RIAA, others says CD ripping, backups not fair use (ARS Technica) [LWN.net]

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 16, 2006 20:38 UTC (Thu) by ca9mbu (subscriber, #11098) [Link]

> If the copyright holder says you can't rip-n-burn, then you can't
> rip-n-burn. That may not be what the law says at the moment, but just
> because you find it inconvenient otherwise doesn't make it wrong.

That strikes me as somewhat backward. If there's something written in law, and someone restricts you from exercising that right, then surely that is an illegal act in itself. For example, data protection laws allow one to request any personal information an organisation may hold on you, and that organisation is legally obliged to provide that information. Not doing so is a breach of the law.

Compare that with the copyright law, which explicitly allows copying for "fair use" purposes. If the RIAA attempts to prohibit such fair use actions, then surely that too is a breach of the law as they have restricted your rights. What is therefore required is a clear outline of what actions constitute "fair use" of copyrighted material. I don't believe such a thing exists, hence the ongoing debates as to whether ripping, compressing or simply backing up music is fair use or not. It's interesting, though, that the same article quotes the RIAA as saying:

> "The record companies, my clients, have said, for some time now, and it's
> been on their website for some time now, that it's perfectly lawful to
> take a CD that you've purchased, upload it onto your computer, put it
> onto your iPod."

So, if it's lawful to copy your music onto your DAP, surely it's also lawful to copy it onto any other backup media. Any argument to the contrary I would imagine would be very weak indeed.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 16, 2006 20:53 UTC (Thu) by allesfresser (subscriber, #216) [Link]

It seems like your view of copyright is that the creator has absolute rights to control whatever happens to the work in question. At least in US law, this is not the case. "Fair use" is allowed whether the copyright holder likes it or not. This is what is so obnoxious about the article in question--it seeks to intimidate users into believing that the exercise of rights they hold by law is somehow a bad thing.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 15:32 UTC (Fri) by sepreece (subscriber, #19270) [Link]

Below is what is the law has to say about Fair Use. Claiming that copying an owned CD to another device is "fair use" because it's non-commercial use would have to argue around that fact that (a) nothing in the list of examples in the introductory paragraph is anything like that, (b) the intent of clause (3) is clearly to favor copying of small sections, and (c) that such use clearly reduces the market for the work (since otherwise you would have to buy separate copies in each form).

I think [IANAL] it's a lot more likely that ripping is infringement than that dynamically-loaded kernel modules are derivative works...

----------
107. Limitations on exclusive rights: Fair use38

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
----------

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Mar 4, 2006 15:04 UTC (Sat) by anton (guest, #25547) [Link]

[...] such use clearly reduces the market for the work (since otherwise you would have to buy separate copies in each form).

In my case, such use increases the market for the work (since otherwise I do not even buy a single copy of the work).

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 16, 2006 23:16 UTC (Thu) by pgarland (guest, #270) [Link]

There's a difference. The GPL (at least v2) doesn't dictate how you can use the software privately; it only affects you if you redistribute the software to another person.

With your copy of GPLed software, you can transfer it to a hard drive, a flash drive, an iPod, or a CD-R, translate it into Yiddish, print out the source code and light it on fire, or do anything else with it, without having to worry about the terms of the GPL, so long as none of your activities result in the software being transferred to some one else. The terms of the GPL only cover software distribution.

The RIAA is claiming that copyright law inherently prohibits not only unauthorized distribution, but also restricts private usage- namely making backup copies and spaceshifting.

There's a huge gulf between the activities the GPLv2 covers and those the RIAA is claiming to be able to restrict. The RIAA is claiming the right to invade an individual's life and dictate how he or she can privately use media that person has purchased.

~Phillip

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 16, 2006 23:29 UTC (Thu) by proski (subscriber, #104) [Link]

The difference is that developers distributing their works under GPL don't rely on draconian laws like DMCA and on technical measures to enforce their copyright. GPL works without DMCA just fine.

RIAA doesn't just distribute their works under a different licence, their are trying to limit the rights on the recipients beyond what the copyright law allows. That's why they need DMCA. That's why they don't care about fair use.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 1:17 UTC (Fri) by zotz (guest, #26117) [Link]

'I like my Free software as much as the next guy, and I enjoy music on occasion, too. But it seems like there's a bit of a double standard in "the community".'

No double standard need be invoked to explain this. After reading to the end of the thread, I see others have offered different slants on this, here is mine:

I would guess most in the community would not object greatly of copyright terms were reduced significantly. Let's say 14 years for arguments sake. We don't feel the need for the DMCA and the like. We don't try to restrict use, just distribution and distribution of derivations.

So, the "other side" is constantly getting laws passed which we object to, but have every right to take advantage of in our fight against the "future" envisioned by those fighting to get those very laws passed. It is not a double standard or hypocrisy to use the weapons your enemy provides in your battle against him.

all the best,

drew

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 3:33 UTC (Fri) by Ross (subscriber, #4065) [Link]

The GPL doesn't add any restrictions which aren't already present in copyright law, and in fact reduces them greatly for people who are willing to comply with its terms. Contrast that with rhetoric in this case which claims that you don't have rights which are explicitly granted in copyright law.

Telling someone who doesn't like the situation "too bad, don't use it" is entirely different in each case. In one, it is telling them to obey the law. In the other, it is telling them to not exercise rights they have under the same law.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 3:37 UTC (Fri) by Ross (subscriber, #4065) [Link]

And another aspect to this I'd like to point out: I don't think anyone is saying that fair use doesn't apply to GPLed works. Works covered by it can be backed up, converted for use on other systems, loaned to friends, turned into private compilation works if not distributed, etc. just like the things which should (and are) allowed with music from legally purchased CDs. Even if the GPL claimed to prevent these things (which it does not), it could not do so for anyone who didn't agree to the terms of the license.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 19, 2006 20:02 UTC (Sun) by zblaxell (subscriber, #26385) [Link]

Indeed...One could excerpt 10 exemplary lines of GPL code (even v3) and publish them in a DRM-encumbered technical magazine article with restrictive copyright claims and even signed legal agreements between subscribers and the publisher--in other words, something so polar opposite to the intent and letter of the GPL that it would make RMS spin in his grave if he were dead. If said article had some value as educational material, criticism, or comment, it might still be fair use, about which the GPL can say nothing.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 8:14 UTC (Fri) by Wol (guest, #4433) [Link]

You say "if we don't like the RIAA's terms, buy music from the artist instead". Great. BUT!!! the *whole* *point* of where the RIAA is heading is to take away the option of buying music from the artist!

