October 15, 2003
As you may have read, SunnComm’s Peter Jacobs continues to talk about Alex Haldermann as a law-breaking thief. The absurdities of his “property talk” are dealt with well here, so I’ll leave some that aside. I want to talk a little bit about where he’s coming from on licensing and MediaMax as “empowerment,” and then touch on Hiawatha Bray’s silly column.
Jacobs states that, with Medimax, “honest people, may, for the first time, enjoy the pleasurable experience of legal and licensed copying and sharing of their music” (emphasis added). Using both words means, I presume, that he knows there’s a difference. Otherwise, using just one term would have been adequate. That means he knows that somethings – like fair use and private performances – can be legal and unlicensed.
Jacobs also states that, “MediaMax was designed to put a structure on the CD, itself, that empowers consumers to make licensed, legal and yes, limited copies of the music.” I get the sense from Jacobs that he sees licenses as inherently enabling and law as a constraint: the law says you can’t copy, while the license says you can. At best, his intentions are to eliminate all legal uncertainty for potentially legal fair users.
But law isn’t just a constraint. It’s an enabler, too. It creates copyright holders’ limited set of rights as well as the exceptions to them. You could think of it as very much like a license in that it’s a bargain, worked out in Congress, between creators and the public.
Many people think that bargain is just fine. They don’t need your license, Mr. Jacobs. They already have one and it’s called the copyright law. And that doesn’t make them thieves or hackers by definition. If you want to have a discussion about whether ripping the CD is a legal use, fine, let’s get out the caselaw and the statutes. But that’s a discussion separate from determining whether an unlicensed use can be a legal use – the answer to that is unequivocally yes.
Now perhaps Jacobs, like Harold Bowers and several judges on the Federal Circuit, thinks that his license should always be able to supercede copyright. I disagree, but let’s not go there for now. This issue wouldn’t really apply to ripping the CD anyway, but it would apply to the DRMed files.
When SunnComm asked Haldermann to sign a license to use the DRM, he didn’t sign it, and he didn’t use that part of the CD, because the license was fundamentally disempowering: “You will not reverse engineer, decompile, disassemble or otherwise tamper with or modify the Digital Content.” [Footnote: The DMCA might also make such actions illegal, but Haldermann could fit into an exception here.]
When Haldermann is presented with that click-wrap license, where is the “empowerment”? And is it empowering for Haldermann to even be forced to make that decision – to use with the license or not use at all – and not have the baseline of copyright to rely on?
Finally, if Jacobs told you that this license was empowering, wouldn’t you call that “deceptive”? If he said the license would and should give you those rights, and it didn’t, would you call it “flawed”?
Yes you would, Hiawatha Bray. Just as you would call “deceptive” Sunncomm’s boasting about its insecure and thus “irreparably flawed” DRM. Nobody says iTunes’ DRM is “irreparably flawed” because Apple never said that it would close the analog hole, and they never called ripping your CD a circumvention or a hack. SunnComm did purport to stop people from ripping their CDs. It doesn’t do that. That’s the difference.