Digital media ethics: it's personal

Digital media ethics: it's personal

Summary: The voting in my digital media ethics poll is now closed, and your votes have made one conclusion crystal clear. The overwhelming majority of you believe that if you buy a music CD, you're buying the rights to play back that performance any way you want, on any media, at any bit rate, as long as it's for your personal use. According to the RIAA, you don't have a right to do any of that stuff.

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TOPICS: Tech Industry
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The voting in my digital media ethics poll is now closed, and I'm sorting through the fascinating results, which I'm going to respond to in a series of posts. To kick things off, I want to talk about the one issue where there's practically no disagreement. Look at the response to this question:

Do you think it’s proper to buy a CD, rip it to your hard drive, and then make copies for your own personal use on multiple devices or computers?

  • Yes: 96%
  • No: 2%
  • Sometimes/Depends: 2%

I believe the ayes have it. The question gets a little more complicated if you include copy-protected DVDs (which is why I didn't ask that variation), or DRM-protected downloads, a topic I'll discuss in more detail tomorrow. For music CDs, however, the conclusion is crystal clear. The overwhelming majority of you believe that if you buy an album, you're buying the rights to play back that performance any way you want, as long as it's for your personal use. If you buy a CD, you should be able to make a backup CD, another CD copy for the car, digital copies in any format and bit rate you prefer for your computer and for your iPod or Zen or smartphone (and another for your spouse's portable player), mix CDs, and playlists.

This comment, from the Talkback section of the poll, summed it up well:

I am perfectly willing to pay a fair (not inflated) price for someone else's work. However, I should then be free to use it as I wish. That includes copying it to other media, storing it for later, or any other personal use (including sharing it with my family at the same location). Under those conditions, I don't feel I have a right to re-sell it for a profit, or massively distribute it.

We will now have a brief intermission while paramedics remove the RIAA executives who are experiencing chest pains just reading that previous paragraph.

The same comment continues:

Unfortunately, the corporate entities that control the mass market media are so scared of new technologies that they are trying to deny us reasonable use of things we have already purchased. They are also using digital rights as lever to overcharge us; trying to charge us as much for on-line media as they would for hard copy CDs and DVDs (which have far greater production, transportation, marketing, and point of sales overhead costs). As a result, I will do whatever I can (without taking excessive legal risks) to subvert their system, until it falls apart of its own inertia. At that point, I look forward to purchasing copyrighted media at a reasonable price to use in whatever way technology permits

That's no exaggeration. Officially, the RIAA refuses to even enter into this argument, contending that you have no right to make a backup copy of a music CD. On a page starkly entitled "The Law," the RIAA concedes:

It’s okay to copy music onto an analog cassette, but not for commercial purposes. It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.

But digital copies? No way, says the RIAA, although we might let you get away with it:

Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns [emphasis added] so long as:

  • The copy is made from an authorized original CD that you legitimately own
  • The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

How kind of them to mention that it won't usually raise concerns (wink wink, nudge nudge, say no more) if you want to copy a CD for your own personal use. That's not to say they won't try to sue you someday, just that they're a little busy with other battles right now.

Elsewhere on the RIAA site, a FAQ "for students doing reports" says, "Record companies have never objected to someone making a copy of a CD for their own personal use." Again, they're steadfastly refusing to acknowledge any right to make even a backup copy so you can protect media from being scratched and rendered unplayable. And that's not just shyness. It's official policy for the entertainment industry at large. In an official Joint Reply (PDF) filed with the United States Copyright Office on the Digital Millennium Copyright Act last year, the lawyer for a consortium of 14 content providers, including the MPAA and RIAA, summarized his clients' beliefs in regard to backing up your CDs:

[T]he making of back up copies for personal use has never been held to be a per se noninfringing use [and] we oppose the recognition of any of these exemptions.

[...]

The justifications offered by the submissions for making back up copies mirror those offered in 2003: possible damage that would render a copy unusable and the convenience of travel copies. Neither of these justifications is compelling.

And if a CD does get scratched? Hey, tough luck. Buy another one:

Presumably, consumers concerned with the ability to make back up copies would choose to purchase music from a service that allowed such copying. Even if CDs do become damaged, replacements are readily available at affordable prices.

Did you know the recording industry offers replacement copies at affordable prices? How come I've never heard of that program? Oh, right. because it doesn't exist. What the RIAA is saying, in that official document, is that if your CD gets scratched you can go buy another copy. Sorry, no. For what it's worth, I've been burned too many times by CD players and changers that mangle discs. The very first thing I do when I buy a new CD is to make a copy for use in the car. Then I rip the tracks from that CD to a home server and use those copies for the Media Center PC in the living room or the computer in my office and for filling up our portable music players.

According to the RIAA, I don't have a right to do any of that stuff. Fortunately, I feel great knowing that you 98% of you agree with my philosophy and disagree with the RIAA's extremist point of view. That's how far apart the entertainment industry and its customers are today.

