Windows Vista DRM:

[DavidOdden]

You pay for the use of the content.

Okay, this is correct.

Once you paid, then copying it for your own use, so you can enjoy it in different places, is fair use and does not violate the artist's rights.

And this is false. It's beyond "using the CD that you bought". You did not buy the right to make any number of copies, as you choose.

[DavidOdden]

To get straight to the bottom line (literally and figuratively), “a way of looking at those copies as subsumed within implied permission”, such permission does not exist and cannot reasonably be assumed. The law is very clear on the point that it is the copyright owner who have the exclusive right to permit copying. The law does not require the display of the “copyright” symbol, and yet you find that symbol added to CDs all the time. Why? The only reasonable assumption is that the rights-holder is asserting and emphasizing their right. They are denying permission to copy. When the CD says “Copying prohibited” or “Rights Reserved”, then I think the only rational conclusion is that permission is denied.

You seem to suggest that we shouldn't be at all surprised that Apple would encourage copyright violations, but this is an era of lawsuits and court injunctions; surely the lack thereof (that Apple continues doing what it does) serves as some evidence that Apple isn't actively encouraging copyright violation?

Perhaps track has been lost of the relevance of Apple in this enterprise. Recall that you said in #51 that you took Apple’s instructions to import CDs as evidence that copying was allowed. Whether or not Apple is liable for contributory infringement isn’t the issue, the issue is whether you can take the existence of such wording to constitute permission to copy from the rights-holder. I assume that, at this point, you do understand why Apple providing instructions for copying a CD does not in fact provide any evidence of permission from the owner. I’m taking no position on whether Apple is guilty of contributory infringement, in part because you would need a crack team of IP lawyers to make a plausible determination, and partly because I don’t have any Apple products and EULAs to inspect, so that I can see whether they are encouraging piracy. The limited evidence I have suggests to me that they are not taking a very active anti-piracy stance, but that is not the same as encouraging piracy.

But where I think the moral issue may be more complex is in trying to define what permitted usage actually entails and whether it requires an exception to the principle of not making any sorts of copies without express permission because a limited type of permission was implied.

I’ve indicated above why this is a complicated moral issue, exactly because of the implicit permission problem.

The law already encodes the fundamental moral issues, and it’s a general principle of civilized existence that a man does not have to say “You are prohibited from violating my rights, as recognised by the law X USC Y”, in order to deny the implication of permission. What else must a man do to assert his rights? The concept of implicit permission, if it is to be valid, depends on two things. First, the implicational relation must be unambiguous in the society, so in the US, implicit permission is clearly granted to walk up to the door and knock. Second, it must be easily deniable: e.g. a “no trespassing” sign, or a copyright symbol, or a “do not steal this music” notice, denies the implication. Although the practice of music stealing is widespread in western society, it is one-sided: it is a large-scale ignoring of rights by users, which is not matched by an equivalent granting of permission by the rights-owners. And it is hard to avoid seeing those various signs from the rights-holders that you do not have my permission to copy!!.

So there simply is no implicit permission. And furthermore, we may be at the technological stage where such permission becomes irrelevant. Because what trumps any arguments about implicit permission is actual permission. Here is where the market solution kicks in. You can buy a CD which has no permission to copy, in any way: the CD costs $10.00. The technology enforces those restrictions. Or you can buy a CD which has a somewhat complicated copy procedure that allows you to make 2 copies, and it costs $11.00. The technology enforces those restrictions. Or you can buy the “unlimited copy for personal use” version for $13.00. What are you going to do? Well, you are going to decide what level of flexibility you want, and will pay accordingly. Your permissions are then explicit, not implicit. That is always better -- implicit permission is murky territory, though sometimes unavoidable. In the case of digital media, I think it's entirely avoidable.

Let's accept that the copyright owner could say, "by this license I do not allow you to import your CD into iTunes". A clear statement such as that would be incontestible.

In the context of an already established universal implicit permission to copy, sure. But there is no such permission, so we’re only talking hypothetically.

On the other hand, permission to import the CD might be implied because in the iPod context I am not making a copy to functionally increase my number of copies, but acting so as to use the material singly on a player of my choice.

I must point out that you are actually functionally increasing your number of copies. Did you destroy the original CD's once they were installed on the Ipod?

Your reason is of no relevance to the conclusion. On the one hand, you are using a fact about your wishes and goals, which could be evidence about something that you give permission for others to do to you, but you’re talking about a CD maker, who actually is the only one with the right to permit copying. Putting the two together, it almost seems like you’re saying “I grant permission to myself to copy someone else’s property”. The permission has to come from the owner. Only the CD-maker can grant permission. The CD-maker gets to set the terms under which copying is allowed, because he’s the property owner. Remember, implicit permission means that there is something in the act of the rights-holder that reasonably leads you to assume permission. The fact of you having an Ipod isn’t an act by the rights-owner.

BTW, here is another suggestion for implementing the kind of functionality that you seek (and which, as I’ve said, I think is totally reasonable and would be a good thing to have on the market), namely “original-disabling”. The big difference between playing a CD on your computer and copying it to your hard drive or Ipod is that in the former case, you cannot simultaneously play the CD on your computer and also play that same copy on your car CD. With an Ipod, it is trivial to multiply the number of actual usable copies, so that a gang of a dozen mall rats can each pay $12.00 to get a dozen CDs, by multiple copying. What you need, then, is a flag bit on the media that indicates that only one of these copies can be played, and that to play the CD copy again, you have to disable the Ipod copy. If you want to be able to play both the Ipod copy and the CD copy, then you just have to buy two copies.

