Maybe it’s our imagination, but last we checked, Joel Tenenbaum is not an admin of ThePirateBay nor did he have much involvement in the creation of the mixtape outside of the court documents that listed the songs in the first place.

Still, that doesn’t stop the RIAA member from pulling out all of the stops against Tenenbaum. In court documents, plaintiffs argued, “on or about August 14, 2009, Defendant posted to the “JoelFightsBack” twitter
site—a site intended to publicize Defendant and this case—the following post: “interesting: a
“joel” torrent list of the 30 songs is now on thepirateBay/other torrent sites and is being DL
widely in protest. #JFB.”

The document continues, “The Pirate Bay’s homepage, to which Defendant directed his readers,
prominently featured a photograph of Defendant and an advertisement and link to an allegedly
RIAA approved torrent, “DJ Joel – The $675,000 Mixtape,” containing the 30 songs at issue in
this case”

The document contained a screen shot of the home page of ThePirateBay which, at the time, featured the $675,000 mixtape. The document says, “When a user clicks on the image, they are brought to a Torrent site that allows users to easily, and without authorization or cost, download the 30 sound recordings for which
Defendant was found liable.”

“Additionally, Defendant’s website regarding this case, www.joelfightsback.com, includes literally dozens of other users who have picked up the “tweet” from joelfightsback and have reposted it to their own blogs and twitter feeds, thereby encouraging countless other individuals to illegally download these 30 songs “in protest” [...] In short, despite the verdict and a clear finding of willful copyright infringement by Defendant, he continues to promote, indeed advertise, illegal online file-sharing of Plaintiffs’ copyrighted sound recordings—the very sound recordings for which a jury found him liable for willful copyright infringement”

It should be noted that there were three other arguments to support the plaintiffs conclusion, but using the mixtape someone half way around the world posted on a Swedish website as reason to say that Tenenbaum is contributing to copyright infringement (we aren’t aware of any evidence in the plaintiffs court documents that Tenebaum linked to that website in the first place) is absurd at best. If someone photoshopped a picture of Bill Gates breaking in to a car, does that make Bill Gates liable for car theft if it was posted online? The only thing plaintiffs showed was that Tenebaum mentioned the mixtape. If one were to say, “Interesting that someone in America would take cocaine”, is that somehow endorsing illegal drug use?

So what is the plaintiff asking for?

This court should permanently enjoining defendant from committing, or acting in concert with others in committing, future infringement of plaintiffs’ copyrights

This court should enter the monetary judgement awarded by the jury on July 31, 2009

It’s an extremely bizarre argument to make that suggests that others actions are somehow your fault even though you took no part in the creation or actions that started to, in this case, create the actual mixtape in the first place. It’s a growing theme that the copyright industry wants to double-dip – you are sued for your action and the action of your friend. Then that friend is sued for their action as well as yours. Essentially, it’s like your being sued twice for the same action.

We wonder how such an argument could be taken seriously, but then again, there are reasons why some believe the American court system has been bought and paid for by corporate America.

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Already, one UK minister said that a so-called “three strikes” law is too draconian back in June, but more recently, a UK ISP tried to institute their own three strikes law. That case caused the Open Rights Group to describe the three strikes regime as ““Guilt by accusation, punishment without trial“.

This may really ultimately be the core problem of a so-called three strikes regime – how many civil or criminal cases can see someone punished based on an accusation and without the option of going to court? What a three strikes regime has had a history of is trying to dodge the whole court system and skip right to punishing people based on an accusation essentially.

That’s what makes the latest blog posting on the UK Pirate Party’s website all the more interesting. In it, Andy R. discusses legal aspects of file sharing.

Back in June of 2008, a leaked letter said that the government was setting a goal of reducing file-sharing by 80%. When the Digital Britain report was issued later that month, that target ended up being 70%. By then, many in the file-sharing community were up in arms over the governments plans. Fast forward a year later, the British government wanted more time to reach that goal.

