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Tuesday
Mar252008

If I can't get it legally is it OK to steal it?

I love getting these sorts of e-mails:

I have a 9-year-old who is utterly hell-bent on defining himself as a "Super Mega Nerd," and naturally, I am attempting to integrate digital rights and ethics into his brain now, rather than in a few years when the FBI comes knocking at the door.

Here's my problem --

Music.

Specifically video game music, and various niche-market televisions themes.ringtones.jpg

Some video game studios release accompanying soundtracks, but usually for very high budget games, such as the
Halo trilogy, Gears of War, etc.  Some TV shows release soundtracks, or the occasional single MP3 or ringtone.

What do you do about the games/shows that do not?

Case in point:  Microsoft's
MechAssault 2.  He owns the Papa Roach album with the theme song, "Getting Away with Murder," but wants additional music from the game.

Second case:  He wants the
Torchwood theme as a ringtone on his phone, but it is available only in the UK as a 3£ download, as a direct download to your phone to prove you are only in the UK.

My issue isn't in cost -- it is in availability.  He is having trouble with the idea that he cannot simply rip the files because it isn't ethical despite the fact that an "official" version is not available.

This is an interesting question. First, let me tell you that I am not a lawyer so any advice I give should be verified. Maybe twice.

I posed this question to my 22-year-old son who is not a lawyer either, but who is a video game fan and works in a large video game retail store. This was his reply:

As for the game music, if you already own the game you already own the game soundtrack. Therefore if you download ripped files on your computer it's just fine. This is the legal loophole a lot of websites use to get away with emulators, roms, and other files. Like this one called Kingdom Hearts Insider. http://downloads.khinsider.com/ They have virtually every game soundtrack known to man.

As for the TV shows and foreign music, they sell imported albums on Amazon and Ebay. I'm not sure of any other sites or the legal/ethical issues behind downloading these.

OK, that’s a Net Genner's view (who is thoughtful and knowledgeable). Here is my take:

In general, when it comes to intellectual property, a difficult concept for most people, especially younger ones, is that the creator does have the right to control the use of his product. He does not have an obligation to sell it or make it available for use if he chooses not to. If I make a chair and even let you look at my chair, there is nothing that requires me sell you my chair, a copy of my chair or the design plans for my chair. I can legally stop you from making a copy of my chair if the design has been copyright/trademark protected, I believe.

As far as I am concerned, if the music is not on the owned game disk itself or available commercially, acquiring and using it would be illegal and certainly unethical. And we can’t always get what we want. (Hey, that would make a great song lyric!) Not a bad lesson to learn at an early age.

I have no idea if converting a legally owned mp3 file to a ringtone is legal or not. But I am guess not, since it is changing format. I hope there are other Blue Skunk readers more knowledgeable than I about this issue.

Having said that, we need some perspective here as well. As a boy, on more than one occasion I stole apples and watermelons from neighboring farmers. Obviously illegal, but in the view of most rational people, more in the realm of mischief and youthful indiscretion than a grand theft punishable by a stint in juvie. Now had I stolen cars or television sets, the nature of the crime would have different – at least in my view. Where one draws the line as to what is serious and what is mischievous varies by individual. Dollar amounts do figure in, I believe, when it comes to determining legally the degree of a crime.

As a parent, I tended to turn a blind eye to the personal use of music of dubious provenance by my son. I did draw the line at having any computer in my house used as site whereby others could obtain illegal music via a peer-to-peer network.

Readers? A better response for this conscientious mom?

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Reader Comments (21)

Again, not a lawyer and this isn't meant to be legal advice.

In the first case, the problem is that you do NOT own the game. You own a round plastic disc that came with a license that lets you play the game contained therein as long as you don't break any of the rules in the license. For some of its products, Microsoft would even go so far as to deny you the right of first sale - the right granted by copyright law that permits you to sell your copy of a copyrighted work even though that is usually a right reserved for the copyright holder.

http://www.xbox.com/en-US/community/developer/rules.htm has more information and specifically addresses that use of the soundtracks is probably illegal because Microsoft doesn't own the works, they just license them from the original artists. Music is very tricky stuff because there are so many copyright holders and it isn't always clear who owns what.

