Friday, June 26, 2009

Dumb application of copyright law

Once again we have various content organizations misapplying copyright law. First, the usual caveat that I am not a lawyer, I'm approaching this from a layman's point of view regarding what the purpose of the law is, and what constitutes reasonable application thereof. Now we have ASCAP claiming that ringtones should be subject to a royalty each time they are played, claiming that it amounts to a "public performance."

An analysis based on the law is here, which reaches the conclusion that this is an untenable position to take, but I'll provide my own reductionist reasoning to prove that ASCAP is being ridiculous.

In fact, I have created my own ringtones out of music that I have legally purchased. The copyright holders for that music would probably believe that I need a separate license to use the music as a ringtone, but I believe that this is an unsupportable position.

I'll do this step by step. Please stop me (especially if there are any lawyers reading this!) at the point that I cross a legal or ethical line.
  1. I purchase a song from Amazon. Technically, I have purchased a license to play a song and the MP3 file representing that song, but I do not have rights to "public performance," I do not have rights to resell it or sublicense it, etc. Since Amazon has not been sued for the MP3 business, I will assume that this is entirely kosher.
  2. I put the music on my iPhone. It's an MP3 player, it seems hare to argue that putting MP3 files on an MP3 player is problematic.
  3. I put my iPhone into a docking station with speakers to listen to it. This is where ASCAP is making the dubious claim that a "public performance" is taking place because others could walk by and hear the music. But that claim is ridiculous because people have been able to listen to music on boom boxes in public for decades and nobody has ever claimed that this crosses some "public performance" line unless the music is clearly there with a purpose of entertaining other people. I.e., if I own a bar, then I may need to pay royalties for playing music for my customers. But a private party is OK because it's private, and if I go to the park and listen to the music while I lie in the sun but other people passing by can hear it that's also OK because I'm not doing it for their benefit - I'm still enjoying music that I have every right to listen to.
  4. Now I decide I like this song so much I'm going to play it over and over again. No violation here - that's something I'm allowed to do. I could do it with records, with tapes, with CDs, an MP3 is just a different medium.
  5. In fact, it's actually just the first 30 seconds of the song that I really like, so every time the song gets 30 seconds in, I rewind it and start over. Again, something I could do with all previous media, and nobody ever claimed that I am somehow legally or ethically required to listen to the full song.
  6. I get so tired of selecting the song, playing it for 30 seconds, and rewinding it to play it again that I program my iPhone to play that song whenever I press a button, wait 30 seconds, and then stop it. I haven't changed anything here but the means of activation, which clearly is not covered by copyright law. I.e., copyright law covers the rights to the music, not the user interface for the player of that music.
  7. I decide that a physical button is too much work and instead decide to hook up the button to an electronic signal that is triggered whenever somebody calls me. Again, I have simply changed the activation method.
Presto, in seven perfectly acceptable steps I have a ringtone. Of course, the copyright holders and/or Apple would far prefer that I purchase a ringtone from them, and that's fine. (In fact, on my iPhone, I have to go through a few contortions to do the above process - they've deliberately made it obscure how to do this precisely to support purchase of ringtones rather than do-it-your-self.) But they cross the line when they demand that I do so or claim that somehow I am unethical or breaking a law when I do so. As long as I have purchased the MP3 and did not explicitly agree to additional contract terms (i.e., beyond simple copyright), I am entirely within my rights to do so (and even then, if I violate the contract then I have not broken copyright law but rather have broken a contract - a civil matter). And if the phone rings where other people can hear it, oh well. It's simply not a public performance anymore than playing a legally purchased CD on my boom box where others can hear it is.

This seems to be a specific application of a more troubling broader trend by content holders. The purpose of copyright is to protect content owners from the stealing of their intellectual property; this is a perfectly reasonable goal. When you buy an album or a movie you are really not buying the content per-se, but rather buying a license to consume it. (This is why you cannot legally make copies and redistribute it; that is beyond your licensed right.) But over the past ten years or so, we are seeing more and more attempts to control the exercise of that right, not just the granting thereof. The DMCA, for example, makes it illegal to copy a DVD to your computer's hard drive (because doing so requires bypassing the anti-piracy encryption on the DVD), even though the specific medium (DVD or hard drive) is immaterial to one's right to watch a movie. The ASCAP claims are another example of not only controlling whether you can consume their content (which is reasonable) but to also control the where/when/how of that consumption, which is a disturbing trend and which should not be enshrined in law.

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