[KendallJ]

Because what trumps any arguments about implicit permission is actual permission. Here is where the market solution kicks in. You can buy a CD which has no permission to copy, in any way: the CD costs $10.00. The technology enforces those restrictions. Or you can buy a CD which has a somewhat complicated copy procedure that allows you to make 2 copies, and it costs $11.00. The technology enforces those restrictions. Or you can buy the “unlimited copy for personal use” version for $13.00. What are you going to do? Well, you are going to decide what level of flexibility you want, and will pay accordingly. Your permissions are then explicit, not implicit. That is always better -- implicit permission is murky territory, though sometimes unavoidable. In the case of digital media, I think it's entirely avoidable.In the context of an already established universal implicit permission to copy, sure. But there is no such permission, so we’re only talking hypothetically.I must point out that you are actually functionally increasing your number of copies. Did you destroy the original CD's once they were installed on the Ipod?

This is a great observation. In fact, while there are other factors involved in teh costs of delivery, DRM purchased music costs less. Since price has no theoretical relation to costs, but instead to value, this may be an indication there such music is valued less (but if it costs marginally less to produce it, still a very profitable alternative). Additionally, the novel business models with unlimited music rentals (such as Napster and Rapsody) would be impossible without DRM controls. In fact, the music industry is very closely monitoring the components of value that allow it to charge certain prices in certain business models to understand exactly how much you value open source, portable music. My guess is that the market is not yet telling anyone that the average consumer actually cares that much about the encumbrences of DRM.

[Qwertz]

The fact is that contract terms in perpetuity will not exist as you indicate as a matter of course. Most of the reason is because the receiving party will be reluctant to accept terms that will affect the resale value of the property and encumbrences such as stacked terms will do so, so the buyers will not buy into them. They buy into terms that they must maintain for the gated communities because they believe they are in their best interest. When terms either decrease the value or are so encumbered as to drive away prospective buyers, then new owners will eliminate them as they are able. Terms will not build up on a property as a matter of the market. They will not need laws banning them nor are they antithetical to individual rights.

O owns Greenacre. O divides Greenacre into two plots, Kelleyacre and Hunteracre. O deeds Kellyacre in fee simple to A with a restrictive covenant that only single-family homes of 20 rooms or more may be built on Greenacre. O deeds Hunteracre to B with the same covenant. A sells to C, B sells to D. The covenants are still in place, even if A and B didn't repeat them in their deeds to C and D. C wants to build a single-family home of only 19 rooms on Kellyacre. D doesn't care. C violates the covenant by building his house. Who has a cause of action against C, if everyone is still alive?

The answer is D. And only D. And D doesn't care. The term is still there, and D (or anyone D ever sells to) could enforce it against C (or anyone C ever sells to) so long as the violating 19-room house is on the property. I suppose the covenant could be eliminated if all of the land original to Greenacre were bought by one owner. He could then do what he wanted with it. But as long as there is more than one interest in Greenacre, the covenant does not decay.

(Unless it's found to be unenforceable as a matter of law, as was the case with racially restrictive covenants. The courts decided that enforcing such covenants would require them to violate the 14th Amendment. Racially restrictive covenants could still be made, but had no legal teeth - no one could enforce them. Then eventually they were made illegal by statute.)

The situation of real covenants is distinct from intellectual property. In a real covenant, the previous owner sells all his interest in the land. The covenant is enforced as among the property's neighbors whose plots were subdivided out of the original land with the covenant. If I sell Ecruacre, and I don't want any subsequent buyer to build a Super-Mega-Buyalot, I can't say "And you have to promise not to sell to anyone who's going to build a Super-Mega-Buyalot on the property" unless I divide Ecruacre into two properties. If I don't divide, then after the buyer turns around and sells to Super-Mega-Buyalot, there's not cause of action. I can't come back and say "Hey!" because I have no legal interest in Ecruacre any more.

A license to use Cyndi Lauper's album is like a license to use a campsite. You can use it only in the time, place and manner specified in the agreement. You own the license, not the land. You have no ownership interest whatsoever in the land. If you violate the terms of the agreement, you may be ejected from the campsite, if the terms so allow. This is what music publishers sell. A license to limited use of their property. If they don't want you to copy, and they put that in the license, there's no way to infer that they only meant non-private copying. If you don't like the license terms, you don't have to buy into them.

If Epic licenses Cyndi Lauper's album to me, and it says "no reproduction" on it, what would happen if I decided there was an implied right to copy it for my personal use? Epic would get upset, and point to the part that says "no reproduction." We'd go to court. Epic would ask the court to enforce the terms of the agreement. I would ask the court to grant me an implied right under the agreement; one that doesn't appear in the terms. Who's asking for the arbitrary use of governmental force? I am - by asking the court to hold Epic to an agreement it didn't make.

(Contract law is, unfortunately, full of a lot of implied rights. In an effort to make more contracts enforceable, they allow people to create very crude agreements without thinking carefully about what they're doing. The law fills in the gaps. The outcome is, far more often than not, something to which neither party would have agreed, had it all been written out beforehand.)

