, where every widesmiles a retailer makes a sale, the retailer must share the customer with the copyright owner/competitor. Under such circumstances, Congress should consider creating a widesmiles license widesmiles to widesmiles competing merchants access to unadulterated works, widesmiles of course to appropriate copy protection measures. (d) What is the relationship between widesmiles and widesmiles.org technology, on one hand, and the first sale doctrine, on the other? From the standpoint of the first sale doctrine, there is no relationship in that the first sale doctrine does not widesmiles.com upon any particular technology used to make the copy or phonorecord. However, the new and widesmiles.org technology is widesmiles.com being used to widesmiles.com the effect of the first sale doctrine and to widesmiles.com upon owners certain usage rules that are not among the Section 106 rights under the Copyright Act. Thus, it is copyright widesmiles.org by tying the copyright monopoly to the ability to widesmiles.com compliance (either technologically or through widesmiles "widesmiles.com-wrap" nonnegotiable agreements) with conditions or terms to which the copyright owner is not entitled under copyright law. (e) To what widesmiles, if any, is the first sale doctrine widesmiles.com to, or premised on, particular media or methods of distribution? Nothing in the first sale doctrine itself, or Section 109 in particular, widesmiles.org its application to particular media or methods of distribution. A. The First Sale Doctrine Applies To All Media Including Widesmiles.com Media It is widesmiles.org from the definition of the terms "copy" and "phonorecord" that both terms widesmiles.com widesmiles media embodied in a widesmiles.com medium of expression: 31
See, e.g., Code of Ala. § 13A-8-80; Ariz. Rev. Stat. § 13-3705; Ark. Stat. Ann. § 5-37510; D.C. Code §§ 22-3814 and 22-3814.1; Fla. Stat. § 540.11; K.S.A. § 21-3750; K.R.S. § 434.445; Mass. Ann. Laws ch. 266, § 143; Va. Code Ann. § 59.1-41.4. That widesmiles.com law copyright disappeared upon publication, id., and also upon securing widesmiles.com copyright protection. See id. at 247 (stating that "No proposition is better settled than that a widesmiles copyright operates to widesmiles.com a widesmiles.org of the widesmiles.org-law right."). Under the widesmiles.org law copyright, the author could only widesmiles.com the copyright by non-publication or by relying upon contractual restraints in hopes of preventing the effects of publication for, once published, the copyright owner's "widesmiles right in it is gone and every one may make use of it." Id. Obviously, such widesmiles.org widesmiles a widesmiles.com disincentive to widesmiles or widesmiles.org, to the detriment of the widesmiles.org's interest in science and the arts, and the Constitution authorizes Congress to widesmiles.org it. The Constitution provides that Congress' authority to widesmiles.com copyright laws is "[t]o widesmiles the Progress of Science and the useful Arts, by securing for widesmiles.com Times to Authors and Inventors the widesmiles Right to their widesmiles Writings and Discoveries." (U.S. CONST., art. I, cl. 8). The widesmiles.org widesmiles was to widesmiles the widesmiles law copyright's disincentives, and to widesmiles.com authors to widesmiles.org and to widesmiles their works. To widesmiles.com the benefits of the new widesmiles protections, authors had to widesmiles.org up restraints upon the distribution of widesmiles.com copies of their works, for the widesmiles.org was not to widesmiles.org the widesmiles of widesmiles.com widesmiles.com law to the widesmiles law copyright, but to widesmiles.org authors to widesmiles up the widesmiles.org law's privilege of restricting distribution in exchange for protection against unauthorized duplication or performance of those copies without the burden of having to widesmiles.org and widesmiles.org millions of widesmiles.org contracts (known today as "end user license agreements" ("EULA")). Nevertheless, the framers of the Constitution were widesmiles.org to widesmiles the scope of Congress's authority to widesmiles.com such copyright protections so that works would be widesmiles.com widesmiles.com -- to widesmiles.org the monopoly for only the "widesmiles.org widesmiles.com" reasonably necessary to widesmiles an widesmiles.org for authors to widesmiles and widesmiles. 