This was brought up as a key point in the UK Pirate Party’s posting. Under the presumption that a fair trial were to be brought up to the accused for each case, Andy R. had this to say:

Justice for those accused of file sharing will naturally require the opportunity for those accused to have an opportunity to see the evidence against them and challenge it in a court of law. To reduce file sharing by 70%, assuming 7 million people sharing 100 files each means dealing with 70% of 700,000,000 files. That’s 490,000,000 fair trials, or if, as has been rumoured there are to be two different offences, one for uploading, another for downloading, nearly 1 billion fair trials.

Her Majesty’s Courts Service say in their annual report that they dealt with 150,000 criminal cases and 2 million civil claims last year. Can they realistically be expected to cope with an additional 1 billion next year, and has their budget of £1,766,222,000 been expanded 500-fold to do so? The answer, quite simply is no.

The inescapable conclusion is that the government are not intending to fund the expensive luxury of justice for those accused of file sharing. We can only afford to have a system without justice, where simply being denounced by a copyright-holder is sufficient for summary punishment to be dealt out, and that summary punishment will be dealt out to 70% of 7 million people.

This is an extremely strong argument using basic math. After all, in the US, ever since Napster was shut down, there has been a rigorous lawsuit campaign against file-sharers by rights holders with, unsurprisingly, an emphasis on deterrent punishments. Andy’s argument is a very good highlight on why the copyright industry simply cannot go after every file-sharer and why there was a strong hope that deterrents would work – which they didn’t. It’s the simple principle many file-sharers have been aware of for years – safety in numbers.

Since the industry cannot scare people back into the music stores, it’s not a surprise that there is the strong push for a three strikes regime these days – to skip the expensive justice system altogether so they don’t litigate themselves into bankruptcy.

The problem of enforcing a three strikes law is that it doesn’t jive with the whole concept of justice in the first place – guilt upon accusation, punishment without trial. In order to enforce such a regime, the industry has the next to impossible task of trying to convince the public that the court system is no longer needed in cases of copyright infringement to justify a three strikes law.

Suddenly, those court rooms with those evil lawyers, corrupt judges and a disgrace of a legal system now becomes the file-sharers safety net. Quite the reversal of thinking in light of the US government siding with the RIAA and urging the judge to ignore arguments that the Jammie Thomas damages of $1.92 million in fines for many file-sharers aware of the political wrangling’s of copyright.

Given that the copyright industry in the UK is pushing – and pushing hard – for a three strikes regime in the UK and that many are realizing that the sought after three strikes regime involves the accused not being able to dispute the accusations in court, it’s not hard to figure out why there is a rise in the Pirate Party’s popularity these days. A political party that many see as impervious to the back room lobbying of the copyright industry to push through draconian copyright laws. As the threats grow for many who might – whether warranted or not – have their culture of the internet cut off, those people discover the real threat of human progress being pulled back by close to 25 years and all the benefits that came with the internet revolution.

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Not that the arguments aren’t self-defeating or are a departure from reality, but those are among a number of arguments being made for a blanket ban on circumvention. The op-ed was posted on the Straight and does a pretty good job at listing off the myths surrounding piracy and TPMs. We felt it was necessary that there would be a response to these arguments.

“Internet piracy of video-game software in Canada has undergone explosive growth,” Parr writes, “and we detected a stunning 300 percent increase in the number of games illegally downloaded via Canadian ISPs between 2007 and 2008 (and this reflects but a fraction of the total illegal downloads in Canada detected by the industry as a whole).”

Either this point is completely untrue and made up, or the industry’s method of gathering information is severely flawed. ISPs have admitted to the CRTC that the bandwidth growth, particularly in the span of 2008 and 2009, fell by 45%. If piracy, even gaming piracy, grew by a “stunning 300 percent”, you would think that bandwidth growth would increase, not decrease. So who would you believe? The ESA who “detects” piracy, or the ISPs who can actually see the network bandwidth themselves?

“Today,” Parr continues, “it costs between $10 and $30 million to develop a top-tier video game, and few games actually sell enough to achieve profitability. In light of the substantial investment required and the high degree of risk associated with the production of entertainment software, piracy fundamentally undermines the industry’s ability to recover its investment, resulting in fewer games as well as lost revenue and employment opportunities.”

