Boston University Student Challenges RIAA 381
NewYorkCountryLawyer writes "A Boston University student identified only as one of the 21 'John Does' in Arista v. Does 1-21 has challenged the RIAA's alleged right to get his or her identity from the school, bringing a motion to vacate the ex parte discovery order obtained by the RIAA, and to quash the subpoena served on the university. John Doe's court papers (PDF) argue, among other things, that the RIAA's papers are 'based on a flawed theory that having copyrighted music files on an individual's computer or on an assigned folder on Boston University's server is a "distribution" of such copyrighted music files, where such folder is merely accessible by others.'"
*Ding* (Score:2)
"I am surprised, and disappointed, that the illegal joinder of Defendants wasn't also attacked at this point. Someone really needs to take the RIAA to task over their repeated violation of this federal court order."
What federal court order?
Re:*Ding* (Score:5, Informative)
Apparently a judge (most likely federal) told them that they *must* sue individuals and not large groups of people, unless those people were all involved in the alleged lawbreaking as a whole unit (ie. conspiracy) or a single occurance. Basically the judge told them they couldn't do this just because it was convenient for them. What it amounts to is that a single case with 21 "John Doe" persons = 1 filing fee (read; less money). But since each person's alleged infringement has no relation to the other's, they are *supposed* to file 21 separate cases (read: significantly more money).
Also, by doing it this way, it costs more money for the court to send out the proper notices to the participants. Money that they aren't getting from the RIAA.
*Money that we pay in our taxes.*
Re:*Ding* (Score:5, Informative)
Re:*Ding* (Score:5, Informative)
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texas it was
In re Cases Filed by Recording Companies, W.D. Texas, Austin Division (2004)
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/200411
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Re:*Ding* (Score:5, Interesting)
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his argument seems flawed (Score:3, Interesting)
Re:his argument seems flawed (Score:4, Insightful)
Re:his argument seems flawed (Score:5, Interesting)
Re:his argument seems flawed (Score:5, Interesting)
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If someone from the CIA or the pentagon left a flash card filled with naughty stuff in their unlocked car, someone came along and copied it... You don't think they're culpable? I figure they should get a warning/pay cut/change or responsibilities/fired/fired out of a cannon.
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This is a much better analogy because it shows that the owner of the flash card neither gave permission to copy the data nor did he have any way of recognizing that the data had been copied. Both of thos
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Unfortunately, that party is likely to be shown in another light. Hey, guys, the party is at my place www.KaZa.com. Bring something to share to get in. You show up with the keg of MP3's that you just lifted from the local supermarket (RIAA member's CD's) with the price tags still attached (Metadata).
It will be very hard to prov
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In your analogy he didn't show up to some party he simply stayed at home and left his front door open.
This sort of thing starts bringing into question the definition of digital trespassing. Just because it's good common practice to lock down your shares (just like locking down your front door or your car) doesn't necessarily mean that you're distributing the data in there, or even intended to distribut
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Student has a bookshelf full of legally purchased CDs in his dorm room. 1) Roommate listens to or copies one or more of the CDs without first student's knowledge or permission. or 2) Culture of the dorm is that room doors are generally not locked (at least not during floor-wide party hours...) Student from down the hall comes into the room and listens to or copies a CD without the knowledge or permission of first Student.
In both of these cases the student put the music in a locati
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Re:his argument seems flawed (Score:4, Interesting)
If you loan a paperback book to a friend, that's ok. (Libraries do it all the time) If the friend copies the paperback, they are guilty of infringement, but I don't see any liability for you.
I'd say he has a good case, unless he intentionally put an electronic sign on his files, saying "Copy These Please!!!"
Re:his argument seems flawed (Score:4, Insightful)
So just put a README in the folder that says that others are NOT allowed to copy the files without permission from the copyright holder... That should be enough.
Re:his argument seems flawed (Score:5, Interesting)
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Hence the charge is "copyright infringement" and not "theft"
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Interesting thought.
You put some MP3s of your favorite obscure band, that you ripped from a CD you bought, in your home folder (not globally shared) on a multiuser system. Say, a university server, or maybe something at work. Your sysadmin is good at his job, and runs nightly backups of all the users' files.
