You may think much of the arguments going on between “illegal downloaders” of music and movies and the MPAA and RIAA does not affect you or your family. However, a court rulings may affect you.
Let me explain. No, there is too much, let me sum up…
Since a “picture is worth a thousand words,” I will try to use words to draw a picture, an example if you will, that will illustrate what I mean…
I go to Blockbuster and buy, paying with cash to avoid interest on my purchase, a copy of Taken–a wonderful movie with Liam Neeson. I have two DVD players at home–1 in the kids “play room” and one in our living room.
However, I am not always at home… The television may not be “available” when I want to watch the movie. I might want to watch the movie on the plane. I might want to watch the movie as I wait for a client out in the middle of nowhere.
What can I do if I don’t have a DVD-equipped laptop or portable DVD-player?
Under the DMCA, I can do nothing even though I have legally purchased the DVD.
Why?
When I buy the DVD, I do not “purchase’ the movie. What I purchase is a license to view the content, the video, on the DVD as allowed by the license.
Yes, wrap your mind around that for a moment.
USA Copyright Office position
I have written about this before, but that post has been “lost” in the “cloud” of the internet and database failure… I am trying to get all that data back from the Wayback Machine (check it out if you aren’t aware of what it is…).
In that post I noted:
The United States Copyright Office states in a report that
We believe that there is a strong case that the making of a buffer copy in the course of streaming is a fair use. Fair use is a defense that may limit any of the copyright owner’s exclusive rights, including the reproduction right implicated in temporary copies. In order to assess whether a particular use of the works at issue is a fair use, section 107 requires the consideration and balancing of four mandatory, but nonexclusive, factors on a case-by-case basis.
In examining the first factor - the purpose and character of the use - it appears that the making of buffer copies is commercial and not transformative. However, the use does not supersede or supplant the market for the original works. Buffer copies are a means to a noninfringing and socially beneficial end - the licensed performance of these works. There is no commercial exploitation intended or made of the buffer copy in itself. The first factor weighs in favor of fair use.
The second factor - the nature of the copyrighted work - weighs against a finding of fair use because musical works are generally creative.
The third factor - the amount and substantiality of the portion used in relation to the copyrighted work as a whole - would also be likely to weigh against fair use since, in aggregate, an entire musical work is copied in the RAM buffer. Since this is necessary in order to carry out a licensed performance of the work, however, the factor should be of little weight.
In analyzing the fourth factor - the effect of the use on the actual or potential market for the work - the effect appears to be minimal or nonexistent. This factor strongly weighs in favor of fair use.
Two of the four statutory factors weigh in favor of fair use, but fair use is also an “equitable rule of reason.” In the case of temporary buffer copies, we believe that the equities unquestionably favor the user. The sole purpose for making the buffer copies is to permit an activity that is licensed by the copyright owner and for which the copyright owner receives a performance royalty. In essence, copyright owners appear to be seeking to be paid twice for the same activity. Additionally, it is technologically necessary to make buffer copies in order to carry out a digital performance of music over the Internet. Finally, the buffer copies exist for too short a period of time to be exploited in any way other than as a narrowly tailored means to enable the authorized performance of the work. On balance, therefore, the equities weigh heavily in favor of fair use.
This argument is for the storage of content in RAM–as in when you watch the DVD on your computer, the storage of the dvd content in RAM is a ‘fair use’ and such ‘equities weigh heavily in favor of fair use.”
Note it did not say that such use WAS legal.
Post Digital Millenium Copyright Act (DMCA) Analysis
It does not appear, from their document, that making a backup or making a copy of content on a HD or other solid media (Compact Flash, SD, etc.) is considered fair use by the United States Copyright Office. Although I think and argue that such storage, by definition, is covered by the fair-use doctrine, I think the Court would agree with the U.S. Copyright Office that only the temporary storage of copyrighted content (in the example given, they talk about the content on a DVD) in a computer’s RAM may be fair-use of the copyrighted material. Note that the ‘permanent storage’ of content on an MP3 layer or other device (PDA, mobile phone, etc.) does not satisfy the U.S. Copyright Office’s analysis as being fair-use of copyrighted material.
Where does that leave us?
In a place that makes no logical sense and is void of reason…
The reason I “buy” a movie is to watch the content–lets call the “movie” “content” to differentiate the actual movie (video) from the DVD on which the movie is packaged and distributed.
To me, the content is stored on a DVD. The buyer does not really care how the media is packaged–iTunes simply downloads music now with no “package” and with no copy protection…
So, I buy the content to see the movie. If I want to copy that content to my mobile phone, why can’t I? I have bought the right to watch the content… Haven’t I?
According to the DMCA, you have no right to “rip” the movie from a legally purchased DVD so that you can watch it on your iPhone or on any other system UNLESS the DVD is in the drive and the content is being read from that DVD-since that content is stored, however briefly, within a device’s memory does meet the “fair use” test.
As I stated earlier, the law does not always make sense.