-Q

[necrovore]

The derivation of rights I set forth earlier is not Libertarian. According to "Libertarianism: The Perversion of Liberty" in The Voice of Reason, Libertarianism's essential characteristic is its disdain for any part of philosophy other than politics: in the name of having an open tent, it declares that "freedom" requires no particular definition and that you can thus use any definition you want. That is certainly not what I was saying. Nor was I endorsing anarchy or anything like that.

Libertarianism does invert ethics and politics by trying to use "freedom" as an ethical standard. But if I made a mistake in my derivation it wasn't that I inverted anything, it was that I skipped a step. As Ayn Rand puts it (and I found this in The Ayn Rand Lexicon under "Individual Rights"): "'Rights' are a moral concept -- the concept that provides a logical transition from the principles guiding an individual's actions to the principles guiding his relationships with others -- the concept that preserves and protects individual morality in a social context -- the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law." (Italics mine; original italics omitted.) So I think that that part of my derivation was correct; if you like, you can replace where I said "the needs of survival" with "the right to life," which is the root of all rights. Everything else seems to still hold.

I should emphasize also that I support contract law. If you have a right, you can exchange it for something else of value. If you own a piece of property you have the right to walk on that property. But if you rent the property out, you might waive that right, in order to receive rent money instead. Now in order to walk on your own property you need the permission of the renter. But this is entirely by your consent, and that's my point. A false definition of rights allows companies to do things such as monitor you without your informed consent.

I still hold that the right to make private copies (for oneself) is a natural right. I can be asked to waive that right as part of a license agreement or any other contract. If I make that guarantee I can be held to it. However, absent such an agreement, the right is mine. That's why I can put CDs on an iPod. I did not sign any agreement with the record companies. Their rights prohibit me from making copies of their CDs for other people. Their CDs say "All Rights Reserved." That is the right they have reserved. But they cannot reserve my rights without my consent. It has already been pointed out that I have to make a temporary private copy of the CD in order to play it. Rather than claim that there are all these complicated implied licenses and implied contracts, it seems easier to just say that they have their natural rights and I have mine. (Not that easiness is a proof of correctness of anything.) I traded my money for the CD. They retain the exclusive right to make copies for other people. I retain the right to make private copies for myself (including copies that result from playing it, whether the temporary copies in the CD player or the somewhat more permanent copies that get stored in my brain.)

My derivation also does not rule out DRM as a technology. It does, however, alter the ways in which it has to be advertised, because it requires informed consent. Microsoft can, for example, stipulate in their license terms that in addition to paying them money, you are also giving them the right to control certain aspects of your computer's operation. This means they are using their OS to buy an ownership share of your computer, in addition to your money. This would be entirely legal but it would also require them to be honest and state in their license that they do want that control, and exactly what control they are taking and what they are leaving for you. They might find it easier to get agreement if they contractually limited themselves to "preventing the copying of specially marked media" and nothing more. Companies are not within their rights to try to trick customers into accepting DRM (as in the recent Sony Rootkit case).

Similarly, you could be sold a computer with the stipulation that certain components (the "DRM components") remain the property of the manufacturer. Again, such a stipulation would have to make clear just what you are buying and what you are not.

This would not cause the public to suddenly adopt "good behavior," but it would prove that there is a rational and selfish basis for such "good behavior" and that copyright is not merely a mandate to sacrifice yourself to various corporations.

Edited February 9, 2007 by necrovore

[DavidOdden]

I still hold that the right to make private copies (for oneself) is a natural right.

There is no such right. You are claiming to have the right to that which is rightfully another person's: this is the antithesis of rights. Your protestation that it is your right to take another man's property does not make it actually be a right.

My derivation also does not rule out DRM as a technology. It does, however, alter the ways in which it has to be advertised, because it requires informed consent.

Read the EULA. If you don't like it, stick with playing music on standalone CD players. Just please stop stealing other people's works and then rationalizing the theft as a "natural right".

[Seeker]

I must point out that you are actually functionally increasing your number of copies. Did you destroy the original CD's once they were installed on the Ipod?

I discarded their cases and stacked them in a box as a final backup in the very unlikely event that both my primary hard drive and external backup hard drive fail simultaneously. Otherwise, I don't use them.

When I spoke of "implied" permission, I simply meant the permission that was actually granted to play the one copy I was sold. You seem to reject out of hand the idea that my technique employed to play the CD copies is permitted as incidental to the player's operation. Now, you might say, "but your playing technique incidentally involves making copies, so a right to it could not have been implied", to which I would draw a distinction between effective copies versus data transferred as part of the player's operation (akin to a data buffer). On this I remain unpersuaded so far. There are of course differences between data buffered in an integrated circuit, let's say, and stored in a hard disk (such as persistence when the power is turned off, etc.) but those seem irrelevant here. I could exploit both as separately usable copies with the right techniques. Here, I have chosen not to. What I have then is a very sophisticated CD player that plays the original copies I was sold, when and where I want, having stored them all in its playing buffer (which took a lot of reading ahead, to be sure). Under the system I have designed, at no point do I isolate the stages of the data transfer in such a way as to effectively create multiple copies. I bought one, and that's the one I am using, albeit with a very sophisticated technique.

