Windows Vista DRM:

Science & Technology Software
61

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

62

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.

63

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.

64

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.

65

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!

66

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.)

67

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.

68

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.

69

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.

70

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.

71

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!

72

[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 :wink: 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.

73

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.)

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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).

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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.

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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.

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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.

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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.

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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

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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.