On the ethics of downloading

[bearrock]

First off, no one, not even the movie or record industry claims that a legitimate owner making a copy for personal backup purposes does not fall within the fair use exception, first judicially created, later codified in the Copyright Act of 1976. The question is what effect DMCA has on the ability of consumers to exercise their right to fair use.

The effect of DMCA on the legality of cracking DeCSS or RCE (the method of effectuating the fair use) is settled in some sense and unsettled in another. The DMCA contains two sentences that goes to the heart of this issue for consumers. The first is the actual prohibition:

VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES- (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title

Note that this prohits the actual circumvention, meaning that it will cover even consumers who employ a software that automates this process (There is also a corresponding prohibition of manufacturing or distributing the means of circumvention. Which is why software makers like 321 studios were sued.) The second important sentence is the preservation of fair use.

© OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

So, how should the law be read? Anti-DMCA argument is that although circumventing protection for non-fair use is prohibited, as long as such circumvention is for the purposes of fair use, you are protected. In other words, they would view fair use as a legal defense to violation of the DMCA (much like fair use is a defense to violation of the Copyright Act).

The movie and record industry's position is that although fair use continues to be a defense to violation of the Copyright Act, the act of breaking the encryption, in other words, the act of effectuating the fair use, is a violation of the DMCA, which is unrelated to the Copyright Act violation. Meaning, although fair use would protect the consumer from the wrath of the Copyright Act, it would not save them from DMCA. As someone once argued to me, imagine a person breaking into a bank after hours. That person goes to the terminal and accesses his/her own account and withdraws money. Now, withdrawing the money is not illegal, that was the person's money. But the person still has to answer for breaking into the bank.

The counter argument would be that if method of effectuating the fair use is banned, that diminishes the right of fair use itself.

As you can probably imagine, these two positions eventually came to head in a two separate cases, in two different context.

The first and most famous test of the scope of DMCA in court is Universal v. Reimerdes (2002(?)) (I think it was Federal District Court in the Southern District of New York.) MPAA sued a website operators who hosted a program that allowed the circumvention of the DeCSS protection. The website operators lost (some, including Reimerdes, settled). The opinion is long, but one particular section is interesting and addresses the balance of fair use and DMCA. After a discussion of why statutory interpretation does not support reading the DMCA as including a fair use to exception to the act of circumventing, the Court stated:

The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress's decision contravenes the Constitution . . . .

As for the constitutional challenge based on the first amendment regarding fair use (remember that fair use is both a constitutional doctrine and a statutory defense), the Court downplayed (my opinion) the real interest of the third parties effected by DMCA (I think every DVD owner with a child will disagree here. We need our backups damn it! :doh: ) and declined to rule on the overbreadth challenge.

Thus, MPAA won in Reimerdes, sending a chilling effect for everyone who wished to decrypt DVDs. This decision was affirmed at the Second Circuit, but never pursued to the Supreme Court.

The opposing case is Chamberlain v. Skylink (2004(?)), which also has logical flaws, but the case comes out on the otherside of the debate. In Chamberlain, which was a case that was affirmed by the Seventh Circuit, a manufacturer of a garage door sued a company that made a universal garage door opener. The original garage door manufacturer alleged that the method by which Skylink obtained the access code (done by reverse engineering) was in violation of the DMCA. The Seventh Circuit affirmed the lower court's decision against the garage door manufacturer stating that:

Contrary to Chamberlain's assertion, the DMCA emphatically did not "fundamentally alter" the legal landscape governing the reasonable expectations of consumers or competitors; did not "fundamentally alter" the ways that courts analyze industry practices; and did not render the pre-DMCA history of the GDO [Garage Door Opener] industry irrelevant.

Thus, because Skylink's practices of reverse engineering was accepted prior to DMCA and because DMCA did not create new property rights for copyright holders, Skylink did not violate the DMCA.

The obvious question then is, what about movie owners who expected to be able to backup their movie collection prior to DMCA? Are they protected under the same reasoning? This is where I get the sense that the decisions were dictated by the facts of the cases. If Seventh Circuit decided the Reimerdes case, they probably would not have used the legal reasoning in Chamberlain to protect a software that many will use to facilitate piracy. At the same time, if the Second Circuit decided Chamberlain, they probably would have found a way to dismiss a case brought by a greedy corporation trying to get money from a legitimate business competitor.

