John's favorite ringtones

Elmo P. Shagnasty answered:

> In article <[email protected]>,
> "Shaolin Superfly" <[email protected]> wrote:
>
>
>>"Scott Stephenson" <[email protected]> wrote in message
>>news:[email protected]...
>>
>>>You're worng on this one, John.
>>
>>
>>He's "wrong" on at least half the pablum he spews across usenet daily.
>
>
> And insists that everything he posts follows the charter and general
> Usenet conventions.
>
and thats the way it's SUPPOSED to be. Only usenet TROLLS like yourself
would NOT want this, because YOU would be forced out.
and YES if I ever met you, you would be a blood stain on the ground.

save everyone the trouble. KILL YOURSELF. PLEASE!!!
you've NEVER had anything to say you piece of ****.

---

› See More: John's favorite ringtones

Jack Zwick answered:

> In article <[email protected]>,
> ArchieLeach <[email protected]> wrote:
>
>
>>Jack Zwick <[email protected]> wrote in news:jzwick3-
>>[email protected]:
>>
>>
>>>But if they are posted on web site for others to use, the RIAA is very
>>>interested in such occurances.
>>
>>Repeat after me: RIAA can NOT sue over MIDI files. RIAA can NOT sue over
>>MIDI files. RIAA can NOT sue over MIDI files. RIAA can NOT sue over MIDI
>>files. RIAA can NOT sue over MIDI files.....
>
>
> Keep telling yourself that. Maybe it will come true one day.

until then, Tongue my anus.

Again, I respectfully disagree.

There are both original work (expression) copyrights on songs, and performance
copyrights on performances. In this case, only the original work copyright is
applicable, since I'm *not* using copyrighted recordings. With regard to
original works:

A copyright gives the owner the exclusive right to reproduce,
distribute, perform, display, or license his work. See § 106 of the
act. The owner also receives the exclusive right to produce or
license derivatives of his or her work. See § 201(d) of the act.
Limited exceptions to this exclusivity exist for types of "fair use",
such as book reviews. See § 107 of the act. ...
<http://www.law.cornell.edu/topics/copyright.html>

With regard to Fair Use:

Notwithstanding the provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction in copies
or phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair use the
factors to be considered shall include--
(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of
the copyrighted work.

<http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html>

In my opinion, my short MIDI excerpts fall under Fair Use provisions.
Furthermore, I know of no case which holds otherwise -- do you?

That there are commercial ringtones is irrelevant from a legal standpoint.

Two paragraphs copied out of a novel aren't plagarism if the source is
identified (Berne Convention), which I have done (at least in part).

Caveat: I am not a lawyer, and this is not legal advice -- consult your
own attorney.

In <[email protected]> on Sat, 8 Jan 2005 16:34:00 -0700,
"Scott Stephenson" <[email protected]> wrote:

>You're worng on this one, John. The copyright is held by the songwriter (or
>his assigned agent) and is on the song, not the performance. Permission
>must be obtained to perform, record or use the song for profit, and the
>copyright holder does have the right to determine unwanted uses of their
>material. There is no exclusion for cellular phones, and legitimate
>ringtones do result in royalty payments to the artist.
>
>What you are doing does not come close to being copyright legal. The
>recordings you are using (regardless of format) were not authorized by the
>copyright holder of the song. To distribute these without permission is
>wrong. And before you start the "small clip" argument, two paragraphs
>copied out of a novel is still plaigerism.
>
>"John Navas" <[email protected]> wrote in message
>news:[email protected]...
>> I respectfully disagree. Copyright law does allow people to use copyrighted
>> songs and performances on cell phones (absent a specific prohibition), just as
>> it allows them to make their own recordings. In addition, these are (a) MIDIs
>> with no performance copyright; (b) short clips, not entire songs; and (c) less
>> good than free clips on commercial download services.
>>
>> Caveat: I am not a lawyer, and this is not legal advice -- consult your own
>> attorney.