Edited February 9, 2007 by Seeker

[DavidV]

I think the complaints boil down to the fact that some people don't want to be forced to pay for the price of DRM incorporation into the hardware, as well as the performance hit it will take in terms of CPU burden to process the encryption management. PCs are on the threshold of becoming very powerful, but this will set them back a good 3-4 years, not to mention add more bloat to an already puffed up OS.

Weiss, it seems that whenever I see a number in your post, I can safely assume that you are making it up.

Audio playback typically uses <5% of CPU resources (my streaming Winamp is using 2% right now), and video, while highly variable, is designed run on a set-top box far less powerful than a new PC. Furthermore, decoding HD video is an inherently CPU-intensive process, and decryption is likely to be a minor load relative to the cost of playback itself. Just compare playback of CSS versus non-CSS encrypted DVD's and see if you can detect any difference whatsoever.

Current CPU speeds for new computers are ~3.5Ghz (P4 equivalence - Intel has a 2.7-9Ghz Dual Core), and computer speeds double roughly every 18 months. 3yrs = 36 months = 2 cycles. 3.5*2*2 = 14Ghz. If if we assume that DRM DOUBLES the CPU load of audio playback (it doesn't), that's 320Mhz of CPU load for protected media playback. 14Ghz/320Mhz = 43.75. That's a bullshit factor of approximately 4,375%. If this were a global warming prediction, you'd be claiming that earth will be hotter than the surface of then sun.

I realize this estimate is very rough, but I'm getting sick of you pulling numbers out of your ass. I've called you on your made-up statistics a number of times, but you persist in making up ridiculous claims to support your arguments.

[necrovore]

There is no such right. You are claiming to have the right to that which is rightfully another person's: this is the antithesis of rights. Your protestation that it is your right to take another man's property does not make it actually be a right.

Read the EULA. If you don't like it, stick with playing music on standalone CD players. Just please stop stealing other people's works and then rationalizing the theft as a "natural right".

No, I'm not claiming the right to anything which is rightfully another person's. The copyright owner can choose not to sell the CD to me in the first place, or he can choose to place terms, clearly and openly, on the sale such that it would be clear I was giving up some of my rights (such as the right to make private copies for myself) in addition to some of my money. And in that case, I can accept the deal (and be held to the promise I made) or reject it (and do without the work in the first place). Generally, however, I would not buy a CD if it were sold to me under the condition that I could not copy it to an iPod. (Generally. I can think of some exceptions, though, where I would agree to such terms.)

There is no EULA on any of the music CDs I own. Just "All Rights Reserved." That's it. If they have the right to prevent even incidental copies, and if they have reserved all such rights to themselves, then I cannot even play the CD on a stand-alone CD player, because the CD player would perform buffering, in violation of their rights. The only way I can see for me to even play the thing is if I have some kind of natural right to make a copy.

That, however, is a consequence of my position, not a justification for it. I have not derived this right rationalistically. I've tried to derive it inductively from the facts of reality. The fundamental right is the right to one's life; that we should agree on. As corollary rights you have liberty, property, and the pursuit of happiness. The right to property includes the right to own one's own body and the right to own one's own machines. Any information-processing device -- and the brain and the sense organs are information-processing devices -- has to make copies in order to operate at all. That much is metaphysically given. And from that I conclude that you have the right to make such copies, for yourself, as an aspect of your own survival, unless you negotiate it away, which you are within your rights to do.

I also have the right to produce ideas -- and to withhold those ideas from others. I can withhold them from the world at large or I can withhold them from specific individuals. I can withhold them conditionally or unconditionally.

And these rights are the same for everyone else as they are for me.

If I have made a mistake in my attempt to derive my rights from the metaphysically given -- and I am not infallible -- I'd like to know what it is. It is not enough to claim that it clashes with existing laws, since laws are man-made and could have been made incorrectly. Nor is it enough to claim that it clashes, or may clash, with the wishes of the music industry.

[Spano]

Weiss, it seems that whenever I see a number in your post, I can safely assume that you are making it up.

14Ghz/320Mhz = 43.75. That's a bullshit factor of approximately 4,375%. If this were a global warming prediction, you'd be claiming that earth will be hotter than the surface of then sun.

I second David on this one. I'm not sure what encrpytion method is used for DRM, but modern symmetric algorthms are extremely fast and relatively cheaply implemented in hardware or software. Even if they weren't, it will be a long time, if ever, that I/O catches up in speed to processing power. In other words, it will generally always take far longer to locate and transfer a block of data from/to your hard drive than it will be to encrypt/decrypt it.

[KendallJ]

There is no EULA on any of the music CDs I own. Just "All Rights Reserved." That's it. If they have the right to prevent even incidental copies, and if they have reserved all such rights to themselves, then I cannot even play the CD on a stand-alone CD player, because the CD player would perform buffering, in violation of their rights. The only way I can see for me to even play the thing is if I have some kind of natural right to make a copy.

Actually, it says "© DATE OWNER... All Rights Reserved... Warning: unauthorized reproduction of this recording is prohibited by federal law...". The "All Rights Reserved" refers to that little © which identifies the work as protected under copyright law. That little C is like a traffic signal. Once it's posted, one cannot claim infringement through ignorance.

