RE: [dvd-discuss] Movie Downloads, automatically illegal?

[Richard Hartman <hartman(at)onetouch.com>]

> -----Original Message-----
> From: Tim Neu [mailto:tim@tneu.visi.com]
...
> On Wed, 31 Jul 2002, Richard Hartman wrote:
> 
> > > Converting
> > > the video myself would be decidedly inconvenient, since 
> the movie is
> > > nearly 8 hours long.
> >
> > Inconvenient or not, that is the fair use right you
> > actually have.
> 
> True, but given that I have the legal right to view the film (obtained
> when I bought the copy), plus the fact that I have the legal right to
> transfer it to any medium I choose, why couldn't I view the movie in a
> format that someone else (instead of me) did the conversion?

_You_ could ... the operative question though is whether _they_
(the ones supplying the conversion) can.  Especially if they don't
even make any attempt to verify whether _you_ have the right to
have a space-shifted copy or not.

You have a right to a TV.  If you go to Circuit City and pay
your money you can take one home today.  On the other hand if
you go behind the store and buy one from the guy off the back
of the truck, you could be in trouble for recieving stolen
property.  It's the same TV, and the same buyer ... but the 
legality of the _transaction_ is different.

> 
> Obviously, I could pay someone to convert the video for me.   In this
> case, someone else has converted it for me free of charge.   
> Where is the
> copyright violation?

The violation is by the person who did the conversion and
then distributed it w/o authorization.

> > > Is it illegal for me to download the movie from the internet
> > > and burn it
> > > to VCD so that I can watch the movie when I take my 
> laptop camping?
> > > (assuming the video is viewed in private and is not publicly
> > > performed)
> >
> > That depends upon the service ...
> 
> Why?
> 
> The fair uses exist without the authority of a copyright holder.  Why
> should someone need the copyright holders permission?  

They don't, for the fair uses.  Again, if you do your own
copy that is fair use.  But when downloading from the internet
you are no longer the only person involved, and if the _other_
guy is violating the law, then the law has been violated.

> Someone with more
> legal background could probably cite some cases here, 

I think the "TV off the back of the truck" example that
I came up w/ above is a pretty good illustration of the
difference in the situations that you are trying to assert
as equivilant.

>but the 
> courts have
> said that copyright is only constitutional with the safety 
> valve of fair
> use intact.   Otherwise, what could compel (for example) the church of
> scientology to grant permission for people to criticize their 
> teachings?
> 
> > Well, if a service run by the studio can allow you do download
> > the digital version after somehow verifying that you own it on
> > another media ... that's up to them.  It was the concept behind
> 
> You're talking about technical means of verifying ownership.  
> I'm talking
> about the legal process of purchasing something, which grants you the
> right to use it irregardless of technical means.

Ah, but it is _not_ regardless of means.  The means is quite
significant to the law.

 
> As another example (pre-DMCA), someone was free to hack the copy
> protection out of a product to make installing it more convenient - as
> long as they owned a copy of the product.

Yep.

> 
> > one of the online music services (I forget which one) ... they
> > would allow you to download the MP3'd content of a CD once they'd
> > verified that you had access to the CD yourself, so in theory they
> > weren't providing you with something you didn't already have access
> > to, they were merely providing a convenience service.  (IIRC they
> > eventually got shot down ... but that argument _does_ sound like
> > a good place to start if handled correctly.)
> 
> That was MP3.com's musicplay system I think.
> 
> My point is that the authentication "stuff", whatever its 
> form, does not
> alter the legal fact that you own a copy of something or you don't.

Yep.  But once we're into trasactions between you and someone
else, that is not the only legal fact that matters.  We also
need to establish whether the other guy in the transaction is
operating within his legal rights as well.

> 
> An example in software:  I own a copy of MS-DOS 5.0.  It's on a 5.25
> floppy, which I can no longer read in my computer.  Just because my
> computer can't technically verify my ownership, does NOT mean 
> that I am
> any less an owner.

Nope.  And if you can get it copied from 5.25 to 3.5, more power
to you.  But _I_, who might already own a set one 3.5, do _not_
have the right to give a copy of it to you.

