I bought a CD, not a licensing agreement | Hacker News Reader

I bought a CD, not a licensing agreement

gcn1.posterous.com

132 pointsonreact-com58 comments

Exactly right. You don't have a license to the CD.

If a work has been given a copyright, the government has granted the holder a temporary, limited monopoly on reproduction of that work. When you buy a CD, you will almost always see, stamped somewhere on it, (c) Copyright $year, $holder, All Rights Reserved. This is not strictly necessary, but they just want to make it clear: No Rights Granted.

The copyright holder has all the rights to the work, and you are granted none beyond "fair use" rights (quoting small portions for critique, backup, resale, etc) defined in copyright law. You specifically don't have a license.

Exactly. Similarly, when you buy a book, you can't photocopy it repeatedly and sell the copies. You bought one physical copy, and the copyright prevents you from duplicating it.

the copyright prevents you from duplicating it

No, it gives the copyright holder the default right (except when specifically waived) to enjoin you from freely making copies via legal action.

It also causes a number of relatively-narrow federal criminal statutes to automatically apply to persons that the feds find to be infringing on the owner's copyright.

> (except when specifically waived)

Realize that it's pretty hard to put something into the public domain... which is why we have all sorts of licenses like Creative Commons to try and work around the holes in the law.

And those licenses, like all elective copyright licenses are specific (and usually conditional) waivers to some of the rights afforded automatically by post-Berne copyright law.

Even the most draconian shrinkwrap EULAs will specifically grant the licensee the right to install (copy!) the software onto a filesystem of their own, and allow for an operating system to read (copy!) the work into memory and page (copy!) it back to disk in normal operation.

Doesn't the Betamax case specifically say that it's fair use to duplicate things for personal use? I can photocopy the book to keep a backup, I can scan it and put it on my computer, I can put my CDs on my iPod, regardless of what the copyright holder thinks.

But you cant distribute those copies to others.

It doesn't "specifically" say that. If you read the Betamax case, it's clear that the court was looking at the intrinsic qualities of home video taping devices. Time shifting, for example, isn't really an issue with back ups, recorded music, or books. That's not to say that the Betamax case isn't very persuasive when it comes to fair use with other media, but it's not explicit that the holding in that case would apply to other media.

Lets not forget Fair Use:

TITLE 17 > CHAPTER 1 § 107. Limitations on exclusive rights: Fair use

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.

Fair use would protect your ability to use the software, and to make backup archival copies of the physical CD for use in case the original breaks.

It would not extend to making copies of the software or CD for your friends or coworkers to use.

>>>Fair use would protect your ability to use the software, and to make backup archival copies of the physical CD for use in case the original breaks.

Is that true? It was my impression that (at least in the US) those are not explicit fair uses. Is there a case on point?

> The copyright holder has all the rights to the work, and you are granted none beyond "fair use" rights (quoting small portions for critique, backup, resale, etc) defined in copyright law.

So how do you work the DMCA in there? It's legal for me to make a backup of a copyrighted work... but if the copyrighted work is 'protected' then I can still make a backup copy... but no one is allowed to sell or distribute the means to make that copy?

Couldn't the argument be made that the copyright holder is actively trying to take away my fair use rights by using DRM?

Fair use rights lie in statutory and case law, not constitutional law. The DMCA is statutory law.

What is the definition of statutory law that you're using?

Fair use provisions are part of the US Code. The DMCA is also part of the US Code.

They are part of the Code, but courts test what the code means all the time. Example: before the Sony Betamax case, there were the statutory provisions of fair use, but it was unclear how it applied to home taping.

Oh, well, the DMCA is bullshit, that's how.

My understanding is that the "backup" of a DVD isn't really illegal. However, reverse engineering, or circumventing a DVD's copy protection scheme is. You're guilty of hacking, not copyright violation. IANAL.

The 'technicality' is that you're allowed to create a way to circumvent the DVD's copy protection scheme, but you're not allowed to sell or distribute it. Therefore, anyone that wants to make a backup of their DVDs has to crack the DVD copy protection scheme on their own. They can't (legally) get a product to do it for them.