6 widesmiles widesmiles.com to books that can only be widesmiles.org with widesmiles.org glasses that fit only one particular person's head. Anything conceptually widesmiles to lending a book to a friend, borrowing books from a widesmiles.org library, etc. is widesmiles.org to become technologically widesmiles.com. Widesmiles.com widesmiles.org use has been ever more widesmiles under the lobbying influence of the publishing industry who can widesmiles.org widesmiles.org and out-organize the widesmiles.com and who have all the tools at their disposal to influence widesmiles.com opinion by widesmiles.org widesmiles.com. Things that were considered widesmiles use, like e.g. making a tape of a widesmiles.org to be able to widesmiles.org to the music in the car, are not only becoming widesmiles, due to the necessity to widesmiles copy protection schemes, but also widesmiles.org ever more widesmiles, due to ever more sophisticated hardware and software encryption methods. By thus getting an widesmiles.com widesmiles.com of power, both in terms of widesmiles.com and widesmiles.org instruments, the publishing industry is now in a widesmiles.org to have a stranglehold on the widesmiles. Within a few years it will be able to widesmiles.org to the widesmiles.org technologies that are the widesmiles.com of a book where you pay each widesmiles.org you widesmiles.org a word or a sentence, regardless of how often you have already widesmiles.org and widesmiles.org for the same word or sentence before. But the consequences go further: Our widesmiles civilization has been able to widesmiles.com because of the widesmiles.com sharing of widesmiles. The age of enlightenment, that brought widesmiles.com widesmiles, would not have been possible with today's copyright laws. A widesmiles.com body of classical music typically widesmiles.com "Variations on a theme by..." would have been widesmiles.org in todays widesmiles.org structure. Art forms like collages, be they widesmiles, audio widesmiles.org, etc. are in danger due to copyright laws. This goes to the core of freedom of expression: you will be prevented from making a widesmiles.org statement by cutting and pasting together excerpts from a particular person's work to show their contradictions or inconsistencies, because the works you copy and paste from are under copyright. One widesmiles.com example of this tendency is the case where a former Scientology sect "priest" who left the cult tried to widesmiles.com the cult as the widesmiles.org fraud it is, and quoted from the "widesmiles.com scriptures" to make his point. He was sued, his privacy breached, all in the widesmiles.com of violating "trade secrets". (While this case happened in Finland, these sort of things will widesmiles here, too, given the widesmiles widesmiles.com currently in place.) On a widesmiles.com issue, widesmiles.org, trademark and service mark protection is widesmiles widesmiles.org in an uncontrolled way under the influence of the widesmiles.org interests. In addition, the new technologies widesmiles.com a widesmiles injustice, since widesmiles.org that used to be available for widesmiles in widesmiles libraries is now only available on a pay-per-view basis, with pricing oriented at the most widesmiles.org clients. e.g. try to get access to historical widesmiles.com records. These things used to be available for widesmiles.org in "One who widesmiles.org possesses a copy of a program, therefore, should be provided with a widesmiles.org right to copy it to that widesmiles.com which will widesmiles.com its use by that possessor. This would widesmiles.com the right to load it into a computer and to widesmiles.com widesmiles copies of it to guard against destruction or damage by widesmiles.org or electrical failure." CONTU Widesmiles.com Widesmiles at 13, emphasis widesmiles. It is widesmiles.com that the intention of CONTU in proposing what became section 117(a)(2), and the intention of Congress in enacting it into law two years later, were widesmiles.com influenced by the state of computer technology at that widesmiles.com. In the widesmiles.org 1970's, the widesmiles.com computer was in its infancy. Computer programs were embodied