--
Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
John Navas <http://navasgrp.home.att.net/#Cingular>

[POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

In <[email protected]> on 8 Jan 2005
17:43:38 -0800, [email protected] wrote:

>John wrote:
>> I respectfully disagree.
>
>Please, read about fair use.

Been there; done that. See my earlier post on Fair Use.

>The "small size" component is only one of
>a number of necessary parts for fair use to apply.

Correct.

>Your use does not
>satisfy any of the other components of fair use.
>http://fairuse.stanford.edu/Copyrigh...er9/index.html

I respectfully disagree. See
<http://www.law.cornell.edu/treaties/berne/10.html>
<http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html>

>> Copyright law does allow people to use copyrighted
>> songs and performances on cell phones (absent a
>> specific prohibition), just as it allows them to make
>> their own recordings
>
>I must be missing something here. Does this count as a prohibition:
>US Code Title 17 Chapter 1 Section 106:
>Subject to sections 107 through 122, the owner of copyright under this
>title has the exclusive rights to do and to authorize any of the
>following:
>(1) to reproduce the copyrighted work in copies or phonorecords;

In the Betamax case, the Supreme Court upheld a lower court ruling that home
recording for personal use is protected under the doctrine of fair use.

>> In addition, these are
>> (b) short clips, not entire songs;
>
>The length only comes in to play with fair use exemptions. Since your
>use does not meet with any of the other fair use criteria, length is
>irrelevant.

I respectfully disagree.

>> and (c) less good than free clips on commercial download services
>
>Do you think that a pirate video tape vendor would get away with the
>argument that their video was obviously of inferior qualiity, and thus
>didn't interfere with the marketability of the original?

This issue isn't quality, it's the free availability of better clips.

>Do I care that people are distributing low quality renditions of
>sections of songs without permission? Not in the slightest. I have no
>problem with it. I just don't want people to think that it's actually
>legal.

Again, I respectfully disagree. If you continue to disagree with me, cite
cases in support of your position.

--
Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
John Navas <http://navasgrp.home.att.net/#Cingular>

[POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

In <[email protected]> on Sun, 09 Jan
2005 04:19:26 GMT, Jack "Chicken Little" Zwick <[email protected]> wrote:

>In article <[email protected]>,
> ArchieLeach <[email protected]> wrote:

>> Of course, cell-phone ringtones would probably be considered "personal
>> use" rather than "public performance", so the likelihood of legal action
>> is low. Consider that neither brides, disc jockeys nor hotels need to pay
>> ASCAP/BMI/RIAA royalties for wedding receptions (for events that are open
>> to the public, the venue or event producer is responsible for royalty
>> issues).
>
>But if they are posted on web site for others to use, the RIAA is very
>interested in such occurances.

Only if they are copyrighted performance recordings, which isn't the case
here.

--
Best regards,
John Navas <http://navasgrp.home.att.net/>

"A little learning is a dangerous thing." [Alexander Pope]
"It is better to sit in silence and appear ignorant,
than to open your mouth and remove all doubt." [Mark Twain]

[POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

In <[email protected]> on Sun, 09 Jan
2005 01:57:32 GMT, Jack "Chicken Little" Zwick <[email protected]> wrote:

>Thank you for that clarification. Maybe Navas will now wake up, take his
>illegal ringtones off his website and apologize, since you proved him
>wrong.

Nope. Read my rebuttal.

--
Best regards,
John Navas <http://navasgrp.home.att.net/>

"A little learning is a dangerous thing." [Alexander Pope]
"It is better to sit in silence and appear ignorant,
than to open your mouth and remove all doubt." [Mark Twain]