AS for the ringtones, Engadget did a nice piece on this a while back
http://www.engadget.com/2007/09/07/know-your-rights-is-it-illegal-to-make-my-own-ringtones/
Their lawyer does say that it is usually legal to make a ringtone from music you own. So if you can buy a legal copy of the Torchwood theme song, you should be able to make a legal ringtone for your own use.

March 25, 2008 | Unregistered CommenterChristopher Harris

Great info. Thanks, Chris.

Congrats as well for being named a mover and shaker by ALA. A recognition well-deserved!

Doug

March 25, 2008 | Unregistered CommenterDoug Johnson

@ Doug I am not sure of the legality. I would imagine that having purchased the song he could use it for whatever non commercial purpose he wanted like a ring tone.

On another issue relating to the morality of the digital age. While visiting my mother in Indiana i wanted to use my macbook to check e-mail etc. I did this via a wireless network my airport found. I don't believe it was my mother's but a neighbor's. Is it wrong to surf the net via someone else's wireless network if it is unprotected?

Or does the sprinkler theory apply. There signal crosses my property so i can use it as i see fit....just like if their sprinkler hits my yard I inadvertently benefit from the extra water.

Any thoughts?

March 25, 2008 | Unregistered CommenterCharlie A. Roy

Charlie,

Personally, I would lock you up and throw away the key.

Seriously, I think I heard this discussed on the Ethicist show on NPR once. If you rely on your neighbor's wireless all the time, it's not right. I don't think once or twice hurts anyone. Your mom's neighbor if she's worried about others getting access ought to require a login, I'd think.

And sometimes I sit outside airline club lounges and glom on to their wireless. Puts me in the same dilemma.

Sleep easy.

All the best,

Doug

March 25, 2008 | Unregistered CommenterDoug Johnson

Doug,
Another great post, raising a host of issues that come with ubiquitous access, and not just access, but interactive access. The Creative Commons and "Copyleft" strategies are beginning to address these in an Ad-Hoc way,but formal copright bills and procedures are lagging like a battle-damaged Klingon cruiser trying to catch the Enterprise while Scotty's the Chief Engineer. The good guys will always find a way to dodge the stodgy villains - as long as (in their minds) the cause is just!

On a related theme, I'm wrestling with what to do about VHS and DVD copy issues that keep raising their ugly head at my school. Several scenarios dominate, being;

1) The teacher who wants us to archive a favorite VHS (no longer available) onto DVD so he/she can continue to use it with his/her laptop and Smartboard.
2) The teacher who wants to create an edited version of a DVD for brevity or censorial purposes (adult content, language, etc)
3) The student who wants to use an extended video clip in a powerpoint, or a commercial music piece to back up a personal video.
4) The administrator who plans to use library videos for rain-day entertainment in the cafeteria.
5) The parent who wants to borrow library videos for what appears to be primarily entertainment purposes.

The first four situations are, in my mind, clear violations of copyright, and I'm constantly finding myself trying to explain or justify our position. I'm putting together ideas for a post at my blog and would value your (or your readers') insights into how to raise awareness at all levels about current copyright.

I've just posted another piece about the fifth issue (parents using instructional video for entertainment). I'm wondering if this is a common problem, or is it unique to international schools, where access to commercial materials is limited. I'm leaning toward removing our DVDs (800 and counting) from general circulation. Do you have a perspective on this?

Thanks again for being a great sounding-board for 21st century literacy issues.

March 25, 2008 | Unregistered CommenterRob Rubis

So, you're saying that if I put a cassette recorder in front of my TV while I'm playing Super Mario Brothers, and then go upstairs and listen to it on my boom box, what I'm doing is not only illegal but unethical?

