Fire up your torrents. We have a new precedent for the legality of file sharing. As long as the pirates aren't selling you the files, they're helping you discover new movies!
The problem is, how is anyone supposed to distinguish those people from naked infringers over the internet? There doesn't seem to be any obvious cost effective way to do it. So you have a situation where either fair use in the new medium is destroyed because those making legitimate fair use are lumped in with infringers for whatever penalties, or copyright enforcement is hopeless because you have to litigate a fair use defense for each of a million different users.
It seems to me the real trouble is that, with torrents, that history teacher will also be giving unauthorized copies to others, who are most likely not also history teachers.
It seems to me that, in the future, a sane legal system should ignore this technical aspect of torrents. Merely participating in an existing swarm should not be considered distribution.
I don't see how that gets you around the problem. You would still have to litigate the fair use defenses of downloaders before you could charge anyone, and if you find a downloader without a legitimate fair use defense, how are you supposed to prove after the fact who uploaded to that specific downloader?
I also don't understand the common perception that it should be the uploader who is liable for infringement. The downloader is the one who best knows the character of the use and therefore whether it would be permitted under the law, so it makes sense for the downloader to have the liability. And liability for the downloader is the one that doesn't require twisting the rights granted under the copyright act into a knot to find liability -- downloading should be reproduction because the downloader is creating a new copy on the local hard drive. Uploading is.. what exactly? The downloader is making the reproduction/copy. No copy is ever "distributed," since the uploader's copy and the new downloader's copy never move from their respective locations. No one is displaying or performing the work in public or creating a derivative work. What does that leave that doesn't require fudging to make it fit?
The four tests are:
* "Purpose and character" - Your use of the work must be substantially different (transformative). Generally, it is considered that you must be adding some new expression to the work. From the Standford link above: "At issue is whether the material has been used to help create something new or merely copied verbatim into another work". Clearly any attempt at sharing files in their entirety (or near-entirety) for the purpose of distributing the original film would fall down on this test.
* "Nature of the Copyrighted Work" - This is basically an acknowledgement that you can't copyright facts. There's significantly more leeway to copy from something like the phone book than there is from fiction. Most of the time file-sharing copyrighted torrents without permission and Google Books are probably on similar grounds here.
* "Amount and Substantiality of the Portion Taken" - The less you take, the better off you are. Google Books is in an interesting position here in that they _take_ the entire work, but they only _make available_ very small sections of the original work. In the case of the torrents, someone is making available all (or most) of the original work. It's definitely going to fall down here.
* "Effect upon work's value" - Basically, does the use in question have a significant negative effect on the market where the original work is in use. In the Google Book's case Chin noted that it didn't seem to negatively impact the market that the books were being sold in. The MPAA and RIAA have argued in court successfully so far that distributing torrents leads to direct financial harm. I find some of their arguments suspect (or at least lacking evidence), but courts have generally been receptive to this argument. Courts will determine that torrents fall down on this test as well.
Finally, it should be noted that Fair Use is an "affirmative defense". That means you can't get a judge to dismiss a lawsuit by saying "Fair Use". You'll need to go to trial. And the burden will be on you to show that the use was "Fair Use". This will cost a small fortune. So, assuming arguendo, that this ruling did create a precedent that torrenting was fair use, it would still be strongly discouraged as you'd have to go to trial every time to show that it wasn't.
I disagree with the judge that Google should be allowed to do this, when they have a revenue model built around pageviews & advertising that is built on other people's content. It just seems to me that the argument is "We don't make money from people viewing [THE BOOK], we make money from people viewing the ads around the [THE BOOK]!"
So, replace books with [NBC's THIRTY ROCK]. Let me put my own ads in. Is that cool with e'rybody?
It doesn't seem right to me.
Copyright and fair use is a balancing act, and I agree with Judge Chin that the benefits to having all of the printed word fully searchable (someday, at least) is a middling loss for the content creators and a huge gain for the public.
To address your specific analogy: you aren't being deprived of being able to release your work, and they aren't releasing your work with ads inserted, so I don't think it really applies. Google Books doesn't have ads today, but I wouldn't have any problem with them on the search results page (just like I have no problem with (text) ads on web search results pages) since they are in fact providing content very distinct from your copyrighted work.
A good example might be the way the Daily Show uses news clips. Technically, these clips are covered by copyright. The Daily Show could use these clips without permission through the doctrine of Fair Use. It's pretty clear that the Daily Show is a commercial product, but it uses the clips in a clearly transformative manner (that is, to parody, critique, etc).
Additionally, I think you may be overestimating the amount of a book Google Book Search shows when it doesn't have permission of the author of the book to show specific amounts. Here's an example search in a book that they don't have permission to display a complete preview: http://books.google.com/books?id=CIl9fxeIQIYC&q=National+Com...
Note that they merely show the search results with brief snippets around the matching results. So, instead of "we make money from people viewing the ads around the [THE BOOK]!" it would be more accurate to say "we make money from people viewing the ads around snippets of [THE BOOK]!".
It really goes back to those four factors. If you play NBC's Thirty Rock with your own ads mixed in or around the content, you'll fail most of those four factors.
If instead you play a short snippet of Thirty Rock then proceed to provide a new expression based upon that snippet (a critique, or a parody, or an interpretive dance) you would be quite likely to fall within the bounds of Fair Use. Even if you put ads around it.
Though, again, I'll note that Fair Use is an affirmative defense, which means you don't really get to bring up the defense until you go to trial. Generally, it's best not to rely on Fair Use unless you have deep enough pockets to go to trial over the issue.
Not a precedent.
The full work is available, but no individual can be blamed with infringement under your interpretation.</devils_advocate>
See p. 9:
"one of the snippets on each page is "black-listed," meaning it will not be shown; and at least one out of ten entire pages in each book is black-listed... An "attacker" who tries to obtain an entire book by using a physical copy of the book to string together words appearing in successive passages would be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and 10% of all pages. (Pl. Resp. ¶ 41). In addition, works with text organized in short "chunks," such as dictionaries, cookbooks, and books ofhaiku, are excluded from snippet view. "
In other words, if the judge said that its okay to scan and make available _parts_ of the book and this serves as "new income" for authors, then similarly you could weed off one song from entire album and make it available and try to fall under the judge reasoning, shall MAFIAA comes after you.
But if I were you I wouldn't try, unless you are Google/Apple/or Ebay too big to fail/jail.
IANAL tho.
Alternatively, envision torrent network that every person shares only part of a song. Noone, technically shares online entire song, but only lets say 25 seconds of it. This would completely fall under judge's reasoning :)
Probably not. The judges ruling is an application of fair use law to the particular case; one of the considerations expressly applied is the criteria (specified in the fair use statute) of effect on the commercial market for the work. Sharing parts of works as part of a network of people collaborating to, in combination, share the whole work can quite easily be argued to have a very different effect on the market for the work than what was at issue in this case, making your hypothetical readily distinguishable under the criteria applied.
And any game that I have obtained and liked that way is already in my steam and gog libraries.