A talk with a new lawyer

[Atamido]

I was going to post this in the futurology thread, but decided it deserved its own thread as it is more of just relating an interesting experience that I had. Take note that this occurs in the US.

A few days ago I was talking with a girl that just graduated from law school and is studying to take the bar. (the test that allows you to get paid for being a lawyer) One of the classes she just finished was Copyright Law. So, I thought I would question her about some current fair use issues. I really like hear how other people feel about these issues. (and debate them if they disagree with me ;) )

I told her that there are CD's out there that are purposely 'broken' to prevent you from being able to copy them to your computer, and it is possible to bypass those protections, but in the US it is illegal to bypass those protections making it illegal to copy the CD. I asked her how she felt about not being able to copy a CD that she bought on to her computer. Her basic stance on it was that you don't have a specific right to copy a CD (or DVD) to your computer. According to her:

The terms of the purchase of a CD (or DVD) are set by the creator (studio). They don't want you to be able to copy the CD, so you can't.

I advised her that I never signed or agreed to any terms and conditions when I purchased any CDs. She replied that they are implied. Also, according to her:

The main reason for copying a CD or DVD to your computer is for piracy. So it should be illegal to do this. The ends (preventing piracy) justify the means (preventing fair use).

We went around in circles like this for a while and I thought this was a very dangerous stance for her to be taking. I have always thought that the "ends justify the means" can be a very dangerous approach to things when "the means" involves removing citizens rights. But okay. We also discussed several other things like the Sony/Universal case, ISO CD standards, etc.

Finally I decided to try a different approach. She had already said that it was fine to record stuff off of TV. Although she said the reason it was is because "by the time courts got around to deciding on it, to many people already had VCRs and it would have been to difficult to make it illegal." I commented that I had read what the supreme court said and I hadn't noticed that and she said that you had to "read between the lines". So, from there I decided to bring up HDTV.

The new HDTV standard includes a broadcast flag that allows the broadcaster to determine whether or not the viewer can record the show. Because it is part of a 'content protection' system, and only supporting devices are allowed to be connected, using a piece of equipment that ignores the flag to record would be illegal. So suddenly, recording whatever you want off of TV is illegal.

She responded that that would never happen and that there would be VCRs to record HDTV. I responded that it was already illegal by current law. At this point she seemed a little shaken and stuttery. She responded that when people find out that they can't copy from TV, they will get mad and get the law revoked. I told here that there were already places in the world doing this and people were a little confused, but no laws were being changed. She responded that the US is a very different place and that that law wouldn't work here.

The conversation died after that.

It seemed to me that people/lawyers are being taught about copyright law in a pretty logical manner that seems to make sense. The problem is that they are not looking at what the long term effects of following those policies are. The short term effect of draconian copyright laws seem to be good at protecting the copyright holder. The long term effect, however, ends up removing all of the rights that people previously held, resulting in a situation where we own little to nothing. Perhaps more forward thinking in law schools would fix things?

[Doom9]

I advised her that I never signed or agreed to any terms and conditions when I purchased any CDs. She replied that they are implied. I wonder how an actual judge would see this (not in this specific case.. but implications being applicable). We, and our parents have grown up in a world where music could be recorded and copied. My parents did record radio programs and TV programs to Video 2000 (does anyone remember that?), in the 90ies we had MiniDisc and DAT, today we have MP3 and other computer based formats.. it's a natural evolution. In fact, I'd argue, and most people would agree with this assessment, that the right to copy doesn't have to be spelled out, it's implied by common practice that has been going on for decades. Plus, there's the fair use provision in copyright law and the DMCA. It doesn't directly specify private copying, but it mentions academic use. Imagine you're a teacher and want to use a scene from a DVD movie. Digitally, there's CSS so you can't. In analogue there's Macrovision so that's not legal either. So there's a real conflict between the two laws. And if it was okay for decades under the copyright act (which is still very much alive), why should it suddenly be not okay? In fact I tend to think that an old law would need to be revoked and cannot be overridden.