March 25, 2008 | Unregistered CommenterTom Hoffman

There are a few issues raised in this thread, but this particular line resonated with me:

"In general, when it comes to intellectual property, a difficult concept for most people, especially younger ones..."

We don't need to dig too far back in the past to come up with examples where the "younger ones" saw truths that us "older ones" were unwilling to confront.

Maybe us old folks are the ones who don't get it. The times, they are a changin'

Hold on -- do I need to copyright that?

Cheers,

Bill

March 26, 2008 | Unregistered CommenterBill Fitzgerald

"In general, when it comes to intellectual property(sic), a difficult concept for most people,"

It's "difficult" because it is an inherently useless term. Any serious discussion won't involve commentary on "Intellectual Property". It is impossible to have an overall opinion on "Intellectual Property".

"especially younger ones,"

Just the fact that you (not a "younger one") tried to pass "Intellectual Property" off as something that can be understood (as opposed to copyright, patent, or trademark laws), makes this claim rather ironic.

"is that the creator does have the right to control the use of his product."

Are you speaking of copyright law here? It is not clear (you said "Intellectual Property"), but I will assume so. More accurately, the author has an unjustified (in its old, All Rights Reserved form) legal privilege to control others' use of the work. Don't let the "right" in copyright fool you. If copyright was a natural right then there would be no debate.

"He does not have an obligation to sell it or make it available for use if he chooses not to."

Of course, but if he doesn't make it available then it is not published. So, any acquisition of the work goes beyond copyright law. I wouldn't be charged with copyright infringement if I cracked your home machine through a network and copied your private diary. What I have done is unethical and deserves a much worse fate.

March 26, 2008 | Unregistered CommenterPeter Rock

Hi Rob,

Good to hear from you.

I agree that current copyright law is in a world of hurt right now. I was just re-reading Kevin Kelly's "Scan This Book" article from the NY Times a couple years ago that makes the point very well.

I believe all districts share the same DVD/VCR issues that you've listed. I would agree that the first four are illegal. I am not sure about the last one since watching a video at home is not public performance. Public libraries loan movies for home entertainment without violating the law. I'd think any use of an instructional video ought to be encouraged. I've not heard this regarded as a problem before.

The best thing we as librarians can do is to make sure our staff knows the law. It's not our job to enforce it. We can refuse, of course, to make illegal copies or set up equipment for illegal uses, but it would be a supervisor's responsibility to enforce copyright compliance.

Once again, so many of these laws have not kept up with the times and have become blue laws - on the books but so widely ignored as to be meaningless.

Personally, I would allow videos to circulate. If they have been well-selected, they have value and most viewers get benefit from multiple viewings.

All the very best,

Doug

March 27, 2008 | Unregistered CommenterDoug Johnson

Hi Tom,

If you believe committing an illegal act is also unethical, then yes.

If you believe the law itself to be unethical, then no.

If you chose the second answer, I believe that would put you on Kohlberg's "post-conventional" level of moral development along with Jesus, Gandhi and psychopaths ;-) Congratulations!

Have a wonderful day,

Doug

March 27, 2008 | Unregistered CommenterDoug Johnson

Hi Bill,

You're right - this is not necessarily an age or generational thing.

I hereby retract my "especially younger ones" statement.

Thanks for the comment,

Doug

March 27, 2008 | Unregistered CommenterDoug Johnson

There is some interpretive wiggle room in "fair use," but do you guys understand that you're intentionally choosing the narrowest possible definitions? You're literally interpreting these laws more strictly than the RIAA, MPAA, and certainly much narrower than courts have held.

Read this: http://www.news.com/8301-10784_3-9843939-7.html

Also, statements like Chris cites above from Microsoft in no way impact a consumer's fair use rights. Microsoft is granting additional rights, but this statement does not retract what copyright law grants.

