[split] DRM (Fairplay, TPM, OSX vs VIsta, etc.)

[50548]

I don't know where "here" is for you, but in the United States, it's a violation of copyright law. Fair use covers copies made for your use, not distribution to others. If fair use permitted copying for "friends and family" then obviously copyrights would be meaningless. Which is why it doesn't.

Totally wrong..."close friends and family" mean a very restricted field of action for sharing, and this is predicted in some European legislations, for instance...even the Audio Recording Act in the US allows a similar kind of fair use, although limited to analog recordings, if one takes a stricter legal interpretation.

 

[milo]

Totally wrong..."close friends and family" mean a very restricted field of action for sharing, and this is predicted in some European legislations, for instance...even the Audio Recording Act in the US allows a similar kind of fair use, although limited to analog recordings, if one takes a stricter legal interpretation.

Interesting, I didn't know that. Do you have a link for the law that allows sharing? How specifically does it define who you're allowed to share with?

 

[IJ Reilly]

Totally wrong..."close friends and family" mean a very restricted field of action for sharing, and this is predicted in some European legislations, for instance...even the Audio Recording Act in the US allows a similar kind of fair use, although limited to analog recordings, if one takes a stricter legal interpretation.

Again, I ask for citations, and from laws and courts in the United States, where fair use doctrine and law exists, not from Europe, where it does not.

And to be clear, the proposition I was responding to was that it was legal under fair use to freely distribute copies of copyrighted materials to "friends and family," without any modifier "close." Not that it matter really, since nothing I've ever read on this subject makes a distinction between "close friends" and just-plain friends. Every last one of them speaks of copies made for personal use being clearly fair use, and everything beyond that questionable, at least.

Obviously, not every instance has been tested in courts so plenty of fuzzy areas remain, giving people plenty of territory to argue that what they're doing is fair use. Which doesn't mean that it is, only that we don't know for certain.

 

[mrgreen4242]

Huh? I don't follow you. Read any explanation of fair use and music, and you will find that fair use permits copies to be made for personal use, but not for distribution to others. A good, straight-forward explanation can be found at the bottom of this page:

http://www.eff.org/cafe/gross1.html

Maybe the EFF has also been deluded by the RIAA, but I doubt it.



Citation, please.

That EFF link makes it clear that creating a compilation for your own use is fine, but makes no claims about who you could distribute that compilation to, other than uploading it to a public file sharing service. I'm guessing that they are not willing to endorse the boundries of fair use as it hasn't been tested in court and could go either way. This is the same reason why the RIAA hasn't tried to sue someone for it... they can SAY it's illegal all day long, but if they take it to court and lose it will make something they don't want legal definitively so. Better for them to just keep on trying to convince everyone it's illegal.

In any case, the Audio Home Recording Act of 1992 is, like I said, fairly clear that you can copy an analog or digital recording you have paid for and give it to someone as long as NOTHING is recieved in return (eg it is completely a gift). You can read about the AHRA on Wikipedia, http://en.wikipedia.org/wiki/Audio_Home_Recording_Act.

I'm not a lawyer, so perhaps I am not fully understanding the law, but I'm pretty sure that while it is a bit of a grey area (because it's not been tested court) it falls on the OK side of the line.

 

[IJ Reilly]

That EFF link makes it clear that creating a compilation for your own use is fine, but makes no claims about who you could distribute that compilation to, other than uploading it to a public file sharing service. I'm guessing that they are not willing to endorse the boundries of fair use as it hasn't been tested in court and could go either way. This is the same reason why the RIAA hasn't tried to sue someone for it... they can SAY it's illegal all day long, but if they take it to court and lose it will make something they don't want legal definitively so. Better for them to just keep on trying to convince everyone it's illegal.

In any case, the Audio Home Recording Act of 1992 is, like I said, fairly clear that you can copy an analog or digital recording you have paid for and give it to someone as long as NOTHING is recieved in return (eg it is completely a gift). You can read about the AHRA on Wikipedia, http://en.wikipedia.org/wiki/Audio_Home_Recording_Act.

I'm not a lawyer, so perhaps I am not fully understanding the law, but I'm pretty sure that while it is a bit of a grey area (because it's not been tested court) it falls on the OK side of the line.

I thought the EFF explanation was a good one, because they are bound to take the most expansive view of consumer rights under the law of any responsible organization, yet they won't go beyond stating that fair use entitles us to duplicate copyrighted works for personal use only.

You are correct that many other instances of duplication have not been adjudicated, but in determining what may be fair use and what may not, a certain amount of basic common sense applies. If you make a copy of a CD and give to a friend or family member, then the RIAA isn't likely to haul you into court if only because they won't know. OTOH, if you make hundreds of copies and start handing them out on street corners, even for free, then I think you'd better have a darned good explanation ready for the judge as to how this activity doesn't damage the copyright holder's intellectual property rights. I wish you luck, because you're going to need it. Note, this doesn't mean that making the copy for a friend or family member is defined explicitly as fair use, only that you can probably get away with it, which where fair use is concerned, seems to be about 9/10th of the law.