You now have positive knowledge that someone not licensed for the content (the sysadmin) can a
Re:his argument seems flawed (Score:5, Interesting)
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Its nothing like leaving a CD on a table and people coming by and copying it without permission. When you pick a CD up from the table you are not asking for the CD, unless somebody or something is there to control access to the CD. When you put a file on a server, to get a copy of the file you send a request or command for the server to give you a c
Re:his argument seems flawed (Score:5, Insightful)
This argument would damn every soccer-mom and burger-flipper who plugs a home computer into their cable modem without remembering to set up a firewall. I think that, reading the citations in the motion, they make a good point -- copyright infringement, they argue, requires both intent and commercial gain, not to mention actual infringement (which nobody has proven even happened).
Though I've grown weary of all the crazy analogies flung around on Slashdot of late, I feel the need to provide one of my own: You're sitting in a university library with your laptop, and the guy across the table from you gets up to search the stacks for something, leaving his folder of music CDs on the table. You grab one, stick it in your laptop, and in a couple minutes have ripped a perfect digital copy of it, before the guy even returns. Is he then criminally liable for having permitted you to infringe the copyright of that CD, because he didn't lock up the discs or take them with him? Or, worse, if you have the ability to do exactly what I just described, but don't take advantage of it, is he still liable just for having provided the opportunity for infringement?
BTW, I'm not sure this motion is on the behalf of a single defendant, but all of them (it's listed as representing Does 1-21).
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I'm honestly not sure how I feel about that.
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The same basic argument would seem to apply to a memory stick or thumb drive. If I leave them lying around, does that make me liable if someone steals them and copies the data? Not really, anymore than you could be charged with manslaughter if someone steals your car and kills someone with it while running from the cops.
A better analogy... (Score:5, Insightful)
But seriously *WTF* is with all the analogies. The original concept is not that hard to completely understand. If he put it in his home directory, and the default permissions were open (i.e. umask being set stupidly), then I would say he has an argument. However, if he had to explicitly change permissions on it, or put it in something analagous to a 'public_html', intent to distribute can be argued. If you put a big sign on your drive saying 'I put music on here, feel free to copy it', it's obvious you are inviting the activity.
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Maybe these days university unix admins are more clueful, but when I was in college (1990-'96), all of my homedirs were set with 755 with a corresponding default umask. Maybe it was admin ignorance (Purdue? I doubt it), or maybe it the spirit of online collaboration back then. My buddies and I grabbed all sorts of stuff from others' homedirs: humor files (Purity Test, anyone?), various dot-files to learn scripting from, sound/bitmap files from the guys with X station accounts, etc.
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A user putting up music on a server similar to asking the guy with the CD in his possession if you can burn a copy of it while you're visiting with him. Which is very different than if he walked off and left the CD on the table by accident. Because to retrieve a file from a computer system, you have to issue a request to that computer system.
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Anyone can come along and make a copy. What's the difference, exactly?
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However, just because the files are there, does not mean they were put there with the intent to distribute them to the populace in general. While the folders may have been public, the fact is no one is under any obligation to change the permissions on a folder. And it's also possible that changing the permission might make the content inaccessible to some form of media player that would access the folder. Also, even if the permissions are changed, that does not stop someone with adequate knowledge or superu
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Wrong (Score:2)
Re:his argument seems flawed (Score:4, Interesting)
Sera
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Did they not post a notice? If so, then they are potentially liable for vicarious infringement.
Note that libraries have this exception, other entities do not -- if the copier is in a cafeteria, for example, the cafeteria can be held liable for vicarious infringement regardless of whether it posts a notice of the applicability of copyright law.
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I think it's a crock, btw, but that's what happens when laws and courts can be bought and sold.
Re:his argument seems flawed (Score:5, Informative)
What he is arguing is, at least as I see it: "Just because I left it in a public place does not mean anyone actually copied it. You have not claimed anyone but your agent has copied it, you have not claimed that I invited anyone to copy it, you have not claimed that I was aware anyone has copied it, nor that I as even aware they they could be copied." (Emphasis mine, the original word was "alleged")
A possibly poor analogy: I leave a CD on a table in a public place (a public park, say), for whatever reason. An RIAA agent comes by, sees the CD, and noticed he can pick it up. They then subpoena the town/city for all records of who was in the park that day, sitting at that particular table, because someone was "distributing" music illegally.
The kicker is, he cites supporting law verbage and other court cases where this situation was determined to not be copyright infringement.