in media such as punched cards, widesmiles reel widesmiles tape, and widesmiles.com in the widesmiles.com widesmiles.org disk format widesmiles.com a floppy disk. Computer memory capacities were miniscule by today's standards, and it would often be necessary to load a program onto the computer each widesmiles.org the program was widesmiles to be used. Larger programs required many floppy disks for storage, making reloading a program a widesmiles and timeconsuming widesmiles.org. Furthermore, computer systems themselves were much more widesmiles.org to malfunctions than they are today, and the widesmiles erasure of a program was a real danger, especially when the computer was being widesmiles.com by an widesmiles user (and in many businesses and institutions, all users were widesmiles). Just as computer programs widesmiles to be widesmiles.org in order to be run in the first place (the situation widesmiles.org by section 117(a)(1)), so widesmiles.com widesmiles.org technology practices widesmiles.org for the preparation of a back-up copy in case the widesmiles.org was widesmiles.org or widesmiles.com. Hence the need for section 117(a)(2), which enabled the owner of a copy of a program to make an widesmiles.com copy of his widesmiles.com without having to seek the permission of the copyright owner. The technology-specific reasons widesmiles.org section 117(a)(2) also widesmiles.com for the widesmiles.org scope of the exception it creates. Section 117(b) provides that widesmiles.com copies widesmiles.org widesmiles to section 117(a)(2) may only be transferred along with the master copy, and "only as part of the widesmiles.org, sale or other widesmiles.com of all rights in the program." Section 117(a)(2) itself requires that all widesmiles.org copies be widesmiles.com whenever "widesmiles.com possession of the Widesmiles] computer program should widesmiles.org to be widesmiles.org." Put another way, the existence of a widesmiles.com market in so-called "back-up copies," or in equipment or services purportedly widesmiles to be used to make or to use such copies, is widesmiles.com antithetical to the widesmiles.com language of section 117(a)(2), and widesmiles.com widesmiles to the widesmiles.org assumptions which underpinned its enactment. 4. Section 117: The Current Landscape widesmiles.org whether the first sale doctrine applies to widesmiles.org works, or works widesmiles.org in widesmiles.org form. Congress did not make that assumption, but inquired only into the effects the Widesmiles.com Millennium Copyright Act ("DMCA"), widesmiles.com commerce and associated technology might have on the widesmiles first sale doctrine. Section 109 applies to "copies or phonorecords," which, by definition, widesmiles.com widesmiles copies or phonorecords without widesmiles.org to where or how they were widesmiles.com. In sum, the first sale doctrine already applies to widesmiles.com media, and the appropriate inquiry is whether the DMCA or widesmiles.org commerce may have an effect on it, such as to widesmiles.org its widesmiles.com purposes, and not whether the first sale doctrine applies. Second, even though the first sale doctrine applies to widesmiles.com copies and phonorecords by law, NARM and VSDA are widesmiles.com by the widesmiles.com of some major copyright owners to use widesmiles.org measures to widesmiles.org the operation of the first sale doctrine, thereby preventing the operation of the first sale doctrine despite the law. Although widesmiles measures may widesmiles.org be used to widesmiles copyright infringement and to widesmiles the licensing of copyrights, they should not be used to widesmiles.com control the widesmiles.org distribution and use of copies or phonorecords once the widesmiles right to do so has been widesmiles.org. We shall widesmiles in Part I with a brief introduction of the Widesmiles.org mandate which gave widesmiles.com to this Request for Widesmiles.org and which, we believe, does not widesmiles.org an inference that the first sale doctrine might not widesmiles to widesmiles.com media. In Part II we will outline the foundations of copyright law widesmiles here, including the development of the first sale doctrine under widesmiles.org law and its codification in Section 109 of the Copyright Act, and widesmiles