I don't see how these principles are changed by the Audio Home Recording Act, which doesn't seem to address distribution at all. In fact, it seems to do just the opposite, by arguably criminalizing all duplication of copyrighted works by non-copyright holders.

 

[mrgreen4242]

I thought the EFF explanation was a good one, because they are bound to take the most expansive view of consumer rights under the law of any responsible organization, yet they won't go beyond stating that fair use entitles us to duplicate copyrighted works for personal use only.

You are correct that many other instances of duplication have not been adjudicated, but in determining what may be fair use and what may not, a certain amount of basic common sense applies. If you make a copy of a CD and give to a friend or family member, then the RIAA isn't likely to haul you into court if only because they won't know. OTOH, if you make hundreds of copies and start handing them out on street corners, even for free, then I think you'd better have a darned good explanation ready for the judge as to how this activity doesn't damage the copyright holder's intellectual property rights. I wish you luck, because you're going to need it. Note, this doesn't mean that making the copy for a friend or family member is defined explicitly as fair use, only that you can probably get away with it, which where fair use is concerned, seems to be about 9/10th of the law.

I don't see how these principles are changed by the Audio Home Recording Act, which doesn't seem to address distribution at all. In fact, it seems to do just the opposite, by arguably criminalizing all duplication of copyrighted works by non-copyright holders.

I would disagree that the EFF would likely take the most expansive view. They wouldn't want to take the chance of being liable if someone took their legal advice. I'd think they'd tell you what is definitely legal and not legal, but go to bat to test the rest.

The AHRA sets up a fund to reimburse IP holders for any losses caused by people excercise fair use rights, which had in the past incuded making analog copies of records. The AHRA seemed to explicity expand the fair use rights that were protected on analog media to digital.

I'd argue that by accepting the money from blank media and recording device sales that the music industry has accepted that copies for personal sharing is covered. If copies for personal backups are all that are covered why would we have to pay for the rights to the material again?

Backup implies that I have purchased the license already and I am simply protecting the physical media - I shouldn't have to pay the rights holder again. Since the media I copy the music to and the device used to make the copy pay a fee to these rights holders it's logical some sort of license is being purchased, since that is all these groups have to sell.

On a related note, reading the breakdown of who gets the money from that fund I found it humorous that the artists get a much larger percentage of the procedes of blank media than they likely do for an actual record sale (~25% iof money collected for blanks and recorders, where the consensus is that bands usually get less than 15% of album sales). I find that wonderfully ironic.

 

[MikeTheC]

I understand why Apple uses TPM on their x86 equipment. I still consider it a restriction of my rights and available actions, but since it's only purpose is to limit what hardware Mac OS X will work on, I regard it more of a minor infraction or insignificant border skirmish than a full-on invasion.

Now, in truth DRM and fair use is really beyond the scope of intent of this particular thread, but since others are really beating the drum here, and since it is also a personal hot button topic of mine, let me weigh in with a few words here on what I like to call "Personal Rights Infringement" technology.

I used to work for Sony, and when the whole lock-down audio CD thing was going on, I was really disgusted, both as a person and as an employee. Largely as an outgrowth of that, I will not buy any entertainment materials from Sony (CDs, DVDs, etc.). Also, of course, since Sony by-and-large shuns the Mac, there's not much from them I'd be interested in buying anyhow.

Moreover, if you want to talk about the impact of DRM and the avenues of exploitation it has open to it, one need go no further than look at digital TV and some of the connection interfaces used for it, including HDMI. I don't watch TV anymore, and I haven't in years. The only exceptions I make to this are for once-in-a-blue-moon PBS shows, ocassional news broadcasts, and weather reports during hurricane season. Beyond that I only partake of episodes of specific shows through alternative means of distribution.

And, frankly, if it were to get to the point where that was no longer an option, I would opt out even further and watch no more and no less than what I annually do with my TV set (which, as you can probably gather, isn't very darn much.)

Further, when terrestrial analog broadcast is ended in this country, I will by that point probably opt to no longer watch TV at all, since I simply refuse to part with the cash for HDTV. The fact is the whole reason behind "high-def" has nothing to do with consumers and everything to do with justifying why the broadcast industry had to continue to hold on to broadcast spectrum that the FCC repeatedly threatened to take away from them due to their complete lack of using it. That, in a nutshell, really pisses me off.