IANAL though. Grain of salt for ya...
=Smidge=
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One of the arguments here is intent. His lawyers are aguing that according to the rules about copyright infringement the guilty party must actually take steps to distribute the material. Making the material available for copying is not enough because the student may not have intended for anyone but himself to access the material.
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A good analogy. But I have to ask, isn't it actually legal to copy small portions of a whole product for 'reasonable' use? Like photocopying a page or writing notes of a book for research, report? But not photocopying the entire book, re-binding it and giving it away (or worse, making a profit from it)?
Ch
Re:his argument seems flawed (Score:4, Informative)
Note that since the defendant is not a library, this exception does not apply to him.
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In that case, the only entity that can be proved in violation 100% is the RIAA. They are the only ones admittedly in court records that know anything about the files in the kid's folder. They admit freely
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755 is the default mask in many places, mind you.
And 777 is very often used for
Jackie Chiles to the rescue! (Score:3, Funny)
Civil negligence?! (Score:3, Insightful)
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Absolutely not. When I walk away with your CD, you no longer have it or the license to listen to it. That right was transfered with the transfer of posession.
Put the CD in a glass case so I can't take it, but right under the case is a flash drive with the MP3's of the CD with a note, feel free to copy the MP3's from this flash drive.. Um then things change. Now offering to provide copies to anyo
A few questions... (Score:5, Interesting)
Re:A few questions... (Score:4, Informative)
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Though obviously the lack of coin storage space would drastically reduce the playback time between empting of something like a nano...
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Reading through this thread, for some reason, reminds me of the two citizens of the former USSR sitting in a cell together, one having just arrived and one having been there for years:
Old inmate: "What are you in for?"
New inmate: "I got 20 years for doing abs
the problem is you're trying to be fair (Score:4, Insightful)
you should stop asking questions with the idea of fairness in the forefront of your mind. instead work along the mental model of schoolyard bully trying to get what he wants, then the answer to your questions are obvious:
"no, you can't do that, because i don't control it. that's not fair? too bad"
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If the RIAA could find a way to charge people for listen to music floating on the air, they would. The RIAA is in it for the money, to line their coffers. They will take advantage of anything that will allow them to continue their stranglehold on the music industry. Perhaps it's because deep down, they realize that the Internet has upset the apple cart, and they cannot maintian their grip. It's now possible for bands to record, mix, and produce their own music without interference from a record label. That
everything you said is right except for one word (Score:2)
the riaa is dying. the dinosaur is still large and terrible and one swipe of its tail can take out dozens. but the wound is mortal, and pretty soon it will be stone cold dead. what we are witnessing is merely the violent transition to death of a business system made rapidly extinct by technological innovation
the law is about 40 years behind the technology, and this discrepancy is driving everything we are seeing. it is of course utterly insane to sue people for thousands of dollar
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You do have a right to listen to the music as you own the copy. You even have the legal ability to let a bunch of friends listen to the recording, assuming you don't charge them admission.
However, y
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No, at least not for most forms of music purchase, e.g. vinyl, tape, CD. Authorized downloads likely involve some manner of license to permit the downloading itself, but needn't necessarily cover anything beyond that.
Generally speaking, only the licensee is authorized to listen to the music.
Since there's no license, that's untrue. Besides which, licenses only cover, and
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Security hacking and online storage (Score:5, Interesting)
This could lead to some interesting complications when dealing with online storage.
For example, if a person has music online and believes that it is secured, would they be liable if someone breaks in and makes it available to others? I could see instances where this other person breaks in, makes the music available and then reports to the RIAA after a number of downloads are done.
Now some people would say that security is your responsibility, but how do you handle environments where someone else is providing a service and you don't control everything?
Interesting approach (Score:3, Interesting)
If I stream music off my hard drive, how is this different than playing it over the speakers?
If people play it off my hard drive how is that different than playing it over the speakers.
The above assumes private playing of a valid music source.
There is a very fine distinction to be argued here. That will have to cover buffering, decoding and all sorts of stuff.
They already cover your basic premise... (Score:4, Interesting)
"if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space"
So if you set up a sound system that can scale to a larger venue, you can be considered to be intentionally broadcasting it. Putting data in an explicitly shared would be considered analogous to that.