If the RIAA gets its way, the only players we will be able to buy will enforce DRM. They will refuse to play anything that doesn't have DRM. And the only way the artists will be able to produce DRM'd CDs will be to go via the RIAA.

"Not buying RIAA music" will be the same thing as not buying *any* music.

Cheers,
Wol

Law says

Posted Feb 17, 2006 12:22 UTC (Fri) by man_ls (subscriber, #15091) [Link]

That may not be what the law says at the moment, but just because you find it inconvenient otherwise doesn't make it wrong.

True, but it doesn't either make it right. It is in fact the intended consequences that make it right or wrong. If the copyright holder tries to extort even more money from you with cheap excuses, then it is usually wrong. If the copyright holder wants to make free software and be reasonably sure that it remains free software, most of the time it is right. Easy once you get some practice ;)

You are right that it would be better not to play their game and refuse to buy their music. It is possible to get some contemporary music from other sources (I have bought from magnatune.com and I'm happy). Unfortunately almost all good music from the old times has ended up in their hands. I try not to buy their wares anymore, but when I see the latest from Pat Metheny I cannot resist.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 15:17 UTC (Fri) by sepreece (subscriber, #19270) [Link]

I think utoddl is largely right on this.

First, because "fair use" is generally a lot narrower than the comments in this stream would make them. Fair use is meant to cover things like copying small pieces of a work for research or certain kinds of copying in support of education. Copying whole works, even for you own use, is generally not fair use. I think ripping for use in other formats is legally dubious, unless the copyright holder says its OK. Note also that the "backup" exception is, as noted in the article, specifically for software. If the RIAA is in a legal position to grant permission for personal copying, that would make it OK.

Also, a number of the notes in this stream ignore the fact that the GPL uses its weight as a license to attempt to control things that are not in any way related to copyright. That is, it says "this license is granted on condition that you do X, Y, and Z". Those conditions are not things required by copyright law, but are add-ons based on a particular philosophy. That does cause me some ethical qualms, at least in the context of deciding who has the ethical high ground.

The GPLv3 draft goes to some length to explain what the spirit of the license is, in the hopes that courts might consider that as well as the letter of the license, in the event of ambiguity. It seems at least a little hypocritical to then say the intentions of music licensors don't matter, but only the letter of the law.

Fair Use

Posted Feb 17, 2006 20:38 UTC (Fri) by GreyWizard (subscriber, #1026) [Link]

You construe fair use much more narrowly than, say, the Supreme Court of the United States, which has ruled that time shifting (such as by making a recording of television programming for later viewing) is fair use. One important difference between timeshifting and making but not distributing a backup copy to cope with media failure is that the latter requires purchasing a copy in the first place. Also, you make the mistake of supposing that all use of copyrighted material must be either fair or infringing. As Lawrence Lessig points out fair use is an exception to restrictions imposed by other parts of copyright law, not an enumeration of all permissible activity.

As for ethical hand wringing over the GNU GPL, granting conditional permission to do things not ordinarily allowed does not amount to an attempt to control something outside the scope of copyright. If it did then you could raise the same objection about almost any license (including BSD variants which generally require not using the name of the authors in endorsements for example). You have also failed to notice that the GPL explicitly states that accepting its terms is voluntary unlike the licenses of the RIAA which purport to obtain your implicit consent by virtue of the fact that you've opened a package.

Finally, your comments about the intent of a copyright holder are seriously confused. Attempting to provide a court with guidance when interpreting anything ambiguous in a license is quite different from attempting to convince the public to remake the law to better suit the preferences of an entrenched economic interest. No one seems to be complaining that the license terms used by the RIAA are too easy to understand, so the charge of hypocrisy seems to rest on nothing more than facile word games.

Fair Use

Posted Feb 17, 2006 23:12 UTC (Fri) by sepreece (subscriber, #19270) [Link]

You do not convince me.

Time-shifting of broadcast material is a very special case, not at all like making multiple private copies of a purchased work, which clearly does have some [arguably small] impact on the market for the work.

I said the GPL's conditions make me uncomfortable; YMMV.

My comment about the material in the GPL on the intentions of the authors was in response to comments here about whether or not the intentions of copyright licensors mattered. It still seems, to me, that it should matter as much or as little for CDs as for GPLed software.

Convincing you is not the goal.

Posted Feb 18, 2006 2:56 UTC (Sat) by GreyWizard (subscriber, #1026) [Link]

One could as easily argue that time shifting harms the market for a work -- and indeed the MPAA did so to no avail. Nor has your speculation actually demonstrated that backup copies have any negative impact on the market. Consumers might be less willing to pay for a work when they cannot protect themselves from the risk of damaged media or make mixed CDs for private use. Even if you can't grasp the facts, time shifting is conceptually quite similar to making backup copies. Both are private, non-commercial activities consistent with the intention of current copyright law.

And speaking of intentions, you continue to overlook the distinction between the intentions of a license that grants permission for activity that would otherwise be prohibited by law on the one hand and the intention of a lobbying organization to alter the law on the other. The former should matter to a court that must interpret the meaning of the license. The latter should not. Recognizing this is not hypocrisy, whether it makes you "uncomfortable" or not.

And please, spare me the update whether you're convinced. Obviously your opinions are impervious to any instrument so dull as reason or fact. I correct you for the benefit of open minded people with the misfortune to read the muddled nonsense you've written. You are welcome to continue believing in whatever copyright fable suits your fancy.

Convincing you is not the goal.

Posted Feb 18, 2006 17:09 UTC (Sat) by sepreece (subscriber, #19270) [Link]

There's no point in responding to insults and responses to issues I didn't raise. I stand by what I said before and to respectfully disagree with your interpretation. Have a nice day.