When will recording companies realize the issues with the current system?

I really wish iTunes operated like Steam. You buy a song, and can download it as often as you need to. You dont have to worry about deleting/losing your MP3, because you could just go download it again, no charge.

I commend bands like NIN and Radiohead, where they offered an album for digital consumption at no cost. In reality, bands make most of their money from touring anyway

Correction, bands which have become popular through radio and CD sales make most of their money from touring. Most bands with no record sales have no ticket sales either. And most bands with no record label have no record sales. You're creating a distinction where none exists. The entirety of an artist's effort goes toward their income. Whether it's direct or indirect is really not the point.

Google makes most of their money from ad sales, but if everyone blocked all ads and only used Google through web scrapers, no one would buy ads from Google. If you rob traffic from Google's page, you are robbing from Google, even if they make no money from their page.

In the end, only the popular bands make money anyway. Even if you sign with a major label, if nobody likes your music, they aren't buying your album, or your concert tickets.

My point was that a band will make more money on tour because the record label takes a huge chunk of the albums sale.

The real money is in producing music. :-P

Sure, but how many bands that aren't on (and have never been on) a record label have over a million album sales? Are there any? The simple fact is that without record labels, most artists would be even more broke than they already are. It is possible that another model for music marketing and distribution could be created, but right now, it doesn't exist. Artists need record labels; record labels need record sales; therefore, artists need record sales.

There are two kinds of rights when it comes to paying royalties for music: performing rights and mechanical rights. Performing rights are most commonly owned by the composer or the publisher and mechanical rights are usually owned by the publisher and the record label. Note that the performer doesn't own any of these rights. Unfortunately, performers (or "bands") are not entitled for compensation based on record sales, unless the deal they signed with their publisher or record label specifically states that. And the deal they can struck with these entities largely depends on their posotion in the bargain; more popular bands can obviously get better conditions more easily. One way to become more popular is going on tour, of course.

The music complex (labels, bands, roadies..) is likely to make more money in a world where you can sell a cd (the old world) then in a world where you cannot. How the loss is distributed within this complex is not obvious.

My point is that the industry is not dumber then the comment which appears on any music industry thread on the internet. Copyright is important to them. They have a chance of keeping it from disappearing, or at least slowing down the process.

I disagree, there is a minimum that you are almost guaranteed on a big label as long as your sound is easily accessible (otherwise known as shit). If you get the vast radio networks the labels bought up playing your music people will start to "like" it, through familiarity, it must be subliminal or something.

The above must be true because my local radio station 2CR (which we reckon is short for 2 crap records) is still being asked to play "I think i'd better leave right now" by Will Young which is the most hideous song EVER created.

"Most bands with no record sales have no ticket sales either. And most bands with no record label have no record sales."

Go netaudio instead. You get publicity be giving away music and then you get gigs due to people knowing you and listening to your music.

> And most bands with no record label have no record sales.

What they need to do is market themselves effectively. I've known one band that signed a record deal... but they were already popular in their particular niche. So their record deal has an expiration date on the length of time that the record label owns the copyright (10 years in this case, IIRC). Had they not already had a following, the label would have screwed them into signing over their copyright indefinitely.

You need to work on your following on a small scale, and then let word of mouth, internet marketing, etc scale up your fan-base. The 'hit it big' idea is largely a fantasy. Most bands that sign a record deal to 'make it big' end up failing and then being locked into a contract with the record label for the next X years.

To say that bands need the record labels is a fallacy. Most of the bands that the record labels sign are failures. Record labels take the 'shotgun' approach to finding the 'next big thing.' They are opportunists that prey on people's hopes and dreams of becoming the next huge band. They sweet-talk them into thinking that it's a slam-dunk as soon as they are signed.

The problem with most musicians -- or at least the 'rock' musicians -- is that a lot of them don't do it for the 'love of the music.' They do it because they want to become a large popular rock band so they can party, binge on drugs/alcohol, and get fans/groupies/etc to have lots of backstage sex with. If someone is following this path, and they get screwed by the record companies, I have little sympathy.

