July 29, 2004

Apple FairPlay, DMCA, and circumvention arguments

Ernest Miller discusses the DMCA and encoding songs in Apple FairPlay digital restrictions management:

However, if I use Real's Helix DRM to encode my music, then shift the DRM to FairPlay with Real's new software, I now have a FairPlay-encoded file without having signed a contract with Apple giving them authority to change FairPlay. If Apple now changes FairPlay restrictions, they would be doing so without the authority of the copyright holder, that is, me. So, I should, theoretically, be able to sue Apple for changing FairPlay restrictions under the DMCA.

My take: This is a convoluted version of an old "argument" sometimes put forth that purported to show that the DeCSS case was invalid. The story ran like this:

"The DMCA talks about decoders. But it doesn't say anything about encoders. Suppose I take a DVD movie for which I am the author and which I own the copyright. I then encode my own DVD movie with the *CSS* algorithm (that is, I use only an *encoder*, not a *decoder*). I now have a CSS-protected DVD. Thus every DVD player counts as a circumvention device, because they can play my DVD without my authority as the copyright owner! *GOTCHA!*"

What's wrong with this? Though of course it's appealing to the programmer mindset, I think the formal flaw is in the definition of "circumvent". The courts will look to the design of the system, grounding that in the "authority of the copyright owner".

The argument then basically reduces down to "Assume I get a unlicensed FairPlay encoded file of my own. If Apple changes FairPlay, that's now a circumvention device against my rights".

Per above, I argue that if Apple changed the FairPlay system with the consent of all copyright owners which it has formally licensed the system, that change wouldn't be circumvention. Such a change won't be made into circumvention by having some unlicensed uses of the system.

And realistically, the courts are going to draw exactly this distinction, as with the Chamberlain vs Skylink (garage door opener) case.

It circles back to what I mentioned recently, that copyright isn't logical in the abstract, We've only had it pounded into us not to think about that, because to do so means you're a Commie insufficiently respectful of "property" rights.

If any logical hack can be resolved by simply saying "the defendant is a bad guy, so he loses", then the courts won't have a problem with it.

By Seth Finkelstein | posted in dmca | on July 29, 2004 01:13 AM (Infothought permalink) | Followups
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The DRM rules for the iTMS are set in each songs you buy it's not something changed in the firmware, Fairplay already allows variation of the rules in individual songs even if all the songs sold at one time on the iTMS use the same rules.

When Apple changed the set of rules recently (by uping the number of computers you can play that music on and reducing the playlist burning limit), this didn't affect songs already bought, only newer ones. So if you bought those you specifically agreed to the new rules and those where negociated with the labels.

As for how could Apple break the Harmony songs, it could do something like checking for Apple's copyrights in the meta-data, something that Real couldn't duplicate.

The problem in all this is that Harmony songs could break on a new firmware update anyway, even not intentionally. In any case, Apple would be blamed. If Apple doesn't reject Harmony it has to support it and make sure with Real that new firmware updates wouldn't break their hack. That would be ridiculous, given the way Real forced themselves into the iPod commercial mechanism against Apple's will.

Let's say a friend of a friend that really annoys you ask you if he can go to your party and you refuse, replying some silly reason. The guy then threatens to go to a party from some other guy you don't like. The night of the party the guy then crashes in by doing a somewhat clever trick to go over your fence, you are angry and "stunned" that he could have done such a thing, you begin to think of the ways you will have to deal with him (like maybe having to call the police). The guy start to shout loudly that he was not invited for a silly reason and that he have the right to stay...

Should you:

A) Ask him to leave immediatly and if not you warn him that you may call the police? You also tell him that you may have to put a higher fence around your property.
B) Negociate with him compromises like "you can stay but cannot drink"
C) Give him the permission to stay and drink all he wants and even to come to any other party he wants without having to call but only by going over the same fence. You even work with him on making sure he doesn't make too much noise when going over the fence.
D) Give him the permission to stay and even to come to other parties but in a normal way through the front door.
E) Mace him, kick him in the nuts and call the police.
F) A mix of all of the above.

Posted by: Buzzy Beetle at July 31, 2004 07:02 PM