Don't dish it out...

Posted Feb 18, 2006 17:36 UTC (Sat) by GreyWizard (subscriber, #1026) [Link]

Have you forgotten that you've accused an unspecified class of people with hypocrisy based on your misunderstanding of comments you can't even be bothered to reference? Don't dish out insults if your sensibilities are too delicate to stand up to them yourself.

Fair Use

Posted Feb 23, 2006 7:17 UTC (Thu) by dvdeug (subscriber, #10998) [Link]

I fail to see why time-shifting is a "very special case", nor why someone taping a show instead of buying it on DVD has no impact on the market for the work.

If someone is being generous with me, then I'm willing to be generous with them and worry about their intentions. If someone is going to attack me legally in a heartbeat, I'll worry about the letter of the law and not care about what they want and why.

Fair Use

Posted Feb 20, 2006 20:05 UTC (Mon) by sepreece (subscriber, #19270) [Link]

Going back and rereading the original Ars Technica article and some of the document that it commented on, I noticed that the Ars Technica article managed to "translate" a quoted segment by turning its meaning right around. The joint response said that the RIAA comment in Grokster (about personal copying being permitted) was "about authorization, not about fair use." The Ars Technica article claimed that meant that "just because people have been copying...doesn't mean they have authorization to do so". In fact, I think the joint response meant exactly the opposite - that people never had a fair use right to make those copies, but that the copyright holders authorized them to make them. That's consistent with the statement on the RIAA web site, which says they believe users should be able to make use of the music they purchase in any way they want - it's not about fair use, it's about authorization.

I also did some searching, both general google searching and working outward from groklaw links, and found general agreement that the question of whether personal copying is fair use is undecided, at best. There's a lengthy CBO analysis that says as much (www.cbo.gov/showdoc.cfm?index=5738&sequence=3) and numerous other sources that say its an open question. The only exception I ran into was the Robin Gross site mentioned in one of the other notes in this discussion, but it presented no arguments for why the author believed it. I don't claim that my searching was definitive or exhaustive, but the results were convincingly aligned.

There's also indirect evidence in that Congress passed the AHRA specifically to create a copyright exception for personal copying, when such copying used specific classes of device (DAT recorders and minidisc recorders are such devices). If there were a fair use exception for personal copying, that legislation would have been unnecessary. The 9th Circuit Diamond Rio case held that MP3 players (and computers used to load them) aren't in that class, meaning that that exception doesn't cover them. [The exception is tied to mandatory fees for implied licensing build into the cost of the devices and their media, which MP3 players and computer peripherals in general do not pay.]

As I said in my note, copying clearly is OK if the copyright holder gives you permission. That doesn't make that copying fair use, it makes it licensed use. It's an important distinction because if it were fair use, that would provide support for creating DMCA exceptions to maintain that use. If the copyright holders simply authorize personal copying, they are free to withhold it (by the technological means that the DMCA protects) when they like and there is no fair-use justification for allowing circumvention to enable it.

In the absence of case law or a clear basis in section 107, I would still say that the claim that personal copying is fair use is dubious. I'm always open to evidence to the contrary.

Follow that Link

Posted Feb 20, 2006 23:21 UTC (Mon) by GreyWizard (subscriber, #1026) [Link]

I agree that whether almost anything can be considered fair use is an open question until someone can cite court precedent that addresses it directly. I'm not sure what I've said that makes you believe otherwise. In the message you are replying to I was speculating about what the Supreme Court might rule based on past precedent, which is more or less what you were doing when you wrote, "I think ripping for use in other formats is legally dubious, unless the copyright holder says its OK."

I don't understand how you can square that statement with the AHRA, which -- according to the link you provided -- "Exempts from copyright infringement the making of copies for personal use of music files in digital form, provided that those copies are made with approved equipment." Regardless of whether this exemption was redundant or whether it could be called fair use it clearly permits the things you and the RIAA contend are legally dubious.

Contrary to what you claim, the case for personal use in general is quite strong without the AHRA. Normal use does not need a fair use justification. Copyright grants that permission when you purchase a work without further license conditions, unless you enter into an end-user license agreement. Does ripping musing into a different format constitute normal use? Only a court can decide, but if so all questions about fair use become moot.

But if not fair use is likely to apply because the analogy to time shifting is stronger than you admit. Both are non-commercial activities that copy an entire work for later use, except that time shifting results in no direct revenue for the copyright owner. Without reference to specific legislation restricting personal copying you will have to explain why a practice that puts money in the copyright owner's pocket should be excluded while a similar one that doesn't should qualify.

Follow that Link

Posted Feb 21, 2006 1:13 UTC (Tue) by sepreece (subscriber, #19270) [Link]

I only said, at the beginning, that it was dubious. IANAL and this is an unsettled area, anyway.

AHRA doesn't apply because MP3 rippers (computer or otherwise) are not approved devices. The AHRA applies to a limited set of devices that are covered by mandatory implied royalty fees. The 9th circuit decided this specific issue in the Diamond Rio case, ruling that MP3 players were NOT approved devices and therefore not covered by the exception (the suit had asked that MP3 rippers be banned or forced to pay the implied royalties). While it might eventually be decided differently in a higher court, for the moment this is the precedent (at least in the 9th circuit, where the RIAA lost the case and elected to live with the result).

The CBO analysis clearly disagrees with you as to whether personal copying is permissible.

The Betamax case is different for several reasons. First, because the material in quesiton was broadcast material, supported by advertising, and the argument that the viewer would see the advertising despite the timeshifting was relevant (with today's equipment it would be a harder argument to make, as skipping commercials is relatively easy). Also, at the time there was no commercial market for TV shows, so it was harder to argue that the timeshifted recordings (which the Court specifically assumed were for timeshifting and NOT for library-building) were replacing alternative sales by the producers. In any case, the CBO didn't think it applied and, as noted, thought the question of fair use was "unsettled".
Which is all I said to begin with.

