Gladly.
> HYPO: A new software program becomes available by which a website
> creator can easily incorporate soundfiles in websites. Assume that
> websites created with this software allow all soundfiles to be copied by
> anyone viewing the website, but the software has other features that
> make it popular. Parties A, B, C and D use the software to add
> soundfiles to their websites.
>
> Now, assume that the software company releases an updated version that
> allows website creators to specify that their soundfiles can't be
> copied.
One little note about this. If the files are delivered by HTTP, then can always be copied, and indeed almost have to be copied. If the files are delivered by another mechanism, this can certainly be avoided. RealPlayer actually implements almost exactly what you are talking about, but it isn't using HTTP. Instead it implements its own proprietary protocol. The reason I bring this up is that we can be dancing close to the boundary between a "website" and other kinds of network services.
The reason I bring this up is that HTTP operates a certain well known way. That does not mean that every way of communicating copyrighted material on the net must operate this way. HTTP and HTML became wildly successful because users like the way they operated. They clearly don't meet every need a copyright holder might have, although they meet a lot more than people realize. One need they do not meet is "Digital Rights Management" (DRM)type needs.
I detest DRM and choose to shun content in it. Others are free to accept it. We can debate the merits of legal protections for DRM another day. Ultimately, DRM content has to compete against non-DRM content and DRM affects the value proposition. The role of the protocol is critical here. HTTP/HTML gained populatrity precisely because the protocols empower users and doesn't work well with DRM. People want a sandbox where software creates a "share by default" space. The pro-DRM forces should have to bear the expense of developing their own protocols so that these costs are part of their value proposition.
That said, let me get to your example.
> Party A isn't aware that the new version has been released.
> Party B is aware of it, but hasn't bothered to install and use it.
> Party C downloads the new version and attempts to use it to disable
> copying, but does it wrong, so soundfiles can still be copied.
> Party D downloads and uses the new version correctly, and changes the
> website's settings to prevent copying.
>
> Party E visits the websites created by A, B, C and D, and copies a
> soundfile from each of them (although this is more difficult in the case
> of D).
>
> Is E an infringer or a licensee with respect to A, B, C and D? (Assume
> no fair use.) Thanks.
He is definitely an infringer of D, even without the DMCA (which is exactly why the DMCA wasn't necessary). A good faith user would have seen that the soundfiles were marked as "no copy" and respected that. Circumvention of this clearly coincides with an intent to infringe.
Party A and B are clearly not infringed by Party E. Each chose to deploy their software and knew or should have known that by doing so they were granting permissions at runtime for individual copies of their sound files to be made. If at any time they changed their mind, they could have simply removed the content. The difference between A and B is immaterial. Each knew or should have known what the machine they actually deployed would grant access to.
C is a little harder. I don't think E can be liable, though. A good faith user would check for the authority to make the copy, receive an affirmative response and make it. C's state of mind is unknowable to E. What is knowable is that his machine is configured a certain way that grants permission to make the copy. I would liken this to a candy vendor mistakenly setting the price of the candy too low.
The boundary between case C and D can be hard to find. Suppose Party F is like C, but followed the directions carefully and failed only because of a software bug that is undetectable to E. (In case D, I assumed it was detectable to E). Again, I don't think you can blame E who could act in good faith and make his copy and log the transaction as evidence he was allowed to do it. F could sue the software vendor for a warrantee claim, I suppose. Usually software comes with a warrantee waiver in which case the burden for testing whether the product works as advertised falls on F.
> I'm also wondering what your position is with regard to non-Internet
> copy protection. For example, several technology companies claim to be
> able to manufacture CD's that can't be copied to a computer. In
> actuality, this copy protection works quite poorly: some CD players
> won't play the CD's at all, some allow them to be played and copied, and
> only some allow them to be played but not copied.
Unlike the web, here you actually paid for a copy. You have a true contract of sale and "own" a physical good. I believe that legal backing of DRM via anti-circumvention provisions violates your fundamental right to property. That does not mean you can pirate such CD's. I think it does mean that you can remove the protection, so long as after doing so you don't commit acts which are infringing standing alone. In particular, if my CD won't play in my CD player, I have no ethical problem ripping it to mp3 and playing it some other way, regardless of any technical protection measures and statutes that back those TPMs up.
I do understand however, that the government views it differently. My choices in such a situation are to try to overthrow the government, to move to another country, to submit completely to small tyrannies, or to disobey covertrly or overtly.
> If I offer for sale an album without copy protection because I would
> like it to be heard by everyone, including those whose CD players won't
> play copy-protected CD's, have I granted all buyers a license to copy,
> since technology to prevent copying (by at least some buyers) was
> available but I didn't use it?
No, certainly not. You are selling a single copy. The only thing you give up are first sale rights and fair use. There certainly is no burden on you to implement protection measures to retain your copyrights.
> I'm afraid I don't know enough about CD players to know whether there's
> any "communication" between the CD and the player, such as could
> arguably constitute a license, but I'm willing to learn if anyone would
> care to discuss this.
Well, I don't know for sure, but I think the CD is basically just reading bits off, so there isn't really any "negotiation". I don't really think the CD, once sold to someone else, can negotiate on your behalf anymore anyway. (Which is an argument I use against shrinkwrap EULA's).
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:50 GMT