A Copyfighter’s Musings

1. Whenever legislation targeting P2P is proposed, someone always asks, “Can you target P2P without lumping in search engines, file transfer software, and basically everything else on the Internet?”

I’ve never been able to come up with a definition that can do that. P2P file-sharing software is defined by a) indexing of files, which are b) located on hard drives and c) copied on request to another person’s computer.

You can’t distinguish P2P from most search engines based on a). Focusing on whether the indexing is centralized doesn’t help much. I suppose you could look at whether someone specifically signs up to be indexed, but why should someone be penalized for doing that? Should Yahoo not take website submissions to add to its index?

For b), it’s hard to distinguish having the files on your personal local hard drive from having them on a web server (they might be the same thing). For c), everytime someone clicks a link in a search engine, or initializes a file transfer on AIM, they’re copying a file on request.

If you try to define P2P by discussing its primary purpose and functionality (Kazaa is only file-sharing, but AIM is a messaging service that happens to allow file transfers), you would encourage P2P services to add other functions while hindering the development of streamlined services (like, say, Google).

So, does anyone have a suitably narrow definition?

2. So far, the DMCA’s reverse engineering provision has been intepreted narrowly, including only program to program interoperability. Interop between your movie program and movie is not covered. Movies, in their transition to the digital medium, are now data, not programs.

But what are video games? They seem more like programs, but will they be covered? And how firm is the distinction between data and programs? What would bend the distinction?

17 USC 117 allows you to back-up computer programs. Presumably, Congress created this right to recognize that digital data is not permanent and can be ruined quite easily. The same is true of music files, but, theoretically, this exemption wouldn’t apply.

3.  From the DMCA Exemption post-hearing comments:

Question: “Is [United States] person’s use of the multizone DVD player to play [a] DVD encoded for a region other than region 1 an act of circumvention under 17 USC 1201 (a)(1)?

DVD CCA: “DVD CCA takes no position on the response to this question.” Footnote: “…[A]t the May 2 hearing … [we] responded ‘I don’t think so.’ Subsequent to that hearing, it has become apparent that there are different views within DVD CCA on the response to this question.”

MPAA: “Yes. As the Librarian concluded in the 2000 rulemaking, regional coding is an access control measure within the meaning of 1201(a). Use of a multizone DVD player, or any other device to avoid, bypass, deactivate, or otherwise impair such regional coding, meets the definition of ‘circumvent a technological measure’ in 1201(a)(3)(A).”

4. I spend a lot of time here criticizing fair use’s ambiguity as applied in various court cases, so revisiting this was in order, as I did the other day. “Better” DRM is ultimately just a kludge on top of many other copyright law kludges, which could be resolved by a compulsory licensing kludge. Though a right to hack will help, it won’t fix everything because not everyone will be able to perform the hack.

I wonder if someday we’ll see the EFF go past the “right to hack” like they did when they switched from “sue the infringer, not the technology creator” to “let the music play.” The EFF avoids tech mandates like the plague, so it’s hard for me to imagine them mandating DRM to allow certain fair uses. Maybe they’d be ok with conditioning copyright enforcement on allowing some fair uses. Still, that would probably indirectly limit technology because few copyright holders would forego copyright protection.

I can’t decide right now whether that’d be the right step. I used to agree that we were running out of options what with Palladium on the way, and that’s part of why I started this blog. I guess I’ve moderated a little over the year.

5. Frank points to another tivo-for-radio program. Matt brought up Streamripper the other day and whether such recording is fair use.

It’s unlikely we’ll ever know if these companies/programmers are contributory infringers – they’ll be sued into the ground before that ever happens. That’s why I wish the ReplayTV case had gone to court. If ReplayTV had won, we would have had another case affirming time-shifting as a fair use and time-shifting devices as substantially non-infringing. That principle could then be extended to these audio time-shifters. Moreover, a win would likely show that time-shifting as fair use is not contingent on people’s viewing habits staying just like the ones Justice Stevens said were not harmful to copyright holders; the overall reasoning, not the statistics, of Sony would take center stage (see this article on how new stats could affect time-shifting fair use). If ReplayTV had lost, then we would have had so much uproar that Congress might have stepped in and try to revamp fair use.

(To address one repeated inaccuracy: Sony does not speak to archival, permanent copies, only to time-shifting. Both parties assumed for the purposes of that case that archiving was not a fair use. Probably, permanent copies would be seen as a “commercial” use because they supercede a purchase.)

Re: the AHRA – these devices will not be covered, just as the Diamond Rio and other computer equipment are not covered. That EFF doc seems to repeat another inaccuracy, that the Diamond Rio case made space-shifting a fair use. The court made an analogy to Sony and defended space-shifting on the basis of the statute’s purpose, but it never said it was a fair use. What’s interesting is that, given computers aren’t covered under section 1002 of the statute, neither would space-shifting using computers under 1008, the non-commercial exemption (unless you consider it an analog recorder).

Re: the DMCA – some programs have actually circumvented copy controls. Some just copy the stream to the hard drive. Digital radio stations are required under 17 USC 114 (2)(c)(vi) to make such copying difficult, but that doesn’t mean they use copy controls. That would be like saying multizone DVD players circumvent access controls.

Oh wait.

Filed by Derek Slater at 7:51 pm under General news
2 Comments