Do you think the current Court is more likely than the Betamax Court to extend the principle, in the face of arguments that there is now a lively market for legally downloaded content? It's certainly possible, but it's not where I would bet, if we were betting on the outcome.

At any rate, I don't think I have anything more to contribute to this discussion.

Quote

Posted Feb 21, 2006 3:36 UTC (Tue) by GreyWizard (subscriber, #1026) [Link]

http://www.cbo.gov/showdoc.cfm?index=5738&sequence=3
"Many observers invoke the decision in the Recording Industry Association of America's (RIAA's) case against Diamond Multimedia Systems to support their view that using a computer to make personal copies of digital music files is not copyright infringement. [...] However, the Court only addressed whether the MP3 player was covered by the AHRA; it did not explicitly address whether copying from computers for personal use constitutes a general limitation--as an element of fair use--on the exclusive rights of copyright owners."

So, you're correct that the AHRA doesn't apply. But this actually undermines your case and supports mine. Do you imagine that if the RIAA thought they had any chance of convincing the court that personal copying is not permissible without license they would have stopped there? Unlikely. This does not amount to a firmly settled precedent, but it's enough that the lawyers for every company that manufactures MP3 players are willing to bet against you. And no, the CBO does not seem disagree with me so much as it simply doesn't take a position on the matter. When you say personal copying is legally dubious and talk about RIAA "authorization" you are clearly taking the position that personal copying is probably not legal, not merely pointing out that this is unsettled law.

Your point about advertising is interesting. Still, at worst this makes the two cases roughly equivalent from a fair use perspective. A lively market for downloaded content seems to have no bearing on personal copying because it amounts to a different way to purchase a copy, not a substitute for the things a user might want to do (as it might be for time shifting). Remember that judges are people too. Some might make personal copies of their own. Most will think twice before declaring that anyone with an iPod can use it only with permission from the RIAA.

Fair use not necessary

Posted Feb 21, 2006 4:01 UTC (Tue) by sepreece (subscriber, #19270) [Link]

Actually, I meant what I said - it's unsettled. I have no opinion as to whether a court would hold that ripping was fair use. I was simply responding to the overwhelming opinion of the other postings in this stream that it not only was fair use but that there was no real question about it.

It's not necessary for it to be fair use if such copying is authorized. It *appears* that the RIAA is willing to say that in the absence of technological controls, it is authorized. Hence their position on the DMCA review. The people urging an exception were arguing fair use; the RIAA said there was no precedent for it being fair use and that there was no urgent need to change the DMCA to allow it. Maybe this will change in the future, if technological controls become more prevalent. I'm not taking a position, simply trying to set out what I believe the legal space is.

I do, personally, think it *should* be fair use, but I think the appropriate way to fix it is by legislative change, not by relying on the Supreme Court to interpret the current Copyright Act that way.

I do think the current Supreme Court and FCC are less likely to be amenable to fair use than the Court that decided Betamax.

Back Down the Rabbit Hole

Posted Feb 21, 2006 16:23 UTC (Tue) by GreyWizard (subscriber, #1026) [Link]

Oh, I see. You meant what you said and you have no opinion about what a court would hold with regard to fair use. Then I guess you never said this: "Copying whole works, even for you own use, is generally not fair use." And I guess you didn't say this: "I do think the current Supreme Court and FCC are less likely to be amenable to fair use than the Court that decided Betamax." Except that you did. Did you mean what you said when you said you had no opinion or when you were offering one? Or did you not mean what you said when you said you meant what you said?

Meanwhile, you keep coming back to the notion of authorization as if it were relevant. Of course a copyright owner can permit anything the law allows them to control. That's tautology. But most people don't want to ask a private corporation for permission before exercising rights copyright law was clearly designed to give them.

Again, here's a quote from the document you cited: "Legislative and judicial attempts to retool copyright law for digital media [...] have attempted to balance the rights of copyright owners (and hence private incentives to engage in creative activity) with the interests of consumers (and the benefits to society)." Copyright law was never intended to give creators absolute control of their work so authorization is only relevant for regulated activities.

Finally, I certainly would not object to legislative change that clarified fair use or reversed some recent changes that have tipped the balance away from the public. But the law as it stands is reasonable and clear about fair use already. While the RIAA is free to say anything they want about the legal status of making copies for personal use, when push came to shove in the Diamond Multimedia case they chose not to take this argument to court. Why? Because they suddenly "authorized" this activity they had been trying to stamp out? More likely they simply did not expect to win.

Some of those "arguing fair use" have law degrees and an extensive understanding of copyright law. I hope you will not be surprised to learn that they don't share your opinion. For example, Robin D. Gross explains, "Do I have the right to make a copy of my CD for my own personal use? Yes. The fair use doctrine allows an individual to make a copy of their lawfully obtained copyrighted work for their own personal use." (Source: http://www.eff.org/cafe/gross1.html) Follow the link at the bottom of that page for extensive resources on fair use that support such conclusions.

Regardless of whatever vague feelings you have about the Supreme Court and the FCC, the "postings in this stream" that suggest that there's "no real question about it" have the better side of this argument.

Back Down the Rabbit Hole

Posted Feb 22, 2006 3:27 UTC (Wed) by sepreece (subscriber, #19270) [Link]

Neither of the things you cited indicates anything about how I would bet if the issue came to trial, which is the only way it could go from unsettled to settled. The first is a statement of fact - copying whole works is generally not fair use, hence the clause in 107 that says that the portion and substantiality of the portion copied is an important factor. I do think the current Court is less friendly to personal rights. Actually, though, I don't see why my guess is interesting to anybody - all I wanted to do was point out that it's not the done-deal that people here were saying it was.

The only reason authorization is relevant to this discussion is that it resolves the contradiction that the Ars Technica article claimed between the RIAA (et al) position in this matter and the statement on their web site. It's not relevant to the question of whether personal copying is fair use, but it was relevant to the discussion of that article.

You ask why the RIAA didn't attack the fair use claim in the Diamond Rio case. It couldn't, even if it had wanted to, because it wasn't relevant to that case; the case was about whether or not MP3 players fell under the scope of the AHRA. Fair use was not in question.

