Windows Vista DRM:

[Seeker]

I'm not surprised (and I mean, simply, that this is within the realm of what most people think is morally okay). 1: Did you do that because you thought you had permission from the artists to make copies? 2: Did you do that because you figured that a major company would not have an easy method for ripping off CDs (it's usually shortened to "ripping") if it weren't actually okay? 3: Do you have specific legal knowledge that informs you that it is okay. 4: Do you feel that since you paid for those CDs, you ought to be able to do whatever you want as long as it only involves you?

Apple's iPod documentation explicitly instructs users to import their CDs into their iTunes library. You may say it is sloppy thinking to believe that Apple wouldn't do that if it weren't proper, and it probably is, but I can totally understand why people wouldn't see it as a problem when Apple is not only telling them it's okay, but instructing them to do it when setting up their iPod.

The following is from page 6 of the iPod user's manual:

Four Steps to Playing Music on iPod shuffle

To set up iPod shuffle, you install software from the iPod CD, and import songs

from your music CD collection or purchase songs from the iTunes Music Store

(available in some countries only). Then you transfer the songs to iPod shuffle for

listening on the go.

Step 1: Install the Software

Insert the iPod CD into your computer and install iTunes and the iPod software.

Step 2: Import Music to Your Computer

Complete this step if you haven’t already transferred music to your computer. You can

import music from your audio CDs, or if you have an Internet connection, you can buy

music online and download it to your computer using the iTunes Music Store. You can

browse over a million songs and listen to a 30-second preview of any song.

To import music to your computer from an audio CD:

1

Insert a CD into your computer. iTunes opens automatically and the CD is selected in

the iTunes Source list.

2

Uncheck songs you don’t want to transfer, then click Import.

3

Repeat for any other CDs with songs you’d like to import.

There is not a word about contacting the copyright holders to get their permission.

Copying with permission is moral; copying without permission is immoral. That is a very simple rule. Do you disagree with that statement that distinguishes the moral and the immoral in the realm of copying?

No disagreement. I didn't see it as impermissible.

Edited February 8, 2007 by Seeker

[DavidOdden]

If you want to talk about morals, MS has every right to implement DRM. But I also have every moral right to crack it if I want, so this is really not an issue in my mind.

Okay, but the question is whether you also think you have the right to steal other people's property with your clever program? A related question is whether you think that a person who knowingly assists rights-violators in the pursuit of rights-violations deserve to be punished. As an intellectual exercise in programming, I don't intellectually object to such an act, or to constructing a computer virus that destroys the the economies of all free nations, but I would be quite concerned if such a purely intellectual exercise was actually implemented in the raw. So I'm not sure how far you're willing to go before you conclude that your act is evil.

[Maarten]

If you want to talk about morals, MS has every right to implement DRM. But I also have every moral right to crack it if I want, so this is really not an issue in my mind.

You mean similar as to how every property owner has a right to their property. But you also have every moral right to break into their home and take their stuff. You're right, there's not a problem in sight there

[DavidOdden]

Apple's iPod documentation explicitly instructs users to import their CDs into their iTunes library.

Okay; I'm sympathetic to the average user who doesn't understand that this is wrong. The Napster case was similar, and there have been a number of "Hey, it wasn't me that pulled the trigger" defenses. What saddens me is that those kinds of defenses manage to prevail sometimes. If the President of the US can lie, why can't I? If Apple says it's okay, who am I to argue? I have a long list of "if the university administration says..." anecdotes which I will not insert for self-preservational reasons. There is no question in my mind that there are wholesale mechanisms that encourage theft. And really, WTF is a rational person supposed to do besides get a JD and specialize in IP law or, become an Objectivist and look at the underlying principles. I too totally understand, and yet I weep at the continuous and relentless, systematic denial of property rights.

I only see one real solution, and that is understanding. Let's just take your statement that you didn't see it as impermissible. I want to know where you have the "wait, I don't buy that" moment. If you don't see something as impermissible, then that means, you have evidence that that you have permission, and no evidence at all suggesting lack of permission. That means that you have some evidence (it wasn't just a wish, but you heard or saw something). And the permission has to some from someone, so someone gave you permission: who? That permission has to come from the person who, by right, can give permission, i.e. the owner of the property.

In the case of Apple's "load any CD into your Ipod" scam, this would lead to the conclusion that either Apple has somehow acquired the exclusive proper copyright to every music CD on the planet (I believe that any person who would actually accept that conclusion is hopelessly detached from reality), or that Apple has somehow acquired a license to authorize such copying from every music CD maker on the planet (I believe that any person who would actually accept that conclusion is hopelessly detached from reality). My beloved goal-CD, Musta Lindu, is not in their collection, and this persuades me that they have not magically acquired universal rights to all music. But they do have some music that you can buy. So what explains the disparity -- they don't actually offer all music for download, but they seem to claim that you may rightly copy any music?

