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TOS #9 and pirated music, copy protection, local laws, Split from: "TOS Violators - How Should We Respond?" (75498)
southisup
post Oct 31 2009, 03:50
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TOS 9 could do with a bit of clarification - it doesn't explicitly cover posts requesting help with tag clean-up of pirate rips, or establishing if they were from the original source rather than a transcode, etc.

If a poster makes it obvious they are asking for help with pirate rips, I report the post - should I continue to do so?
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greynol
post Oct 31 2009, 04:29
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TOS9 is supposed to be enforced as it was literally written. So morons who can't figure out what to do with their pirated data are allowed to inquire. This doesn't mean that you should feel obliged to help them, nor does it mean that you can't suggest that they go about getting their stuff legally provided that doing so doesn't violate some other rule such as TOS2 or TOS5. It's probably worth mentioning that both of these rules (2 and 5) are typically enforced with great leniency.

I fully admit that I have not always enforced TOS9 correctly. If you feel I've not been fair with you regarding a TOS9 warning (or any other warning for that matter) feel free to send me a PM stating your case.


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Akkurat
post Oct 31 2009, 16:38
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QUOTE (botface @ Oct 31 2009, 12:37) *
TOS 9 also needs a rethink. In the UK and many other countries, I believe, it is a breach of copyright to make a copy of copyrighted material without the explicit permission of the copyright holder.

Are you sure about that? Could it be that it's just illegal to break/circumvent copy protections while making a backup copy?! So, making personal copies of your normal CD's is ok as long as you don't distribute the copies and you are keeping the original CD after making a copy (though some countries e.g. allow copying library CD's even though one has to return the original). 99% of commercial DVD's are protected and thus people might give out info that it's not legal to copy them (DVD's), which might confuse people into thinking that it's the copying of a "media" that is illegal, and thus leading to a wrong conclusion that copying unprotected CD's ("media") is also illegal..? Disclaimer: I don't know what the law says about this in UK.

1) HA currently resides in Netherlands and it's the dutch law that "governs" how the TOS#9 is laid out.
2) HA is not nurturing every user from whatever country so that they wouldn't break laws in their own country.

EDIT: added 1 missing indefinite article. Perfectionism, it's a burden. biggrin.gif

This post has been edited by Akkurat: Oct 31 2009, 16:42
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botface
post Oct 31 2009, 17:50
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@Canar.
OK, I'll PM you next time an inconsistency strikes me. You say
QUOTE
TOS2 fills that hole nicely.
I think that may be a good example of the TOS being vague or unclear. I always interpreted TOS2 as intended to prevent verbal abuse, swearing, name calling etc. It never occured to me that it had any relationship to TOS8. On the other hand, as someone else said earlier in the thread it's largely about common sense so maybe it doesn't matter that much.

@Akkurat.
I picked up a couple of recent (2009) CDs at random. One says "Unauthorised duplication........ is a violation of applicable laws". Maybe you could argue that keeping a copy on a PC doesn't amount to duplication. Another CD says "Unauthorised copying......... prohibited". TOS9 says "Discussion .... how to otherwise violate laws pertaining to such matters will not be tolerated...". I know I'm being pedantic and as I said, I don't feel like I'm depriving an artist of his/her living if I rip a CD. OK, Dutch law allows it and we obviously can't expect the TOS to cover the legalities in every country but I think the UK is not alone in this so we have a situation where HA is inviting large numbers of people to break its own TOS. I think that undermines them. Perhaps a little amendment pointing out that local laws may differ need to be respected is all that's needed. But I'm not losing any sleep over it
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greynol
post Oct 31 2009, 20:20
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I think you better review Dutch law regarding the circumvention of copy protection. Anyway TOS9 has already been addressed and clarified by the administrators. Some of this clarification can be found here:
http://www.hydrogenaudio.org/forums/index....showtopic=73353


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Akkurat
post Nov 1 2009, 00:29
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QUOTE (botface @ Oct 31 2009, 18:50) *
You say "TOS2 fills that hole nicely." I think that may be a good example of the TOS being vague or unclear. I always interpreted TOS2 as intended to prevent verbal abuse, swearing, name calling etc. It never occured to me that it had any relationship to TOS8.

I've to agree, I had a WTF moment.. I still don't understand that.