Why Influence is mentioned
Movie companies and the MPAA are the ones that pushed the DMCA through Congress. While buying on iTunes does not violate the DMCA, the ability to purchase non-protected content might be more of a threat than saying I have to pay more for the right to see content I have purchased on a DVD on my iPhone or other mobile device is difficult for me to swallow…
I see movies that “include” a digital copy, but that movie often is at least $5.00 more expensive than the same “movie” that does not include that digital content. Is that “fair?” Even iTunes may charge more, but it is to get the version of the song in a non-protected format for use, say, on a non-Apple music player…
While I doubt any movie company would sue a person who ripped a legally-purchased movie to their mobile device for their own use, they can… Let that sink in for a minute…
Is there a solution to this mess?
There was a proposal called H.R. 1201, Digital Media Consumers’ Rights Act of 2005, that was introduced into the House… It is sitting there…
Current Court Cases
A court has ruled that Real, the company that makes the Real Player, has violated the law. An article here states
“The court appreciates Real’s argument that a consumer has a right to make a backup copy of a DVD for their own personal use,” Patel wrote, but noted that “a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.”
Dan Glickman, chairman and CEO of Motion Picture Association of America Inc., said in a written statement Tuesday that the ruling “affirms what we have known all along: RealNetworks took a license to build a DVD-player and instead made an illegal DVD-copier.”
“This is a victory for the creators and producers of motion pictures and television shows and for the rule of law in our digital economy,” he said.
You may be asking, “How does buying a movie but making a copy of that movie for backup purposes or to view it on your mobile phone a victory for the creators and producers of motion pictures and television shows?”
The Answer: The creators and producers of motion pictures and television shows can now charge you for the “digital copy” and charge you for viewing said content on-line even if you have purchased the DVD. In other words, it guarantees more income for those parties.
Don’t get me wrong. I know the DMCA makes moving the content to a mobile phone illegal. I just don’t think the members of Congress thought about this or had conversations with the EFF or with more “middle-of-the-road” consultants who would explain the situation as I have…
When a person buys a movie at Blockbuster that is stored and packaged on a DVD, that buyer is intending to purchase the content on that DVD–the video of the “movie.” The buyer is not intending to buy the right to view the content (video) while the DVD is in the drive. I am all for creators, producers, directors, gophers, distributors, and all of the others who are involved in the making and distributing of content to make a living. What I want to guarantee is that money I have spent for content that does go to those listed does not prevent me from enjoying the content because of how my content was packaged (on a DVD, memory card, VHS, etc.).
Looking at this in another light, the DMCA would have made the VHS illegal. If that would not be a barrier to technological innovation, I don’t know what would meet that definition…
What we are looking for here is a method to prevent the illegal distribution of content to those who have not paid for said content. What we want to allow is for people who legally have purchased said content to have the ability to watch that content–even if the media on which that content was distributed is destroyed.”
Doesn’t that make more sense?
Summary
You see, the law, often, is not logical or based on any good science. Law is what people in Congress decide should be the law.
My Rant
James Madison is supposed to have said
There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong.
Perhaps he should have said that
There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the laws passed by Congress are the standard of right and wrong or provide a “benefit” to those governed.
James Madison is also supposed to have stated
In framing a government which is to be administered by men over men you must first enable the government to control the governed; and in the next place oblige it to control itself.
I’d like Congress to reign in on passing laws that benefit even the “majority” of those governed but that might reduce the preferences of those in the minority. You see, the Republic of the United States of America is a Republic for a reason. We are supposed to be protecting the rights of everyone, not just the numerical majority or those with money to influence votes (See Federalist Paper #10). While we can pass all sorts of legislation and get it through Congress, the question is does that legislation reduce anyone’s rights? If it does, we might not should be passing the legislation if the rights guaranteed by the Constitution, taken into context with historical events, are to be protected for all citizens.
Like the Second Amendment… James Madison stated
Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.
At the time of the passing of the Constitution and the Bill of Rights, people were well aware that a government could be so overbearing towards the citizenry that an armed populous would be required to remove that tyranny. If citizens, now or then, did not have “arms,” there is less of a guarantee that any tyranny, if it were to arise, could be overthrown. You have to remember why the text was added and what they went through and wanted to guarantee for future generations.
Remember, most of those “Founding Fathers” probably thought, initially, that there was nothing wrong with the way the British were governing the country. Only when the government oppressed the citizens did the Founding Fathers deem action was necessary to guarantee rights for everyone–not just the majority.
In Conclusion
The problem is that while Congress seems to be saying that “the other side” should not organize rallies in opposition to certain Laws, the public has no access to Congress in a manner that will get them to change their mind. The MPAA and their members (Disney, ABC, and other content producers/distributors) have deep pockets and write big checks.
Think this isn’t how it works? If not, why aren’t all political contributions made anonymous or prohibited? We all know ideas are sold, and the currency, often, is not based on reason or logic.
Not so complex…is it?