(Fake Headline, Serious Point:) Movie Studios, Blockbuster File Copyright Infringement Suit Against Customer For Failing to Return DVD RentalsThat's obviously not true, but
from the way people talk about Rhapsody and other music 'rental' services, they believe that the story could happen, at least in principle. This is part of yet another misunderstanding about how the DMCA reworked the nature of copyright.
Too often, people confuse defenses of DRM+DMCA based on their ability to prevent *infringing* uses and defenses based on protection of new business models predicated on preventing *non-infringing* uses. The former defense is about protecting copyright holder's exclusive rights, the latter is in effect about expanding those rights. These days, this confusion typically involves online music rental subscription services like Rhapsody.
The DRM on Rhapsody songs can (in theory) prevent some infringing uses. But
Title 17 grants the copyright holder
several exclusive rights in 17 USC 106 (e.g., copying, distribution, public performance), and keeping songs after your subscription ends doesn't infringe any of them. When the DRM prevents you from listening to the song, it's limiting a private performance. The copy you downloaded was lawfully made, and you're entitled to make fair use [*1]; to the extent the uses would be protected with a purchased copy, you can move this 'rented' copy to a portable player or make a back-up copy of it [*1], for instance.
At first, this might seem strange to some, but consider a DVD you rent from Blockbuster. If you fail to return the movie, can the copyright holder or Blockbuster sue you for copyright infringement? No, they can't; you can keep watching that movie for as long as you like. Put aside DRM+DMCA and focus on 17 USC 106 for the moment -- if you rip a copy to your computer, it's a fair use just like ripping a DVD you bought at Wal-Mart; to the extent that the latter is non-infringing, so is the former. The copyright holder could argue that this ripped copy of the rental threatens the market for the work and thus is not a fair use, but ripping the purchased DVD threatens the market in much the same way; after all, if you can rip your purchased DVD, then it threatens the market by making it harder for them to sell you a second copy for use on your computer or your portable player. [*1] You can apply the same reasoning to rented or purchased VHS.
To be clear, you could be violating your contract with Blockbuster. And services like Rhapsody could sue you for violating their Terms of Service. In principle, they could get an injunction and actual damages.
However, you aren't infringing under 17 USC 106 and thus copyright holders couldn't get statutory damages on that basis. The DRM and DMCA don't change this analysis [*2], strictly speaking. If
you use FairUse4WM to unwrap your Rhapsody WM DRMed songs, you may violate their ToS, you may violate the DMCA (17 USC 1201) and have to pay statutory damages, but you are not infringing (17 USC 106). The public is still technically entitled to fair use, first sale, and all your other rights under copyright, but in exercising them you might violate the DMCA.
So this suggests one way the distinction matters (the DMCA radically changes the available remedies), but there's a bigger issue here.
In reality, the people who support the DMCA's protection of this business model are not supporting the protection of copyright holder's limited exclusive rights, let alone supporting the prevention of 'Internet piracy' -- they're supporting in effect an expansion of copyright holder's rights. The DMCA gives copyright holder's essentially a broad, exclusive right to control any uses of the work and compatible devices.
Some people may still argue that we need the DRM+DMCA because it protects Rhapsody's business model and thus this expansion of rights is a good thing. You return your rented DVDs not because Blockbuster will sue you, but because they'll cut you off from renting again. Rhapsody has no similar threat to hang over your head, so you could download the entire catalog and unsubscribe.
I would dispute that the subscription models would go away for this reason, but let's assume they wouldn't offer downloads any more.
The endangerment of a business model, by itself, is not a sufficient reason to extend the scope of copyright holder's rights. Title 17 entitles copyright holders to certain rights, not to certain business models. There are a lot of old and new business models copyright holders would love to protect. For instance, the movie and television studios' business models were ostensibly threatened by time-shifting, and they'd love to be able to limit it in many ways today in order to enable new revenue models. But that wasn't and isn't a sufficient reason to block time-shifting and creation of compatible devices via the DMCA, or to mandate DRM a la the
broadcast flag.A more valid argument here would be that the public benefits by protecting the rental model. Again, I would dispute that the DMCA+DRM really provides a lot of public benefit there. But, regardless, I think most would agree that there are many endangered business models that don't need protecting. I think many dislike how protection of the rental model also involves inhibiting innovation and competition in the development of compatible music devices. I think many would agree that prohibiting time-shifting and backing-up of purchased media doesn't benefit the public, even if it enables some new business models. And I bet there are
many more ill-effects of the DMCA that they would disapprove of , as well.
On that basis, I think that even those who laud the DRM+DMCA's role in protecting rental models would be, on the whole, unhappy with the DMCA. To be sure, there are those who like the DMCA because it acts as a general right to control use of copyrighted works and creation of compatible devices; they
laud price discrimination and platform monopolies predicated on restricting non-infringing uses. But I think many don't share that view, particularly when they see that those models aren't about stopping infringement, let alone 'Internet piracy.'