You can fill in the blank. And yet, isn't Apple a responsible major corporation? They wouldn't actually do things that encourage theft, would they?

[D'kian]

Apple's iPod documentation explicitly instructs users to import their CDs into their iTunes library.

Regardless of what Apple says, uploading store-bought CDs into the ipod, or to a blank Cd for use in a car stereo, strikes me as fair use of the content you've paid for.

[DavidOdden]

Regardless of what Apple says, uploading store-bought CDs into the ipod, or to a blank Cd for use in a car stereo, strikes me as fair use of the content you've paid for.

Why? Is it fair use if I borrow a CD from the library and copy it for my own use? Is it fair use if I give copies to friends? What evidence do you have that you paid for "content"? In all of the CDs that I've ever purchased, not a single one of them has ever said "Congratulations!! You now own this 'content'!". In fact, pretty much every one of them actually says that I do not own the content, by reminding me that the content is actually copyrighted. Do you define "fair use" as "whatever I feel is fair, i.e. I'm not uncomfortable with"? What is the relationship between "fair use" or "fair play" and "rights"?

[Seeker]

If you don't see something as impermissible, then that means, you have evidence that that you have permission, and no evidence at all suggesting lack of permission. That means that you have some evidence (it wasn't just a wish, but you heard or saw something). And the permission has to some from someone, so someone gave you permission: who? That permission has to come from the person who, by right, can give permission, i.e. the owner of the property.

I think the idea is that permission for fair use was granted when I bought the CD from the store, and the question then was what constituted "fair use"? The evidence of that general principle could be garnered not only from the property holder but by such things as Apple's documentation and the fact that they've not been slapped with a court injunction forcing them to cease and desist encouraging outright theft. Why accept the idea of "fair use"? I would take it that "fair use" is a correct legal principle because there is underlying it a corresponding moral principle, something along the lines of, "I can take reasonable measures to make use of the copy for which I paid, including making a subsidiary copy for my iPod, because permission to do that was implicitly granted when I made the purchase". Now we can argue over that reasoning, but my point is that did notrequire knowledge of the specific IP holder's permission, but only the general concept of "fair use". The questions I see are:

1. Is "fair use" a valid concept? If so, what does it mean?

2. Does "fair use" entail importing the CDs into iTunes and my iPod?

3. Can individual copyright owners deny "fair use" to those to whom they sell copies?

Edited February 8, 2007 by Seeker

[Qwertz]

When I bought my iPod, it came with a plastic wrapper around it that said something, albeit very simple, to the effect of "don't steal music." The iTunes EULA also contains this handy warning:

IMPORTANT NOTE: This software may be used to reproduce materials. It is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. This software may also be used for remote access to music files for listening between computers. Remote access of copyrighted music is only provided for lawful personal use or as otherwise legally permitted. If you are uncertain about your right to copy or permit access to any material you should contact your legal advisor.

So it's not entirely true that Apple tells you it's okay.

Also, I think there's one more category of excuse; the "I don't act on principle" excuse:

5) I know it's wrong, but I won't get caught because it's only a few songs/discs/terabytes...

-Q

[Qwertz]

1. Is "fair use" a valid concept? If so, what does it mean?

2. Does "fair use" entail importing the CDs into iTunes and my iPod?

3. Can individual copyright owners deny "fair use" to those to whom they sell copies?

1. 'Fair use' is the legal doctrine by which the Federal Government systematically refuses, in certain circumstances, to protect private property. Or I should say, one of many such legal doctrines. The doctrine attempts to create a means whereby people don't get in trouble for legitimate, scholarly criticism of someone else's copyrighted work, but is overly broad.

2. As written, no. An argument can be made that it used to, but Congress recently did away with the "commercial gain" requirement. Unless you're a special, exempt party (libraries, government institutions, blind people), or you're citing a limited quantity for educational or scholarly use, you can't make the copy. Unless you're contractually authorized.

3. No. Fair Use is the Government saying "we're not going to enforce copyright against people under these circumstances." The copyright holder holds subject to the Government's willingness to enforce the copyright.

-Q

[Seeker]

When I bought my iPod, it came with a plastic wrapper around it that said something, albeit very simple, to the effect of "don't steal music."

And of course in the context of today's climate, that first and most likely explanation is that that refers to online piracy. iTunes is, after all, a program that replaces Napster or other such programs as the way to get music online. The idea that by stealing they might be referring to following their instructions to import CDs that one has already paid for simply does not leap to mind.

The iTunes EULA also contains this handy warning:

So it's not entirely true that Apple tells you it's okay.

That's lovely. Where is that EULA buried? In tiny print? The README.TXT file in the bin directory? It's certainly NOT in the prominent printed user's manual that TELLS you to import CDs from your collection. And who honestly expects the average users' CD collection to contain non-copyrighted CDs? That's just CYA for Apple. It doesn't change at all their encouragement of precisely the conduct at issue here.