Indeed.

http://www.negativland.com/albini.html

New Napster: $15/month, gigantic library with every well known artist. Download it and play on your MP3 player. Stream it from anywhere with no software to install.

This is a solved problem--it's legal and fairly priced.

The only problem is that Apple is using its huge market share in portable players to keep subscription music from getting a foothold. Spotify's iphone app is approved, so hopefully they can start to crack this market open.

> The only problem is that Apple is using its huge market share in portable players to keep subscription music from getting a foothold.

Or, it could also be that people just don't want to pay for subscription music. I know that I don't.

I'm not proposing that it should be forced on you. I would like to have the choice.

I recently discussed Napster with a group that had never heard about it and they were very excited until I told them that it wasn't compatible with iPods.

Of course. It's just that it's very possible that it's not a Big Bad Apple Monopoly.

I certainly won't deny that iPod compatibility (or lack thereof, rather) is a pretty big minus in the subscription model.

> The only problem is that Apple is using its huge market share in portable players to keep subscription music from getting a foothold. Spotify's iphone app is approved, so hopefully they can start to crack this market open.

It also doesn't help that people don't want to lose access to their music if they all of the sudden can't come up with the $15/month... I would say that people are probably more willing to give up cable/satellite tv for a month than deal with losing their music.

Problems with the subscription model:

  * Need a portable music player that supports the particular DRM
    scheme vs just getting an MP3 that plays on almost any 
    portable music player (save for Sony's players that only play 
    their ATRAC crap).
  * Don't make a monthly payment and you lose all access to your 
    collection/playlists/etc.
  * The service could implode. Then you've sunk $15/month * x 
    months and you have nothing to show for it.
  * The DRM scheme could become unsupported. Microsoft has 
    proven this with their abandonment of PlaysForSure.

The nice thing about subscription service is that you're never in danger of losing your music. You're not locked into a specific codec, audio quality, or player.

If the service or technology went down, you're not out anything--you just move to a new subscription service.

I'm not claiming that it's perfect for everyone, it's a personal choice: you can get all of the music now but have to keep paying, or you can slowly build up a library but start out with not much.

The other advantage of subscription is that you can easily try out new music. It's incredibly easy to discover new music when it's all in one catalog and there's no marginal cost of listening to entire CDs.

The only problem is that switching from one model to the other is going to be painful--but this isn't an advantage either way.

> You're not locked into a specific codec, audio quality, or player.

You're not locked into a specific player with mp3 audio either, and IIRC there aren't any subscription services that give you mp3 audio... so you are limited in your choices of music player in the first place since subscription services all use some form of DRM.

If you buy CD audio, or are able to find a service that sells FLAC/APE/ALAC audio, then you're also not 'locked in' to a particular codec or audio quality (because at that level you can easily transcode downwards in quality and/or to lossy codecs).

> If the service or technology went down, you're not out anything--you just move to a new subscription service.

This is assuming that the subscription services use compatible DRM schemes, or that your player supports both DRM schemes... Otherwise you're stuck needing to buy a new player. And that's not to mention any time and effort that you put into building custom playlists that won't transfer to the new subscription service.

It's sort of like all the personal information that people put into Facebook. They are investing a lot of time into one vendor of social networking services. The more time that they spend on Facebook, the more heavily invested they are in staying with that particular vendor, because it becomes more and more painful to rebuild all of your information/connections/etc on the new service.

You are living in the past on several of these issues. For one, Sony's players have supported mp3 for at least the past 3 years and possibly longer. Second, options like Microsoft's Zune Pass let you do both: paying $15/month gets you access to the entire catalog of music, but you get to keep 10 of the tracks (in a no DRM, quality mp3 format for most songs) every month -- making it equivalent to only paying around $6/month for the subscription.

> For one, Sony's players have supported mp3 for at least the past 3 years and possibly longer.

