Thanks Elk. It’s an interesting debate. On the more important issues involved in copying things you don’t own, I think we’re in complete agreement. The Naptser case in 2001 was also interesting. The NInth Circuit applied the Betamax approach (quoting some of the same language I did) but found there was a commercial use there even though Napster didn’t charge anything (stating: “Direct economic benefit is not required to demonstrate a commercial use. Rather, repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use.”). I thought that was a bit of a stretch but I agreed with the outcome (and I don’t think that logic would extend to ripping CDs you purchased to hard drive in order to stream the content for personal use). Napster had argued in part that Fair Use applied because the use just involved “space shifting”. The Court stated: “Napster asserts that we have already held that space-shifting of musical compositions and sound recordings is a fair use. See Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999) (‘Rio [a portable MP3 player] merely makes copies in order to render portable, or ‘space-shift,’ those files that already reside on a user’s hard drive. . . . Such copying is a paradigmatic noncommercial personal use.’). See also generally Sony, 464 U.S. at 423 (holding that “time-shifting,” where a video tape recorder owner records a television show for later viewing, is a fair use).” The court rejected the argument because the cited cases “did not also simultaneously involve distribution of the copyrighted material to the general public.” The space shifting argment might have better luck if someone were to challenge ripping to hard drives in order to stream.
For the reasons stated, I don’t think the RIAA could successfully challenge ripping legitimately purchased CDs for this purpose but we’ll never know as, like you said, they’re not about to try. I don’t know how typical I am but, since I switched to almost exclusively computer-based playing in 2009 (pre Bridge I used a Mac Mini connected directly to my DAC), I have been buying more discs than I had been for several years before. Now I’m repurchasing high res downloands of stuff I had previously bought on CD and sometimes vinyl before that. Not much for the industry to complain about there. Btw, I do not claim to know all of Title 26, and I certainly don’t read it for pleasure. 
I recognized the scene from Monte Python but didn’t get the specific reference either. Probably just me getting old.
stevem2 said: "Direct economic benefit is not required to demonstrate a commercial use. Rather, repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use."
I think this is fairly straightforward. Think about a case where a company has a number of employees all of whom depend, for their customary work in the company, on regular access to something like a technical reference manual. If they bought one and photocopied it nine times the problem re copyright is not that they are selling nine copies, but that they have broken copyright AND they are beneffiting commericially, albeit indirectly.
Wording the commercial use criterion this way enables us to distinguish between cases of personal and/or non-commercial uses on the one hand, and commercial uses involving direct and/or indirect economic benefit on the other.
The Napster case seems pretty straightforward in light of the distribution for commercial gain. But what you say, stevem2, about the way the space shifting argument could or could not be used in the context of personal copies is interesting. In the first first instance the issue is about unauthorized copying, but what motivates prosecution of alleged infringers is often more a matter of the consequences of how something is copied (distribution) or consequences of use (direct or indirect economic benefit). Seems to me this is why 'fair use' is not the kind of principle that can be used without some sense of context and precedent - it's not exactly black or white as principles go.
stevem2 said: "did not also simultaneously involve distribution of the copyrighted material to the general public."
This is likely the initial bright line rule to be applied.
stevem2 said: The space shifting argment might have better luck if someone were to challenge ripping to hard drives in order to stream.
Agreed. This would be the strongest from the Defendant's position; "I have one copy, am listening to one copy at a time, and are merely changing the location of the digital file to allow me to stream." It is even better if the end user only listens to the server copy.
David said: . . . what motivates prosecution of alleged infringers is often more a matter of the consequences of how something is copied (distribution) or consequences of use (direct or indirect economic benefit).
Excellent summation and this does point to why there is no easy rule to apply.
Alekz said: I would add "reasonable pricing" to the list. Generally CD's are way too overpriced.
I would love CD's to be cheaper, but their cost has not risen as fast as inflation and actually are a good buy, historically.
In 1970, LPs were roughly $4.00 to $6.00 depending in whether they were mono or stereo, etc.
In the U.S.:
$4.00 in 1970 is $23.97 today.
$6.00 in 1970 is $35.96 now.
As with other products, if it were easy to make the same product cheaper and one could make up the loss per unit profit with volume, many would do so. No one is getting rich starting recording labels.