[Qwertz]

That's lovely. Where is that EULA buried? In tiny print? The README.TXT file in the bin directory? It's certainly NOT in the prominent printed user's manual that TELLS you to import CDs from your collection.

The EULA is presented for acceptance before the software installs. You have to click "I agree" in a prominent window displaying the EULA and instructions to READ the EULA before agreeing, or you can't even get the software to do that thing it says it can do in the manual. Just because you didn't read that thing you signed doesn't mean you aren't bound by it.

-Q

[Seeker]

The EULA is presented for acceptance before the software installs. You have to click "I agree" in a prominent window displaying the EULA and instructions to READ the EULA before agreeing, or you can't even get the software to do that thing it says it can do in the manual. Just because you didn't read that thing you signed doesn't mean you aren't bound by it.

Oh, for sure. The question wasn't whether I was bound by it, but whether it really gets Apple off the hook for plainly encouraging copyright violation. I hold that it does not.

Also, whether (according to the EULA) I am "authorized or legally permitted to reproduce" the materials begs the question of whether "fair use" grants such authorization. Your explanation suggests that it is not, but my questions concerning "fair use" as a moral concept were not limited to what the Federal Government says (other than as a potential starting point for grasping the concepts involved), but seek a moral understanding of the issue.

[DavidOdden]

I think the idea is that permission for fair use was granted when I bought the CD from the store, and the question then was what constituted "fair use"?

I'll try not to repeat what Qwertz said, but it's hard to find much to add. One thing to consider is that statutory fair use (womit) is just there by law and it isn't a permission granted. Permission to property can only be granted by the property owner (the government can say "We won't protect a person's property rights in this case", which is not the same as actually rightfully having permission). You know that the store does not own the copyright, so the store cannot give permission.

The evidence of that general principle could be garnered not only from the property holder but by such things as Apple's documentation and the fact that they've not been slapped with a court injunction forcing them to cease and desist encouraging outright theft.

Well, I have requested permission to copy, from copyright holders, in a small number of cases, and I think I'm the rare case. Nobody ever asks the owner, and I am morally certain that you did not actually determine who the copyright owner is and secure permission, for your copying. So I can't figure out what you really mean by your reference to the owner. I don't see how Apple documentation is evidence of anything that Apple doesn't own. There are plenty of legal and practical reasons why Apple may not have been sued out of business. Consider the dictatorship of North Korea -- the fact that they haven't been bombed out of existence in over 50 years is proof??? that they are really a decent rights-respecting regime? For example, when the wrapper actually says "Don't steal", that gives some credibility to the position that they aren't encouraging people to steal, just as the Taliban wasn't "actually" encouraging terrorist attacks against the US. Or, the fact that they haven't managed to shut down Bit Torrent must be evidence is not engaged in or enabling copyright violation on a huge scale.

Are you familiar with the statutory language of the federal law governing "fair use"? Frankly, I find it pretty useless and uninformative; but the point is, the statute does not support what seems to your construction of the concept.

And of course in the context of today's climate, that first and most likely explanation is that that refers to online piracy.

In fact, in the context of today's climate I think it's only there to cover Apple's legal ass. So maybe we can agree that the climate is rotten and we need a change of climate, in the direction of respecting property rights. Stopping the practice of copying music without permission is one step, following Cogito's practice of getting in the face of thieves is another. You don't have to be part of the victim culture.

We had a discussion of the fair use concept here recently (can't remember where exactly, within the past week I think). The basic line that needs to be negotiated is you right to discuss and criticize another person's statements. I argue that you should be able to discuss and criticize a person's statements, and that IMO is how far "fair use" should go. The revolting name "fair use" invites all sorts of abuse, and I hope whoever came up with that name is burning in hell. A man should be held accountable for his statements, and that is why one must have the right to quote some parts verbatim, without permission, to be able to combat evil statements -- by holding them up for public scrutiny.

[D'kian]

Why? Is it fair use if I borrow a CD from the library and copy it for my own use? Is it fair use if I give copies to friends?

That is not what I said. I said CDs you paid for, not borrowed.

What evidence do you have that you paid for "content"?

I certainly don't pay becuase I like the plastic and aluminnum disk inside the box.

In all of the CDs that I've ever purchased, not a single one of them has ever said "Congratulations!! You now own this 'content'!".

Not what I said, either. I concede my wording wasn't precise. You pay for the use of the content. 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.

[Seeker]

I don't see how Apple documentation is evidence of anything that Apple doesn't own.

To use the product as the instructions say, for the vast majority of people entails copyright violation unless the use in question is allowed by something akin to "fair use" (I'll try to think up a better label). 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? Apple is sensitive to its stock price. It should avoid getting in that kind of trouble. I acknowledge that they covered their asses with their EULA, but I hold firm that they are, in fact, actively encouraging ripping copyrighted CDs. So the only remaining option is that encouraging ripping copyrighted CDs is okay thanks to a concept of "permitted usage" (how's that?), i.e. an objectively correct understanding of what the granting of a limited license to one CD copy entails with respect to its use.