The only way the question could come to court would be if some copyright holder sued someone for making personal copies. If the RIAA is willing to allow such copying, they wouldn't be the ones to bring such a suit.

Your quote from the CBO report doesn't say anything about the question of fair use. Nor is it clear why allowing personal copying of whole works would encourage creativity. The report said, in so many words, that it was an unsettled issue, which is all I said.

The Robin Gross piece (which I mentioned in a previous note) is more advocacy than analysis. It was interesting to me because of the total lack of any argument supporting the conclusion that you cite.The article gave a nice summary of section 107 (except for listing time and format shifting as though it were part of the list of examples in the Act, when they aren't) and then leapt to a bald statement that personal copying was fair use, with no attempt to explain why 107 implied that. You also mention the link in that article to the Stanford resources; that site also give no support for a fair use exception for personal copying.

If you think there's something in 107 that makes the the answer clear, please feel free to offer it.

"Depends on what the meaning of the word 'amenable' is..."

Posted Feb 22, 2006 18:02 UTC (Wed) by GreyWizard (subscriber, #1026) [Link]

Claiming that "personal copying is not generally considered fair use" is not a statement of fact. Unless you can cite a statute or court ruling which says so, this is an opinion. Also, you have seriously misunderstood the text of Section 107. While it mentions some purposes that are not infringement it clearly indicates that this list is incomplete by using the words "such as" and including guidelines for deciding. The purpose of the "amount and substantiality" factor is to provide a defense for copying of small portions, not to deny one to otherwise permitted use.

I am astounded that you have the audacity to pretend that your statement that the current court "is less likely to be amenable to fair use" isn't an opinion about which way it would rule on a question of fair use. What exactly is it then? And what about all your talk about betting? Were you going to bet on the outcome of a case without an opinion about which way it would go? I guess you only mean what you say as long as you get to reinvent the meaning of ordinary words when you contradict yourself.

Your claim that the RIAA could not have continued litigation against Diamond Multimedia is likewise absurd. Perhaps they would have had to abandon their current case, but nothing would have prevented them from filing anew to request that MP3 players be enjoined because they are not protected by the AHRA and exist primarily to enable personal copying which is not fair use -- or even putting that into the case in the first place. Fair use was not in question only because the RIAA shrewdly decided not to bring it up.

The quote I selected from the CBO document was not intended to show that any particular use was fair use, but to point out that the intention of copyright law is to balance the interests of the public and copyright owners. You still don't grasp this or you would not have asked how personal copying encourages creativity, which is only part of the picture. What it must do is serve the interests of the public without destroying the economic incentives to create. That's just what it does.

By now I'm not surprised that you don't know the meaning of a world like "advocacy" so let's try this again. Robin Gross is an attorney. This means she is educated about the law in general. Based on her background, she is especially educated about those branches generally referred to as intellectual properly law. When she says that personal copying is allowed she is stating an opinion based on all that education. Expressing an opinion is not the same as advocacy. Find a dictionary and look it up.

No, it's not analysis either. I didn't say it was. I rather explicitly said it was an opinion. Nor am I inclined to dig up analysis for you to misconstrue or dismiss for absurd reasons. Part of the problem is that the issue is so cut and dried -- except to people enamored by RIAA propaganda like yourself -- that no one bothers to do any analysis. (Note that I didn't say settled law. Can you site any comment on this thread by me or anyone else that claims the issue is settled law?) Sometimes questions of law are so obvious they don't need to be litigated.

"Depends on what the meaning of the word 'amenable' is..."

Posted Feb 22, 2006 18:39 UTC (Wed) by sepreece (subscriber, #19270) [Link]

I'm not going to bother carrying on most of this, there's no point.

The Robin Gross issue I will say one more thing about. The distinction between "expressing an opinion" and "advocacy" is finer than I would normally rely on in this kind of discussion. If you prefer "opinion", I'm OK with that. She is certainly entitled to an opinion and I understand it is a learned one, but she also has a clear viewpoint as representative of an advocacy group. It did bother me that she presented an opinio as though it was well-established without attempting to support it in law.

No real question

Posted Feb 22, 2006 23:05 UTC (Wed) by GreyWizard (subscriber, #1026) [Link]

Since you are for some reason unable to consult a dictionary on your own, allow me to share with you a small selection from mine. On opinion it says, "a notion or conviction founded on probable evidence." On advocacy it says, "the act of pleading for or supporting; intercession." That distinction is perfectly clear and should be safe to rely on in any discussion conducted in the English language. Don't presume to make me responsible for your poor grasp of such things.

On the question of personal copying the text of the relevant statutes combined with the purpose of copyright law itself make it perfectly clear that this is fair use. That there is no direct precedent does not change that and indeed is probably the reason for that because not many people like to spend money on doomed litigation. There is no real question here except in your mind, so the burden is on you, not Robin Gross or anyone else, to show why a court would be likely to rule otherwise. None of the absurd arguments you've presented so far will do the job.

just a little bit more...

Posted Feb 23, 2006 6:19 UTC (Thu) by sepreece (subscriber, #19270) [Link]

I would suggest reading section IV of the Betamax majority opinion, which presents the Court's reasoning in deciding that time-shifting was fair use. It's rooted in the specifics of the case, including the fact that the material was freely broadcast and effectively increased the audience for it (in line with the Act's goal of increasing public access). Note that in IVb it explains why "the fact [464 U.S. 417, 450] that the entire work is reproduced, see 107(3), does not have its ordinary effect of militating against a finding of fair use." Note that "ordinary effect", which says that the Court believed copying complete works was normally not fair use. There is also extensive discussion there of the commercial issues and effect on the potential market, which are similarly rooted in the specific nature of taping freely broadcast material for home use.

Note also that Justice Marshall's papers [as cited in wikipedia, I haven't read them] indicate that there was initially a 6-3 majority to affirm Appeals Court finding that the use was, in fact, infringing, but that Justice Stevens swung two votes by moving the argument away from the question of infringement to the questions of commercial harm and "substantial noninfringing use." This indicates that the question was not the simple issue that you suggest.