Last time I checked they said that players 'supported mp3', but what that really meant is that you had to use their software to load music onto the player, and their software transcoded from mp3 -> ATRAC. They just don't announce it outright that internally the player is using ATRAC.

> Second, options like Microsoft's Zune Pass let you do both: paying $15/month gets you access to the entire catalog of music, but you get to keep 10 of the tracks (in a no DRM, quality mp3 format for most songs) every month -- making it equivalent to only paying around $6/month for the subscription.

In that case, it's not really a 'subscription service' but a hybrid 'subscription/pay-to-own service.' More like a 'rent-to-own' service. {edit} Not to mention that Zune is Windows-only. {/edit}

My biggest beef with Steam is that there is no right of resale.

It's awesome aside from that though.

Steam and I have a tacit agreement.

In exchange for my loss of right of first sale, Steam continues with the aggressive pricing.

Not being able to resell games matters to me less when I can buy games cheaper in the first place.

This is especially true of archival titles, which (when I could find them) would often be a forgotten beat-up box on a shelf, with an ancient $39.99 price tag still on it.

Steam also does a good job with the price drops on recent games. If the game isn't something I necessarily have to have at $50 on release day, I usually don't have to wait too long for a price drop.

Obviously, price drops depend on the publisher, but Steam is a storefront geared toward price mobility, and Valve has created a model with their aggressive sales for other publishers to follow.

I hate that too, but the DRM has a very powerful positive side-effect: getting caught cheating online means you lose your license! The only time you see exploits in TF2 is during the occasional free weekend.

eMusic is a download service that sells DRM-free MP3s (though it's a subscription service), and they do offer the ability to re-download tracks.

(One qualification: It's limited in how many times you can re-download so that you don't use it as your personal file-transfer service to download the same album 20 times on every computer you or anyone you know owns, but assuming you don't abuse the ability to redownload it'll be there if you ever lose your files.)

eMusic are spamming scum. More details here:

http://news.ycombinator.com/item?id=566825

http://www.google.co.uk/search?q=emusic+spam

I urge you most strongly not to use them.

I've been very happy with eMusic's service, but after reading this I checked my spam folder, and sure enough, a large amount of spam was sent to the unique email address I created for eMusic.

It seems their music distribution is on the up-and-up. Such underhanded tactics to add to the bottom line make me wonder whether their legitimate business model really is sustainable.

What I hope they don't imitate from Steam is the utterly obnoxious "The Terms of Use has been updated as of 2008-05-04. Continued use of your games implies your agreement to the new terms."

The copyright law[1] applies to everything that is created which has a original form and is in itself original (ergo not a copy).

Hence the music you buy is protected by this law.

Hence you can not ask the author to get a spare cd. Since he's not obliged to give you one. Also everything you want to do with the music is determined by the law.

[1] i am talking about the law that protects original creations, not the one where you have to pay for a patent.

Right. You don't need a license to protect your legal rights. You haven't asked all your friends to sign licenses promising not to rob you because theft is illegal. Record companies shouldn't ask people to sign agreements that they won't break the law. The law is already written. Why do you need a license on top of it? Licenses are for covering situations not covered by law or, more notably, for giving away permissions which would otherwise be covered by law. If you were going to allow one of your friends unrestricted access to your car, it would be a really good idea to give him a signed license agreement so he didn't get arrested for stealing it. If you don't want to allow your friends unrestricted access to your car, you don't have to do anything.

"Hence you can not ask the author to get a spare cd."

That's not really the question. The question is, now that I have this scratched CD, why is it wrong for me to hop on a torrent and replace my scratched bits?

Obligation to produce a new CD would indeed require an actual contract, but "new CD" is not the same as "replacing my music".

The real problem this exposes is that the law has a concept of "source of the bits", such that "bits from your CD player" are different from "bits from a torrent you downloaded", even if they are otherwise identical. Standard reference to the "color of bits" essay: http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php ... and I'll basically defer the rest of this comment to that essay since I doubt I can improve on it here.

