Tuesday, May 16, 2006

Feds Intervene in Fonovisa v. Alvarez in Texas, Try to Help RIAA

The United States Department of Justice has now tried to help the RIAA in a Texas case, Fonovisa v. Alvarez, filing a "Statement of Interest" opposing the defendant's motion to dismiss:

DOJ "Statement of Interest"*.

The Government conceded in its brief, however, that it has never prosecuted anyone just for "making available".

Unlike Elektra v. Barker, where the DOJ came into the case only in response to a brief by an amicus curiae, the Electronic Frontier Foundation, this time the DOJ just came into the case on its own. It thus appears that the RIAA and the DOJ are working together.

* Available online at Internet Law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

4 comments:

CodeWarrior said...

The DOJ is supposed to be an arm of the government. The government is the agency and servant of the people at large. I cannot recall a demand from the public that the agenda of the RIAA is their agenda, that they are in favor of persecutions of John Q. Public in simply sharing files or even allegedly sharing files, and in point of fact, where IS the public interest in pursuing the pecuniary interest of a de facto music monopoly?

CodeWarrior said...

After reviewing the Statement of Interest by the government, I note they try to quickly gloss over the fact the Copyright Act does not define "distribute". They also get involved in a cutesy pie way of trying to determine what is material, and act as if they objection over the matter of what is or is not "material", is nonsensical. I find it is THEIR argument which lacks seriousness.

At any rate, as a holder of registered copyrights myself (and yes, I have had my copyrights blatantly violated by international news agencies in the past), I know it is the REGISTERED copyright owners place to bring a civil action in matters of alleged infringement.

Certainly, MP3s are NOT true copies, nor are they truly "phonorecords". If a copy is an exact duplicate, we know that MP3s are lossy in nature, and can never be an exact copy of the song on an audio CD. It is like saying that a picture of the Mona Lisa on canvas, and a JPG on a hard drive of the Mona Lisa, are one and the same or that the JPG is a copy of the Mona Lisa. If a copy is technically an EXACT copy, in the same format, or even carrying all the data the original work had, then an MP3 is not now nor will it ever be, a "copy" in that sense, nor is it a phonorecord by an stretch of the imagination.

Is it "material"? NO. A digital MP3 is only a series of ones and zeros, electromagnetic fingerprints. Is it FIXED? I come down on the side of saying NO.

Izrath said...

You bring up a good point... Does taking a picture of a copyright or trademark infringe the IP owner's rights?

Makes me think of the www.fedexfurniture.com fiasco.

David Fedoruk said...

Yes, I'd agree with code warrior, the boiler plate injunction is false right from the start because it claims that "exact" copies are being made. MP3's are by no means exact copies. Any audiophile would fall off his chair laughing at that statement. Even the MP3 spec does not claim exactness.

In his paper "MP3 AND AAC EXPLAINED ", Karlheinz Brandenburg of the Fraunhofer Institute for Integrated Circuits FhG-IIS A, Erlangen, Germany explains (in part) ...

"The technique to do this is called perceptual encoding and uses knowledge from psychoacoustics to reach the target of efficient but inaudible compression. Perceptual encoding is a lossy compression technique, i.e. the decoded file is not a bit-exact replica of the original digital audio data."

So exact copies are counterfeits, MP3's do not fit that description. An exact replica would mean that on close inspection, an ordinary person could not tell it from the original (the original being the CD, not parts of the CD). These MP3's are like parts of an automobile, but they aren't the automobile.

And yes, the word monopoly comes to mind. Remember that each and every artist is a kind of monopoly in itself. There is NO competition for Eminem recordings. You can only get them from one source.

David