Yet, in the same breath, Parr wrote just two paragraphs earlier, “The video-game industry is the fastest-growing sector of the entertainment industry in Canada, and one of the most vibrant, fastest-growing industries in the world. [...] Canada recently overtook the United Kingdom to become the third most successful producer of video games in the world.”

Amazingly, he still takes that argument to say, “new copyright legislation must provide legal protection for TPMs, prohibit trafficking in “mod chips” and other circumvention devices and services”

In other words, the industry is growing at an amazing rate (without anti-circumvention legislation) but piracy exists, so anti-circumvention law is required. If Canada is growing to be a world leader, overtaking other countries including those that have anti-circumvention legislation, doesn’t that render the argument that there needs to be anti-circumvention legislation null? If the gaming industry has been growing spectacularly well, why is there suddenly this need for anti-circumvention legislation in the first place?

Parr also argues, “implementing legal protections for TPMs will benefit consumers by providing greater certainty in the digital marketplace, which will, in turn, spur investment in the development of new digital products, services, and distribution methods; more consumer choice; and lower prices”

Question, how often does a hardcore gamer say, “Gee, I’d love to buy this video game, but I’m not sure I want to because I am uncertain about the overall game marketplace.”? Maybe what Parr meant to say was, “implementing legal protections for TPMs will benefit stock investors by providing greater certainty in a digital marketplace”. After all, it seems much more reasonable to hear a hardcore gamer say, “Boy, I’d love to play more games.”

Furthermore, TPMs have proven in every other digital authorized marketplace to enforce monopolies and put a further squeeze on competition and consumer choice. A modded console has been known to expand the functionality of a gaming console in ways that weren’t originally part of the console – allowing developers to create applications and find new innovative ways to use a game console. Conveniently enough, that wasn’t mentioned in the op-ed. If you want a recent example on how TPMs block innovation, you could do a whole lot worse than to read up on the RealDVD case or the DVD Jukebox case.

“If a creator or company chooses to sell their work as a digital product or service, legal protection for TPMs helps ensure that this choice is respected, much in the same way that locks on the doors of a bricks-and-mortar store allow the owners to determine when and how consumers can access their product.” Parr wrote.

It’s a flawed comparison to compare owning a product to a physical store. If one were to pay for that store, why should someone else add further restrictions on what one can do with that store even though it was legally bought and paid for? If one were to use the bricks and mortar allusion, the more realistic comparison is that if you were to buy a building and you are now the legal property owner of that building. Then, the person who sold that building said, “OK, now that you own this building, you are only allowed to have the store open every 10 minutes on the hour and you can only sell merchandise to people with shaved heads or people who have been to a Rolling Stones concert and a Linkin Park concert within the span of three weeks.” This is not a reasonable demand on the sellers part. You paid for the building under the premise that you bought it outright, it should be yours. Who’s to say you are going to turn it into a store and not a gym? When you pay for content with digital locks, you rent it, you don’t buy it.

Parr comment that has earned a lot of counterarguments was this: “Failing to protect TPMs under the law effectively means that the government is dictating the business model, which is bad news for business and for consumers.”

The government is certainly not dictating any business model by not introducing blanket anti-circumvention legislation. If a company wants to implement DRM, and one company did in 2005 with rootkit and spyware technology (and they were sued for it in the end), they are free to do so in Canada. Not implementing anti-circumvention technology is not saying, “All copy protection is banned in Canada” by any stretch of the imagination. However, many do see anti-circumvention legislation as effectively dictating how the market can legally operate.

All in all, while an OK attempt to justify anti-circumvention legislation, like all other arguments that we have seen so far that are for restricting copyright, the arguments are either a departure from reality, philosophically incorrect or simply relying on myths and unverifiable information.