QUOTE (botface @ Oct 31 2009, 18:50) *
"Unauthorised duplication........ is a violation of applicable laws".

You know that that can't precede local laws? Basically that reads as: follow the law in your country. One can print whatever crazy rules to merchandise but that doesn't mean that it is the "law". Some EULA cases vaguely pops to my mind.

QUOTE (botface @ Oct 31 2009, 18:50) *
Dutch law allows it and we obviously can't expect the TOS to cover the legalities in every country

Of course not, and we should not expect anything like that. The TOS is a set of rules for the users of this forum, in this case, to protect the existence of HA.

QUOTE (botface @ Oct 31 2009, 18:50) *
Perhaps a little amendment pointing out that local laws may differ need to be respected is all that's needed.

IMHO, no need. TOS is TOS, law is law in your country. Should be simple. The HA is following dutch law and that is reflected to users as some rules that needs to be followed. And in addition, of course, the user follows the law in his/her country.

QUOTE (botface @ Oct 31 2009, 18:50) *
we have a situation where HA is inviting large numbers of people to break its own TOS.

??? Lost me there. How is HA inviting people to break HA TOS?! blink.gif
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Akkurat
post Nov 1 2009, 00:45
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QUOTE (southisup @ Oct 31 2009, 04:50) *
TOS 9 could do with a bit of clarification - it doesn't explicitly cover posts requesting help with tag clean-up of pirate rips, or establishing if they were from the original source rather than a transcode, etc.
QUOTE (greynol @ Oct 31 2009, 05:29) *
morons who can't figure out what to do with their pirated data are allowed to inquire.

Unfortunately. I really would like to see HA firmly stand against piracy. *wink* *wink* admins smile.gif I don't believe that telling them even nicely to change their ways would yield any results at all. What I've seen from such posts (dealing illegal stuff) and users so far, I personally don't want that kind of people here. They don't have anything to offer here, they just need quick help with their illegal stuff. My 2c.
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andy o
post Nov 1 2009, 04:22
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I know that TOS9 is strict, but I think it's a bit extreme if the DRM is malware that gets installed on your PC even if you don't intend to rip, just play. That's what happened to Russinovich incidentally as we know.
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Canar
post Nov 1 2009, 04:56
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I'll put it this way: TOS2 basically can be interpreted to give us mods carte blanche if we need it.


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southisup
post Nov 1 2009, 05:09
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QUOTE (greynol @ Oct 31 2009, 14:29) *
TOS9 is supposed to be enforced as it was literally written. So morons who can't figure out what to do with their pirated data are allowed to inquire. This doesn't mean that you should feel obliged to help them, nor does it mean that you can't suggest that they go about getting their stuff legally provided that doing so doesn't violate some other rule such as TOS2 or TOS5. It's probably worth mentioning that both of these rules (2 and 5) are typically enforced with great leniency.

Thanks, that's clarification enough for me. I like HA's "against piracy, but not in a fanatical way" stance, & hope it can stay that way.
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Akkurat
post Nov 1 2009, 14:43
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QUOTE (Canar @ Nov 1 2009, 05:56) *
I'll put it this way: TOS2 basically can be interpreted to give us mods carte blanche if we need it.

blink.gif Even more WTB (what the bleep wink.gif). So basically it doesn't matter what the TOS#2 (or any other?) say, you can do whatever you want? That's a bit surprising.. at least to me after when being repeatedly told that TOS#9 "is supposed to be enforced as it was literally written". It doesn't apply to other TOS's as well like I thought?

TOS#2:
"Messages which are found to be abusive, obscene, vulgar, hateful, slanderous, threatening, or which are otherwise in violation of any laws, deemed as such by the Hydrogenaudio staff, and at their sole discretion, will be removed."

I don't see how that would "fill the 'to the best of their ability' hole" in TOS#8.

Just saying out loud, hopefully not angering anybody. smile.gif
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Akkurat
post Nov 1 2009, 14:48
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QUOTE (southisup @ Nov 1 2009, 06:09) *
HA's "against piracy, but not in a fanatical way"

HA is not against piracy per se, just covering the legal ass with TOS#9. smile.gif
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Kees de Visser
post Nov 1 2009, 23:24
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QUOTE (Akkurat @ Nov 1 2009, 14:48) *
HA is not against piracy per se, just covering the legal ass with TOS#9. smile.gif
Perhaps not enough smile.gif : According to the Stemra (Dutch BIEM member) website's FAQ:
Q: Is a piece of music less than 30 seconds long free of charge?
A: Many people think that permission from the author is not required for using part of a work that is protected by copyright. However, you do need permission to use a fragment, no matter how short.

