(off topic)Banjo Johnny, just a reminder of the OCTMA meeting this Saturday.(/offtopic)
I have been trying to acquire a certain record for many months now. I ordered the CD, and the response came back "Unavailable: Out of Print". Then I ordered the cassette, and the response came back "Unavailable: Out of Print". I am not a lawyer, this is not legal advice, etc. etc, but I think that privately to tape a friend's copy under these circumstances would constitute a fair use even if home taping weren't permitted elsewhere in the statute. If I were to get an MP3 from Napster (which I haven't, as noted in my earlier post), would that be any different ? Well, yes, because someone who lists his MP3 files on Napster makes them available to all comers, not just to certain specific individuals. Does this amount to contributory infringement in Napster's part ? Does Napster's "substantial noninfringing use" outweigh this ? Maybe. Maybe not. I have mixed feelings, both about what the law is and about what it should be in this case.
But the broader issue remains: the special interests are trying to push back the boundaries of fair use and the public domain, and are so far more successful than they deserve to be. I frankly think the Money isn't entitled to much sympathy from me on its "problem" with Napster (if it even has one) until the Money is ready to recognize that copyright exists for the sake of the public domain. If I were a federal legislator, I would block any attempt at a legislative "solution" to MP3-related "problems" unless I got a quid-pro-quo in the form of a repeal of Title 1 of the Copyright Term Extension Act and of the anti-circumvention provisions of the Digital Millenium Copyright Act. Even then my support for the "solutions" would depend on the precise form they took.