Or let's take another case.  Palm developers have a tool called
POSE (Palm OS Simulator) with which they can run a virtual PDA
on their Windows desktop in order to test & debug the programs
they are developing for the Palm.  POSE requires the ROM code
containing the Palm operating system in order to run.  There
are two ways to obtain this code:

	1) sign up as a palm developer, request access 
	   to the ROMs and download them (note: the process
	   of joining the palm developer program is _free_)

	2) download a free program that you can run on your
	   own PDA that can suck the code off the ROM in it
	   and write a copy of it on your Windows machine.
	   (you can do this w/o ever joining the palm
	    developer program)

Now I, as a developer, already have copies of various
PalmOS ROM files.  But I am _not_ free to give them to
you.  You _must_ go through one of the two process above.
Space-shift it yourself or download from the source after
signing up for the dev program.  Those are your options.
Note again that NO MONEY IS INVOLVED IN ANY OF THESE
OPTIONS, so the "piracy" issue is pretty much out the
window in this example.  Nonetheless, if I give you a
copy of the ROM files that I have downloaded, I am subject
to prosecution should Palm so choose ... because those are
the terms they have set on their intellectual property.

And in the end, that's all there is to it.  You have
certain rights w/in the legal system (e.g. fair use), 
and the 2nd of the two methods above is based on one 
of them (space shifting) and Palm can't prevent me from
doing that, or even stop the distribution of the program
that allows me to do it.  But they _can_ stop me from
giving anyone _else_ a copy of the ROM file itself.  
Because they say so, and because the law gives them the 
_authority_ to say so and make it stick.

> 
> > Otoh, most pirate servers these days make no effort to control
> > access to the digitized movies by first checking to see if you
> > have a copy ...
> 
> If there was some sort of click through arrangement which required the
> user to assert their ownership of a copy of the downloaded work, would
> that change anything?

Maybe.  It may shift the liability from the distributor
to the downloader ... then again it may not.  I think that
music locker service may have died because of this point 
(or maybe it just died because of lack of $$$).  And they
did more than must require me to assert ownership, they
required proof in the form of the CD itself being in the
CD tray of my computer so that the serial# could be read
from it before they unlocked the equivilant music files
for me.  Where that mechanism falls down is that I only
need that CD for 5 seconds or so, after which I just give
it back to the guy who lent it to me ... basically proof
of physical posession != proof of ownership ... and that
may have been their downfall.  (If anybody remembers this
service and why it really died, please chime in ...)

> 
> > therefore _they_ are violating copyright by
> > distributing something which they have no right to distribute
> > to people who quite likely don't have the space-shifting argument
> > on their side.  Hence: illegal.
> 
> Ok.   Now, at what point does it become "legal"?  When 30% are space
> shifting?  50%?  90%?

The legality really resides on whether the people doing the
distributing have permission from the owners of the material.
If the owners are satisified with how the distributers are
operating, then it's legal.  If they aren't, then it isn't.

> 
> My point is that regardless of the legal to illegal ratio, 
> using sony vs
> betamax as a guide, the technology is not illegal if there is 
> any legal
> use for it.

Again, the technology is immaterial.  It is the transaction
that is at issue.

> 
> > > Does the legal status change if I have a DVD drive in the laptop?
> >
> > Mebbe.  (see above)
> 
> Why?   Technically, things are different in that I'm living 
> my life the
> way the MPAA would prefer, but legally - nothing has changed!

You've got that backwards.  Technically things haven't 
really changed much by the presence of that DVD, but legally 
they may have changed a whole bunch.  (note "may" ... I am
still not certain that it would be sufficient proof of 
ownership ...)

> 
> > >At
> > > home?  What if I just don't want to bring my valuable DVDs
> > > with me to a
> > > public campground?
> >
> > Then you don't watch them at the campground?
> 
> :-)  Or just do what everyone else does and ignore stupid laws.

That is the problem with stupid laws.

The other problem, though, is that you can still be
prosecuted when you ignore them unless the people
_enforcing_ the law thing it's as stupid as you do.