The big corporations that package music and movies today were built in the pre-digital age, and the attitude embodied in the above statements comes straight out of the 1970s. If the media giants that control the music and movie industries can't take even a tiny baby step into the 21st Century, it's no wonder their customers are willing to live by their own, more reasonable rules.

Coming up next: The file-sharing standoff.

Topic: Tech Industry

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177 comments
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  • Missing information.

    As mentioned in a prior post, you might have phrased the question as: Do you believe it proper to violate the law and become subject to penalty by...

    A less tendentious phrasing would be If you were able to make the law, would you...

    As phrased, the question has already determined that those who respond are willing to violate law (or other legal constraints) as a result of their own evaluation of the rightness of an action.

    That's leaving out the more essential for the less essential consideration.
    Anton Philidor
    • What

      Are you making your own language up as you go along.
      I bet your fun at parties. Do you write instruction manuals or legal documents for a living. If no, give it a go, it is your destiny.
      Blogsworth
    • Huh?

      I don't get your point here. What's are getting at? I just am not getting your point. Don't like the results or something? I'm not sure, you're not being clear.
      voska
      • As phrased...

        ... the question asks whether it's "proper" to make copies:

        "Do you think it?s proper to buy a CD, rip it to your hard drive, and then make copies for your own personal use on multiple devices or computers?"

        Only in the discussion here does he observe that people who agree with the question are joining him against RIAA views incorporated into law:

        "According to the RIAA, I don?t have a right to do any of that stuff. Fortunately, I feel great knowing that you 98% of you agree with my philosophy and disagree with the RIAA?s extremist point of view. That?s how far apart the entertainment industry and its customers are today."

        If he asked whether I agreed with his views, I'd write Yes. But he asked whether I wanted to violate the law, without including that significant factor in the question.
        Anton Philidor
        • Fair use against the WISHES of the RIAA

          According to the RIAA is NOT, by any mean, according to the law! The RIAA want to remove any bit of the "fair use" principle that state that when you buy something, ANYTHING, you own it and are free to use as you please as long as that use is personal. It definitely include the making of backup, the personal use copy to be used in potentialy hazardous, for the media, environments, like in your car, in a portable device, on the beach,...
          The RIAA is actualy pushing hard to remove the fair use from YOU!
          Kualinar
        • you are referring to what law

          The fight about "Fair Use" was fought over tape recordings. The courts determined that once having purchased the hard copy, you now owned the hard copy, and you were free to copy it to other media for your own personal use or for backup, although it wasn't called backup then.

          The copyright law then was also a civil law that granted the rights to the copyright owner and required the copyright owner to prove real financial loss before any compensation was due from the accused infringer. We have Sonny Bono to thank for starting the process of copyright extension that has resulted in the possibility that copying a CD, even to a tape, which was protected action, is now a criminal act which entitles the copyright holder to penalties without proof of financial loss.

          The RIAA has purchased Congress in this matter, which may just go a long way to the current approval rate, or LACK OF APPROVAL, of Congress. The last approval rating for Congress that I have seen was at 11%.

          The problem is greed, and the Congress has given in to this greed.
          Update victim
        • The RIAA is a lawmaking body?

          That's news to me - and I am a lawyer. "Fair use" rights ARE codified in "the law" but there are disagreements sometimes as to interpretation, in which case judges clarify the issues, and render an opinion, which then becomes "the law" unless and until an appellate court overturns the lower court's decision.
          legalista
          • Fair use is a thing of the past

            Fair use rights [i]were[/i] codified into law in the previous Copyright bill, but the DMCA (Digital Millenium Copyright Act) replaced that. I had read the prior bill and tried to read the DMCA, but I'm not a lawyer and couldn't make sense out of a lot of it. Though I did not understand all of the particulars, one thing seemed pretty clear to me: whereas the prior Copyright bill outlined a number of specific rights for consumers (some, like the fair use clause, were largely left as grey areas that the courts would have to clarify in certain instances), in the DMCA, I am pretty sure that the only right the consumer has is to pay the Copyright holder . . . and perhaps keep paying. Congress sold us out.

            - Les
            LesN
          • So the DMCA includes Fair Use?

            I'm sorry -- I missed the fact that you said that you [i]are[/i] a lawyer. And you are saying that Fair Use is still part of Copyright law? It's been awhile since I looked at the DMCA but I really must have missed that because all I could seem to find were clauses nullifying virtually everything which seemed reasonable about the previous Copyright bill. As I recall, in the prior bill, Fair Use had essentially two parts: in the first, certain specific practices were enumerated as fair use, such as a library making limited copies of Copyrighted works for certain purposes, etc., but there was a broader phrase which implied that it extended to other areas, but which was stated vaguely enough that it would require the judgment of a court to establish the boundaries. Are both aspects still a part of the DMCA?

            Thanks for clearing this up. Maybe the DMCA isn't as pernicious as it seems.

            - Les
            LesN
    • not according to our law!