Copyright law doesn't care whether something is an original -- derivative works are also protected. Copyright protects creative works, however original, where creativity is defined by some semblance of originality (in content, arrangement, form, etc).

You can totally ask an author for a spare CD; however, he's not obliged to give you one.

Also, you are mixing up contract law (licenses) with copyright law ("default" law which applies in the absence of a license or certain licensing terms).

A very interesting and well-done course on many of the vagaries of US copyright law from MIT OCW (video lectures) that might be relevant to the discussion:

http://ocw.mit.edu/OcwWeb/Electrical-Engineering-and-Compute...

Especially lectures three and four:

3) Copyright applied to Music, Computers; Napster®; Peer-to-Peer File Sharing

4) Software Licensing; DVDs and Encryption

I empathize with the general frustration at the media industries' desire to have it both ways.

However, there does seem (to me) to be a logical and reasonable limit to our rights to the music we buy. While I think it's perfectly reasonable to do whatever non-commercial activity I want with a CD I've purchased, I'm not entirely convinced it's useful or good to extend that to commercial activity. (Say: duplicating the CD you bought and selling it for profit)

And if you're anywhere on the spectrum other than the 'end copyright' extreme, it seems that you partially agree that there is some reasonable basis to the argument that a CD isn't just a CD, that there is some implied contract that limits use.

What I got out from the article is that an implied contract it's not a valid contract. I think everyone agrees that there is such a implied one.

A CD isn't just a CD, that there is some implied contract that limits use.

Well, no. You should be able to do anything you want with that CD. The music on it, however, is covered by copyright, which should be protected on some level.

As far as actual copyright law, I agree that duplicating a CD and selling it is bad. I feel that duplicating a CD and giving it to your friend to hear is good (and reasonable). Some place in the middle lies taking parts of the music and creating new music out of it, which is where I find rather murky. At what point does it become too much of a sample, or at what point should royalties be owed?

Yes, there are limits to what we can do with any copyrighted material we purchase, but the argument is that those limits should be enshrined in copyright law and nowhere else. There does not need to be any licensing beyond that at all nor as the argument goes any limits beyond it.

But you explicitly have a commercial activity you can do with that CD: you can resell it. You can resell it so much that there's even a special term for it: "first sale doctrine". No one has a problem with me re-selling my car or a treadmill or even a television. You should (and do) have that same right with a CD.

That's why the software people are so insistent that they're selling you a "license" and not the disc itself. My understanding is that the prevailing caselaw says that the industry's argument is bullshit in the most recent case to be decided, Autodesk v. Vernor: http://arstechnica.com/tech-policy/news/2008/05/court-smacks...

(Again, there might be more recent caselaw than this, but I personally am not aware of anything more recent than Autodesk. Please note that Autodesk technically is only binding in the Western District of Washington state, including Seattle, but other federal courts may look to Autodesk for cases that involve similar fact patterns that may appear before their courts.)

I don't agree that there are implied contract limits on your use of a CD. I also don't agree that there are normally any express contract limits on your use of a CD.

The OP references a letter from a poster who got his terms mixed up. He equates copyright law with a license/contract. That's not true. There ARE copyright laws which attach to the creative work and that would limit the use, but it's not a license.

In the end, the OP's premise is flawed regarding the music on a CD having a license attached to it.

RE: why software and mp3s are under license (in addition to copyright protection).

All creative works fixed in a tangible medium of expression get copyright protection. But without a license, they are useless. We are able to use software and mp3s only after we COPY them to our hard drives. The act of copying is reserved for the copyright holder. Without a licensing agreement, nobody would be legally allowed to transfer the copyrighted data we acquire.

anyone here actually buy CDs? other than signed (and still sealed) CDs or really interesting ones like (moldover's), I haven't purchased a new CD in years...

maybe I should considering the MP3s I do buy require me to agree to Amazon's licensing agreement.

eloquent argument nonetheless

Don't buy the CD, steal it. It's more affordable than stealing music online: http://news.ycombinator.com/item?id=802145

;-)

Reply on news.ycombinator.com