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extrabigmehdi
post Nov 1 2009, 23:29
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@Kees de Visser
QUOTE
Perhaps not enough : According to the Stemra

What about fair use

This post has been edited by extrabigmehdi: Nov 1 2009, 23:30
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Kees de Visser
post Nov 2 2009, 00:03
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QUOTE (extrabigmehdi @ Nov 1 2009, 23:29) *
What about fair use
AFAIK that's not in their vocabulary.
From the Dutch Wikipedia:
QUOTE
Fair use: In de Verenigde Staten staat de fair use doctrine toe kopieŽn te maken van een beperkt deel van eigendomsrechtelijk werk, dat wil zeggen voor bepaalde doeleinden, zoals onderwijs, kritieken en hekelingen. Ook is het in het algemeen toegestaan om voor eigen gebruik kopieŽn te maken van werken die men in het bezit heeft, mits die niet verder verspreid worden. Vanwege het territorialiteitsbeginsel heeft deze regeling echter geen enkele rechtskracht in Europa.
Freely translated: the fair use doctrine doesn't work in Europe.

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2Bdecided
post Nov 2 2009, 11:31
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I think we either need to be legal, or moral, or nothing. I assume it's the first, though personally I'd prefer the second!

btw, it's correct that in the UK, almost all copying is technically illegal. The law is long overdue an update, and this is accepted, so it's ignored. This is a poor situation.


So, if it was me personally, I'd happily help someone copy their own bought CDs and DVD-As onto their PC - but I've no interest helping someone work with files that they've downloaded from the net in place of purchasing readily available CDs of that material. I suspect many people feel the same - but I suspect there are few countries where the law makes the former always legal and the latter always illegal.

Cheers,
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Synthetic Soul
post Nov 2 2009, 15:29
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QUOTE (2Bdecided @ Nov 2 2009, 10:31) *
I think we either need to be legal, or moral, or nothing. I assume it's the first, though personally I'd prefer the second!
Given the global coverage of this forum I think a moral stance is the more sensible. I'm not sure about the sense in dealing with threads according to Dutch law, when the member does not live in Holland. Although we may be acting legally we may be helping somebody with their illegal activities.

My stance is the same as David's; I'd rather just simply refuse to help members with music that (I suspect) they have downloaded without consent.

QUOTE (2Bdecided @ Nov 2 2009, 10:31) *
btw, it's correct that in the UK, almost all copying is technically illegal. The law is long overdue an update, and this is accepted, so it's ignored. This is a poor situation.
Here's an article on the BBC in which the BPI state that they will "turn a blind eye" to users copying for their own use (but the law says it is still illegal).


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greynol
post Nov 2 2009, 16:39
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Again, TOS9 has been found to be more or less* consistent with Dutch law and is to be followed and enforced literally. We follow Dutch law because this site is hosted in the Netherlands. Where any given user resides is irrelevant.

*I'm not certain about "fair-use" however.


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Synthetic Soul
post Nov 2 2009, 16:53
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It may be irrelevant to us, if we are only concerned about covering our backs; however the member needs to act within the laws of his or her own country, and therefore Dutch laws are likely to be irrelevant to them. There are moral implications if we advise a user to break their governing laws.

Edit: I should really point out that I'm not advocating that we update TOS #9, merely that I, personally, would rather play it safe when discussing potentially immoral topics. TOS #9 is difficult as it is, without listening different circumstances for different countries. smile.gif

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greynol
post Nov 2 2009, 17:03
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QUOTE (Synthetic Soul @ Nov 2 2009, 07:53) *
the member needs to act within the laws of his or her own country
I certainly agree.

QUOTE (Synthetic Soul @ Nov 2 2009, 07:53) *
There are moral implications if we advise a user to break their governing laws.
I don't see how TOS9 is advising someone to break non-Dutch law.