      If you you wanted the question phrased that way you would have to also add exactly what law you are talking about, because surprisingly enough American law does not apply to everyone. According to Canadian copyright law, we (Canadians) DO have the right to make copies of music recordings for personal use - even if we do not own the original CD. See Canadian Copyright Act, Part VIII number 80. So, from my point of view there was nothing wrong with how the question was worded because it is completely legal here.
      ariepert
      • Actually, so do we here in the lower 48

        The fact is this was settled law and has been for 30 years. When cassette recorders came out the Record companies tried the same line of argument. They tried to make copy proof albums and know what the courts told them to knock it off. The fact is when you buy a copy of copyrighted material you own that copy. It's yours and you have the right to do anything with that material that doesn't violate the copyright. Basically, as long as you don't distribute the copyrighted material for any reason you can make copies in any media until the cows come home and there's absolutely no recourse under copyright laws.

        Now circumventing DRM is now a criminal act so it's a different story. And one that has yet to hit the supreme court. I suspect that there will be another wrist slapping for the record companies when it does hit the high court.
        maldain
      • You're right about Canada. For now.

        "Canada doesn't have a DMCA yet but politicians there are hard at work trying to change that."

        http://www.techdirt.com/articles/20071004/101819.shtml

        Dated October 4, 2007.

        As the linked Comment also observes, the US government has been spreading DMCA equivalents in trade agreements and otherwise.
        Anton Philidor
    • It's a perfectly legitimate phrasing.

      "As phrased, the question has already determined that those who respond are
      willing to violate law (or other legal constraints) as a result of their own evaluation
      of the rightness of an action."

      Don't be silly. Only the most authoritarian reactionaries are unable to distinguish
      between "do you believe this is right" from "do you believe this is legal". If there's
      anyone here who is not familiar with at least one or two bad laws that have been
      passed in their country in modern times, no matter what their country is.

      We all know that the law is out of step with reality. The more essential
      consideration is what we believe our rights should be. Without expressing that, the
      law will not change.
      Resuna
    • The question, as asked...

      ...was correct. It isn't a question of law, it's a question of moral judgment. The law wasn't in question. Opinions and moral values were in question.

      On a side note, your response here is completely off the mark. It IS legal to make copies for personal use. Therefore, your rewrite is RIAA propaganda, and nothing more.

      And, on a final note - The law often does not address right and wrong. The law is cut in stone, stamped in steel, black and white. Right and wrong are not.
      The law is often morally wrong, and doing the right thing is often illegal.
      Dr. John
      • How significant is illegality?

        Though you can assert that "doing the right thing is often illegal", wouldn't you prefer to know that what you are considering doing is against the law? Isn't illegality significant enough to be an essential component of your decision?

        You can decide to violate the law for various reasons or no reasons. But isn't setting up a situation in which you have to make a choice without knowing about the violation implicitly misleading you?
        Anton Philidor
        • not at all.

          Morality is much more important than legality, Mr. Creon.
          lostarchitect
          • "Words may be many, and yet not to the point."

            Creon?? I'm not so pettifogging.

            Someone who decides to violate a law because of a belief in a more significant morality can feel that he has done the right thing. Someone who violates the law on another's advice without knowing he has violated the law would be... disappointed if there were a penalty.
            As Oedipus demonstrates, ignorance of a law violation is no excuse.

            My post is about providing complete information. Your response concerns the choice to be made by someone who has the information.
            Anton Philidor
          • And never the twain shall meet

            So what is the point of your continual
            flogging of those who do not agree with the
            finer points of the law that you so adore?
            Ole Man
        • The thing is....

          ...there are some things that are wrong because they are illegal and for no other reason, while there are some that are illegal because they are wrong. Personally, I place copyright and patent infringement into the former category, rather than the latter.

          I'm in favor of limited copyright and patent systems, but I regard them as trade regulations properly enacted for the purpose of promoting creative work, not as moral imperatives. I would consider a bill to completely do away with both to be unwise, but not immoral. On the other hand, a bill to decriminalize armed robbery would be both unwise *and* immoral.
          John L. Ries
          • Well...

            ... a law has the effect of penalizing actions. That makes the underlying judgment of those actions negative. When you write "there are some things that are wrong [only] because they are illegal" you've given a good definition of an unjust law.

            I disagree with the basis for what I see as excessively restrictive copyright laws. But I acknowledge the consistent logic of the arguments behind that law. I consider that logic built on inaccurate impressions called "facts" and lack of understanding of the impact of the law, but resolution of that disagreement is subject to majority view. Or legislative majority, anyway.

            I'm still looking for a good argument for following only those laws with which I agree.


            On your second paragraph, copyright infringement can violate civil as opposed to criminal law. Making a million CDs for sale is appropriately a criminal violation, but making a copy for a friend is appropriately a civil violation.

            Perhaps I'm wrong, but your distinction seems to be that it's immoral to do away with criminal but not civil violations. Perhaps based on degree and type of harm to people.

            Interesting question. Hope you'll clarify for me.
            Anton Philidor