Furthermore, note that four justices dissented, with Justice Blackmun saying "the making of even a single unauthorized copy is prohibited" and pointing out that all the statutory and case law examples of fair use were "each is a productive use, resulting in some added benefit to the public beyond that produced by the first author's work". This again argues that it was not, as you state, clearly the case that "the text of the relevant statutes combined with the purpose of copyright law itself make it perfectly clear that this is fair use."

Note also that the Napster case included consideration of format-shifting as infringement. Though the decision did not hinge on whether format-shifting was infringing, the text of the decision does provide a lot of analysis of the factors involved, most of which argue againt considering it to be fair use.

That decision also cites the Worldwide Church case decision's statement that "copying an entire work ‘militates against a finding of fair use", though there can be exceptions (like the Betamax decision).

[Discursion: the AHRA includes a blanket exemption from claims of infringement for certain kinds of recording. However, that list doesn't cover all kinds of ripping and format-shifting, because it only covers analog recordings and recordings made with the class of devices required to support SCMS, which the Diamond Rio case determined did not include computer peripherals. Note, though, that even if this exemption applied, it would be a statutory exception and not "fair use" and, as noted previously, the very existence of this exception suggests that Congress did not consider such use to be "clearly fair use"].

Since format-shifting differs from time-shifting in fundamental ways that vitiate some of the points the Court found compelling (most important, it's hard to find commercial harm in time-shifting broadcast material, but format-shifting arguably directly replaces the opportunity to sell copies in the second format), it's still my opinion that there is substantial question as to whether format-shifting is fair use. I still haven't seen anything supporting your (and Gross's) notion that personal copying in general and format-shifting in particular are "cut and dried" fair use.

More of the same

Posted Feb 24, 2006 0:14 UTC (Fri) by GreyWizard (subscriber, #1026) [Link]

Sony Corp. of America v. Universal City Studios, Inc. is an established precedent -- in other words, settled law. Most Supreme Court rulings have written dissents and many are decided by 5-4 majorities. This does not make them less binding. Regardless of whether the question was a simple issue then, it certainly is one now. Unless you imagine the court will overlook the principle of stare decicis, that decision is going to have a significant impact on related questions. Given that, you might want to read that majority opinion again. Here's a sample:

"The question is thus whether the Betamax is capable of commercially significant noninfringing uses [...] one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. [...] When one considers the nature of a televised copyrighted audiovisual work [...] and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact [...] that the entire work is reproduced [...] does not have its ordinary effect of militating against a finding of fair use."

(That last part is more or less what I meant by pointing out that "amount and substantiality" provides a defense for copying of small portions, and does not deny one to otherwise permitted use.) Again, the only difference between time shifting and format shifting in this context is that the viewer had been invited to witness the work after lawfully purchasing a copy, thus rewarding the copyright owner directly instead of indirectly.

As I've said, your claim that format shifting replaces the opportunity to sell copies in other formats is useless. Recording televised content for later viewing replaces the opportunity to sell recordings, and yet we have the Sony ruling. Selling used books replaces the opportunity to practice similar forms of price discrimination, and yet we have the doctrine of first sale. Obviously the court would consider the effect of format shifting on the market as the statute rather explicitly directs it to do. But one could just as easily argue that the prices copyright owners are able to charge are currently supported in part by the value consumers perceive from their undeniable expectation that format shifting is permissible, and that therefore the market for the work would not improve by removing this freedom.

(As for the AHRA, it includes a blanket exemption from claims of infringement for manufacturers of recording devices, not users. And there is evidence that the act was intended by Congress to make the status of private copying more clear rather than to make a change: "In short, the reported legislation [Section 1008] would clearly establish that consumers cannot be sued for making analog or digital audio copies for private noncommercial use." (House Report No. 102-780(I), August 4, 1992))

Meanwhile, you are still ignoring the facts on the ground. Would the court ignore millions of people who engage in format shifting every day and rule that this behavior is criminal without strong support from the statute? Would members of congress seeking re-election tell the public that the format shifting party is over rather than falling all over themselves to protect a popular practice? Of course, those congressmen would be nudged gently along by lobbyists for the consumer electronics industry, which would probably prefer to sell products that are legal to use without permission from a third party.

Once again, consider the analogy to time shifting. "Immediately after their loss in the Supreme Court, the plaintiffs lobbied Congress to pass legislation that would protect them from the effects of home copying. However, in the eight years that had passed since the suit was initially filed, the use of home recording devices had become sufficiently widespread that Congress was not prepared to take any actions to the detriment of the significant population of VCR owners." (Source: http://en.wikipedia.org/wiki/Sony_Corp._v._Universal_City...)

Seems rather cut and dried to me, even before educated legal professionals have a chance to say home copying is fair use.

Enough

Posted Feb 24, 2006 6:08 UTC (Fri) by sepreece (subscriber, #19270) [Link]

I believe the points I raised adequately show that the issue is not cut-and-dried, which was my only intention.

The point to the material about the Betamax decision was not the decision, but the fact that roughly half the Court disagreed with your "cut-and-tried" principle that personal copying is fair use. The decision establishes a precedent, but the precedent is on questions other than personal copying, per se. Note the middle part of the section you quoted ("when one considers...") - this is rooted in the specifics of it being material broadcast for free viewing.

Most of the other points were similarly pointing out that there are many court decisions that argue that personal copying is not fair use, again denying your claim that it obviously is fair use.

(The AHRA certainly seems to protect users as well as manufacturers - section 1008 says "or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings." However, as previously noted, the "device" in question has to be one covered by the act and its mandatory royalty payments.)

A Court finding that format-shifting is infringement would not have to inconvenience the millions of people who do it; more likely would be the same kind of mandatory royalties that the AHRA ordered. Or, as you note, Congress could do the same thing. This still wouldn't make it fair use, it would make it authorized use.

My point was never that there are no educated attorneys who hold the opinion that personal copying is fair use, only that there are others who hold the opposite opinion. It's not cut-and-dried.