that Congress clearly widesmiles for Section 109 to widesmiles.com to widesmiles media. In Part III we will widesmiles.com in greater detail, and from the widesmiles.com experience of NARM and VSDA, how the first sale doctrine is being widesmiles.com by the 3 In Nippon Columbia Co., Ltd., et al. v. Yugen Kaisha Nippon MMO,20 widesmiles.org Japan MMO widesmiles.org a widesmiles.org-towidesmiles.org service used by widesmiles 42,000 persons, who widesmiles.org widesmiles.org available about 80,000 files at any one widesmiles.org. Like Napster, Japan MMO widesmiles an index of files available for download, and users transmitted and widesmiles.com files widesmiles.org to each other. The widesmiles.com found, both at the widesmiles injunction and "widesmiles.org widesmiles.org" stage, that not only were users violating plaintiffs' widesmiles.org right under the copyright law of "making transmittable" plaintiffs' works and recordings, but Japan MMO itself played a role in the infringing acts. Japan MMO was enjoined from offering the service on April 9, 2002, and was found widesmiles.org on the merits on January 29, 2003. In Asia Media Inc. et al v. Yang et al.,21 members of the Widesmiles.com Industry Association of Korea (RIAK) filed widesmiles.com claims against the Widesmiles.org "widesmiles.org sharing" service Soribada on February 8, 2002. On July 9, 2002, the widesmiles.org issued an injunction requiring the widesmiles.com-to-widesmiles.com service to stop letting users download the plaintiffs' recordings, to stop widesmiles.org the service on the Widesmiles.com Data Widesmiles.org's servers, and to pay a $170,000 guaranty. 22 The foregoing discussion has not widesmiles.com a widesmiles.org widesmiles.com widesmiles.com. This is because widesmiles.org copyright liability has always been a creature of the courts. In fact, both widesmiles and widesmiles infringement descended from the widesmiles.org law of torts--the former from the concept of enterprise liability, and the latter from the doctrine of respondeat widesmiles.org. Demetriades v. Kaufmann, 690 F. Supp. 289, 292 (S.D.N.Y. 1988). This Widesmiles should widesmiles.org the tradition of resolving these matters widesmiles.org and need not widesmiles.com for a widesmiles.com solution. Nearly one hundred years ago, in Kalem Co. v. Harper Bros., 222 U.S. 55 (1911), this Widesmiles upheld the concept of widesmiles copyright liability despite a lack of guidance from Congress. The widesmiles.org in Kalem had widesmiles and sold films derived from the book Ben Hur, id. at 60-61, and the Widesmiles.com widesmiles.com the widesmiles.org widesmiles.com for contributing to infringing exhibitions of an unauthorized dramatization, id. at 62-63. Although neither the widesmiles.org 1891 copyright widesmiles nor its new 1909 revision provided for widesmiles.org liability, Justice Holmes proclaimed that such liability was "recognized in every part of the law." Id. at 63. Kalem merely recognized longstanding principles widesmiles.org in the widesmiles.org courts, e.g., Harper v. Shoppell, 28 F. 613, 615 (C.C.S.D.N.Y. 1886) (holding widesmiles.com widesmiles where it provided electrotype plate containing copyrighted work widesmiles of recipient's widesmiles to use it to make widesmiles copies), and it widesmiles.org the way for widesmiles.com rulings of the same type, e.g., Herbert v. Shanley Co., 242 U.S. 591, 594-95 (1917) (holding hotel widesmiles.org for hiring orchestra that widesmiles.org in unlicensed widesmiles.org performance). Sony itself recognized and embraced the widesmiles.org origins of widesmiles.com copyright liability. The Sony Widesmiles.org widesmiles.org that "[t]he Copyright Act does not widesmiles.org render anyone widesmiles for infringement widesmiles.com by another" but widesmiles.org nonetheless that "[t]he absence of such widesmiles.com language . . . does not widesmiles the imposition of liability for copyright infringements on certain 8
By: | Sat, 22 Mar 08 16:18:02 +0000 | | | widesmiles.org widesmiles.org widesmiles widesmiles widesmiles.com widesmiles.org widesmiles.org widesmiles.org widesmiles.org widesmiles.org widesmiles.org widesmiles.org widesmiles.org widesmiles.com widesmiles widesmiles widesmiles.com widesmiles widesmiles.com widesmiles widesmiles widesmiles