So this is definitely not the "fair use" doctrine as defined by the government. 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. 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. 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. That the player happens to require an intermediate copy step in order to function is incidental to its operation; effectively, there is still only one copy, if all I have done functionally is to transfer the song to play on my iPod. Could I use the steps involved to improperly make functional copies, playing the song on my iPod and computer and CD player all simultaneously? Sure. But I need not - I can merely play the one that's on my iPod only, treating the intermediate steps as incidental to the player's functioning. This is, in fact, exactly what I do. It is not so much making copies as changing the manner in which I play the copy I already have.

Now, to get back to the copyright holders. If this type of usage is invalid, then that requires that they did not give me permission to play the copy they sold to me in such a manner, that incidental duplicates which will never be played but which exist solely to enable my player to function, are contrary to their will. This seems a bit of a stretch. It is hard to see what rational purpose they could have in demanding that I use a portable CD player but not a digital media player such as an iPod (particularly since they never made such a desire clear). There is no evidence of player preference on their part. I can reasonably assume that they want me to use the best player available to enjoy their material. As of now, that happens to be an iPod, which incidentally involves a couple of copy steps for its operation. So on these grounds it seems to me that their permission was implied, and I am in the clear so long as I never make use of the intermediate copies for anything else.

That is the territory I am seeking here to defend - a way of looking at those copies as subsumed within implied permission. I suspect that there will be disagreement here - have at it!

[necrovore]

The question is what can be done about this disease. One possibility is to make copyright violation a crime. Send the evil miscreants to prison, just like other thieves are dealt with. I have been thinking about this, and I think it is probably the right thing to do, exactly because of this decline in respect for property rights. The alterative is to simply abandon the concept of intellectual property. That is giving in to the evil conduct of the masses.

David Odden,

Your position -- that people are basically evil, that people should submit to DRM surveillance, that people need to be thrown in jail en masse, that people need an overpowering government to help reign in their "disease" of selfish evils -- is, point for point, a blueprint for totalitarianism. It sounds positively Platonic -- or Augustinian.

Your idea that it's either that or anarchy -- totalitarianism or anarchy -- is exactly the false dichotomy that I oppose. It's also an example of the kind of thinking that is destroying people's respect for property rights -- and rightly so. If people are taught that respecting the property rights of others requires sacrifice, then they will reject the whole concept.

The unpopularity of DRM is an effect of its incorrectness -- not the cause of its incorrectness or the standard of judging its correctness. But in this case people are right to hold it in low esteem.

It is because I support property rights, and intellectual property rights in particular, that I must oppose this totalitarianism and the false dichotomy that makes it seem necessary. After all, I own several copyrights myself.

Property rights are absolute -- but this does not mean they are unlimited. The concept of rights is only an aid to human survival insofar as it is properly defined. Any improper definition tends to work against the entire concept.

A right is established by relation to a human need of survival. In order for a human to meet his own needs he has to have the right to meet those needs. Property rights are predicated upon the idea that you need to own what you produce in order to survive. Copyrights are predicated upon the idea that it is a value to every person in civilization for some people to be able to specialize in the production of certain types of ideas -- and that this specialization requires people to be able to profit from those ideas by being their exclusive source in society, just as they were when they were alone and thought it up in the first place.

Plagiarism and counterfeiting infringe that right. For me to give copies of works that are not mine to other people also infringes that right -- because those are basically low-quality counterfeits, which dilute the value of the real thing and thus hurt both the creator of the work and the people who actually pay for it. Infringing the right is wrong because it destroys a value and works against human life.

But when it comes to the alleged "right" to control any act of non-social, i.e., private, copying, which is to say, copying that does not affect anyone else -- I do not see how it is necessary to the survival of a rational being to ever assert that right. I do, however, see how it is a threat to him if other people can exert that "right" against him.

I write computer programs. "Copying" is a fundamental operation in a computer. Computers copy data in order to speed up processing or increase reliability. Different algorithms in a computer can cause different numbers of copies or partial copies to be made. People can build their own computers or write their own programs, and this ability will become more widespread with time. Computers and the skills surrounding them are becoming more and more necessary -- and helpful -- to our continued survival.

Since property rights are exclusive, a proper government would recognize that one person's right to control acts of private copying would, to the extent that it exists, deny the existence of any right of people to use their own physical property (computers) to make copies.

Therefore, any alleged right of copyright holders to be able to nit-pick through the operations of a computer -- any requirement that computer and program designers may have to get permission for each step in an algorithm, for each copy they make in a register or in a cache or in RAM somewhere -- is a threat to the survival of humanity.

The draconian mechanisms required to enforce this alleged right are further evidence of my contention.