"John Navas" <[email protected]> wrote in message
news:[email protected]...
> Again, I respectfully disagree.
>
> There are both original work (expression) copyrights on songs, and
performance
> copyrights on performances. In this case, only the original work
copyright is
> applicable, since I'm *not* using copyrighted recordings. With regard to
> original works:
>
> A copyright gives the owner the exclusive right to reproduce,
> distribute, perform, display, or license his work. See § 106 of the
> act. The owner also receives the exclusive right to produce or
> license derivatives of his or her work. See § 201(d) of the act.
> Limited exceptions to this exclusivity exist for types of "fair use",
> such as book reviews. See § 107 of the act. ...
> <http://www.law.cornell.edu/topics/copyright.html>
>
> With regard to Fair Use:
>
> Notwithstanding the provisions of sections 106 and 106A, the fair use
> of a copyrighted work, including such use by reproduction in copies
> or phonorecords or by any other means specified by that section, for
> purposes such as criticism, comment, news reporting, teaching
> (including multiple copies for classroom use), scholarship, or
> research, is not an infringement of copyright. In determining whether
> the use made of a work in any particular case is a fair use the
> factors to be considered shall include--
> (1) the purpose and character of the use, including whether such use
> is of a commercial nature or is for nonprofit educational purposes;
> (2) the nature of the copyrighted work;
> (3) the amount and substantiality of the portion used in relation to
> the copyrighted work as a whole; and
> (4) the effect of the use upon the potential market for or value of
> the copyrighted work.
>
>
<http://www.law.cornell.edu/uscode/ht...000107----000-
..html>
>
> In my opinion, my short MIDI excerpts fall under Fair Use provisions.
> Furthermore, I know of no case which holds otherwise -- do you?

Yes- there have been many cases where artists and songewriters have
forbidden the use of short sound clips in rap/scratch songs, or have
received monetary damages for such use. And before you ask for specific
cites, remember- Google is your friend.

You'll also need to educate me on which specific clause of 'fair use' you
are claiming applies to you posting these on the Internet- none offer the
protection you claim.



>
> That there are commercial ringtones is irrelevant from a legal standpoint.

It is very relevent- it shows that people can play by the rules. It also
shows that there are perfectly viable (and legal) ringtones available for
download. This is further proof that yours do not fill any market void.

>
> Two paragraphs copied out of a novel aren't plagarism if the source is
> identified (Berne Convention), which I have done (at least in part).

No you haven't- there is no mention of the copyright holder or author, which
would be in the source identification you mention above.

"John Navas" <[email protected]> wrote in message
news:[email protected]...

>
> In the Betamax case, the Supreme Court upheld a lower court ruling that
home
> recording for personal use is protected under the doctrine of fair use.
>

Absolutely correct. However, Betamax did not protect the recording and
distribution of any part of a copyrighted work by the general public. You
can record it and listen or watch it as many times as you want, but the
minute you make a copy available to your friends, you are breaking the law.
Period.

Nobody is denying your right to make these midi files for your own use. The
rub is with the distribution of work product you have no right to
distribute. And the claim that you won't get caught would be slightly lower
on the moral eveolutionary scale than the "Who reads their contract" excuses
we see here on a daily basis.

[POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

In <[email protected]> on Mon, 10 Jan 2005 16:30:05 -0700,
"Scott Stephenson" <[email protected]> wrote:

>"John Navas" <[email protected]> wrote in message
>news:[email protected]...

>> In my opinion, my short MIDI excerpts fall under Fair Use provisions.
>> Furthermore, I know of no case which holds otherwise -- do you?
>
>Yes- there have been many cases where artists and songewriters have
>forbidden the use of short sound clips in rap/scratch songs,

Again, these aren't recordings, and no performance copyrights are at issue.

>or have
>received monetary damages for such use. And before you ask for specific
>cites, remember- Google is your friend.

Been there; done that. What part of "I know of no case which holds otherwise"
was unclear? So if you do you actually know of any, why not post at least one
of them? I've posted citations -- why not you?

>You'll also need to educate me on which specific clause of 'fair use' you
>are claiming applies to you posting these on the Internet- none offer the
>protection you claim.

See my prior posts.

>> That there are commercial ringtones is irrelevant from a legal standpoint.
>
>It is very relevent- it shows that people can play by the rules. It also
>shows that there are perfectly viable (and legal) ringtones available for
>download. This is further proof that yours do not fill any market void.