However, if you wish to believe it to be cut-and-dried, you don't need my permission to do so. I don't intend to post anything more on the question.

Stare Decisis

Posted Feb 24, 2006 22:20 UTC (Fri) by GreyWizard (subscriber, #1026) [Link]

Once again, whatever doubts the Supreme Court may have had about whether time shifting is fair use before January 17, 1984 are irrelevant because the majority opinion is a binding precedent. That this ruling directly addresses time shifting and not format shifting is undeniable, but it misses the point entirely. Courts consider consistency with past rulings when issuing new ones -- stare decisis. The striking similarities between time shifting and format shifting would have to be addressed and overcome somehow before a ruling against fair use could be reached.

One example that demonstrates the effect of precedent is RIAA v. Diamond Multimedia Systems, Inc.: "The Rio merely makes copies in order to render portable, or 'space-shift,' those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984)" Here the court is clearly making exactly the sort of comparison between space shifting music and time shifting video that I was making for format shifting.

Another example is the U.S. Court of Appeals for the Ninth Circuit in A & M Records, Inc. v. Napster, Inc. which sought to explain why its ruling was not inconsistent with precedent: "Both Diamond and Sony are inapposite because the methods of shifting in these cases did not also simultaneously involve distribution of the copyrighted material to the general public; the time or space-shifting of copyrighted material exposed the material only to the original user."

Had you actually read that ruling instead of skimming for quotes you would have discovered that while the court didn't come right out and say that private copying is fair use, it makes no argument against that position. Distribution is what sinks one Napster argument after another. Format shifting is scarcely considered at all, except to say: "That the copyrighted works are transmitted in another medium–MP3 format rather than audio CD–has no bearing on our analysis."

This ruling underscores other arguments I've made as well. For instance, it quotes Campbell, 510 U.S. at 591 n.21.: "A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. . . . If the intended use is for commercial gain, that likelihood [of market harm] may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated." Speculation about lost sales of the same product to the same consumer is not enough.

Immediately following that Worldwide Church quote you make so much of we find this: "We agree. We note, however, that under certain circumstances, a court will conclude that a use is fair even when the protected work is copied in its entirety. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984) (acknowledging that fair use of time-shifting necessarily involved making a full copy of a protected work)." Likewise, private and non-commercial format shifting necessarily involves making a full copy and so qualifies for the same treatment in fair use analysis.

So much for court rulings that argue against format shifting.

(I missed that clause in section 1008 of the Audio Home Recording Act, so I agree that it protects users as well. But this still fails to show that non-commercial copying would not otherwise be fair use. The AHRA was enacted in response to RIAA fear of digital audio tapes and infringing distribution of "perfect" digital copies. This is why the act mandates SCMS and royalty payments, not because it was weakening the scope of copyright law. By contrast you imply that while recording a song played on the radio is fair use encoding that recording in another format required permission before this act became law. That's silly.)

You claim there are educated attorneys with extensive relevant experience who hold that personal copying is not fair use. Can you name one with no economic interest in the question who is willing to publish that opinion? I've given you two names that meet this standard for the other side already: Lawrence Lessig and Robin Gross. That you fail to mention even one is suspicous, to say the least. (By the way, just how many times have you promised not to post any more on this subject? I count four... so far.)

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 15:21 UTC (Fri) by utoddl (subscriber, #1232) [Link]

Lots of the comments above are absolutely correct about fair use and and how the RIAA's rhetoric goes directly against copyright law, and legally I agree with practically everything everybody has said above. However, I still stand by my original statements. I said, "If the copyright holder says you can't rip-n-burn, then you can't rip-n-burn." Obviously, legally, you can rip-n-burn, assuming you are doing it according to the "fair use" standard. I'm saying that in the long run, you can't justify it because in the long run you won't win. Why? Because while we like to think of "fair use" and other copyright issues as The Way Things Are, to the RIAA they are just Another Thing To Change, and the expense of changing them is part of the cost of doing business. Don't believe it? That's how we lost the copyright extension battle in the Suprime Court a few of years ago, by thinking such Obvious Truths would be obvious to the Court. Continuing to violate (albeit legally) the wishes of the copyright holder simply gives them ammunition to continue their battle against your rights.

I also said, "That may not be what the law says at the moment, but just because you find it inconvenient otherwise doesn't make it wrong." Okay, there was a thought behind that statement that's totally obscured by the confusion it generates. Even now I'm not sure whether that "wrong" shouldn't have been "right". But the first part, about the current copyright law (fair use in particular) being not necessarily permanent, should not be obscured by the other part. The RIAA and friends will continue to spend money attacking it as long as they have money and think there's money to be made through that effort. And here's the catch: they will continue to have occasional successes, and they can afford to be patient.

The only way for us to win ultimately is to make some alternative financially viable. When the money finds another way, there'll be no more fuel for their fight. Who (other than maybe RMS) would have believed 20 years ago that IBM could be (much less would be) doing big business supporting Free software? In fact, the IBM doing that is not at all the IBM of 20 years ago. Likewise I don't think the RIAA in its current form can work any other way than stealing music from artists and overcharging for media distribution. It will have to transform remarkably, or be replaced by something else entirely, to have a viable music/entertainment production/distribution/presentation system that supports "fair use" as we want to have it. Until then, "fair use" is a line drawn in shifting sands.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 21:26 UTC (Fri) by nim-nim (subscriber, #34454) [Link]

You're forgetting one thing :

The RIAA is not the producer of this art. It's the _Recording_ Industry Association of America, it does not represent artists. Its interests are *not* aligned with musicians (producers of copyrighted works)

A world where 99% of people buy the same few thousands of titles multiple times in their life is perfectly fine with the RIAA (especially if it negociated royalties with original authors *before* buying the same record in dozens of different forms was a possibility). This *is* the "financiably viable" model they're pushing. They *are* confident on their ability to saturate the media and shops with their chosen offerings so nothing else is ever sold.

It should be perfectly obvious this model would leave the vast majority of artists in the dust. "Fair use" is one of the last pieces that force majors to find new artists, because they can't sell the same bits every few cycles to the same people.