Section 117 deals with buffer copies required to play music and such copies are not violations of copyright. However, I think making a logical extension from this to any other sort of electronic copying is flawed.

That, however, is a consequence of my position, not a justification for it. I have not derived this right rationalistically. I've tried to derive it inductively from the facts of reality. The fundamental right is the right to one's life; that we should agree on. As corollary rights you have liberty, property, and the pursuit of happiness. The right to property includes the right to own one's own body and the right to own one's own machines. Any information-processing device -- and the brain and the sense organs are information-processing devices -- has to make copies in order to operate at all. That much is metaphysically given. And from that I conclude that you have the right to make such copies, for yourself, as an aspect of your own survival, unless you negotiate it away, which you are within your rights to do.

This derivation has some flaws in it. Let's parse it.

That, however, is a consequence of my position, not a justification for it. I have not derived this right rationalistically. I've tried to derive it inductively from the facts of reality. The fundamental right is the right to one's life; that we should agree on. As corollary rights you have liberty, property, and the pursuit of happiness.

Up to this point I agree.

The right to property includes the right to own one's own body and the right to own one's own machines.

huh? By one's own machines do you mean something you built yourself entirely from scratch. Because otherwise, you had to trade for it, and that trade could have included terms, and therefore it is not necessary that the right to property includes a right to use all the machines that one owns in any way one sees fit.

Any information-processing device -- and the brain and the sense organs are information-processing devices -- has to make copies in order to operate at all. That much is metaphysically given.

How does the fact that something has the capability to make copies imply that it has the right to make copies of anything it wants to? The fact that my computer makes buffer copies does not in any way imply that it must make a buffer copy of Solti's Chicago Symphony Mahler's 5th in order to survive.

And from that I conclude that you have the right to make such copies, for yourself, as an aspect of your own survival, unless you negotiate it away, which you are within your rights to do.

I think this conclusion is unsupported by your logic. You've used the "buffer copy" right and equivocated by now including "personal copies" in the analysis, which are not the same thing as I stated earlier. That is if I understood your argument in your previous post.

I still hold that the right to make private copies (for oneself) is a natural right.

[KendallJ]

The derivation of rights I set forth earlier is not Libertarian. According to "Libertarianism: The Perversion of Liberty" in The Voice of Reason, Libertarianism's essential characteristic is its disdain for any part of philosophy other than politics: in the name of having an open tent, it declares that "freedom" requires no particular definition and that you can thus use any definition you want.

I think I see how you are trying to derive this. You are trying to induce a specific right from supposed reality. That is not quite the same thing as making freedom a metaphysical primary. However, it has a simliar effect in practice in that if you incorrectly derive a right that does not exist, then you will seem to advocate rights arbitrarily. It's a subtle distinction, but you are right, it's not quite the same.

[necrovore]

Suppose you're trying to compose music and you decide you can do so better if you understand existing pieces better. And so you build a music analyzer device. If analyses take a long time, you might want to store intermediate results permanently, rather than having to regenerate them.

There is no reason for manufacturers to refuse to sell you parts (such as DSP chips, RAM, microprocessors, resistors and capacitors, etc.) that you can assemble for such a purpose. It is done routinely.

Obviously you want to analyze pieces that are not yours, so that you can compare the analyses of commercially successful pieces with analyses of your own pieces.

What would be wrong with that?

Depriving people, without their informed consent, of the right to process information -- information that they have bought and paid for -- can harm their lives.

It doesn't make any difference from a rights perspective whether a man does the analysis in his brain or builds a machine to help with part of it. (Even in the present, people can have hearing aids implanted in their skulls. The machine is helping these people process sensory information. And someday they'll add a few megs of flash memory and a record/playback feature.) No one should be able, without his consent, to impose requirements on what kinds of processing, what kinds of thinking, he can do.

Or how long the result, or the intermediate results, can last!

Processing information requires making copies. To understand things or conceptualize, you have to process information. This process can be done in your brain or with the aid of a machine; it doesn't make any difference. The process also yields permanent results -- knowledge.

That's a more fully elaborated version of why I hold that making copies for oneself is a natural right.

[RationalBiker]

That's a more fully elaborated version of why I hold that making copies for oneself is a natural right.

But you still haven't justified why your wants or needs places a responsbility on the part of another person, (a duty really). If YOU want or need something, the onus is on YOU to insure that it meets your desires or needs. If there is a lack of clarity about "All Rights Reserved" is ambiguous, it's in your rational self interest to seek clarification from the seller to see how this impacts your needs. You are seeking to transfer the responsibility of looking out for your needs to the seller instead of assuming it yourself.

Caveat emptor. A lack of clarity in the deal reflects poorly on BOTH parties in a voluntary trade, not just the seller. It's only when you start talking about fraud that you start shifting blame to the seller.

At any rate, if you find that the agreement YOU AGREED to upon purchase is different than you thought, there is a legal process you can utilize to rectify the situation if you can't manage to do so amicably with the other party. Instead, it appears you would choose to take the matter into your own hands and do whatever you want. This, in Objectivist terms constitutes an initiation of force against the other party.

[Edit - Word change first sentence - RB]

Edited February 10, 2007 by RationalBiker

[mweiss]

Weiss, it seems that whenever I see a number in your post, I can safely assume that you are making it up.

