Berkeley CSUA MOTD:Entry 42568
Berkeley CSUA MOTD
 
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2006/3/31-4/3 [Computer/SW/Apps/Media, Computer/SW/Security] UID:42568 Activity:high
3/31    Anyone want to engage in wild speculation on 30th anniversary Apple
        announcements?
        \ OMFG TEH 1337 LIMITED EDITION 30th ANNIVERSARY IPOD!  -John
        \_ More very expensive consumer electronics toys that lock you in.
           \_ The iPod locks you in how?  Well, ITMS does but frankly, ITMS
              is lame.  (Not the implementation, the whole DRM + too damn
              much a song)
              \_ I have plans to write an application that adds some of your
                 fair use rights back in to iTunes, but does not circumvent
                 the terms of the DMCA. -dans
                 \_ That's cute dan.
                    \_ I'm not sure how to interpret this. -dans
                 \_ Ignoring the fact that you will likely be in violation
                    of the itms terms of use, how exactly do you propose to
                    go about doing this in light of the 2d cir's ruling in
                    Corely (273 F.3d 429 (2d Cir 2001)) that "fair use"
                    doesn't mean that you have a right to use in your pre-
                    fered format?
                    And if you do decide to take up the challenge, you may
                    wish to speak to Robin Gross who handled the Corley
                    matter.
           \_ I don't know how you can make such wild claims.
              \_ Reckless posting like this will destabilize the motd for
                 generations!
                 \_ I bet BUD DAY never posts recklessly!
        \_ Probably just an accident, but I find it odd that this thread from
           the middle of 3/31 was nuked while threads with fewer comments or
           responses from 3/30 and 3/29 were not.  In response to the person
           who mentioned terms of use as well as the Corley case: Actually,
           the app I plan to release is something that facilitates legal
           sharing, not format shifting.  Also, isn't there more recent case
           law that does support format and time-shifting as fair use?
           Basically, it allows you to authorize a friend's computer for your
           iTunes purchases for a limited amount of time, and then
           automatically deauthorize.  This in no way allows you to circumvent
           having more than the max (5?) machines authorized at any one time.
           I still need to look at the iTunes EULA to see if *using* this app
           violates the terms of service.  Even if it does, it's a contract
           violation, not an illegal act.  Regardless, it's definitely legal
           for me to write and distribute it since it is intended to
           facilitate legitimate, non-infringinging fair use of copyrighted
           works.  Also, I'm not 100% certain that my app is feasible, I still
           need to look into some technical odds and ends to verify this.
           Fortunately, we have many very good electronic rights lawyers in
           and around this area, Robin Gross among them, as well as Berkeley's
           own Pamela Samuelson, Lawrence Lessig, and Fred von Lohmann to name
           a few. -dans
           \_ AFAIK, most of there haven't been any recent cases of any
              significance wrt time/space shifting.
              You are probably thinking of the 9th Cir. ruling in RIAA v.
              Diamond, 180 F. 3d 1072 (9th Cir 1999). Diamond dealt w/
              what constitutes a digital audio recorder; not w/ DMCA
              violations. The DMCA wasn't at issue b/c (1) it hadn't been
              passed when the case was brought, (2) may not have taken
              effect until 2000 (Sec 1201(a)(1) 2d sentence) and (3) CDs
              don't have DRM/TPM so they are not covered under the DMCA.
              Corley was 2 yrs later (2001) and dealt w/ the DMCA directly.
              My understanding is that the Corley view that fair use doesn't
              mean you have the right to make a digital reproduction pretty
              much dominates.
              It is of some note that the USSC avoided the whole time/shape
              shifting Sony argument in Grokster. I'd personally be VERY
              hesitant to get involved in any US effort in this area (but
              then again I don't want to have to cool my heels in the
              clink).
              Re production of the app, I'm not sure that your interpretation
              of Sec. 1201 is correct. You might be making a "device" whose
              primary purpose is to circumvent Apple's access control mechan-
              ism under Sec 1201(a)(2) (if one were to adopt the view of the
              unholy hordes of darkness). You might also be making a device
              whoe primary prupose is to circument a copy control mechanism
              under Sec 1201(b)(2)(A) (perhaps the RIAA could use some 100W
              bulbs in their offices so that they would not be forced to take
              so dim a view of the law).
              BTW, I took a class from Robin last summer and could probably
              put you in touch w/ her if needed "more/better" info re the
              DMCA, &c.
              \_ Oh, cool.  Thanks.  I'm fairly confident that writing and
                 releasing the app is not going to get me sued.  Of course,
                 before it comes to that, I'll almost certainly get a cease
                 and desist letter.  I'll cross that bridge when I come to it.