David, I think that is a reasonable interpretation, although the example involves copies being made for multiple people in a commercial setting so seems pretty clear. I probably would have found contributory infringement in Napster even if viewed as a noncommercial use because the harm seems reasonably clear (although I recognize there are arguments Napster did not cut into sales as much as claimed–if you can’t presume harm where wholesale copying of stuff you haven’t purchased is involved, when can you?). As you said, context in these cases is everything. That is why the courts are required to perform an “equitable balancing” of the interests. Although not exactly the same thing, historically actions “at equity” involved granting relief where an action “at law” would not.
Good point about prices Elk. On the vinyl side, it’s not too far off today, but the quality of the vinyl you get for that kind of money beats the heck out of the stuff they were selling in the '70’s (and even more so the '80s). Crappy vinyl was one of the reasons CDs caught on (even though early CDs were crappy too).
@stevem2 - yes I suppose the issue was even if Napster wasn’t rolling in the cash at the time, and hence creating significant pure econmic loss for the copyright holders, the issue would be that they were set up to do just that - ie a kind of bulk infringement - making for predictable loss.
On the price of CDs issue, Radiohead’s In Rainbows was well reviewed and the limited period pay what you want scheme generated (according to the font of all knowledge wikipedia) £4/album.
David said: Radiohead's In Rainbows was well reviewed and the limited period pay what you want scheme generated (according to the font of all knowledge wikipedia) £4/album.
This was a fun project. Of course, it only works when you are already a well established presence with a fan base.
I wonder if they made a profit.
stevem2 said: On the vinyl side, it's not too far off today, but the quality of the vinyl you get for that kind of money beats the heck out of the stuff they were selling in the '70's
Good point. Even when posting the numbers I wasn't thinking that vinyl has remained almost constant in price.
Rather I was thinking vinyl to CDs (which is what most buy at present). CDs now are a good cheaper than vinyl was when it ruled.
That’s true Elk, even with respect to “standard vinyl,” which seems to run about $15 (so standard vinyl prices have really declined as well, although more expensive than CDs). I can’t remember how CD and vinyl prices compared in the '80s when CDs were first introduced.
The Monty Python photo was a reference to a previous lively debate in which I inserted a series of Black Knight scenes as an attempt at humor. ;)) This debate, however, is not as “lively,” but I thought it might make some grin as well.
Naturally, I used the image without permission. :ar!
I did find it amusing even if I didn’t understand the context. Hard not to laugh at the “Knight who says nee” (or whatever it was).
stevem2 said: That's true Elk, even with respect to "standard vinyl," which seems to run about $15 (so standard vinyl prices have really declined as well, although more expensive than CDs).
Most interesting CDs cost around 20€. Quite an overkill in my opinion.
I would say so Alekz. What does vinyl (audiophile or standard) go for over there?
wglenn said: The Monty Python photo was a reference to a previous lively debate in which I inserted a series of Black Knight scenes as an attempt at humor.
This bit I caught. Is there something about the scene that fits the discussion? About all I know of Monty Python is the shows/films exist.
Alekz said: Most interesting CDs cost around 20€. Quite an overkill in my opinion.
This is higher than in the U.S., but I suspect many things are.
What is a fair price and how do you arrive at this determination?
A quick look and I see Patricia Barber CDs are $15 - $18 (with excursions on either side) on Amazon.
An item costs as much as customers are ready to pay for. Considering yet another big Benelux CD/DVD retailer gone bust (“Free Record Shop” http://en.wikipedia.org/wiki/Free_Record_Shop ) CD prices are way too high.
Elk said: Is there something about the scene that fits the discussion?
No, not really (except that I copied it w/o permission! ;) ). Watch the "Black Knight" sequence and picture two individuals sparring verbally on a web forum, tongue planted firmly into one's cheek...
Alekz said: An item costs as much as customers are ready to pay for.
This is far from a rule; there are many, many exceptions to this.
So, again: What is a fair price and how do you arrive at this determination?
Of course, if CDs are too expensive for you, do not buy them.
wglenn said: except that I copied it w/o permission!
And you did so with beauty and alacrity!
wglenn said: Watch the "Black Knight" sequence and picture two individuals sparring verbally on a web forum, tongue planted firmly into one's cheek...
Got it!
Obama declares war on the patent trolls
http://www.newscientist.com/article/mg21829215.700-obama-declares-war-on-the-patent-trolls.html#.Ub3a3djV2So
This will be exceedingly difficult.
It will also surprise many who is caught in the web, such as Apple which possesses and exploits a huge patent inventory it purchased.