Audio playback typically uses <5% of CPU resources (my streaming Winamp is using 2% right now), and video, while highly variable, is designed run on a set-top box far less powerful than a new PC. Furthermore, decoding HD video is an inherently CPU-intensive process, and decryption is likely to be a minor load relative to the cost of playback itself. Just compare playback of CSS versus non-CSS encrypted DVD's and see if you can detect any difference whatsoever.

Current CPU speeds for new computers are ~3.5Ghz (P4 equivalence - Intel has a 2.7-9Ghz Dual Core), and computer speeds double roughly every 18 months. 3yrs = 36 months = 2 cycles. 3.5*2*2 = 14Ghz. If if we assume that DRM DOUBLES the CPU load of audio playback (it doesn't), that's 320Mhz of CPU load for protected media playback. 14Ghz/320Mhz = 43.75. That's a bullshit factor of approximately 4,375%. If this were a global warming prediction, you'd be claiming that earth will be hotter than the surface of then sun.

I realize this estimate is very rough, but I'm getting sick of you pulling numbers out of your ass. I've called you on your made-up statistics a number of times, but you persist in making up ridiculous claims to support your arguments.

And that's what ALL of these estimates are--rough--because no one really knows for sure WHAT Vista will require.

One fact I can share with you about Vista is that my friend, who is one of the beta testers, observed that when viewing my webcam on his machine with Vista, it used 100% of the CPU, while when that same machine was booted into xp, the CPU load was only 7% when viewing my webcam. He was so curious about that that he wrote a letter to some magazine that recently did an article on Vista. We are only making wild speculations, but what if that 93% addition CPU load were DRM analyzing every frame of my web cam's images?

And again, most of the estimates I made are general, based on the Australian PC reviewer's article.

When someone mentions any numbers, it's a good idea to take it with a grain of salt. Remember, 58% of all statistics are made up on the spot.

[DavidOdden]

There is no EULA on any of the music CDs I own. Just "All Rights Reserved." That's it.

Then they are claiming exactly those rights and permissions granted under the law. No copying. They don't need to say anything else.

[DavidOdden]

I discarded their cases and stacked them in a box as a final backup in the very unlikely event that both my primary hard drive and external backup hard drive fail simultaneously. Otherwise, I don't use them.

If the originals really are not ever accessed, and you earnestly believed that you had purchased the right to one and only installation of the music (that is, you were simply confused about what you bought), that in my opinion passes elementary moral muster. Now I have a few probing questions that may clarify the basis of your permission concepts, and get us into the realm of more-than-elementary morality, i.e. actual morality.

I assume that you contacted the copyright owners and verified that you had permission for this other-medium install (we know what happens when one assumes). Did Warner say "Yes: please see our online FAQ where we give blanket permission to copy to your IPOD"? Or did they say "Oh, okay, but don't tell your friends". Or did they say "Absolutely not! You will be hearing from out attorneys in the morning". In other words, did you make any effort to determine whether your implicit permission assumption is valid? Did you, for example, contact a certain lawyer who we know, who also has a band with an album, and ask him if it would be okay to copy the tracks from their album to your Ipod? Did the record companies give you a reason why they denied permission?

Here's a possible reason why you were turned down (assuming that you did indeed ask, and were turned down without any explanation). For a long time there as been a difference between just buying music for personal use, and additionally buying a performance license. You can get the right to play an album at a theater, for example, by paying some extra money. It may then be that they require a little extra money to have the right to a second copy on your Ipod. In the long term and especially if a DRM-like system becomes virtually universal, I suspect that the market will converge at a "right to music, on the medium of your choice" kind of system.

The difference between the right to make a temporary copy from the CD to one or more internal memory buffers before it gets shoved out the speakers, and the non-right to make whatever copies you'd like "for your own purposes" is that the former is statutorily given, that is to say, it's better than implicit permission, it is explicit permission. The reason why such permission exists explicitly is that without it, CDs could not be used. I accept the assumption that when you buy a CD, you have implicit permission to play the CD, and because of the nature of CDs, that entails a particular kind of uncontrollable copying. But you don't have that reason with Ipods. Your CDs still function in a CD player, and there is nothing in the nature of buying a CD that entails that it must be downloaded into your Ipod to function.

You buy a CD, therefore you have the right to use it qua CD, and that may involve automatic copying by your CPU or CD player. It is not the case that when you buy a CD, you have the right to use it qua some other sort of computer file. This is a subtle distinction that will probably go away in the next 10 years, but remember that when you buy a CD, you are just buying a CD which you can then use as a CD. You are not buying a right to the music. You could buy that right, and if you buy online tunes, you almost certainly are buying some such right, but buying a CD is distinct from buying a license to the music.

[Seeker]

The difference between the right to make a temporary copy from the CD to one or more internal memory buffers before it gets shoved out the speakers, and the non-right to make whatever copies you'd like "for your own purposes" is that the former is statutorily given, that is to say, it's better than implicit permission, it is explicit permission. The reason why such permission exists explicitly is that without it, CDs could not be used. I accept the assumption that when you buy a CD, you have implicit permission to play the CD, and because of the nature of CDs, that entails a particular kind of uncontrollable copying. But you don't have that reason with Ipods. Your CDs still function in a CD player, and there is nothing in the nature of buying a CD that entails that it must be downloaded into your Ipod to function.