So where are we? Is DVD back up forever dead? Why did I say that DMCA v. Fair Use is unsettled in some aspects? Is there hope for Portisizzle and his scratched DVD collections? Maybe.

One hope for consumers is the attitude of the Supreme Court, gleamed in Eldred v. Ashcroft (2003). Eldred, a 7-2 decision (Majority opinion written by Ginsburg, dissent by Stevens and Breyer), addressed an unrelated challenge to the length of copyrights. In a section dealing with another aspect of fair use challenge to the CTEA (the statute in question), Justice Ginsburg addressed Congress's authority over copyrights:

We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.

What will this mean for DMCA? Does the DMCA alter the traditional contours of copyright protection, specifically the protection of fair use? It remains to be seen.

Another promising avenue is the pending bill in the House, The Digital Medias' Consumer's Rights Act of 2005. Sponsored by Rep. Rick Boucher (VA) and cosponsored by 13 others including Rep. Joe Barton (Tex), the bill mainly deals with inadequately labled copy protected CDs (remember Sony everyone?). But the bill also includes the following:

( Fair Use Restoration- Section 1201© of title 17, United States Code [DMCA], is amended--

(1) in paragraph (1), by inserting before the period at the end the following: `and it is not a violation of this section to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work'; and

(2) by adding at the end the following new paragraph:

`(5) Except in instances of direct infringement, it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product capable of substantial noninfringing uses.'.

If either avenue pans out, it'll be made clear that consumers may circumvent encryption to exercise fair use. Until then, we have Reimerdes and Chamberlain to mull over.

[Darth Tater]

Downloading is not stealing because there are no real property being taken (don't make an argument about IP because that is fiat property). However, theft is theft and the financial status of the parties involved is not relevent.

[Fergasun]

The law and courts are controlled by people who used 8-track or worse. They don't have a clue what is going on in the digital age and to the digital generation (30 and under).

What about downloading television shows? I can tape these off of broadcast TV, why not have a digital copy? What about downloading things made in foreign countries that are not under the MPAA or RIAA? Are companies really "losing money" if consumers wouldn't have bought the items?

What about downloading NFL football games? I would gladly pay $100 for a Season set of all Washington Redskin football games as broadcasted on DVD. In fact, there are people in this forum who make the individual DVDs available and sell them. If I own DirectTV "NFL Sunday Ticket" can I download these games legally? Does the NFL care that football games have been traded for years and they haven't gotten a cut of the profits?

[jrockster21]

Downloading is not stealing because there are no real property being taken (don't make an argument about IP because that is fiat property). However, theft is theft and the financial status of the parties involved is not relevent.

Aren't you contradicting yourself in this post? Honestly...I am confused. Unless the definitions for "stealing" and "theft" are different.

[richard saunders]

DVDShrink is/was a great tool to decript 95% of all movies you want to back up.

The problem that I had with it was it does not update automatically. Therefore you occasional buy a new DVD and it cannot break the encryption.

www.slysoft.com has a encryption breaker called "AnyDVD" it is simply the best. I've tried backing up a new Disney movie, it not work, and I saw that I had a update available in my system tray. When I clicked to update, it said specifically why it was being updated and that movie was one of the reasons. AnyDVD also runs in the background and automatically breaks encryption.

I still use DVDShrink to copy to my hard-drive first. Shrink's very user friendly when it comes to dividing your movies in half. Anything generally over an hour and a half should be divided into 2 discs. Otherwise your compressing the video quality. Anymore than 95% and your noticing the difference (not to mention the possiblities of skipping) I never compress any movie I back up.

For burning I've always used Nero Recode. It may take a few trial burns to find the speed perfect for your burner and media, but it's always worked best for me. I recommend burning on the slowest-or next to slowest setting for your burner.

[twenty-eight]

I cant download enough music, or steal as some of you like to call it

[Destino]

Downloading is wrong. The steps some companies have taken to prevent you putting your legally purchased CD/DVD content on the internet is also wrong.

With me it's simple - I bought it, it's mine, and if I want to listen to it on my computer I will. If you stop me from doing so I won't buy your crappy products. If by placing my legally purchased disc in my computer your software installs on my PC without my knowledge or concent I will never buy your crap again.

What's mine is mine. If that isn't respected then I have a problem. I download music legally - and I crack it's security all the time. It's mine and I do it so that some retarded program doesn't take issue with how many computers or mp3 players I use my legally purchased music on. It's no ones business but my own and if I have to crack security to do that - I will.