Generally I do not buy CDs and DVDs, unless it's something that's really, really good, and then mostly to show support for that specific artist. I strongly believe one votes with one's wallet, so I try to do that kind of voting wisely. Most of the music I listen too comes by way of iTunes Radio, or CDs that I bought and have ripped. Oh, and when it comes to buying CDs, I try to stick with indie artists. And frankly there's a stunning amount of talent out there that the entertainment industry hasn't been able to co-opt or strongarm.

</rant>

P.S.: If you're interested in some of the many excellent sources for excellent "outside of Hollywood" music, do a Google search for both "south park musical festival" and "acoustic eidolon". Oh, and as regards Acoustic Eidolon, I've personally met them and own a couple of their CDs. But I digress...

 

[Snowy_River]

...
I don't see how these principles are changed by the Audio Home Recording Act, which doesn't seem to address distribution at all. In fact, it seems to do just the opposite, by arguably criminalizing all duplication of copyrighted works by non-copyright holders.

I would disagree that the EFF would likely take the most expansive view. They wouldn't want to take the chance of being liable if someone took their legal advice. I'd think they'd tell you what is definitely legal and not legal, but go to bat to test the rest.

The AHRA sets up a fund to reimburse IP holders for any losses caused by people excercise fair use rights, which had in the past incuded making analog copies of records. The AHRA seemed to explicity expand the fair use rights that were protected on analog media to digital.

I'd argue that by accepting the money from blank media and recording device sales that the music industry has accepted that copies for personal sharing is covered. If copies for personal backups are all that are covered why would we have to pay for the rights to the material again?
...

Here's a good link on the topic:

In 1992, Congress passed the Audio Home Recording Act ("AHRA"), an amendment to the federal copyright law. Under the AHRA, all digital recording devices must incorporate a Serial Copy Management System ("SCMS"). This system allows digital recorders to make a first-generation copy of a digitally recorded work, but does not allow a second-generation copy to be made from the first copy (users may still make as many first-generation copies as they want). The AHRA also provides for a royalty tax of up to $8 per new digital recording machine and 3 percent of the price of all digital audiotapes or discs. This tax is paid by the manufacturers of digital media devices and distributed to the copyright owners whose music is presumably being copied. In consideration of this tax, copyright owners agree to forever waive the right to claim copyright infringement against consumers using audio recording devices in their homes. This is commensurate with the fair use exception to copyright law, which allows consumers to make copies of copyrighted music for non-commercial purposes.

Which basically backs up what Mr Green was saying. But it does go on to point out

Because computers are not digital audio recording devices, they are not required to comply with Serial Copy Management System requirement.

It is clear from the language of the AHRA, and subsequent judicial interpretations of the statute, that Congress did not anticipate ten years ago that the SCMS would be inadequate to contain the impending home digital recording explosion that was galvanized by the Internet.

So, while the AHRA does provide for "non-commercial" duplication of copyrighted material, it does so with a mechanism that's become broken, namely a tax on audio recording devices that doesn't actually tax the vast majority of audio recording devices (i.e. computers). So, of course the RIAA wants something done about it. Unfortunately, they're choosing the "ban everything" approach rather than the "modify the law we've got to make it right" approach.

 

[Evangelion]

You can, but it requires some hacking (apart from any DRM) and finding drivers to make it work right. I still don't see how that makes OSX comparable to the activation in XP though.

And you CAN make XP (or Vista) work without activation. All it takes is a bit "hacking".

An app that ships with OSX isn't OSX. Unlike XP, you can run the OSX operating system without encountering any visible DRM.

Just because they don't throw the DRM at your face, does not mean that it's not there.

 

[IJ Reilly]

So, while the AHRA does provide for "non-commercial" duplication of copyrighted material, it does so with a mechanism that's become broken, namely a tax on audio recording devices that doesn't actually tax the vast majority of audio recording devices (i.e. computers). So, of course the RIAA wants something done about it. Unfortunately, they're choosing the "ban everything" approach rather than the "modify the law we've got to make it right" approach.

Using the courts, the RIAA tried to get this law to apply to digital music players, and failed. They wanted the royalties in the act to apply to DMPs. Fortunately for us, the RIAA hasn't been able to alter the fundamental principles of fair use.

Still, what I think is not widely understood is that copyright law reserves to the holder of the copyright the exclusive right to determine how their intellectual property is distributed and duplicated. Fair use is a carved out exception. It seems many believe it's the other way round. Under fair use doctrine, some forms of duplication are explicitly permitted, some are in gray areas, and others clearly are not allowed.

Anyway, this thread has been hijacked enough. If the topic is of interest, perhaps another should be started.

 

[generik]

Just because they don't throw the DRM at your face, does not mean that it's not there.

Between what Apple is doing and Microsoft's Genuine Advantage which incorrectly flagged many a legitimate user, I prefer what Apple is doing, thanks. Why are you so 'sessed about the TPM chip anyway, did Apple foil your attempts to build a Hackintosh?