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Synthetic Soul
post Nov 2 2009, 17:15
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smile.gif No, but a member adhering to Dutch law may advise another member to unwittingly break the law of their own country.

I fear I'm just confusing matters here, and for that I apologise.

In truth TOS #9 does not even cover downloading music illegally, and it is that subject that I am mainly considering here. You stated already in post #2 that members may discuss illegally downloaded music without fear of violating TOS #9.

I guess all that I am saying is that, within TOS #9 we simply need to act responsibly, considering both the law and our own moral code. Even if members may discuss illegal downloads, I'm certainly not going to rush in to help them. That's simply a moral choice.


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greynol
post Nov 2 2009, 17:20
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Yep, and I am with you 100% of the way.

IIRC, in the U.S. people are explicitly prohibited from facilitating others in breaking copyright law.


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carpman
post Nov 2 2009, 17:24
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QUOTE (Synthetic Soul @ Nov 2 2009, 15:29) *
QUOTE (2Bdecided @ Nov 2 2009, 10:31) *
I think we either need to be legal, or moral, or nothing. I assume it's the first, though personally I'd prefer the second!
Given the global coverage of this forum I think a moral stance is the more sensible.

From: http://en.wikipedia.org/wiki/Morality
My additions in [square brackets], wiki in quotes.

QUOTE
In its descriptive use, morals are arbitrarily and subjectively created by society, philosophy, religion, and/or individual conscience.

[e.g. "I think it's morally okay to download music, and so do my mates and my spiritual leader"]

QUOTE
The arbitrariness of morality stems from the observation that actions that may be deemed moral in one culture in time may not be classified as such in others or in a different time.

[i.e. The law changes, does that mean my morals change? And by virtue of moving about the planet morality seems to change.]

QUOTE
The subjectiveness of morality is shown by the observation that actions or beliefs which by themselves do not seem to cause overt harm may be considered immoral, e.g. marrying someone of the same or opposite gender, being an atheist or a theist, etc.

[e.g. "I'm against killing but downloading isn't really hurting anyone"]

QUOTE
While for the most part immoral acts are classified as such because they cause clear harm, this is not by any means an all encompassing criterion; it's possible that many moral beliefs are due to prejudice, ignorance or even hatred.


QUOTE
[...] known as moral skepticism, in which the unchanging existence of a rigid, universal, objective moral "truth" is rejected.


QUOTE
In its third usage, 'morality' is synonymous with ethics. [...] Ethics seeks to address questions such as how a moral outcome can be achieved in a specific situation ...

[so what's moral?]

Morality is way too fluffy and subjective IMO.
Furthemore, Synthetic Soul is assuming a connection between Law and Morality, and though often this is the case, in IP law I've never seen a great deal of morality. IP law is generally shaped by business interests and businesses have never been very good at morality.

IMO morality is purely a personal matter (i.e. between me and my conscience).
Just thought since we're talking morality it might be useful to consider its meaning.

C.

EDIT: Added quotes (at top of this post) from this thread.

This post has been edited by carpman: Nov 2 2009, 17:28


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Canar
post Nov 2 2009, 18:07
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QUOTE (Akkurat @ Nov 1 2009, 09:43) *
TOS#2:
"Messages which are found to be abusive, obscene, vulgar, hateful, slanderous, threatening, or which are otherwise in violation of any laws, deemed as such by the Hydrogenaudio staff, and at their sole discretion, will be removed."
That's just the explanation for the rule itself: "2. All members, at the staff's discretion, must converse in an acceptable fashion to be allowed the privilege of continued participation." Let's just say that subjectivist bullshit is abusive and obscene to me. wink.gif


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2Bdecided
post Nov 2 2009, 21:32
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QUOTE (carpman @ Nov 2 2009, 17:24) *
[so what's moral?]
Well, implicitly HA regards copying your music onto your PC as "moral", or to be clearer: an acceptable subject to discuss and encourage on this forum - despite it being illegal where I'm sitting right now.

I'd be happier if downloading and working with pirated music wasn't an acceptable subject to discuss and encourage on this forum, but I don't think the TOS goes that far. Hence this discussion.


btw, I'd draw a distinction between IP law in general (which is mostly pretty sane IMO - especially in most countries and as tested in the courts) and copyright law in particular (which is increasingly, as you say, written for and by large corporations).

Cheers,
David.
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