...I detest the modern trend to denying property rights. Contracts are becoming meaningless, property rights are all but gone, all we are going to be left with is the largesse of the state, which will confiscate all wealth and distribute it "fairly".

This is largely because of the false alternative of totalitarianism and anarchy. People define a free country as some kind of "balance" between the two -- a balance that is to be set pragmatically, by the whim of the moment.

This is wrong, but of course totalitarianism and anarchy are both also wrong. The concept of "rights" has been lost. It has to be rediscovered. It cannot be rediscovered merely by dictating a list of "rights," or taking the word of government officials or current laws on what "rights" are.

Just as a derivation from the needs of survival validates copyright but invalidates the theory of rights underlying DRM -- a similar derivation validates property rights while invalidating the idea that a former owner can continue to impose terms of use on an item after he has sold it to you.

The conceptual roots of rights must be used to validate them. Nothing else is valid. Nothing else can save them.

Why? What is it about these agreements that you feel you should abide by them?

Nothing. I abide by them because I am forced to do so at gunpoint. (This is what Ayn Rand said when they asked her why she paid the income tax when she considered it immoral. See Ayn Rand Answers.)

Edited February 9, 2007 by necrovore

[KendallJ]

I am of a similar mind as Seeker, but I take a different view of it.

Rather than look for implied rights, which I do not think exist, (and you certainly would never get a music company to admit to such a thing) I instead think of de facto circustances that are still in the company's interest.

Thinking in terms of business strategy for a moment rather than philosophy. There are upsides and downsides to the digital music revolution, and I think music companies want to participate in the upsides and minize the impact of the downsides. The upsides are contained in effortless transactions and portability. That is, being so simple for me to buy and store my entire music collection on a player, that I find that I listen to my music now in places that I never could before. In fact, both my wife and I have experienced a resurgence in music listening since we went 100% digital. I've purchased more albums in the last 2 years than in the previous 5-7. Before that, I used to consider myself an audiophile with a small collection of about 500 CD's. My step-son had an iPod long before I was buying albums.

This is good for music companies, but it is in part enabled by the advantages that digital music allows, and that requires upgrading (copying) part of my collection into the new format.

The same aspects bring downsides, namely the ease of duplication and distribution make piracy a greater threat. As such, it is in the music companies interest to hold out for the perfection of DRM (even if such schemes are cracked) if they view electronic delivery as the end future market. Yes these schemes are cracked, but for most they provide enough of a barrier to discourage casual copying, which could errode record sales.

So de facto what does that mean. Well, I find it interesting that my copy of Media Player has a "RIP" tab, and the help files have detailed instructions on how to rip music from CD's. Yes, there is a disclaimer at the bottom of the help page warning of copyright infringement, but what CD's exactly does MS think I'm ripping? Additionally, if music companies can require DRM from an online channel, why don't they require the removal of rip capability from the integrated player software? Well, I assert that the fact is they want me digital and buying DRM files, and if that means copying portions of my collection onto mp3, then they are ok with it. Most people who migrate collections are older and probably less apt to pirate, and anyway sales of Depeche Mode's Black Celebration and Indigo Girls Swamp Ophelia aren't what is generating revenues for them today, and so if they get a little leakage on older titles as a result of digitalization it isn't much of a threat. That is, companies don't enforce their copyrights uniformly, but rather where the added incremental cost of doing so is greatly offset by the potential threat to their business. Another way to think of this is that copyrights have different values and record companies assess those values and defend those rights appropriately.

But my kid who talks to his buddies more frequently on IM than in person, and knows where to get all the latest cheat codes for Halo 3. Him, they want buying DRM files, and liking it. The last thing they want is him ripping CD's from the record store and zipping them to over to his buddies.

Now, am I using this to justify breaking copyright? hmmm. I wrestle with that. In principle, no. But I also know how the companies look at this sort of thing, and I am pretty confident the RIP tab on WMP11 is there for a given use, and if their alternative is that I refuse to buy a 30 GB mp3 player and continue buying a few CD's a year or buy one, rip my library and buy 15 albums a year, they'd be happy to have the latter.

Now, that requires a whole bunch of intellectual honesty, and my situation may not be yours. I dont' copy my music to others, and I don't let my kid do it. I dont' use file sharing networks (which are now illegal I believe). I sleep at night, and I feel pretty confident that the owner of the copyright prefers that situation because they keep me as a future customer.

Maybe you think that is rationalization. I'm happy to have your comments.

Note also that I defended copyrights against Jobs' recent announcement trying to sway open source music sales, which I think is abhorent, and self-serving.

Edited February 9, 2007 by KendallJ

[KendallJ]

But when it comes to the alleged "right" to control any act of non-social, i.e., private, copying, which is to say, copying that does not affect anyone else -- I do not see how it is necessary to the survival of a rational being to ever assert that right. I do, however, see how it is a threat to him if other people can exert that "right" against him.