[
*1 - Update: Initially, I also stuck first sale in here. We've had an
interesting back-and-forthin the comments about how I may be wrong that first sale would actually apply to the DVD or to your hard drive with the Rhapsody file on it. Indeed, a court might actually view giving away your hard drive with the song as protected by first sale, but giving the away the DVD wouldn't be, since you can keep a permanent copy of the WMA file and don't have to return it, but you were just borrowing the DVD that perhaps Blockbuster itself had acquired under a revenue-sharing license agreement rather than as an outright purchase. Thanksto my interlocutor,
'analoghole' The possible problem there doesn't affect my fair use analysis, however. Note that it also doesn't change my point that you're still entitled to first sale to the extent you were with a DRM-free, rented copy. Finally, since people are really getting up in arms about a person being able to keep the songs and use them past the subscription (that's the biz model at stake), I figured I'd just pull the first sale analysis out, for clarity's sake.]
[
*2 - Update: see a
minor clarification in the comments on this. If a copy is *only* non-infringing because of some implied or express license from the copyright owner that vanishes when you circumvent, then that could change the analysis.]
read more: Students not interested in school-sanctioned music downloadsStudents not interested in school-sanctioned music downloads: In 2003, colleges began signing exclusive deals with online music services to great fanfare. Nearly three years later, the schools are realizing what we've known all along.(Via Ars Technica.)
Here's the money quote in the original WSJ article:
There is also little consensus among administrators about how successful the services have been in eliminating piracy. Although some say complaints from the recording industry have dropped sharply, no one can tell if that's because fewer students are engaging in illegal file-sharing or if the industry simply doesn't want to go after schools that are spending money to combat the problem. "The RIAA's push to buy into these services strikes me as protection money. Buy in and we'll protect you from our lawsuits," says Kenneth C. Green, the Campus Computing Project's director.
Of course, the RIAA denies strongly if unconvincingly:
The RIAA denies the charge. "We do sue students and send takedown notices to universities that have legal services all the time," says Mr. Sherman. Universities have a particular responsibility to teach students the value of intellectual property, he adds, because they are "probably the No. 1 creator of intellectual property." And he disputes the idea that the subscription services have fallen out of favor. The number of campuses that subscribe will increase "pretty significantly" in the fall, he says.
This "particular responsibility" of the universities is especially rich. Universities don't generate "intellectual property", they generate knowledge, most of which is effectively distributed freely as a side-effect of their teaching and research activities. Whenever universities have tried to monetize their knowledge production, they have created distortions and conflicts of interest that have damaged their core missions and their prestige as institutions supposedly run in the public interest. Even patent licensing, which involves a limited range of university production, has had a dubious overall payoff: while licensing has brought a lot of money to a few schools, it has created nasty conflicts of interest, effectively restricted commercialization of significant inventions, and impeded learning in many other schools. More generally, universities are in a difficult position relative to current trends in "intellectual property". Fair use, which is essential to scholarship, is under threat, and oligopolistic practices of publishers are creating huge stresses for university libraries. So, if universities are to do their teaching job properly in this area, their teachings may well not be at all to the liking of the RIAA, as it will necessarily probe critically the idea of "intellectual property." Using student money to pay for an RIAA-sanctioned download service does not serve critical thinking.
read more: Who says college kids are getting dumber?WSJ: Free, Legal and Ignored. The subhead says it all: Colleges Offer Music Downloads, But Their Students Just Say No; Too Many Strings Attached. The article is about the unsurprising-to-anyone-except-Napster miserable failure of subscription based music services to take hold in universities. Compared to the complicated barrage of restrictions on the music offered by Napster, the students come across as models of common sense:
- While Cornell's online music program, through Napster, gave him and other students free, legal downloads, the email introducing the service explained that students could keep their songs only until they graduated. "After I read that, I decided I didn't want to even try it," says Mr. Petrigh, who will be a senior in the fall...
- Purdue University officials say that lower-than-expected demand among its students stems in part from all the frustrating restrictions that accompany legal downloading. Students at the West Lafayette, Ind., school can play songs free on their laptops but have to pay to burn songs onto CDs or load them onto a digital music device.
- "People still want to have a music collection. Music listeners like owning their music, not renting," says Bill Goodwin, 21, who graduated in May from the University of Southern California in Los Angeles. USC decided last year that it was finished with Napster after fewer than 500 students signed up...
There’s also a telling quotation from the director of the Campus Computing Project, who says, “The RIAA’s push to buy into these services strikes me as protection money. Buy in and we’ll protect you from our lawsuits,” which is one of the kinder descriptions of the unfriendliness of the industry that I’ve read lately.
I’m still waiting for someone in the industry to wake up and understand that their path to profitability lies in supporting good music and making their rich back catalogs available, not in fighting the fans of music tooth and nail. Today, three years after the birth of the iTunes Music Store, there are still many albums and tracks that can’t be found anywhere online—some by major artists (just try tracking down any non-album Sting tracks from before the late 90s), some by minor artists on major labels (Annabouboula, anyone?), and some by great cultural figures (I’d gladly pay through the nose for access to e.e. cummings’s Six Nonlectures as digital files, or even on CD). Instead we get American Idol and Rock Star. What, no one ever told these guys that a steady diet of candy can kill you?
BTW, for a good counterexample, check out Verve’s deep catalog—including a bunch of rare Impulse! recordings—though they don’t quite get it right; they support both iTunes and Windows Media, but no DRM-free offerings. But at least they’re opening up their catalog.
read more: 