By her same reason why people should reject the broadcast flag, they should also reject attempts to make other forms of copying illegal. In fact, TV broadcasts are the property of broadcasters, so by her logic, just as record studios and movie studios can decide what you cannot do with their product, broadcasters can. So it strikes me that our lawyer to be is probably still too green and naive to see the errors of her ways. Perhaps copying music and movies has never ocurred to her. Not everybody owns a bunch of electronic gadgets to play music, and she's probably not yet of age to have a bunch of kids playing frisbee with their Lion King DVDs and then come screaming to mum when they can't watch the movie anymore because the disc has been destroyed.

I wonder what she'd say if you pointed out that people have been paying to make fair use copies since the HARA was passed in 92.

Oh yeah, she certainly doesn't know what an MP3 player is, does she? Computers give so many new possibilities to handle music, but unless joe average "gets" them, he might buy into the crap that is being fed to the public by copyright holders.

The ends (preventing piracy) justify the means (preventing fair use).Woah.. by the same logic it's okay for copyright holders to put a gun to your head and make you confess to piracy. That logic makes a whole lot of nasty things prefectly okay. Think of torture, terrorism, robbing people Robin Hood style, etc.

It seemed to me that people/lawyers are being taught about copyright law in a pretty logical manner that seems to make sense.I'd not say they make sense. But the problem is that they require a broader mind than is generally available to lawyers :devil: The problem with todays breed of lawyers (and lawmakers) is that they lack the technical knowledge to make educated decisions. Cryptography, watermarking are just two examples that require some serious education to understand. Learning the law is comparatively easy (I found, I chose to take a couple of law courses during my academic career).. you basically have to learn stuff by heart, know where to find the proper law texts and where to look for previous court cases on similar matters. And I guess most lawyers quickly forget about ethics classes once it comes to a big paycheck ;)

[Manao]

The issue is not as much in the lawyer education than in the lawmakers' one. Ideally, an expert system should be able to decide if an action is legal or not, based on the set of laws. Lawyers / judges have to think in the same way an expert system does. However, you now have laws that contradict each other, hence making their work impossible. So they have to decide which law they'll ignore. In your friend's case, it's the fair use law which is fogotten. We tend to prefer to ignore DMCA.

[theReal]

In your friend's case, it's the fair use law which is fogotten. We tend to prefer to ignore DMCA.And as there's much more $ to make with the DMCA supporters, it's pretty clear what law most lawyers will ignore... :rolleyes:

[ppera2]

Generally, I see that problem by lawyers and other high educated young people is that they are alienated from ordinary people.
They are usually from reacher families, because of high costs of university. Things go in wrong way now, and less people from bare families has chance to finish faculty.
Problem is also that theory has priority over practice, what is one absurdity in fact, and it's big problem in whole education today, and not only in education.

Politicians aren't much different, many of them are lawyers by education.

Other bad tendention is that lawmakers tend to protect more owners and companies and not costumers. We can't talk about fair market and concurrency when someone has exclusive right over some movie.

[Doom9]

she's mainly just being naive and hasn't really thought out her opinion (it would come down to her having to scrap her "reacording TV is okay" opinion because according to her, the distributor sets the terms). And you really can't blame lawschool for that. Well, perhaps indirectly as they seem to only stick to the law. You need ethics, you need technology and you need encouragement to think outside the box as well. My education was the other way round.. I was an engineer who took some law classes (copyright and patent law).. coming from a technology standpoint gives you an entirely different perspective on laws, you immediately start to think of technological implementations and what it would to to research and future products. Lawyers have no such concept of thinking ahead. Even joe average will consider those points once they start to touch him personally (recording stuff from TV, making your own mix CD, player your CDs on your PC, etc.)

[Atamido]

She did make one interesting point that I agree with, though not happily.

The Supreme Court does not make laws. All they do is decide what how specific cases fall in the face of current laws. As such, 'fair use' is not a law, but simply a term coined to describe acceptable use of copyrighted works, that is not forbidden by the law. Congress makes laws. So, Congress can make a law that effectively removes anything that could be labeled 'fair use'.

Now this I agree with. Do I think that Congress should? No. I think that laws such as the DMCA that limit existing fair use are detrimental to the welfare of our society. Things like the Disney copyright extension are just wrong. I also think that they fly in the face of the original intention of copyrights to help increase innovation. Maybe some day the Supreme Court will declare those laws unconstitutional?