 

[mrgreen4242]

Still, what I think is not widely understood is that copyright law reserves to the holder of the copyright the exclusive right to determine how their intellectual property is distributed and duplicated. Fair use is a carved out exception. It seems many believe it's the other way round. Under fair use doctrine, some forms of duplication are explicitly permitted, some are in gray areas, and others clearly are not allowed.

You make a claim and then completely contradict it a sentence later. You can have EXPLICIT rights to something if someone else some other set of rights to it. The copyright holder has first rights, and the majority of them, but they do NOT have exclusive rights; you say so yourself. Fair use grants a set of the reproduciton and duplication rights to people who have purchased any type of license for the IP from the original rights holder.

In the US, those rights are spelled out fairly clearly, and it hasn't been until relatively recently that there's been much question about it. For example, even if you take up the RIAA's point of view that making a copy of a song you bought for a friend is illegal, there are other times where copying an audio recording AND distributing it is clearly fair use. Educational purposes, for example. If I was a teacher I could burn a song to a CD 30 times for each of my students, send them home with it and tell them to listen to it and analyze the lyrics and be within the fair use limits. I could copy a song and broadcast it over the internet to limitless people if I was reviewing the album it came from. I could use the song for a recorded piece I was doing if I was saterizing (sp? I'm on my work PC - no built in spellcheck ) the original.

There is NOTHING in the US copyright laws that grant right holders exclusive or explicit rights, other than that of first sale. If you own the rights to something and decide not to sell or distribute it then we'd all be SOL if we wanted to do something with it. There are many gray areas that may or may not be fair use, but by selling the records the rights holders have entered into a social contract that gives us at least SOME reproduction and distribution rights.

Ya, this is pretty off topic, but an interesting one at least!

 

[IJ Reilly]

You make a claim and then completely contradict it a sentence later. You can have EXPLICIT rights to something if someone else some other set of rights to it. The copyright holder has first rights, and the majority of them, but they do NOT have exclusive rights; you say so yourself. Fair use grants a set of the reproduciton and duplication rights to people who have purchased any type of license for the IP from the original rights holder.

Look, I was trying to get away from this thread hijack... but if you're going to claim that I contradicted myself, then I'm going to have to respond.

The answer is no, this is not a contradiction. In general copyright law assigns the rights of ownership of intellectual property to the holder of the copyright, and protects it by law -- with all that this implies. Perhaps this is a no-brainer statement, but based on some of the things I've heard here and elsewhere, I have to assume that some don't understand this first principle of copyrights. Fair use is the exception to the copyright rule. It provides for limited duplication rights to non-copyright holders, for purposes which are generally pretty well understood. Duplication for purposes of distribution is quite clearly not one of them, because (again, obviously I think), duplication and distribution by a non-copyright holder quickly treads on the owner's rights to control, if not profit from, their intellectual property.

None of this is really license-dependant. If you pull a book off a library shelf, you have fair rights to duplicate portions of the book for your personal use. But you don't have the right to copy the entire book (or arguably, even entire chapters of the book) and distribute the copies to others. No license was activated when you removed the book from the library shelf. It was simply a matter of the copyright holder's property rights vs. your fair rights, which are matter of law.

 

[IJ Reilly]

Thanks for the thread split, mods!

 

[Snowy_River]

... I could copy a song and broadcast it over the internet to limitless people if I was reviewing the album it came from...

Well, no you couldn't. You could, under fair use, copy and broadcast portions of the song, but not the entire song, not without explicit permission. Subtle point, but an important one.

...There is NOTHING in the US copyright laws that grant right holders exclusive or explicit rights, other than that of first sale...

And, of course, we must be careful with language when we're talking about things that are legal and illegal, as the definitions are all caught up in the language.

In point of fact, the rights holders do have both exclusive and explicit rights granted them by US copyright laws. They have the exclusive right to sell and make a profit off of their work. They have the exclusive right to grant or not grant use, reproduction and distribution rights to whomever they choose. And these rights are explicit under the law. For example, if I were a musician, but all I ever did was play my music (whether in clubs, stadiums, etc), the price of the ticket is buying you a usage right to listen to my music on a particular night. That same ticket does not buy you the right to record, reproduce or distribute my music in any way. I would maintain exclusive and explicit rights to those aspects of my work. If I make a CD of my music and sell it to you, then we get into the murkier water of the AHRA.

The point of the AHRA is that it incorporated a fee that was built in to the price of audio recording equipment that bought minimal reproduction and distribution rights for anyone who bought such a recorder. Unfortunately (for the RIAA, and, to some extent, for us), we don't pay that fee when we buy a computer. So if we're using a computer to copy and distribute music, it can be argued that what we're doing is illegal because we haven't bought that right. Unfortunately, the law isn't that clear on this point.

...Ya, this is pretty off topic, but an interesting one at least!

I agree.