Tuesday, October 09, 2007

Over at ZDNet, Ed Bott's got a rather interesting discussion going on about Digital Media Ethics. He's asking some thought-provoking questions, and I invite you to go check it out.

What intrigued me more than the article, though, was some of the comments in the TalkBack forum. There were the usual opinions, most of which boil down to, “I want to pay for the [song | video] once and do what I want with it so long as I don't give it to someone else.” (a camp I happen to be in.), but something else stood out. I was struck by a couple of misconceptions people have about copyright which show just how effective the RIAA is in their misinformation campaign. People really do not know their rights. There are a couple of things I'd like to discuss here today.

The first is the misapprehension is that you need “authorization” from a copyright holder to use digital media.

You don't. Roll that around on your tongue slowly... you don't. Purchase of the media implies use. You as the consumer do not need a license to use a program, or watch a video, or listen to a song. (I'll refer to all of these as “programs” for convenience from now on). A publisher does not need to grant you a license to allow you to do those things. Copyright law handles that for you already. Lacking any other instruction, you're allowed to use the program. You're allowed to let somebody else sit down and use the program, so long as they're not using a separate copy. You're even allowed to sell the program to somebody else, so long as you don't keep a copy.

Did you know that? Probably not. But the rule of thumb is simple. Within reason, you should treat your digital media as if it were a book. Here's how it works:

  • Once you've purchased a book You can read it without having to gain any additional permission to do so.

  • You can lend a book, but can't read it while it's lent.

  • You can sell a book, but you can't keep it and sell it.

  • You can excerpt portions of it for educational purposes, or for commentary, or for parody or satire, or for newsworthiness.

  • In the case of television shows you can engage in “timeshifting” or “format shifting”. That is, you can TiVo a show or record it on your VCR. This was decided by the US Supreme Court in the Betamax case. Of particular note: “Addressing the matter of retailing of videocassettes, the court let stand the First Sale Doctrine of the 1976 Copyright Act, which stated that the first purchaser of a copyrighted work (e.g. a motion picture on videocassette) could use it in any way the purchaser saw fit as long as copyright was not violated by illegal duplication, etc. This right extended to the rental of videocassettes purchased from Hollywood studios.”

Under Title 17 of the US Code, you can do all of those things with digital files without a license. Because of the nature of digital files, you can do a few other things:

  • You can make a backup copy for archival purposes (because digital media are fragile).

  • You can copy a program from CD or DVD to a hard drive for use, since for most programs installation to hard drive is “normal use”.

  • You can copy a program from disk to computer memory to execute its instructions. This seems obvious, since the program is useless otherwise, but it's the sort of things lawyers ache over. Nevertheless, it's normal use of the program, and you don't need a license to do that.

These are just common-sense things. This pretty much covers all the things that most people want to do. Note that you can't copy it and give it to somebody else, or allow somebody else to use it at the same time you do. That would be a copyright violation. Now, if you don't need a license to do what you want, and the copyright holder doesn't need a license to protect his rights, why are people fartin' around with licenses? Several reasons:

  1. Some authors use “licensed, not sold” as a hedge because they don't understand their own rights. They don't realize that selling a program is not the same as selling the copyrights to a program. Partly this is due to the ease of copying digital material.

  2. Others understand the difference, but they think you don't, and want to make it explicit.

  3. A minority want to grant you additional rights that you wouldn't have without the license. A great example is Open Source software. Open Source licenses grant you the right to make and distribute copies. Nothing but the license allows that, since copyright law would automatically prevent it.

  4. A growing number are terminally greedy and want to prevent you from exercising the Fair Use rights that you have.

This last one sounds like hyperbole, but it's not. These folks literally believe that you shouldn't have Fair Use rights; that they should be paid for each and every separate use. For instance, they would like to use DRM to limit the device that you can use to play a downloaded song. Does this sound like a complete contradiction of the Supreme Court's Betamax decision? Well, it is, and they don't care.

The Digital Millennium Copyright Act (DMCA) throws in some monkey wrenches. Among other things, it makes it illegal to circumvent copy protection (with exceptions), even if no violation of copyright occurs. In other words, it allows publishers to add measures to block your Fair Use rights, and makes it a criminal offense to exercise those rights, while at the same time asserting that the DMCA doesn't negate your rights under Title 17. Get it? You have the rights, but it's illegal to exercise them. (Can you imagine how ridiculous that is? Imagine if it were applied to your other rights... for instance, if you were told that you have Freedom of Religion, but you'll be jailed if you exercise it. Oh, wait. We already do that in our schools. I digress.)

The DMCA has some good stuff in it. For instance, it keeps all of YouTube from being shut down if some idiot posts a bit of copyrighted material. It allows me to temporarily make a copy of your hard drive in the course of repairing your computer. But the gist of the DMCA for most people is that you have certain rights, but you're blocked from exercising them if you're using material covered by Digital Rights Management (DRM). The take-home lesson is that you never, never, never use DRM'd media. If nobody buys DRM media, then publishers will stop making it. Without the C.R.A.P. known as DRM, then all the protections and rights normally afforded to you still apply, so says the DMCA.

So now you know a dirty little secret. Proprietary publishers won't sell to you unless you agree to a license, but it's not to protect their rights. it's to limit yours. On the other hand, Open Source licenses such as the Common Public License used in VIC CRM grant you permissions above and beyond those afforded to you by Fair Use.

This is getting long, so I'll post my discussion of the second misconception tomorrow.

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