Just because the RIAA helped artists at one time in its history does not mean it will always do so. Especially when the RIAA is increasingly made up of a *small* number of multinationals, and its monopoly becomes entrenched by legislative and technological means.

(Early european middle age history shows pretty well how you can start with a pool of free people designating a warband to protect them, and end up after a few generations with nobles and serfs)

The best thing that could happen to musicians/artists today is rigid enforcement of fair use and breaking up the majors. The RIAA is *not* trying to generate new revenue. It has decided long ago the level a customer entertainment budget will reach, and is trying to maximize its profits by sharing its cut of this budget with as few people as possible.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 17:52 UTC (Fri) by climent (subscriber, #7232) [Link]

Seems to me the only legit response is to not buy music (actually, not rent a music license)

Were that the case, and the thing that RIAA wants me to do is to buy a unique license that allows me to enjoy the music in one unique format, I, holder of that license, should be allowed to bring back a broken CD and get, for the price of the material+handling+shipping, a new copy.

IANAL, but if that is not the case, WTF? What am I buying? A license tied to a single unit?

Sounds to me like renting a car, but in the case of the car breaking down, you have to rent a new one...

I DJ on my free time, and I cannot afford rebuying the whole collection just because it wears out during normal use: bad equipment on bars, dropped CDs, bad handling,...

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 23:25 UTC (Fri) by sepreece (subscriber, #19270) [Link]

I agree that you're buying a copy of the content, not renting it, but I don't see why you believe that should allow you to make additional copies, even for your own use. Such a right would be pleasing to consumers, but it doesn't seem (to me, IANAL) to be present in the copyright act. There's nothing in the fair use exception that suggests that (there's one clause that talks about non-commercial versus commercial use, but two others talk about market impact and how much of the work is copied, which argue against there being a fair use right to make personal copies).

It's interesting that you use the material professionally. Have you licensed the right of public performance?

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 19, 2006 0:02 UTC (Sun) by climent (subscriber, #7232) [Link]

Such a right would be pleasing to consumers, but it doesn't seem (to me, IANAL) to be present in the copyright act.

It is my right, because in the country where I live, the law specifically says I am entitled and have the right to make a copy of the music I have (legally) purchased. And because of that right, for every blank CD that I buy, I pay a levy (tax) in order to compensate the artists for the "not buying another copy of the CD" idea[1].

The main problem in countries like mine (Spain, but where I live, Finland, is about the same) is:

they charge you for blank media, in order to exercise your right of copying.
at the same time, they introduce copy protection.
the law states, int he first place your right to copy your own music
the laws being introduced ban the copying of restricted media (copy restriction mechanisms)

So basically you buy something that is not a music CD, but something else, which you have the right to copy (and they charge you for that right) but that is not legal to copy.

It's interesting that you use the material professionally. Have you licensed the right of public performance?

Again, here is the place where you perform (radio, bar) the one that purchases a license for public performance, and thus allows you to play music under their wings. But mainly I play music that when I purchase has given rights to the purchaser.

[1] which is in my opinion an abuse, since I use CDs and blank media for free software also...

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 17, 2006 19:37 UTC (Fri) by grouch (subscriber, #27289) [Link]

I like my Free software as much as the next guy, and I enjoy music on occasion, too. But it seems like there's a bit of a double standard in "the community".

You seem confused.

1. The RIAA is attempting to gain more power than copyright law grants copyright owners.

2. The GPL grants permission from copyright owners, to users, to do things copyright law otherwise reserves exclusively to the copyright owners.

Consider:

'The Supreme Court explained, "the fair use doctrine exists because copyright law extends limited proprietary rights to copyright owners only to the extent necessary to ensure dissemination to the public."'
-- Understanding Your Rights: The Public's Right of Fair Use By Robin D. Gross

The RIAA wants to eliminate those limits and eliminate the fair use portion of copyright. Their 180 degree turn from their previous stance, in the Grokster case, where they said CD ripping was legal, to their current claim that personal, non-commercial copying is illegal, illustrates their desire to have unlimited proprietary rights. This is contrary to current copyright law and historical doctrine.

Your comparison of the GPL's limits on the extra rights it grants, to the RIAA's attempt to remove limits on rights it has been granted, is flawed. There is no double standard. The foundation in both cases is copyright law. The goal of the GPL is to use copyright law to ensure continued freedom of users. The goal of the RIAA appears to be to extend copyright law to eliminate the freedom of consumers.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 19, 2006 20:25 UTC (Sun) by sepreece (subscriber, #19270) [Link]

Sorry - the article was about US copyright law, which is all I meant to comment on. I'm happy to hear that Spanish law defines this right!

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Feb 18, 2006 5:39 UTC (Sat) by Arker (guest, #14205) [Link]

This is not true. No Free Software license attempts to restrict fair use rights at all. The
conditions for use of Free Software code apply only to those doing things that, under
current law, are explicitly forbidden without a license from the copyright holder. The RIAA,
on the other hand, is explicitly trying to deny and destroy fair use rights. The two situations
are very dissimilar.

RIAA, others says CD ripping, backups not fair use (ARS Technica)

Posted Mar 2, 2006 11:42 UTC (Thu) by forthy (guest, #1525) [Link]

If the copyright holder says you can't rip-n-burn, then you can't rip-n-burn.

There's some difference here. The GPL, for example, gives you additional permissions. These additional permissions are limited, so some people complain about that. The RIAA "license", enforced by ridiculous "copy protection" and DCMA, takes away permissions that you already have by purchasing the CD. Remember, you don't have to agree to a license when you get a GPL'd program, neither do you have to agree to a license when you buy a CD.

The DCMA is an alien concept to copyright. After all, copyright is about a time-limited monopoly granted by the congress (as stated in the US constitution) for the advance of science and art. This monopoly is granted because it is easy to make copies. Now, a technical protection supposedly makes it impossible to make copies. Now why grant copyright for something you can't copy anyway? If the industry decides to help themselves rather than to rely on the time-limited privilege granted by the congress, they may do so, but then, if they want to help themselves, they should not have additional protection by law. At least not more than any other copyright holder.