...
> > > What if I already wrecked a DVD of mine (leaving it in a hot tent,
> > > probably), and just want to obtain a replacement copy of a
> > > movie I already
> > > own?
> >
> > What about that book you dropped in the bathtub?
> > What about that car that you drove into a ditch?
> >
> > Replacement costs are on the consumer.
> 
> The book I dropped in the bathtub, whatever condition it is 
> in, did convey
> to me the right to read the story.  So, I should be legally 
> able to copy
> the book from someone else who has it.   The economics of the 
> situation
> would probably not favor this outcome, but I can see nothing 
> legally wrong
> with doing so, if I choose to.

You might not see something wrong, but the law might.  Perhaps
one of the real laywers on the list might be able to comment.

> 
> A car is a completely different situation because it cannot be copied.

Sure it can.  It just takes a _lot_ of pieces.	;-)

...
> > > It seems a little less black and white to me.
> >
> > There are definately some _consumer_ issues to be dealt
> > with ... but as for the people currently _distributing_
> > the movies over the internet, it is black and white.  _They_
> > don't have the right to do that, regardless of whether we
> > can argue that you have the right to have it.
> 
> Again, what percentage of people must be legitimate to allow the
> process to go forward?  Even if 99% of people are verified owners of
> copyrighted works, there are still 1% who are not.

Again, that doesn't really matter.  All that matters is 
whether the people _distributing_ the material have the
right to do so.  The legal status of the (potential) 
recipients is immaterial until that first condition is 
satisfied.

> 
> > everyone believes > them without even considerting the situation.
> 
> > Unless you are dealing with somebody who has the right
> > to give you a copy, then the copying _is_ illegal.
> 
> So how does a used bookseller gain the rights to distribute 
> their books?
> They certainly don't have permission from the publishers!

Nor are they making copies.  They purchase an item from
the publisher and sell that same item.  One for one.

You can likewise sell me your used copy of "Gone with
the Wind".  You just can't make a copy of that copy and
sell _that_.

Now with "print on demand" technology, the situation
changes.  No longer would the bookseller be selling
a physical instance separately purchased from the
publisher.  They would have a machine that could 
print up copies on the spot.  To you the user
the end result is the same: you have a book.  But
under the law the situation is completely different.
The right to create copies would have to have been
granted to the bookseller for that to work.  How
that authority would be granted would probably be
by contract when they purchase the electronic file
containing the text of the book to be installed
on the POD machine.

> 
> > Right.  That's why we want to be able to bypass
> > "technological protection measures" w/o being tossed
> > in the can ... because there _are_ legitimate reasons
> > for doing so.  Ripping your own DVD for space shifting
> > is one of them.
> >
> > However, _distributing_ material that you do not own
> > the rights to is _not_ one of those legitimate uses.
> 
> But, I do own my copy of the work, and I have no way of 
> knowing that the
> downloader is not also a legitimate owner of a copy of the work.  

It doesn't matter whether the downloader is a legitimate
owner or not.  _You_ do not have the right to distribute
a copy you have made.  You can make the copy for your own
use, but you can not distribute it.  Period.

>The
> music has already been "distributed" - via sale of the CD at 
> a store via
> normal channels.
> 
> If I required a signed affidavit from each downloader, 
> stating that they
> owned (for example) a CD title prior to downloading, in 
> theory, I would
> only be operating a space-shifting service which just happens 
> to be free.

Maybe.  In the (real) situation I described above regarding
the distribution of the Palm OS, _everything_ is free including
the legitimate ways to aquire the file.  Nonetheless, I am not
permitted to give someone else a copy, they have to get it 
themselves directly from the source.  I believe a similar
status pertains here.  Unless you have the _right_to_distribute_
the material, whether you perform validation checks or not
is not significant.

> 
> The music was distributed by the sale of the media, by the copyright
> holder - not me.

Ah, but you _are_ distributing the music _also_.  And therein
lies the issue.

> 
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-- 
-Richard M. Hartman
hartman@onetouch.com

186,000 mi./sec ... not just a good idea, it's the LAW!