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ever since people started getting zunes, there has been some discussions about ipod owners wanting their content from itunes to be played on their new zune devices.  on forums you see posts about tools and techniques to get the music into a format that any device can play.  one technique is to burn to a cd and then rip back in mp3 form (losing tags as well as decreasing quality of original content).  another is using a tool to strip the restrictions of the file and change them to a different format.

this has caused quite a big debate.  this debate is not new, of course, and started when content first starting having digital rights put on it.  in 1998, clinton signed into act the , which attempts to put some clarification on this issue.  i'll add the standard disclaimer now that i am not a lawyer, attorney, whatever legal term you prefer to use.  i'm a united states citizen doing my best to live in a society of ever changing technology with ever changing laws trying to catch up with them.  after all, the same government helping to enact these rules has told us that the internet is just a bunch of tubes anyway (want to know who voted).

apple was probably the first big visible player in the game and instituted the DRM technology that is currently in use today.  it's basically the drm policies that allow only "authorized" computers and devices to play the music, etc.  okay, fine, drm-me all you want.  however, the issue of "fair use" has come up.  now legal people will tell you (and the interpretation of the u.s. copyright office) that fair use is only a defense to the dmca violation (and thus by claiming the defense you've violated the rule). 

prior to 1998 (and one could essentially argue prior to the popularity of napster), none of this was really a problem.  we all bought media in some form and did with we wanted with it.  mixing audio has been around for years and even evangelized in movies.  VCRs also introduced an interesting era with regard to television content.  we simply are just now entering another one of those eras.  media (namely music here, but give a few years or maybe months and video will face the same persistent challenges whereas now it just a few) is now being demanded in digital form.  consumers have proved they are willing to pay for it and at a decent cost as well.  heck you could probably even raise the price a bit and get CD-quality music and people would prefer to get it digitally.  why?  because our entertainment world is changing.  cars don't come with tape decks anymore.  they come with cd players that have mp3 capabilities.  heck, some even come with ipod integrations, auxiliary jacks, etc.  industry is adapting the the desires of consumers.

so where am i going with this?  simple, i don't think it would be a fair stretch to think that 10 years ago when you bought that duran-duran cd you would have even second guessed whether it was now yours.  sure, common sense and ethical morals tell us that you wouldn't have attempted to copy it and sell it, or make copies for your friends.  but times are changing.  now you buy a song from <fill-in-the-blank>tunes/marketplace/*ster/etc and you have restrictions.  granted these restrictions are placed to act as deterrents from doing the very likes of simply sending it to your friends, etc.  okay, i get that -- and agree with it.  i totally respect the copyright holder wanting to retain the rights to their works entirety and ensure they are getting paid for it, unlike some.  but if i acquire my desired entertainment digitally and the world (and some of the same companies providing the content) are providing me numerous ways of playing it, wouldn't it be fair to assume you would want to play it wherever.  i don't want to steal it, copy it for others, or sell it.  i simply want to play it on my computer, through my receiver, and on my portable device -- all the brands of my choice.  i'm still preserving the integrity of the rights-holder...i simply want options on what to do with it.  yes, i'm claiming "fair use" -- and to me my use in those scenarios seems COMPLETELY legit...you won't convince me otherwise.

i read the copyright office's interpretation of the DMCA and get confused myself:

This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying. By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited.

to me, the essence of the dmca is to target the violators creating the technology to crack the protection schemes.  so if that is the case are the users of those schemes in violation if it doesn't explicitly call it out?  gray area here.  yes it is gray.  the law is great for one reason -- it should be black and white.  i know that isn't the case always and it seems we are moving more toward interpreted law everyday.  even that debate is a gray area.  but for sake of argument let us just assume it is.  the interpretation above could also be interpreted several ways -- what is "copying" (it depends on what your definition of 'is' is :-)).  is copying making the content available on the playback device of my choosing?  and is it restrictive to a method?  so is burning to cd and then ripping back just as illegal as removing the DRM?  the content is now unprotected -- granted the quality is gone, but the essence of the protection also is -- so should cd burning companies be in violation of this law?

granted there are a lot of tools doing things very "hacky" and prove they are not trying to even favor the copyright holder.  however there are some that are doing it under the bounds of some type of fair use of the content you paid for.  jhmyn, qtunes, etc.  these are applications that actually use the apple servers to get the user keys to decode the file.  and they only allow the original purchaser to do such activity.  and they keep the metadata of the original purchase so it is truly (in my opinion) making best effort to preserve the protection of the copyright, but allowing the purchaser rights to determine the method of consuming that content.

it is frustrating at best.  at what point did commerce (especially in media content) change form purchasing content to purchasing rights?  do you know walk in to a store and buy a cd and think that you are only purchasing the rights to play it?  in my eyes, yes and no.  i've bought that content.  i should be able to consume it in my medium of choice -- so long as i do only that.  in the world of open source software, one of the common phrases against commercial software vendors like microsoft is "vendor lock-in."  well in the world of digital entertainment, the current one causing that pain is apple.  and yes, msn music, urge, and zune marketplace with their formats are to follow as well.  the "plays for sure" initiative attempted to change that, but seemed not to have taken flight.  why?  who knows -- zune isn't "plays for sure" compatible...i guess the consumer market showed it wanted a consolidated environment for media.  but at a price of flexibility it appears.

i just think it is somewhat humorous and aggravating at the same time when we are doing all these things, but yet if you accept the penalty of quality (and for most it is an unnoticeable quality change that couldn't be altered with a simple volume hike), you can very easily, very readily still get to the end game -- and the same tools that protect the content are enabling that easy change.

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