And that's irrelevant from a legal standpoint. That you can sell (say) water
for $2 per bottle doesn't mean that water can only be obtained that way.

>> Two paragraphs copied out of a novel aren't plagarism if the source is
>> identified (Berne Convention), which I have done (at least in part).
>
>No you haven't- there is no mention of the copyright holder or author, which
>would be in the source identification you mention above.

The name of the clip is identified, and since these are well-known, there's no
real issue.

--
Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
John Navas <http://navasgrp.home.att.net/#Cingular>

[POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

In <[email protected]> on Mon, 10 Jan 2005 16:44:48 -0700,
"Scott Stephenson" <[email protected]> wrote:

>"John Navas" <[email protected]> wrote in message
>news:[email protected]...
>
>> In the Betamax case, the Supreme Court upheld a lower court ruling that home
>> recording for personal use is protected under the doctrine of fair use.
>
>Absolutely correct. However, Betamax did not protect the recording and
>distribution of any part of a copyrighted work by the general public.

I didn't say that. I said:

Copyright law does allow people to use copyrighted songs and performances
on cell phones (absent a specific prohibition), just as it allows them to
make their own recordings.

You apparently now concede that point.

>You
>can record it and listen or watch it as many times as you want,

On your cellular phone.

>but the
>minute you make a copy available to your friends, you are breaking the law.
>Period.

I didn't say that either.

Again, these aren't recordings, and no performance copyrights are at issue.

>Nobody is denying your right to make these midi files for your own use. The
>rub is with the distribution of work product you have no right to
>distribute. And the claim that you won't get caught would be slightly lower
>on the moral eveolutionary scale than the "Who reads their contract" excuses
>we see here on a daily basis.

I never made such a claim, so kindly refer from making such an accusation.
My claim is that short MIDI clips are Fair Use. You disagree. Fair enough.
End of story.

--
Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
John Navas <http://navasgrp.home.att.net/#Cingular>

"John Navas" <[email protected]> wrote in message
news:[email protected]...

>
> And that's irrelevant from a legal standpoint. That you can sell (say)
water
> for $2 per bottle doesn't mean that water can only be obtained that way.

I would have expected much better from you. Water does not have the legal
protection of creation that any art form does. What you are promoting is an
attitude of sharing anything, as long as you don't get caught. Trying to
cover it up with a twisted and incorrect interpretation of law is pretty
pathetic.

>
> >> Two paragraphs copied out of a novel aren't plagarism if the source is
> >> identified (Berne Convention), which I have done (at least in part).
> >
> >No you haven't- there is no mention of the copyright holder or author,
which
> >would be in the source identification you mention above.
>
> The name of the clip is identified, and since these are well-known,
there's no
> real issue.

And this is proof that you don't have a clue about what you are talking
about- that doesn't satisfy a single element of copyright identification.
You better research some more.




>
> --
> Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
> John Navas <http://navasgrp.home.att.net/#Cingular>

"John Navas" <[email protected]> wrote in message
news:[email protected]...
> [POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]
>
> In <[email protected]> on Mon, 10 Jan 2005
16:44:48 -0700,
> "Scott Stephenson" <[email protected]> wrote:
>
> >"John Navas" <[email protected]> wrote in message
> >news:[email protected]...
> >
> >> In the Betamax case, the Supreme Court upheld a lower court ruling that
home
> >> recording for personal use is protected under the doctrine of fair use.
> >
> >Absolutely correct. However, Betamax did not protect the recording and
> >distribution of any part of a copyrighted work by the general public.
>
> I didn't say that. I said:
>
> Copyright law does allow people to use copyrighted songs and
performances
> on cell phones (absent a specific prohibition), just as it allows them
to
> make their own recordings.
>
> You apparently now concede that point.
>
> >You
> >can record it and listen or watch it as many times as you want,
>
> On your cellular phone.
>
> >but the
> >minute you make a copy available to your friends, you are breaking the
law.
> >Period.
>
> I didn't say that either.

