While I love my Nano, and I enjoy using iTunes, the one thing that cheeses me off are the hoops I have to jump through to play iTunes music I’ve legally purchased on non-Apple products. For example, I recently purchased the entire first season of “The Ricky Gervais Show” podcasts from Audible (cos I’m a latecomer, which is defined in weeks anymore), and I had to waste 6 CDs converting it to .mp3. WTF? That ain’t right.
When I was a kid, I used to place a handheld Panasonic cassette tape recorder (with a condensor mic!) next to a transistor radio to tape songs off of KYNO-AM. Not yet having the the money to go out and buy every single song I liked; these recordings were key to how I connected deeply to pop music, on which I’ve since spent a huge amount of my disposable (and not so disposable) income.
Little did I know, that in the eyes of the RIAA, my 10-year-old self was a thief, and they were itching for a way to keep me from stealing their songs. And now, with the advent of digital radio, they may have found a way.
Back in the good old days of analog media (I can’t believe I actually just typed those words), consumers who purchased an LP or video tape could pretty much do whatever the hell they wanted with the physical product once they paid for it.
Say, for example, that shortly after buying Journey’s Departure LP you realized that you had made a horrible mistake. Half-way through the first listen it was clear that your head would explode if you heard just one more second of Steve Perry’s screeching voice. Not a problem. Thanks to the doctrine of first-sale (an established part of US Copyright law) you had every right to take that Journey album to the nearest used record store and sell it for whatever you could get for it.
The same rule applied to any media that contained copyrighted material. Amazingly, this rule lasted well into the digital age and was applied to CD’s and DVD’s as well (we’ll overlook the major record labels challenge to used CD sales in the late 80’s).
Consumers of copyrighted material have historically had certain legal rights that have been very well defined. Suddenly, however, everything seems to be changing.
eBay has begun cracking down on auctions featuring new iPods loaded with thousands of songs. On the surface these auctions may seem fishy, but until we know otherwise we have to assume that the songs contained on those iPods are not in violation of copyright law (that’s the “innocent until proven guilty” thing you’ve probably heard about).
There are plenty of possible scenarios in which these auctions could be entirely legal. Here are a few:
- All of the music may be under a creative commons license that allows such distribution
- All of the music may be public domain
- All of the music may have been legally purchased through sources such as iTunes or eMusic
Of these three scenarios, it’s the last that scares the music industry the most — although it really should scare consumers the most since they’re the ones who will ultimately lose out when the entertainment industry finally kills the doctrine of first sale.
For some reason, we’re being asked to believe that digital content is is something entirely new and different. We’re being told that the principles of copyright that have applied for hundreds of years no longer apply in the digital realm, even though the content is essentially unchanged — only the method of delivery has changed.
It’s not just the doctrine of first sale that’s being compromised in the digital era. Thanks to Digital Rights Management (DRM) and the Digital Millennium Copyright Act (DMCA) fair use is being curtailed as well.
As a result of the DMCA consumers have lost their right to shift certain types of digital content from one format to another. While it’s still legal to convert your CD’s to mp3 files and load them onto your iPod, you’re breaking the law if you try to do the same with a DVD and a video iPod. It doesn’t matter that you purchased the DVD legally and are just trying to transfer the video to a more convenient format. The DMCA clearly bans any software capable of breaking DVD encryption. The law is blind to the fact that you own the medium and the fact that historically you would have the right to shift content from one medium to another.
It’s only a matter of time before the major media companies follow the lead of software companies and ask consumers to consent to an end user license that is even more restrictive. Once that happens you can forget about fair use and the doctrine of first sale. Both concepts will be effectively dead by that point.