You determining what is necessary for someone else's survival is exactly the opposite of a definition of rights. It is my right to not offer the product of my effort for sale at all, and while it is very irrational not to do so, that is still my right. Competitive options may force me to change the terms I seek, but the buyer cannot on the basis that I do not have particular actions guaranteed to me under that right. That is what it means to have a right. I can act according to that right in whatever manner I see fit. It does not matter in the least what actions you think are necessary under my right to something. You have one option to enter into a voluntary trade with me under whatever terms I ask in exchange for my music. For you to say you do not see how a particular action is necessary to someone's survival and then say you are for rights in general means nothing because you just destroyed the concept.

Which of course is odd coming from the guy who just admitted he copied his whole library onto mp3's.

By the way, I have seen a lot of business contracts in my day, and you would be stunned at the amount of nitpicking people will ask for in contract terms and get because the buying party wants the product. My bank wants to look through my paycheck stubs to make sure I can pay them back. I want to have a person climb up into the attic of the house I'm going to buy to make sure that it's sound in construction, and I haven't missed something. Companies want the right to audit other companies books at any time as part of a business deal. Happens all the time. Get used to it.

Edited February 9, 2007 by KendallJ

[necrovore]

You determining what is necessary for someone else's survival is exactly the opposite of a definition of rights. It is my right to not offer the product of my effort for sale at all, and while it is very irrational not to do so, that is still my right. Competitive options may force me to change the terms I seek, but the buyer cannot on the basis that I do not have particular actions guaranteed to me under that right. That is what it means to have a right. I can act according to that right in whatever manner I see fit. It does not matter in the least what actions you think are necessary under my right to something. You have one option to enter into a voluntary trade with me under whatever terms I ask in exchange for my music. For you to say you do not see how a particular action is necessary to someone's survival and then say you are for rights in general means nothing because you just destroyed the concept.

Which of course is odd coming from the guy who just admitted he copied his whole library onto mp3's.

By the way, I have seen a lot of business contracts in my day, and you would be stunned at the amount of nitpicking people will ask for in contract terms and get because the buying party wants the product. My bank wants to look through my paycheck stubs to make sure I can pay them back. I want to have a person climb up into the attic of the house I'm going to buy to make sure that it's sound in construction, and I haven't missed something. Companies want the right to audit other companies books at any time as part of a business deal. Happens all the time. Get used to it.

Whoa, what? Did you even read my post? I said that rights were defined according to a rational being's needs for survival, not that rights were defined by me. I also did not propose to deny anyone the right to choose whether or how to exercise his rights. But I did imply that a person is denied the right to choose arbitrarily what his rights are in the first place!

Suppose someone claims that he has the right to own slaves. Is there anything false about that statement? Does it matter whether he intends to exercise that right or not? If it is wrong, by what standard would you refute him? Other rights? But what if those are invalid, and how can you ever know?

You have to derive rights from the facts of reality somehow. That's what "natural rights" means. Showing how is exactly what I did in my post, and I showed my method, and I showed my results. How does that "invalidate the concept of rights?"

By the way, it was not nitpicking per se that I objected to, it was nitpicking about things that properly should not be anyone's business.

[KendallJ]

Yup, I read it.

Sorry if I seemed a bit beligerant. I realize it was a strong post. Nothing personal. The whole issue of copyright and patent rights I take very seriously.

Let me see if I can articulate it better.

You said:

I said that rights were defined according to a rational being's needs for survival, not that rights were defined by me. I also did not propose to deny anyone the right to choose whether or how to exercise his rights. But I did imply that a person is denied the right to choose arbitrarily what his rights are in the first place!

There are a couple of issues here:

1. You collapse ethics and politics in both the first statement and in the evaluation from the passage I quoted before. Rights are NOT defined according to a rational being's need for survival. Survival is the Objectivist basis for ethics. Rights are a political concept. It is a related, but not a direct link between the two. As such, asking how a particular right is necessary for the survival of a being is confusing the ethical with the political and misevaluating the issue. That is not the way a right is evaluated. Meta-ethics (survival) leads to the proper code of morality. Morality leads to the political concept of individual rights as the basis of politics, and ultimately to property rights as a form of individual rights. To collapse all of that and take property rights an use as the standard of evaluation survival, as such, is almost a non-sequitir. This is the primary basis by which you are objecting to DRM. It is incorrect.

2. I did not imply that a person is denied to choose arbitrarily what his rights are, but rather that the very concept of a right implies that a person must indeed decide what is of value for him and exercise his rights thusly (assuming he does not violate anyone else's right in the process), regardless of how arbitrary it appears to anyone else. That is, in trading my property, I can ask for any terms I darn well feel are necessary and important. If I can get such terms in the trade, the tradee has no basis to evaluate the terms he accepted based upon my "survival needs." That is, the terms of a trade are not subject to ethical evaluation, as such. The ethics are contained in the voluntary nature of the trade. That's it. Your choice is to accept the terms or seek a different trade. As such, DRM should not and cannot be evaluated on the basis you are trying to do so, since it exists as the term of a voluntary trade, both between the music store and the music company and between the consumer and the music company.