[bearrock]

What's mine is mine. If that isn't respected then I have a problem. I download music legally - and I crack it's security all the time. It's mine and I do it so that some retarded program doesn't take issue with how many computers or mp3 players I use my legally purchased music on. It's no ones business but my own and if I have to crack security to do that - I will.

While cracking DRMs to make back up copies may violate the law, I have a really hard time arguing that this is unethical.

The concept of fair use stems from the First Amendment and free expression, but it is also a part of the social contract that underlies the very concept of intellectual property since the times of Vienna: Society grants certain protections and property rights to the creative and inventive. In exchange, society receives the benefit and use of the intellectual property. Just as a patent holder must disclose the underlying workings of their invention to receive the protection of the patent system, copyright holders must submit to certain exceptions such as fair use to receive the protection of the copyrights law.

[Destino]

While cracking DRMs to make back up copies may violate the law, I have a really hard time arguing that this is unethical.

The concept of fair use stems from the First Amendment and free expression, but it is also a part of the social contract that underlies the very concept of intellectual property since the times of Vienna: Society grants certain protections and property rights to the creative and inventive. In exchange, society receives the benefit and use of the intellectual property. Just as a patent holder must disclose the underlying workings of their invention to receive the protection of the patent system, copyright holders must submit to certain exceptions such as fair use to receive the protection of the copyrights law.

The problem is that my cracking a code so a software company doesn't track what I listen to and where - the law says I'm wrong..... but when they crack MY security and install crap on MY PC without my knowing it and do pretty much as they please without my permission - the law says that's cool.

I say that's BULL****

[bearrock]

The problem is that my cracking a code so a software company doesn't track what I listen to and where - the law says I'm wrong..... but when they crack MY security and install crap on MY PC without my knowing it and do pretty much as they please without my permission - the law says that's cool.

I say that's BULL****

I agree. Hopefully Congress fixes both with Boucher's bill.

[portisizzle]

I don't know what your argument is to me, but if you want to sleep soundly at night, take comfort in the fact that if you want to make a back-up copy of a DVD that you already own (and in your case one that doesn't have encryption built-in) it is perfectly legal and ethical.

I am making no argument to you at all.

And I am not judging you at all.

But I would sleep soundly if I could find something in writing to this effect.

[Mr. Nostril]

That is why Itunes is great. Buy the song you want and nothing more.

I have a problem with that too. A song isn't a substantial enough piece of music, for me to justify paying actual money to hear.

Basically, I'm an album man.

[portisizzle]

I have a problem with that too. A song isn't a substantial enough piece of music, for me to justify paying actual money to hear.

Basically, I'm an album man.

I bought four songs tonight. I almost spend money for the Coldplay CD but decided to just get Speed of Sound. However, I did spend 10 minutes or so listening to the short intros to each song on the record. It sounded good....

I have had so many bad experiences with buying $15.00 CD with only one or two songs worht the listen. Unless it is Van Halen I am not buying the CD what with Itunes letting me buy by the song.

But I do see your point.

[jpillian]

On a side note.

Concerning movies, the illegal copying and distribution of movies is where the big loss is. I know countries Pakistan have thriving illegal movie copying enterprises. These criminals sell copied DVD’s at half price.

Half the price?

Hell in downtown Kuwait City (you know, the place that puts Beverly Hills to shame) you can buy new release movies and any copied game in the world for $1/copy. In fact, I never could find a legitimate copy of ANYTHING in that country.

They had an entire mall area devoted to dozens of software stores selling modded PS2s/Xboxes/ and their accompanying games (all pirated copies). Pretty trippy to see, actually.

[Mr. Nostril]

I bought four songs tonight. I almost spend money for the Coldplay CD but decided to just get Speed of Sound. However, I did spend 10 minutes or so listening to the short intros to each song on the record. It sounded good....

I have had so many bad experiences with buying $15.00 CD with only one or two songs worht the listen. Unless it is Van Halen I am not buying the CD what with Itunes letting me buy by the song.

But I do see your point.

Yeah, I don't buy CDs that have only one or two good songs on it either. This is the reason I feel I have to download the whole album, and often keep it around for a while before I buy CDs. Again, I just can't see paying even a miniscule amount for 3 minutes of music. I wouldn't listen to something that short enough to make it worthwhile.