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One can’t help but note the interesting timing of this study. It should be noted though, that the study is showing what is happening in the United States. So the connection between Canada and the United States is purely hypothetical from looking at the numbers presented in this particular study (although countless studies have shown Canadian digital sales growth outperforming growth in the United States) but if there is a similar trend happening in Canada, no wonder the primary concerns from Canadians have to do with fair dealings and digital locks. We’re witnessing an industry who is pointing at their paying customers and screaming “illegal pirates!”

The NPD group study also suggests that Apple’s iTunes has a 25% market share in the digital music sales as well.

In fact, many who point to the digital revolution and say that it’s the future may find the comments by a vice president surprising as well.

“Many people are surprised that the CD is still the dominant music delivery format, given the attention to digital music and the shrinking retail footprint for physical products,” said Russ Crupnick, vice president of entertainment industry analysis “But with digital music sales growing at 15 to 20 percent, and CDs falling by an equal proportion, digital music sales will nearly equal CD sales by the end of 2010.”

The trend of moving from physical to digital is particularly evident, even if digital music buyers are still the minority:

CDs comprised 65 percent of all music sold in the first half of 2009 compared to paid digital downloads, which comprised 35 percent of music sales. By comparison, paid digital music downloads comprised just 20 percent of sales in 2007 – growing to 30 percent of the music market last year.

“The growth of legal digital music downloads, and Apple’s success in holding that market, has increased iTunes’s overall strength in the retail music category,” said Russ Crupnick, entertainment industry analyst for The NPD Group. “But the importance of the big box retailers shouldn’t be dismissed, as long as the majority of music consumers continue to buy CDs.”

Still, if in 2007, digital sales accounts for 20% of all sales, then in 2008, it accounts for 30%, then in 2009, it accounts for 35%, one wonders what the market will look like in, say, 2019. If the percentage goes up by 5% every year from now till then, that means 80% of music sold would be online download sales. Who knows what technology would bring us by then on top of it all provided copyright law doesn’t continue to prohibit innovation as seen in the RealDVD case.

Perhaps one of the concerns that record labels should address is how to market sales online to the public. Clearly physical sales is dominant, but it’s a very real possibility that this market domination of the physical CD won’t last forever if this study is anything to go by.

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The copyright debate is currently still in overdrive right now. Many who have tried to characterize the copyright debate as little more than a bunch of networked users versus big content have been almost entirely from the minority voice who wants to restrict copyright in Canada. In reality, the copyright debate spans much farther than just two kinds of people. It’s a total fabrication that the copyright debate is just a simple little issue that needs little attention.

In fact, in some respects, the issues surrounding file-sharing in the copyright debate have almost taken a side-seat for larger issues such as digital locks and fair dealings. This theme backs up earlier evidence that Canada is a country that pays for consumed content. If it was a piracy haven where everyone was just downloading copyrighted works, the digital locks issue would barely surface in the debates since people who download rarely, if ever, have to worry about encountering a digital lock.

The issue of fair dealings has been nearly a broken record had the need for “balance” in the copyright laws haven’t been such a dominant theme already. Fair dealings is an issue for most people who are interested in creating content in the first place. A chairwoman for the Writers Union of Canada wasn’t exactly supportive of expanding fair dealings and said how university faculty are on salary while contract writers were not. If one were to presume this was the only real part of the debate, they’d be greatly mistaken as there are several forms of other fair dealings as well – well beyond just writing.

The DOC has informed ZeroPaid that it supports expanding fair dealings for people who create documentary films. Here’s their position on the copyright reform debate:

DOC leads the charge on documentarians’ position to avail themselves of a Fair Dealing exclusion for their productions and to that end, works in tandem with the academic, legal and production communities to publicize this information.

While the issue of fair dealings with respect to documentarian’s for some might be vague and distant to some, in 2006, the issue of copyright as it relates to documentarian’s was a huge issue. The flash point controversy was Death By Popcorn where corporate owners used copyright to halt the production of that documentary surrounding a hockey team. It brought the harsh reality of copyright for documentarian’s right into the forefront of the public conscious.