The term of a voluntary trade can in no way be draconian or totalitarianism. This is a libertarian notion of liberty (collapsing liberty into an ethical concept), and one of the reasons libertarians also are open-source folks. Note, I am not implying you are in any way a libertarian, but that this argument carries tones of it.

By the way, former owners of property can certainly imose terms of use after sale. Gated communities are like this, where you agree when you purchase a property to behave (by contract) in the future according to a set of guidelines already set forth, although usually you trade this restirction for a voice in the policies and future contracts of the community. Don't like the terms? Don't buy the house. That is most certainly NOT totalitarianism.

Edited February 9, 2007 by KendallJ

[Qwertz]

I hold firm that [Apple] are, in fact, actively encouraging ripping copyrighted CDs.

A gun manufacturer who sells his product and instructs purchasers on how to defend themselves with it isn't "actively encouraging" assault, battery and homicide. But beyond law enforcement, these are the exclusive* defense uses for guns. Likewise, Apple makes and sells iTunes and instructs purchasers on its use. That the predominant use people put iTunes to is one of copyright infringement does not shift the blame to Apple.

The lack of public opprobrium trained on Apple for "encouraging ripping copyrighted CDs" is a result of the fact that Apple doesn't objectively encourage copyright infringement. If you tell people not to misuse your product and they do so anyway, how does that "encourage" the misuse? What, in your view, must Apple do in order to avoid "encouraging" copyright infringement? Stop selling something anything that can be put to an illegitimate use? Anything that is predominantly put to illigitimate use? What percentage of users have to misuse the product before Apple is required to stop selling it, or including the abused feature?

It is hard to see what rational purpose they could have in demanding that I use a portable CD player but not a digital media player such as an iPod (particularly since they never made such a desire clear).

Ted Turner bought a bunch of old movies. He wanted to sell them for home video. But he didn't like the format they were in. So he colorized them. The original copyright holders (who, in this instance, had sold all their legal rights to Turner, so didn't have any real say in the matter) were understandably upset. They said colorization disturbed the artistic intent of the pictures. I'm not saying the situation is exactly analogous, but merely posing one possible, rational interest the originator may have in the particular performance medium.

And I'd say that when Epic Records publishes Cyndi Lauper's The Body Acoustic on compact disc, the preferred playback method is by ... compact disc.

The unpopularity of DRM is an effect of its incorrectness.

The unpopularity of DRM is an effect of the culture's flawed philosophy of property rights. I'd go so far as to say that DRM is itself an effect of the culture's flawed philosophy of property rights. I don't think it's entirely accurate to sum up DavidOdden's position in the way you have. He isn't suggesting that people be jailed, or that they need a government to eliminate their innate, base desires to infringe copyright. DavidOdden isn't proposing totalitarianism. He is (as I am) proposing a government that does its job: protects property rights.

Since property rights are exclusive, a proper government would recognize that one person's right to control acts of private copying would, to the extent that it exists, deny the existence of any right of people to use their own physical property (computers) to make copies.

Why would a software manufacturer sell software under a license that did not allow use of the software on a computer, including whatever copying was required to do that?

When Epic publishes Cyndi Lauper's CD, it sells it to you under a license permitting you to play the CD and listen to the music. Insofar as "playing" involves an act of "copying," (and it does; CD players frequently read several seconds ahead in order to even out skips - they maintain a partial copy which they play from) Epic has allowed copying for a particular purpose. If I copy the album to my iPod, that's not how Epic allows me to use it under the license. Epic doesn't need a good reason to exclude someone from its property. It has the absolute right of exclusion.

[A] similar derivation validates property rights while invalidating the idea that a former owner can continue to impose terms of use on an item after he has sold it to you.

Epic hasn't sold me Cyndi's album. Epic has sold me a limited right of use to Cyndi's album. The terms of that use are set out in the license. All I own is a license that grants a limited right of use. I also own a physical disc, with a subservient right of exclusion - I can keep Joe Thief from taking my disc (thus excluding him from it), but I can't exclude Epic from taking my disc (if I breach the terms of the license). My rights to the album and the disc it came on are not absolute, but derive from and relate back to Epic's absolute rights of ownership (including use and exclusion).

If I own something, say, a restaurant, assuming a rational system of property rights, my rights are absolute - they stand against all the world. Period. If I decide that I don't want left-handed people dining at my restaurant, that's my prerogative. It doesn't matter that there's no rational basis for my exercise of my right. It doesn't matter that exercising my right in this way gets me nothing of value, or that I will probably lose money by exercising that right. The point is, the restaurant is mine, and my right of exclusion is absolute.

[NB: I just noticed KendallJ made the same point just above.]