Everyone here seems to be reading the law and imagining what it might mean without looking at actual case law and precedent -- how the laws have been interpreted by the courts. Is there a single example of a successful (or, for that matter, attempted) lawsuit against an individual or school for shifting the format of a work for personal or educational use? If not, it is certainly not because the IP holders don't vigorously assert their claims. It must be because those are not claims they even assert.

I'm not trying to argue here that copyright law ought to be different than what you describe, I'm asserting that it is different than what you claim, and you're applying unjustified interpretations that are overly narrow, obtuse and harmful.

March 27, 2008 | Unregistered CommenterTom Hoffman

Hi Tom,

I hope your opinion here is correct.

I do know that it takes many years for case law to be built. And I don't know that the lack of a successful prosecution of a law invalidates that law. I'm guessing that no one has been prosecuted for driving one mile over the speed limit. But did I mention, I AM NOT A LAWYER?

So the question, as you've come to make me realize, is if it is better to err on the side of restriction or on the side of permissiveness when the laws are unclear or lacking interpretation.

Does that sound accurate?

Thanks again. I always appreciate you comments, Tom.

Doug

March 27, 2008 | Unregistered CommenterDoug Johnson

Hi Peter,

When I google "intellectual property," I get something over 63 million hits. The Ivestopedia Investment Dictionary defines it as:

"A broad categorical description for the set of intangibles owned and legally protected by a company from outside use or implementation without consent. Intellectual property can consist of patents, trade secrets, copyrights and trademarks, or simply ideas."

So no, Peter, it's not a legal term but a common means of describing a general category of property. I know from past comments on the blog that you find this sloppy. I guess we will just need to disagree about whether the term is useful or not.

I earlier retracted by comment about this being more confusing for the young. I am glad you and others pointed that out.

I still question your assertion that by displaying something in public is the same as giving others the rights to copy or use it. Even Creative Commons gives creators the ability to grant a variety of levels of use of their work to others.

All the best,

Doug

March 27, 2008 | Unregistered CommenterDoug Johnson

Doug,
Yes, that's a better question.

I don't think these issues are as unsettled as you do, though. It is extremely unlikely that ripping cds for your iPod or time shifting shows on your Tivo would be found to be infringing at this point. It is much more likely that the laws would be changed than the current interpretation of existing law being overturned.

One other general note for these discussions -- it is important to remember that the anti-circumvention clause of the Digital Millennium Copyright Act is responsible for a lot of relatively recent constraints on fair use, but that's distinct from the rights and restrictions granted to copyright holders traditionally.

For example, you can't legally exercise your fair use rights to edit DVD content because you are forbidden from breaking DVD (easily broken) copy protection by the DMCA. It is important to make clear the distinctions in these conversations.

March 27, 2008 | Unregistered CommenterTom Hoffman

"[Intellectual Property is] not a legal term but a common means of describing a general category of property"

It doesn't describe property at all. Copyright, trademarks, and patents are not property. While there is an entire industry devoted to making the public think in terms of "property", this does not make it so. This does not make the intangible tangible.

March 28, 2008 | Unregistered CommenterPeter Rock

9 year old?
Wanting song entitled, "Getting Away with Murder"?

There are other, bigger issues going on here.

March 28, 2008 | Unregistered Commenterken

Hi Peter,

Ah, but the intangible can have even greater value than the tangible.

You think I have a future as a Zen master?

All the best,

Doug

March 29, 2008 | Unregistered CommenterDoug Johnson

Hi Ken,

I must be getting numbed to all this since you concern didn't even register with me. Good point!

Doug

March 29, 2008 | Unregistered CommenterDoug Johnson

"You think I have a future as a Zen master?"

No, but the RIAA or MPAA might be interested in your services.

But seriously, how does the fact that an intangible can (depending on the particular comparison) have more value than a tangible back up the "property" view? I'm not following.

Can you explain this?

March 29, 2008 | Unregistered CommenterPeter Rock

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