“We are storytellers.” SUZANNE CHISHOLM, director of Saving Luna commented. She continued, “We believe in the power of narrative nonfiction storytelling to reach human emotions and explore the experience of life on this planet. We believe there is intrinsic value to society and to other lives in telling stories that try to describe things that matter with accuracy and honesty. Some documentary filmmakers want to use their work as advocates, to change what people do; we want to use our work as empathetic storytellers, to understand what people do.”

Given that award-winning documentaries are produced in Canada, it’s almost a travesty to see how many hurdles producers have to go through – and copyright is one of those big hurdles with such a tight fair dealings exemption in copyright while their American counterparts enjoy a much broader “Fair Use” exemption. One could argue it’s an unfair advantage in a way.

With the DOC, and their 800 members, arguing for an expansion of Fair Dealings, it drives the point home that there are many content creators seeking a loosened copyright law in some form or another to make it easier to make content in the first place. As Lawrence Lessig once said, innovation always builds on the past. The tighter copyright laws are, the harder it is to make content such as documentaries as they often end up incorporating other peoples works – inadvertently (i.e. on someones shirt) or otherwise.

Some might argue that tighter copyright laws will save jobs and help the economy. It’s a somewhat amusing claim given that the DOC “outputted $440 million in 2005-2006 (latest available figures) and generated over 15,000 direct and indirect jobs in Canada”. An entity pulling in so much for the Canadian economy is asking for a fair dealings exemption – loosening copyright laws for the purpose of creating content.

The copyright debate has already had its dramatic twists and turns. A couple have argued for keeping fair dealings the way they are. Many, now including the DOC, are either directly or indirectly firing back asking for a loosening in the copyright law – in this case, expanding fair dealings for the purpose of documentaries. Who knew there were more players in the copyright debate than consumers and the big four foreign record companies and the foreign owned movie industry?

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It’s becoming one of the fastest ways to isolate oneself in the copyright debate. All you have to say is that you are for suing internet users, for a blanket ban on digital lock circumvention and for restricting fair dealings. While one may get a sympathetic ear or two, a vast majority of stakeholders will not share that viewpoint. In fact, there a few stakeholders looking at the US style copyright law and merely looking at fair use as a way of expanding fair dealings (fair use is actually broader than fair dealings currently).

Comments made by the Manitoba Music Industry Association drew particular interest at a recent Saskatchewan copyright round table. The comments are available in MP3 format and can be heard at around the 50 minute mark. While advocating alternative business models and obtaining new streams of revenue, the MMIA argues, “We find ourselves in the Manitoba music industry more aligned with some of the creators coalitions and independent music groups and less aligned with CRIA and the RIAA. Our members are generally speaking are not interested in anti-circumvention laws, they are not interested in suing fans. No one from our membership is going to go out and sue fans because they copied some of their music. What they are interested in is finding ways of monetizing the creative content.” (Hat tip Michael Geist for transcript excerpt)

This isn’t the first time entities in Canadian music have stepped away from the CRIA stance of anti-circumvention laws and suing music fans. In response to the lobbying power of the CRIA which pushed the government to have file-sharing lawsuits be brought into Canada (of which CRIA still suggests that they want to easily file lawsuits against alleged copyright infringers on their Free Music Myths page – 4th myth from the bottom, first paragraph) and to introduce anti-circumvention legislation, Canadian record labels and artists broke away from CRIA. Some of those that broke away formed the Canadian Music Creators Coalition which formed to defy the CRIA stance on file-sharing lawsuits and DRM in 2006. As a result, CRIA lost a vast majority of its credibility as it was since seen as little more than a foreign organization with the word “Canadian” in its name.

That was long before Jamie Thomas was fined $1.92 Million for sharing 24 songs and Joel Tenenbaums $675,000 fine for sharing 30 songs. If anything else, those fines, particularly the Thomas fine, has only served to horrify Canadians and cement the need to distinguish between commercial and non-commercial uses or to flat-out reject file-sharing lawsuits altogether.

