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

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

I think we have at least two substantial disconnects
in this discussion that seem to be hampering things.
See below.

> -----Original Message-----
> From: Tim Neu [mailto:tim@tneu.visi.com]
> Sent: Friday, August 02, 2002 1:20 PM
> To: 'dvd-discuss@eon.law.harvard.edu'
> Subject: RE: [dvd-discuss] Movie Downloads, automatically illegal?
> 
> 
> 
> My apologies if this is getting long.  I have trimmed where I can.
> 
> On Thu, 1 Aug 2002, Richard Hartman wrote:
> 
> > > 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.
> 
> That example resorts to real property to explain 
> "intellectual property",
> which are very different paridigms and should be treated differently.
> Any TV which I were to buy from the truck driver would reduce 
> the number
> of TVs Circuit City could sell.

I was illustrating how the same object could be considered
differently under the law based upon the transactions it goes 
through (it's provenance, thanks Dave!).  The same issue applies 
to IP as it does to physical objects.

> 
> It may well be that the system is that messed up that the law does not
> make this distinction, but if that is the case reform would start by
> acknowledging the difference.

Disconnect #1: were we discussing the legal situation
as it _is_ or as you think it _should_be_?  I have been
operating under the assumption that we were discussing
the situation as it exists.  Like it or not, that _is_ 
the situation we have to deal with until it does get changed.

If you are asking how things _should_ be, that's a kettle
of fish of a different color.

[ candle flame & tree grafting examples snipped ]

> I do not claim these examples mimic the situation we were discussing -
> they only illustrate the differences between real property and "IP".

Your physical examples are even further off the mark
than mine was ;-)

> As for our previous discuession, first I will try to limit 
> the scope of
> argument somewhat, and focus on two indivduals only.
> 
> > > 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.
> 
> I think there is a distinction in the word "distributed".  When you
> distribute something, you are giving something to a whole group of
> people.  If I give you a dilbert comic for you to photocopy, 
> you do not
> "distribute" it by giving it back to me.

Disconnect #2: There have been a few different scenarios
put forth and we don't seem to be clear on which one we
are talking about at any given time.

One scenario is you give copy to someone else who performs
a service for you (making a duplicate) and returns both the
duplicate and the original to you, and only to you.  The other
is where you are downloading a copy over the internet from
people who are making that copy freely available for downloading.

In the service scenario, I don't have a problem and I don't think
the law would either.  In the internet scenario, there are major 
legal problems concerning the other party in the transaction.

> 
> > > 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.
> 
> This would imply that if both people are following the law, the
> transaction would be legal.  I'll explain below, in the 3.5" floppy
> scenario, since that is easy to understand.
> 
> > > 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.
> 
> The TV example is completely "Real" property, where x-1=x-1.  One TV
> stolen = 1 less TV for Circuit City.  We're talking about 
> "intellectual"
> property where x-1=x.  No matter how many times I download 
> something, an
> infinate number of potential copies remain.

And when people distribute copies of (digital) IP, even
if more copies can be made there is still the issue that
_sales_ may have been lost.

> 
> In any case, this wouldn't be accurate because we both own copies!  2
> copies purchased for 2 people, not one bought and one stolen.

??? You lost me ... could you tie this statement back to 
the scenario?

> 
> > Ah, but it is _not_ regardless of means.  The means is quite
> > significant to the law.
> 
> I think the means should be irrelevant, 

Disconnect #1 again (whether we are discussing the law as 
it _is_ or the law as it _should_be_)


>if the user has 
> already bought the
> product.   I'm not talking about someone copying something 
> and giving it
> to a third party.   I'm talking about two individuals 
> purchasing the same
> exact thing, and in essence trading with each other.

And here I have to bring up again that as long as it
stays at the level of _individuals_ the law may very
well not take notice (even though it would still be
a technical violation).  I can tape my LP of Pink Floyd's
"The Wall" and give it to you and nobody much cares,
but if I start handing them out by the boxcar load
then I'd be in big trouble (whether I charge for them
or not).

> 
> > > 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.
> 
> OK, lets look at this:
> 
> I can make my own conversion - True
> 
> I can make my own backups in any format I desire - True.  I 
> make a backup
> on 3.5".
> 
> I can trade disks with you, provided you allow it - True.  I do, and I
> also make backup copies on 3.5".   I give you my previous 
> backup disks.
> We can do this, after all, we both own our set of disks.  
> (for the purpose
> of this example, the license is transferrable)
> 
> Therefore, assuming you allow me to trade with you, I end up 
> with my own
> disk which is the same darn thing as you giving me a copy in the first
> place.

o/ I'm my own grandpaw! o/

(sorry, couldn't help myself ...)