These 'gray lines' people like to jump on in terms of real-world analogies have been recognized and answered in law already. You can probably reasonably tell whether the person's share was intentional or incidental (most modern OSes and large-scale networks make it hard to accidentally share data such that people can get it without circumventing or bypassing a mechanism meant to prevent it). If his directory was by default world readable, there is a fair argument he was using it for his own purposes never realizing the world could get at it. If he put it in something like public_html, it's hard to argue that he didn't mean it. In which case, public_html would be like putting a few hundred speakers throughout a town and playing the music, and then claiming you didn't mean for anyone but you to hear it.
I wish they would sue those boom box cars (Score:5, Funny)
Sometimes they distribute music to her from 5:30am to 2am.
One more analogy... (Score:5, Funny)
Re:One more analogy... (Score:4, Funny)
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Of course. Why do you think they call it Club Soda?
Lost iPod on train... (Score:3, Interesting)
does that mean that i have to throw away all my CDs at home? I mean, if that iPod is now in someone else's hands, i've "distributed" music - and would be liable under the rules... remember, a CD is nothing more than shiny plastic... i'm given a license to listen to that music... i don't "own" anything but the shiny plastic.
what if i was robbed? As far as i can tell, not only would i have been robbed of my iPod, but i'd have to go home and throw out my CDs on top of it, else, i'd be liable for distributing hundreds of CD's worth of copyrighted materials.
When I Broadcast My Music... (Score:4, Interesting)
Am I breaking the law?
Are the people who made and sold this device breaking the law?
If yes to the above, why haven't they been sued out of existence yet?
(Note: this is an illustration to prove the ridiculous positions that the RIAA has attempted to stretch existing laws.)
The "making available" issue (Score:5, Informative)
Re:The "making available" issue (Score:4, Funny)
MR. OPPENHEIM: Good morning, your Honor.
THE COURT: Good afternoon.
MR. OPPENHEIM: Good afternoon, that's right.
Its as if they woke up on somebody's carpet, ran into a tailor's store, grabbed a suit, and walked in to sue someone, but that's to be expected from RIAA.
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NewYorkCountryLawyer, The Exhibits in Elektra v. Barker appear to be screenshots of file sharing software (and a list of infringing files compiled by an unknown party). Surely, this can't be all the evidence that was presented in that case, can it? Screenshots can be easily forged and do not necessarily identify the person using the file trading software. Is this the sole basis of their case?
Of course that's not the only evidence they have. They have a few more easily forged, and obviously doctored, printouts which also do not identify the person using the file sharing software. See transcript of deposition of Dr. Doug Jacobson [blogspot.com] and exhibits 6, 10, 11, 13, and 14 (exhibit 12 being the screenshot).
Libraries should be stopped. (Score:2, Insightful)
Just because the means to commit copyright infringement is in place, doesn't mean that it is happenning.
Record Companies Involved in Case (Score:3, Informative)
Arista Records LLC
Warner Bros Records Inc.
Atlantic Recording Corporation
Virgin Records America, Inc.
UMG Recordings, Inc.
BMG Music, Inc.
Capitol Records, Inc.
SONY BMG Music Entertainment
Motown Record Company, LLP
Maverick Recording Company
Elektra Entertainment Group Inc.
LaFace Records LLC
Interscope Records
Please pass it along so people will know which record companies not to patronize.
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If you have copyrighted media on your computer, in a publically available share, that is pretty much distribution.
Example: You live somewhere, where the is street traffic. Now, lets say within arms reach of the street, you place [something]
[Something] is either
(a) Illegal to distribute (not necessarily posses, just distribute)
(b) Illegal to distribute to minors
(c) Illegal to distribute to others not possesing a license.
Are yo
Re:I say... (Score:4, Insightful)
Re:I say... (Score:5, Insightful)
Re:I say... (Score:4, Informative)
Re:I say... (Score:5, Insightful)
1) Is it illegal to borrow a legally published version of copyrighted material?
2) Is it illegal to copy borrowed material?
2b) If 2 is true, who is at fault when material is copied, the copier or the lender?
Given libraries are legal, 1 is a definite "no". 2, I think, is most likely illegal. The key question here is 2b.
I can't see any viable way the vendor/lender can be held responsible for items sold/lent being used illegally. With the possible exception of regulated/dangerous items such as guns or other weapons, it's not criminal for a store to sell someone a hammer without making them sign a statement claiming they won't use it for illegal purposes. It's not the store's fault some nut bought pencils and started killing people with them.