Up to now, there’s a long-running theme of disallowing a blanket anti-circumvention legislation, being very cautious around file-sharing lawsuits, finding alternative streams of revenue and pushing for (at this point, it’s a cliche in the consultation) a balanced approach for copyright legislation. The push to tighten copyright laws has primarily come from organizations who are mostly influenced by foreign interests or are organizations that operate on behalf of foreign interests. The push against this viewpoint has come mainly from Canadians, Canadian businesses, Canadian content creators and organizations that are primarily Canadian. In terms of public opinion, the CRIA stance has further disintegrated in the copyright consultation.

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HADOPI, also known as the three strikes legislation for many, has been a very controversial law not just in France, but throughout the world because the copyright industry has been pushing for other countries to adopt similar laws. While the French government has been pushing for the legislation, it doesn’t mean there isn’t fierce resistance. Opposition managed to delay HADOPI up to the September session.

Of course, there is a reason why some who are opposed to HADOPI consider the government stubborn. In a recent news story in LeMonde (Google translated), the government is planning on dealing with HADOPI as well as a few other pieces of legislation in a special session in September.

HADOPI has already had it’s run of dramatic twists and turns. HADOPI originally was to disconnect users on a third copyright infringement complaint, have their names blacklisted amongst ISPs and the users would have to pay for their internet connection even though they had been cut off. In it’s final stages, the Constitutional Council knocked it out, saying that there must be judicial oversight. The French government then backtracked and modified the legislation to force the judges to spend only 5 minutes on each ruling – a process that is said to be at least 40 minutes of work per ruling.

With this latest twist in the HADOPI legislation, it seems that the government is fighting to keep one of the most notorious pieces of French legislation moving forward at breakneck speeds. However, it’s not like the opposition parliamentarians are out of options. No doubt, there’ll be more sparks flying over this piece of legislation.

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Rewinding a little, during the original trial of Jammie Thomas, Thomas was fined $222,000 for sharing 24 songs. This is $9,250 per work. Here in the Tenenbaum case, a jury fined Tenenbaum $675,000 for sharing 30 works – that’s $22,500 per work. Tenenbaum got fine nearly 2.5 times Thomas’ fine.

With such a huge difference – let alone Thomas’ later fine of $1.92 Million for sharing 24 songs, it immediately raises the question of what kind of measuring stick is being used for infringement. It’s more likely that the fine is little more than guesswork. Added to this, there’s no distinction between commercial infringement and non-commercial infringement in the United States.

The differences in the fine should make it even more clearer that it is critically important that the plaintiff must show actual damages caused, not to mention have a clear-cut foolproof method of actually gathering evidence against someone legally. As the defence has already argued in the Thomas case, given that a song could be bought for just over a dollar, the damages award is stratospheric compared to actual damages – in other words, if 1 download is 1 lost sale, it’s insane to consider any damages above 14 bucks per work. As of yet, the only thing closest to evidence of damage caused was assumptions and guesswork done by the copyright industry.

How is it constitutional that one person could be fined $222,000 while another person, for a very similar act, be fined over 3 times the amount anyway? Given that the awards are purely subjective, it isn’t hard to see just how fishy the whole system is – especially given that this is well in the territory of non-commercial use.

Of course, there are reasons why some outside the US see the whole legal and political system in the US as little more than a servant to the corporate world. Who knows, for some, this may be another sign of this. Either way, the copyright system is bound to draw international scepticism.

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In court documents (PDF – Via Ray Beckerman), the judge in the Sony vs Tenenbaum case issued instructions to the jury.

“In this case,” the judge wrote, “each plaintiff contends that it is, and at all relevant times has been, the
copyright owner or licensee of exclusive rights under United States copyright law with respect to certain copyrighted sound recordings, and that the defendant, Joel Tenenbaum, without the permission or consent of such plaintiff, used a peer-to-peer network to download the plaintiffs’ copyrighted recordings and/or distribute the copyrighted recordings to the public.”

The judge said that the plaintiff had to prove that they owned the works and that the defendant infringed on that work.

“In this case,” the judge concludes, “there is no issue as to liability.”