I don't know what you mean by "uncontrollable copying". Any copying that occurs, is controlled by the device that copies, which is in turn controlled by the humans who designed and use it. But more significantly, nothing in the above justifies favoring CD players over iPods. The method of copying I have outlined most certainly is necessary to play the CD's contents on an iPod. I could just as easily say that the CD player's buffering is unnecessary because iPods exist, so there's no permission to use CD players any more. In other words, the preference for one over the other seems arbitrary and thus unconvincing. Similarly, the "qua CD" idea fails to persuade me because it speaks only to the nature of CDs, not the means by which they are played. I don't see why a Sony Discman is any more "qua CD" than my iPod set-up except in superficial terms - in essence, they're both doing the same thing.

Edited February 10, 2007 by Seeker

[DavidOdden]

I don't see why a Sony Discman is any more "qua CD" than my iPod set-up except in superficial terms - in essence, they're both doing the same thing.

I guess if you can't distinguish between you making a copy and a machine playing you're CD, especially in terms of the moral principle about permission, then I don't know how to explain it to you. You've rejected the essential difference, so of course you can't see the essential difference.

If you can show evidence that you have acquired a right to play some CD content on an Ipod, that suffices, for one conclusion. If you can't, that suffices, for the opposite conclusion.

[Seeker]

Perhaps the reason that I can't distinguish between my making a copy when I press "play" on the Discman versus "import" in iTunes is that there isn't one - both being essential to each method of playback, no other factor bearing on the question. From where does this alleged distinction arise? I might not reject it, if I knew the basis for the contention.

To your other question, I can at least point to this FAQ on the Recording Industry Association of America's web site:

"If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail."

Notwithstanding their inaccurate portrayal of who owns the music, we can at least conclude that the organization that represents most of the rights holders sees no problem.

[DavidOdden]

From where does this alleged distinction arise?

In one case (playing), the copy exists in a form that is inaccessible to the ordinary user (one without an advanced degree in computer science or electrical engineering), and it will disappear when that portion in the buffer has been played. It is not permanent, and cannot be distributed to others. In the other case (importing), the copy is permanent, easily accessible, and easily distributed to millions of people. In the case of playing a CD, it is not possible to use the CD for the purpose that music music CDs have, unless you put them in a CD player, which, by the nature of a CD, entails copying the data into a temporary buffer. It is not in the nature of a CD that it must be played on an Ipod.

Your argument that you can't play CD music on an Ipod without engaging in illegal copying is blunted by the fact that you do not have such a right, without permission. However, the RIAA statement may change the direction that the wind is blowing. Good job finding that.

[Seeker]

In one case (playing), the copy exists in a form that is inaccessible to the ordinary user (one without an advanced degree in computer science or electrical engineering), and it will disappear when that portion in the buffer has been played. It is not permanent, and cannot be distributed to others. In the other case (importing), the copy is permanent, easily accessible, and easily distributed to millions of people.

In the case of the CD player you seem to be relying on Title 17, Section 101, U.S. Code, since you say (using other words) that the copy cannot be "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." The problem I see is that there exists a very easy way to perceive, reproduce, or otherwise communicate the copy in the buffer that does not involve an advanced degree in computer science or electrical engineering, namely the player's audio jack. Every time I listen to a CD I'm perceiving the copy in the buffer, not the original. So it evidently is a copy within the meaning of Section 101, which puts it on an equal footing with the copy in iTunes. Is there another section of law that creates a distinction?

Again, I see the difference between players as arbitrary. You seem to be applying a "least copying necessary" standard to favor one configuration of hardware over another, the CD player over the iPod. The nature of a CD only requires that the hardware configuration be able to read the CD. Both a standalone player and my computer's iPod/iTunes set-up do that equally. Beyond that, you have to introduce something else not involving the nature of the CD, to favor one configuration over the other. If there is a basis for "least copying necessary", I have yet to see what it is, or how the amount of copying would be measured.

Am I in too deep when it comes to copyright law? Yes, I am. Since the rights holders have granted permission according to copyright law, I have no choice but to inquire into what that law is. I should probably consult an IP attorney for a dispositive answer instead of groping around on my own. Interestingly though, I have read that many IP attorneys believe that CD ripping for personal, noncommercial use is legal, relying on such cases as Sony v. Universal City Studios and RIAA vs. Diamond Multimedia.

Edited February 10, 2007 by Seeker

[DavidOdden]

In the case of the CD player you seem to be relying on Title 17, Section 101, U.S. Code

Not directly, but I've gone though various parts of the code and I'm reasonably certain that I've gone through the definitions section a couple of times, though not recently. Plus, copyright law tends to encode objectively justified principles of property and rights protection, so you'd expect the wheel to be invented a number of times. If you want to argue that CD players are infringing devices, you'd need to argue that it creates a "material object" which is "fixed". While there is no rational doubting that a copy on an Ipod is a mixed material object and thus a copy as defined by law, any argument to that effect for simply playing music including listening to a cassette tape or LP constituted copying would depend on major perversions of the concepts "material object" and "fixed", perversions the likes of which we have not seen from the courts for weeks and weeks. So far, the courts have not gone totally nuts, which is why playing music is not copying at all.