Similarly, if it is legal to "borrow" music but not copy it is not the student's fault the files were copied. The other users could simply have listened to the music files from the shared folder without copying them, and thus "borrowed" them. That they weren't content to simply "borrow" the music isn't the fault of the student who opened his music collection to the public.
That's how I see it anyway.
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It's worth noting that everything you listed there is considered in some way harmful by someone. No one really considers music (overall) to be harmful*. If you went and set a stack of CD's on the street that said "take one", no one is going to freak out.
*Yes, I know some people rail against explicit lyrics, but that says nothing of other forms of music. Let's not get pedantic here.
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You live somewhere, where the is street traffic. Now, lets say within arms reach of the street, you place [something] either
(a) Illegal to distribute (not necessarily posses, just distribute)
(b) Illegal to distribute to minors
(c) Illegal to distribute to others not possesing a license.
Are you breaking the law by putting it out there in the open, where anyone can access it trivially?
So you think it should be illegal to leave your keys in your car? That covers (b) and (c).
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Are you breaking the law by putting it out there in the open, where anyone can access it trivially?
As a few examples:
Illegal narcotics
Pornography
Guns (regular or automatic)
Perscription medications
etc. etc.
There are laws that regulate the posession of narcotics, guns, prescription medications and porn. They are illegal when found in the hands of the wrong people. These same rules do not apply to music.
I say good for him, the RIAA bears the burden of proof and if they don't have proof anyone downloaded the music, then he didn't break any laws.
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Hmm. So by that logic, anybody broadcasting unsecured wi-fi into your laptop's airspace is distributing internet access. Unfortunately, the law disagrees with that assessment. There have been multiple cases now of people being arrested for accessing such "distributed" resources.
Just out of curiosity: if I leave my car unlocked on a publicly accessible street, do you feel I am "distributing"
Re:I say... (Score:5, Insightful)
Now, the comparison to the RIAA's case is -- a police officer walks up to my truck, reaches in and takes the disks out of the visor.
And then he arrests me.
And *I* get charged with a crime.
If that's the legal definition of distributing copyrighted materials, then we have a much bigger problem with our legal system then just the RIAA.
Re:I say... (Score:5, Interesting)
Let's try a different take:
I make some modifications to my copy of Linux. I leave a copy of the compiled version in a directory that's accessible to anybody on the internet who knows where to look. When someone demands the source code, I tell him to go to hell because I'm not distributing anything. Can I get sued for violating the GPL?
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The whole damn point of this debate is what the intent of the person with the share folder was. You can't give an analogy that essentially strips out all the intent of the student to let the files be copied freely, and then use that to prove that the intent didn't exist in the original situation. He didn't just
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Sorry, I can't believe I actually typed that...
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Until somebody downloads that file, there has been no violation of copyright, period.
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The library isn't at fault because its very design is to provide fair use to the public for copyright documents.
But as for the
Of course he's distributing it (Score:2)
Of course, he might not be distributing it (Score:5, Insightful)
But what if his intent was only to give himself access to his data from any location on campus?
In that case, it is not distribution. It is giving himself location free and operating system unlimited access to his purchased content.
If possession is 9/10ths of the law, then my receipt says I can do whatever I want with my legally purchased content so long as I don't produce copies for financial gain.
There is law against selling copies of content without access to copyrights. There is law against copying content without access to copyrights. There is no law against making one's legally purchased content accessible to oneself (unless you break encryption in the process).
Re:Of course, he might not be distributing it (Score:5, Insightful)
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Then he should have locked the directory with a password so only he had access to it.
Did he do that or did he let it wide open and tell his friends about it? If he had at least used a password locked file, he could claim he was taking measures to only allow himself access to the music.
Granted, he could have given the password to his friends but at least he would have a stronger case.
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In general, if you have copyrighted material on one computer that you own, and then copy it to another computer that you own, you need the copyright holder's permission, even though you own both computers. The important thing from a copyright-law POV is the act of copying, not the people who have access to the copy. (IANAL, but I was involved in an IP audit of some data that is used to build one of my employer's
Cry me a river (Score:3, Insightful)
Easy fix, dude. (Score:5, Informative)
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Admittedly, it could (and has been in other posts) be