                 I'm good friends with a former EFF staff technologist, and
                 reasonably acquainted with (one of?) the current one(s) so I
                 should have some inroads.  As I understand it the law is
                 ultimately about arguments.  So if this actually came to a
                 challenge, it would be up to a judge to determine whether or
                 not this consitutes a device who's primary purpose is
                 circumventing an access control or if this is a device who's
                 primary purpose was to facilitate contributory copyright
                 infringement.  Is that a reasonable assessment?  Thank you
                 anonymous motd legal advisor, I appreciate the insights.
                 -dans
                 \_ I love it when someone is more pedantic and long winded
                    on the motd.  it makes me so hot.
                    \_ wtf?  I asked a question.  I'm not a lawyer or a law
                       student.  Whoever posted the post I was responding to
                       clearly knows his/her shit.  If my understanding of
                       theory or process is flawed, I'd like to know it. -dans
                         \_ Wow, so you post an honest question addressing
                            something your ignorant about, someone gives a
                            something you're ignorant about, someone gives a
                            snarky reply...and you get all pissy about it?  I
                            remember you having a similar conversation not so
                            long ago, only with positions reversed....
                            long ago, only with positions reversed and you
                            getting very righteous about being snarky....
                            \_ My MOTD with Dans:
                               1. Sweeping comment Made by Dans.
                               2. Disagreement expressed.
                               3. Dans goes nuts and says "where are the facts"
                                  (not that he has really presented any)
                                  May remind you that he is Jewish.
                               4. You or somebody else tries to give a short
                                  reply ... Dans broadens/changes the topic ...
                                  and spends a lot of time ignorantly but
                                  occasionally entertainingly (isn't that what
                                  make it all worth it?) foaming.
                               5. You or somebody else takes the time to
                                  post a long informed reply in an area of
                                  expertise or experience.
                               6. Dans now says "I'm glad we had a civilized
                                  discussion," not realizing he has been taken
                                  to skool.
                                      \_ sic  --dans #1 Fan
                                         \- that is olde english, used by
                                            people too cool for school
                                  \_ Please support your statement with facts!!
                                        --dans #1 Fan
                            \_ Yup.  Get over it.  Hey look, I got my answer
                               below, which is all I care about! -dans
                               \_ Typical Jew.
                                  \_ This is such an obvious troll, but say
                                     that to my face some time and see what
                                     happens. -dans
                               \_ Well, at least you're honest about your
                                  hypocrisy....
                                  \_ Your posts lack either insight or humor?
                                     Do you have a point?  If your goal is to
                                     upset me, you failed. -dans
                       \_ You are mostly in the ballpark. There is more to
                          the law than simply arguments, and judges are
                          usually limited in their application of a statute
                          to a higher ct's interpretation of that statute.
                          I am not 100% sure, but iirc the word "primarily"
                          has pretty much been read out of the Sec 1201(a)
                          (2)(A). Note also that Sec 1201(a)(1) doesn't even
                          require "primarily."
                          There are two theories of vicarious liability you
                          probably need to know about:
                          1. Contributory Infringment - You knew that users
                             were infringing and either caused or contributed
                             to the infringment.
                          2. Inducement - You knew that users were infringing,
                             you materially contributed to that infringement
                             and you encouraged them to infringe for personal
                             gain.
                          If you gave the software away, you probably could
                          avoid the whole Inducement issue (the Grokster
                          theory of liability), but this is still an open
                          issue. hic sunt dracones.
                          After reading the itms music license, contributory
                          infringement seems like it could be a problem for
                          you. If you look at Section 9(b) Use of Products,
                          one may not actually own the bits that constitute
                          a song purchased from itms:
                          http://www.apple.com/support/itunes/legal/terms.html
                          [ This is one reason I won't buy from itms, even
                            though I drink a considerable amt of iKoolAid ]
                          \_ Cool, thanks! -dans
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www.apple.com/support/itunes/legal/terms.html
iTunes Music Store TERMS OF SERVICE THIS IS A LEGAL AGREEMENT BETWEEN YOU AND APPLE COMPUTER, INC. THIS AGREEMENT - TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, SOFTWARE LICENSES, AND ALL OF APPLE'S RULES AND POLICIES - COLLECTIVELY CONSTITUTE THE "AGREEMENT" BETWEEN YOU AND APPLE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK "AGREE," AND DO NOT USE THE SERVICE. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU: CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE, AND APPLE MAY REFUSE ACCESS TO THE ITUNES MUSIC STORE FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT. Apple is the provider of the iTunes Music Store (the "Service") that permits you to purchase downloads of digital content - such as sound recordings and videos& - under certain terms and conditions as set forth in this Agreement. This Service is available for individuals aged 13 years or older. 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