You didn't say it- you did it by posting them for community download on a
public website.

>
> Again, these aren't recordings, and no performance copyrights are at
issue.

They most certainly are recordings, and there is more than a performance
copyright on these songs. Someone owns COMPLETE CONTROL of the use of the
melody and words to these songs- how, when and where they are distributed in
a public forum being among those.

>
> >Nobody is denying your right to make these midi files for your own use.
The
> >rub is with the distribution of work product you have no right to
> >distribute. And the claim that you won't get caught would be slightly
lower
> >on the moral eveolutionary scale than the "Who reads their contract"
excuses
> >we see here on a daily basis.
>
> I never made such a claim, so kindly refer from making such an accusation.
> My claim is that short MIDI clips are Fair Use. You disagree. Fair
enough.
> End of story.
>
> --

Not this time- you are BREAKING THE LAW by performing, recording and
distributing the work product of someone else without their permission.
The performance may not be at issue, but the recording and distribution is
not allowed. Period. I'll tell you what- take a one frame still from one
of Elvis' movies and put it on a t-shirt, but do a very amateur job of it- a
little blurry, make his hair red. Go stand in front of Graceland and give
the t-shirts away. Let me know how long it takes for someone to slap you
with a cease and desist order. The same argument you are trying to make
would apply- its a very short clip of the movie, modified by your own hand.

Your little convenient "end of story" is not lost on me. You can't admit
when you are wrong. And trying to avoid the issue by issuing an "end of
story" is slightly less desireable than a total evasion of the issue.
Actually far below the standards of posting that you encourage here.

John wrote:
> My claim is that short MIDI clips are Fair Use.

YourMobile.com was sued by EMI, and settled out of court, acquiring a
license and paying royalties for their distribution of ringtones.
http://news.com.com/2100-1033-275232.html?legacy=cnet
http://www.out-law.com/php/page.php?...1875&area=news

You claimed that your distribution of MIDI clips was legal based on
fair use.
There are four tests used to examine whether fair use exemptions apply.
Which of these do you claim apply?

1. Transformative. Any commentary, or artistic interpretation? Has the
author of the allegedly infringing work added anything or modified it
in some way?

In this case, it's quite clear that merely selecting a recognizable
portion
of a melody isn't "transformative" in any meaningful way.

2. The nature of the work. Factual works are generally afforded less
protection; a list of dates is unlikely to be protected. Artistic works
are
afforded more protection.

Music is clearly artistic, so it fails on this test.

3. The Amount and Substantiality of the Portion Taken

This is an area that is fuzzy and has contradictory case law. However,
you should note the second part, "substantiality." If you're using the
most recognizeable part of a song, that could easily be argued to be
substantial enough. Most current pop songs aren't much more than a
short, repetitive bit with fluff around it to make it into a proper
track length

4. The Effect of the Use Upon the Potential Market
At least over here in Europe, it seems like people are quite willing to
spend ridiculous amounts of money on ring tones. There is a market for
ring tones, and your providing them will reduce the copyright holder's
market for them.

Out of those four tests, you _might_ pass one of them. One out of four
renders your copying not fair use. You're welcome to respond as to
previous arguments, and say "I disagree." I know you disagree. However,
continuing to say "I disagree" without any actual argument makes you
sound more like a five year old.

You quoted the Berne Convention. It is _not_ binding law in the USA.
Congress passed a law to implement a subset of the provisions of the
Convention in the way that they wanted to. The fact that the Berne
Convention says something is absolutely irrelevant. If it's not in the
US Code, it is not the law.

http://www.copyright.gov/title17/92appii.html

I've explained why and how the law you claim supports your position
demonstrates that your actions are against copyright law. If you really
do feel that your use passes the tests then, please, explain which
tests and why.

[POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

In <[email protected]> on Mon, 10 Jan 2005 17:12:33 -0700,
"Scott Stephenson" <[email protected]> wrote:

>"John Navas" <[email protected]> wrote in message
>news:[email protected]...
>
>> And that's irrelevant from a legal standpoint. That you can sell (say) water
>> for $2 per bottle doesn't mean that water can only be obtained that way.
>
>I would have expected much better from you.

Likewise.

>Water does not have the legal
>protection of creation that any art form does.

I didn't say it did -- I was only responding to your argument.

>What you are promoting is an
>attitude of sharing anything, as long as you don't get caught.

That's untrue, unwarranted, and uncalled for.

>Trying to
>cover it up with a twisted and incorrect interpretation of law is pretty
>pathetic.

That's not what I'm doing. You've let your emotions get out of control.

>> The name of the clip is identified, and since these are well-known, there's no
>> real issue.
>
>And this is proof that you don't have a clue about what you are talking
>about- that doesn't satisfy a single element of copyright identification.

The intent of identification is to demonstrate that the clip isn't being
presented as an original work, that it falls under Fair Use. True, it would
have been better had I provided more information, but since I did clearly
identify the clips, I think the spirit of the provision was satisfied. As
always, YMMV.

>You better research some more.

I suggest you take your own advice. I also suggest you calm down.

--
Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
John Navas <http://navasgrp.home.att.net/#Cingular>

[POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

In <[email protected]> on Mon, 10 Jan 2005 17:24:46 -0700,
"Scott Stephenson" <[email protected]> wrote:

>"John Navas" <[email protected]> wrote in message
>news:[email protected]...
>>
>> In <[email protected]> on Mon, 10 Jan 2005 16:44:48 -0700,
>> "Scott Stephenson" <[email protected]> wrote:

>> >You
>> >can record it and listen or watch it as many times as you want,
>> >but the
>> >minute you make a copy available to your friends, you are breaking the law.
>> >Period.
>>
>> I didn't say that either.
>
>You didn't say it- you did it by posting them for community download on a
>public website.

Again, I didn't "record it" from a performance.

>> Again, these aren't recordings, and no performance copyrights are at
>issue.
>
>They most certainly are recordings,

Again, they are not "recordings" of performances -- they are MIDI note
sequences, roughly comparable to a digital sheet music clips, analogous to
electronically quoting short excerpts of published works.

>and there is more than a performance
>copyright on these songs.

Again, there is no performance copyright, since these are not recordings of
performances.

>Someone owns COMPLETE CONTROL of the use of the
>melody and words to these songs- how, when and where they are distributed in
>a public forum being among those.

From my prior citation, a copyright grants only "the exclusive right to
reproduce, distribute, perform, display, or license his work" and "the
exclusive right to produce or license derivatives of his or her work" subject
to "limited exceptions" ("fair use").

>> I never made such a claim, so kindly refer from making such an accusation.
>> My claim is that short MIDI clips are Fair Use. You disagree. Fair enough.
>> End of story.

>Not this time-

[sigh]

>you are BREAKING THE LAW ...

In your opinion. Not in my opinion. And stop shouting -- you've really let
your emotions get the better of you.

>I'll tell you what- take a one frame still from one
>of Elvis' movies and put it on a t-shirt, but do a very amateur job of it- a
>little blurry, make his hair red. Go stand in front of Graceland and give
>the t-shirts away. Let me know how long it takes for someone to slap you
>with a cease and desist order. The same argument you are trying to make
>would apply- its a very short clip of the movie, modified by your own hand.

Your analogy is fatally flawed: I didn't start with a copyrighted performance.
What I did was roughly analogous to publishing a caricature of an excerpt from
the script of the movie, something that's done all the time under the Fair Use
exception.

Neither of us are lawyers, so this is just a difference of opinion, nothing
more. I'm tired both of rehashing the issue and of the way you've
misrepresented my position, which is why I say "end of story." Are we done
now, or do you insist on having the last word (in which case you may have it)?

--
Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
John Navas <http://navasgrp.home.att.net/#Cingular>