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Fair Play, Fair Use, and The AAs

Crazy Ivan

The concept of Apple's iTunes seems like a music downloader's dream come true, buy from a large selection of songs at low prices without having to buy the entire album. A concept I've advocated for years. There is one major problem here: a massive philosophical blunder: The distribution of their content in a proprietary Digital Rights Managed format (DRM). I well aware that this restrictions can be easily circumvented, however one who does so is in violation of the Digital Millennium Copyright Act's (DMCA) provisions against circumventing such protections, which makes the user legally no better off than the common file sharer. As a side note, I make a pledge here that if someone offers the music I have download in a reasonable DRM-free format, at a reasonable price, I shall purchase it. But this is not a column about file sharing. This is a column about the rights people have with material they have beyond question acquired legally.

In United States copyright, a bed rock principle has been the idea of "fair use." That is, what rights does the end user have after having legally obtained copyrighted material? The principle has always held that the end user had the right to duplicate and use such material for their own private, personal, non-commercial use. Not only is the principle harmless to the copyright owner, I would argue that it is a fundamental principle of any society that purports to have such concepts as "ownership of private property". Yet Congress and the industry trusts (most notably the RIAA and the MPAA) are now attempting to take that right away from you. I use the word "trust" in the literal, 19th century sense, just like the oil and railroad trusts of yore. Whatever these organizations claim to be they are de-facto trusts whose main goal is to force monopolistic and unfair trade practices on the consumer. Yet, instead of moving to dismantle these organizations, in keeping with more than a century of principles in US commerce law, the government is actually supporting them.

The DMCA, supposedly the ultimate weapon against piracy in the digital age is nothing more than political posture and kowtowing to industry lobbyists. If the law were a toothless gesture of political support, I could care less and this essay would not need to be written. However, while I'm quite confident that the DMCA will not lead to the capture of very many real pirates, I'm also quite fearful that it will imprison many people who have done nothing unreasonable, nothing that any sane society would condemn. Two of the major provisions I shall consider here are those that prohibit any attempt to circumvent duplication protection for any reason and the perversions which prohibit the construction of any device which could do so, even if that is not the intended purpose. The people behind the DMCA are of the same philosophical ilk that believe the way to stop all violent crime is to simply ban guns outright. There are three obvious things people from this camp seem to ignore. First, if one has decided to break the law, say, to commit murder, needing to break additional laws, say to acquire guns on the black market, will hardly faze them. Second, that guns (and copying tools) have legitimate uses, which pose no danger to society. Third, that effort spent to legislate, find, and persecute offenders of ridiculous laws, is effort that detracts from that to catch legitimate criminals and solve real social problems. Think about it? Do we REALLY want to take the position that having the means to commit a crime is itself a crime? We would have to assert every amateur gardener with a 50 lb bag of fertilizer is potential bomb maker. The only reason a law like this is even allowed to exist is because it criminalizes a relatively small portion of the population (the technically savvy) and is created by massive pressure from big industry.

The writing of this essay was prompted by an interview of an MPAA lobbyist which proves how ignorant the industry (and presumably the lawmakers who are backing them) is of the real issues here. No geek is interested in supporting piracy, as most of them depend of some form of intellectual property for their livelihood. However, geeks both love to tinker, and love to have choices in their technology, two things which the DMCA severely limits. The following excerpts from the interview provide examples.

TT: I'll tell you, because I'm an engineer, I'm an engineering student, and this year I built a high-definition television, from scratch. But because of the broadcast flag, if I wanted to do that again after July 2005, that would be illegal.
JV: How many people in the United States build their own sets?
TT: Well, I'm talking about engineers.
JV: Let's say there are a thousand. But there are 284 million people in this country. You can't have public policy that is aimed at 100,000 people when the other multi-multi-millions are also involved. You can't do it that way.


TT: Okay, let's take a different example. Four years ago, you said that people who use Linux, which is about a million to two million people, who want to play DVDs, should get licensed DVD players and that those would be on the market soon.
JV: And we have those now.
TT: But today, you still cannot on the market actually buy a licensed DVD player for Linux.
JV: I didn't know that.
TT: So the question is, do you think people who go to Blockbuster, they rent a movie, they bring it home, and they play it on Linux by circumventing the access control, are those people committing a moral transgression?
JV: I do not believe that you have the right to override an encryption. Because if you have the right to do it, everybody can do it. For whatever benign reason you have, somebody else has got one even more benign. But once you let one person deal in a digital copy -- and I don't have to tell you; you know far better than I that, unlike in analog, the ten thousandth copy is as pure as the original -- it is a big problem. So once you let the barriers down for your perfectly sensible reason, you gotta let it down for everybody.

The proposition that you can't write a law aimed to protect the right of a minority for a special purpose is absurd. Our entire legal system is based on that kind of a principle. The fact that the MPAA and Congress lack the imagination as why anyone would want to do something is not reason to make it illegal. The ability to make backups of DVDs is well supported under existing fair use statues, yet the DMCA prohibits this. If no one at the MPAA sees a legitimate reason for this, then I have a number of scratched DVDs I'd like to show them. The same situation occurs with the lack of licensed Linux DVD players. The MPAA has not provided a method to do this in a "legal" manner and remains totally ignorant of it. Not to mention that fact, that any "licensed" version would almost certainly be closed source, a thing repugnant to many Linux users. The law is indirectly (and hypocritically given the anti-trust cases against Microsoft) encouraging the Windows monopoly. Of course, as we've already seen, the government is selective about which monopolies it cares to persecute. The most convincing argument of all is that the DMCA does nothing to reduce piracy. In fact, it increases it by creating scores of people who've been artificially dubbed "pirates". Nobody in Congress or industry seems to notice this.

Let me set the record straight on my opinion of piracy. There is not morally defensible position for real piracy and pirates should be prosecuted and punished with vigor. However, let me be clear on what real piracy is. Real piracy involves one of three things. Either passing off a work you did not create as your own or selling a work you did not create for profit. Because of a recent epidemic of such incidents, I'll add a third category: releasing a work for public consumption (for profit or otherwise) when it has not been released by its creator. Whether any transgressions, outside these qualify as piracy is a subject for another essay. The bottom line is to punish those who are doing actual damage to intellectual property holders and leave those with a legitimate purpose alone.

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