-Q

* - Even legal use of a firearm is still technically assault, battery or homicide. The law recognizes some situations where you are justified in committing assault, battery or homicide with a weapon.

EDIT: I wanted to add that it's not that tough to get limited, private copying rights. I made a simple phone call and got permission, at no extra cost, to scan my entire first year law casebook library for use on my laptop. As long as I didn't share them. I think if more people called to ask for express permission, the publishers of books, CDs, movies and the like might eventually start including the right in licenses as a matter of course. Market forces, baby!

Edited February 9, 2007 by Qwertz

[KendallJ]

[NB: I just noticed KendallJ made the same point just above.]

Qwertz,

Careful. I've got several posts up there and in some I agree in some ways with Seeker, and in some ways I agree with you so I'm not sure which you're referring to. In general, I agree with you and David in principle. De facto, I also understand why some things are the way they are.

[necrovore]

I would like to address other points raised, and I will do so, but this is the one I see now:

Just as a derivation from the needs of survival validates copyright but invalidates the theory of rights underlying DRM -- a similar derivation validates property rights while invalidating the idea that a former owner can continue to impose terms of use on an item after he has sold it to you.

By the way, former owners of property can certainly impose terms of use after sale. Gated communities are like this, where you agree when you purchase a property to behave (by contract) in the future according to a set of guidelines already set forth, although usually you trade this restriction for a voice in the policies and future contracts of the community. Don't like the terms? Don't buy the house. That is most certainly NOT totalitarianism.

Well, here's a problem: the Earth only has so much land on it. If you buy a piece of land then it is subject to the terms not only of the previous owner, but of all previous owners, since any previous owner can impose a term to the effect that the next owner is required to pass on his terms to the owner after that, including the requirement to pass on the terms, and so forth.

If there is a non-zero probability that an owner will impose such terms, then you have a situation where, as all the property on Earth changes hands over the centuries, it becomes, on average, more and more encumbered with the requirements set upon it by all the previous owners. The speed of this will depend on how often property changes hands and how likely the owners are to impose such terms, and this may vary widely all over the Earth. Some land might become useless due to such encumberances, and the value of the land could never be recovered. On the other hand, some landowners might have the foresight to impose a requirement to the effect that no further requirements can be imposed. Such land would be impossible to create, barring revolutions or wars, and would become immensely valuable over time.

It reminds me of a line from "Patents and Copyrights" in Capitalism The Unknown Ideal:

[intellectual property, if held in perpetuity,] would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them. Consider what would happen if, in producing an automobile, we had to pay royalties to the descendants of all the inventors involved, starting with the inventor of the wheel and on up.

This is exactly the situation that occurs if previous owners are allowed to impose arbitrary conditions on the use of property -- particularly real estate -- after its sale. It's not totalitarianism, but it is something that bothers me about gated communities.

If the seller wants to impose conditions, he shouldn't sell. He should rent. Such an arrangement would allow him to retain ownership and the control that goes with it. It also would require that someone always owns the property and also "owns" the restriction and can therefore rescind it, possibly thousands of years from now, but whenever it is no longer relevant.

The same thing goes if someone manufactures TVs with DRM in them and he doesn't want people to take apart the TVs and remove the DRM. If he rents them, he retains ownership, and so anybody disabling the DRM is damaging property which is still his.

I'd like to write more about some of the stuff that has been said but that should be enough for tonight.

(It occurs to me later that my post is somewhat absurd because it contains the solution to the same problem it poses: make it so, when you impose restrictions on a sale, you are not selling all of the property, make it so you are selling most of it but retaining one or two rights for yourself, such as the right to control this or that. That's about the same as saying "I'll sell the property except for this small region right here which I will keep." The right the seller retains would be a piece of property itself, and would always belong to someone, who would then "own" the restriction and could rescind it. So the encumberances need not stack up. I must have been sleepy to post this. So never mind.)

Edited February 9, 2007 by necrovore

[KendallJ]

It reminds me of a line from "Patents and Copyrights" in Capitalism The Unknown Ideal:

This is exactly the situation that occurs if previous owners are allowed to impose arbitrary conditions on the use of property -- particularly real estate -- after its sale. It's not totalitarianism, but it is something that bothers me about gated communities.

hmmm. I have heard this argument before. 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.

As to the patent rights. I disagreed with this very statement of Rand's and made an argument why patents in perpetuity are not antithetical to individual rights either. That is, there are reasons in reality that will cause such encumbrences to decay over time naturally, just as with the case of property. If you want to argue that case, that thread would be over here.

By the way, addressing my "By the way" first will qucikly take you off topic. Address the main points and we can deal with the asides later (or in the thread I pointed you to).

Edited February 9, 2007 by KendallJ

[RationalBiker]

If the seller wants to impose conditions, he shouldn't sell. He should rent.

This does nothing to solve the problem. A number of stores rented software in the past and it was just a breeding ground for rampant copying.