Interestingly though, I have read that many IP attorneys believe that CD ripping for personal, noncommercial use is legal

And there have been court cases such as 321 Studios v. MGM et al holding that copying for personal purposes is not allowed. It appears to me that illegal copying for the purpose of limited redistribution is acceptable, though illegal. If you are quiet about it and only copy a little bit, it's probably not worth their time and money to sue you. The people who really need to watch out are large companies (for example maybe Sony, who makes recording equipment), and the RIAA has no way to prove that you're illegally copied CDs, so the average user is usually safe. (Although, some of the bigger thieves did get into hot water when Napster went down, but that's because internet piracy tends to leave lots of footprints).

One possibility would be rewriting the law to explicitly allow copying for personal use (good luck defining that). It could be done by fiat, by SCOTUS declaring that any personal or non-profit copying is "fair use". Cases like Sony really aren't relevant, since Sony was never accused of directly violating copyright law. RIAA v. Diamond turned on a particular clause in a law governing digital audio recording devices, and again Diamond was not accused of copying. However, clever lawyers may be correctly discerning an increasing disinclination to apply copyright law to individuals, and to only use it as a tool in struggles between companies. Thus as a prediction about some future revocation or restriction of the concept "intellectual property", those IP lawyers may be correct.

[necrovore]

I should emphasize that if a license or EULA clearly states what private copying I may and may not perform, then my different theory of rights amounts to them saying, "We're granting you the rights in set S," and me saying, "No, I'm granting you the rights in the complement of S." But either way when it comes down to a particular right and whether I have it or not, we end up agreeing. So I'm not violating any contracts and I do not feel entitled to do so.

The difference only comes into play in two cases: (1) When a contract does not specify whether I have a right or not, or (2) when a law is passed.

A contract generally doesn't specify anything prohibiting the use of new technologies. Right now my computer has its hard drives in RAID 1 configuration. RAID 1 means it stores two copies of everything, one on each drive, on a sector-by-sector basis. The purpose is to allow for reliability: if either of the two hard drives fails, I don't lose any data. Both copies are durable. (Theoretically I could take one of the two hard drives out and give it to someone else, but that would be immoral unless I erased it first.) Some of my old software licenses were written before such technology was common. It has been argued that the installation of certain software on my computer might violate licenses, because the license may not explicitly permit that additional copy to be made. But in actual practice, RAID is becoming so common now that if it were to be held a violation of copyright, it would mean suing everyone who uses it and smashing RAID technology out of existence. People wouldn't want to buy RAID because of the legal liability, and manufacturers would face contributory infringement liability.

A "hybrid" drive, which is basically a regular hard drive with a couple of gigs of flash memory, also stores multiple copies. If I use a program frequently it will be stored on the hard drive but also copied into the flash memory. Flash memory can be rewritten, but it can retain its contents for years without electric power, so it is durable. (If I put two of those in RAID 1 configuration then the system might make as many as four durable copies of a piece of software.) Hybrid drives are sufficiently new that it would not have occurred to software licensors to specify whether or not you can use them.

Businesses have for years made weekly or monthly backups which include proprietary software among the data being backed up. The purpose is not to infringe rights but to ensure reliability. A RAID system still has to be backed up: it is designed to withstand drive failure, but if you erase a file, the file is erased on both drives.

Most of the time software licensors would conclude that it is just "common sense" to allow you to use new technologies as they become available. They really don't want you to pay for software and then be unable to use it. It seems that the government considers it "pragmatic" to allow such new devices rather than creating a big legal brake with the introduction of each new technology while each software vendor decides whether they want to permit their software to run on it. It is also possible that the vendor might not be around anymore, and there might not be anyone to ask.

One should grow suspicious of "principles" which have to be "pragmatically" compromised on in order to work in reality. In DIM Hypothesis terminology, this is symptomatic of an M1 system. (An M2 system would be unwilling to make that compromise.)

It is possible to achieve the same result with a principled system, simply by saying that, absent any agreement to the contrary, private copying, for oneself, is allowed. Copyright is more practical under such a system, it is more in line with reality, and the moral is the practical.

Also, laws that forbid private copying (for oneself) are violations of rights. They are based on a presumption of guilt, on the theory that if you make a copy for yourself, you are going to give it to someone else. The "stealing" has not occurred until you actually do give away that copy.

Edited February 10, 2007 by necrovore

[DavidOdden]

Also, laws that forbid private copying (for oneself) are violations of rights.

This is entirely false. Either you accept the concept of intellectual property, or you don't. If you accept the concept of intellectual property, then you acknowledge that you do not own the IP, and that you may not by right copy it. The owner may allow you to copy it, in which case he can set the terms for allowed copying. If you reject the concept of IP, then your statement is incoherent, because you would in fact believe that it is perfectly acceptable for an IP thief to steal someone's music or book and mass-produce it, giving it away or selling it at whatever rate you want, with no restrictions. Since you claim that there is a context where theft of IP is improper, you cannot reject the concept of IP.

It does not matter one iota if you steal goods for profit, for public use, or your own use. You can only claim a right to something you own, and you do not own the right to copy another person's creation. Thus a law prohibiting you from stealing that which is by right the property of another person is not a violation of your rights, it is a protection if his rights.

Your comments on RAID technology is completely irrelevant.