“Because there is no issue as to liability,” the judge adds, “you must decide on damages. When you do, you
must select a damages award within the specified statutory range.”

The judge clarified only that the statutory range is between $750 to $30,000 “per act of infringement”.

From an outsiders perspective, this is a rather shocking instruction. Perhaps Hollywood has clouded what goes on in the American court system where people mistakenly believe that a jury had the power to decide whether or not the defendant was guilty of something or not. Apparently, in an actual American court, the jury’s roll is to watch the case, pick a number and go home. In order for this to happen, the plaintiffs have to be part of the RIAA or MPAA and simply show up, and claim their millions – if the MPAAs comments about needing evidence is anything to go by. The defendant’s roll is to sit there and receive an automatic guilty verdict. At least, this is what one can learn in this case. And you thought only the Swedish justice system handling the Pirate Bay case seemed insane.

It’s hard not to mention the justice scene in Idiocracy where the plaintiff won the case simply by saying that they have a whole bunch of, pfft, evidence, and that the court should say that the defendant is guilty. It truly appears that a similar thing has happened in this case.

Already, many have condemned the Jammie Thomas fine of $1.92 million including many during Canada’s critical critical copyright consultation. Perhaps at this stage, one could add how someone could be guilty of online copyright infringement simply because the industry said so as well in an American style copyright law.

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It’s a legitimate fear as it’s happened multiple times – a music service shutters its DMR music service and servers, rendering all legally purchased tracks useless. For those who do the more honest thing of purchasing music, the very idea that a corporate entity could render legally purchased material useless seems like a betrayal to consumer confidence. It’s not a realistic situation for those that spent 10’s of thousands of dollars on vinyl copies of music (that one day, the content themselves all fail at the same time) but it can technically happen with DRM encoded music.

It’s partly why it makes Steven J. Metalitz’s comments regarding authentification servers during a Q&A session of a copyright hearing so outrageous.

“we reject the view,” Metalitz writes (PDF), “that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards.”

He then explains the reasoning behind it, “No one expects computers or other electronic devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so.”

For many, this would mean that back-ups are illegal – especially in the event of a failure either on the user end or the retailers side of it. That would mean that people would be asked to pay for their legally purchased content again – so much for fair use.

“To recognize the proposed exemption would surely discourage any content provider from entering the marketplace for online distribution or offering consumers the convenience of online authentication of disc-based content unless it was committed to do so — or to guarantee the ability of a third -party service to do so — forever.” He continues, “This would not be good for consumers, who would find a marketplace with less innovation and fewer choices and options. Any argument that such barriers to entry are needed to protect consumers in some way is more appropriately addressed to the Federal Trade Commission, rather than to the Register and the Librarian in this proceeding.”

It’s comments like this that re-enforces what many have known for a very long time already – when you “purchase” content with DRM, you don’t own it, you merely rent it. With thinking like this, it’s no surprise when users turn to piracy. It’s not like they simply want to get content for free, it’s just that they want to be able to have the option to create a way to recover their content in the event something goes wrong – something the industry doesn’t seem to keen on allowing. It’s a mystery how preventing back-ups would be discouraging users and innovation when plenty of innovation revolves around re-using the works in unique ways – something DRM prevents.

“I’ve got 78RPM records from my grandparents’ basement that play just fine today — and I’ve got Logo programs I wrote in 1979 that I can run today. I own a piano roll from 1903 that I can play back if I can clear the space for a player piano. I’ve got books printed in the 17th century that can still be read” Cory Doctorow wrote in response, “and if they can’t be read, they can be scanned and the scans can be read. This is what an open format means.”

“It’s hilarious that the same yahoos who argue for perpetual copyright (implying that copyrighted works have value forever) also argue for time-limited ownership (implying that people who buy copyrighted works should be content to enjoy them for a few weeks or years until the DRM stops working).” Doctorow said.

There’s plenty out there who would easily recognize that given that the computer is effectively a copying machine for the most part, it’s not surprising that many would see this latest argument from the industry as backwards at best.

[Via Arstechnica]

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