Actually I didn't follow that one either ... how did
you end up with your disks back?

> 
> In this case, the end result is two identical backup disks with two
> identical copies which were legally created by each of us, 
> and you argue
> that trading backup disks without the rest of the software is illegal.

Not quite.  I was stating that can not give you
a copy.  

Now, I can _sell_ you my _original_ disks, transferring
the license).  If I do I _must_ give you all the backup 
copies I may have made.  

But ... what if the price of that sale was _your_ DOS 5.0
disks?  Well ... so that's the price.  You get mine and
I get yours.  Licenses transferred both ways.  Nonetheless
I do not believe that -- as the law & license terms currently 
stand -- that I can make a copy of my disks and give them
to you _unless_ they are part of the license transferral.

Your problem is that you are attempting to be practical
and reasonable when this is the LAW we are talking about !


> 
> Why?  Neither of us has broken any rules.
> 
> > 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)
> >
> > 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.
> 
> We both download program #2.  We both use the program and 
> have the same
> exact ROM version in a file - the same exact bits.  You own 
> your copy, I
> own mine.  Why can't we trade?  

Because the people who own the rights to those bits say so.

Otoh, you're positing a slightly different situation now.
If we both have run the ROM-sucker program then there is
no _reason_ to trade.  What I said I could not do was to
run the ROM sucker myself and then give you a copy of the
file it produced.  I can give you the ROM sucker, but I
can _not_ give you the output of it.  You have to run it
yourself, because them's the rules.

>We can trade TVs!  We can 
> trade computers,
> with the files intact.  

Only if we trade the original installation disks of
every product installed on them ... but we both have
Win98 SR2 and Office 2000?  Well, _legally_ we still
have to transfer the license we purchased with the
machine on which it was installed (or uninstall it
before the machine leaves our posession).  _Practically_
it makes no difference.  Hey, the law _is_ an ass, nobody
is suggesting otherwise.  

The thing is that the laws about distributing IP tend
to be written w/ the distribution being a one-way affair
(i.e. from me to you or from you to me). Of _course_ it
looks ridiculous when you put that into an equal trade
situation.  

Let's say you _don't_ have Office 2000 on your computer.
Would it still be ok for me to keep my installation discs
when I give you my machine on which it has been installed?
I don't think so, and I doubt that you do either.

...
> > 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.
> 
> Yeah.  There's no way around it though.   You go biking, and get in
> trouble for not signaling your turns.  Signal your turns, and 
> they got you
> for not having both hands on the handlebars at all times.   
> No possible
> way to follow the law and go biking.

Bingo.

...
> > 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_.
> 
> But if we both make backup copies of gone with the wind, why can't we
> trade?
> 
> We both own it!  We can trade the masters, we can trade masters and
> backups so why not only the backups?

Again, when you put it into the scenario where what
is being exchanged in the transaction each way is 
essentially the same thing it looks ridiculous.  But
that is _not_ what the law is written for.  I can 
_not_ make a "backup" of GWtW and sell you, or even
give you, the backup. It's just not legal, nor proper.  
And that is the situation the law is written to cover.  
A one-way transfer.  When you tailer the scenario such 
that the same thing is being transferred in each direction
then bizarre things result.  Usually when bizarre things
result like that, the law looks the other way.  That is,
_legally_ when we exchange backups, we _must_ exchange
the originals.  _Practically_ it don't make no difference,
and the courts would probably laugh if charges were to
be brought in this situation ... yet, that _is_ the
way the law is written.

> 
> > 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.
> 
> I can trade with you the physical medium legally - that is not
> considered "distributing".  I can even sell the physical 
> medium, destroy
> it, etc.  Why can I trade the plastic and the movie and not the movie
> itself?

Because the plastic -- aside from being the medium in
which that movie was distributed to you -- is a token 
that represents your right to a viewable copy of that 
movie.  Trading the movie w/o that token is illegal
distribution.

> 
> A trade + a backup copy (media shifted) can accomplish any 
> distribution of
> media shifted formats between two owners.

Again, the two owners scenario is quite different from
the original -- downloading from the internet -- scenario.

...
> 
> I suppose you could argue that our backup and trade dance must be
> performed for the sharing to be legal, but that is a very 
> bizzar notion.

Yes.  So what's your point?

> 
> Although it makes about as much sense as some other government
> requirements! (i.e. none :-)

Exactly.


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

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