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An Open Letter to Music Pirates and DVD Jon

No doubt you've all heard by now that you have a new tool you can use to pirate music, this time by stripping away the copy protection used by the iTunes Music Store. It's called QTFairUse, and it was created by the same misguided punk, Jon Johansen, that created DeCSS to crack DVDs. The title would seem to indicate that there is something in the fair use section of the Copyright Act that is relevant to the creation and use of QTFairUse. Um, no.

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You, Jon Johansen and others may have deluded yourselves into thinking that this tool is about fair use, but you're engaged in fantasy and mass rationalization. It would be helpful to the debate if you would stop such behavior and fortune-telling, and consider the actual facts.

Not only are the targets of Johansen's latest stupidity (iTunes AAC files) *always* going to be copyrighted, commercial works, there is not now, nor has there ever been anything about "fair use" that is relevant to the stealing of whole songs.

For those who really want to know the truth about fair use, please read on. The rest of you, back to your fantasy world.

Here's an idea - let's look at the law and then decide what to do from there, shall we?

For the copying of a work to qualify as fair use, there are four distinct tests that must be passed before it's considered to *really* be fair use.

These tests are delineated in the US Copyright code, Title 17, Section 107. For your convenience, here is a link to the Cornell University Law Library, so that you may follow the bouncing ball:


Let's distill this to plain English.

Downloaders and people who facilitate downloading fail all four tests:

1. Creating a library of copyrighted music to have and hold, burn onto CD, transfer between computers and portable devices and so on for future enjoyment as a personal entertainment source is anything but a "non-profit educational use." It is a commercial use, plain and simple. Without piracy tools, you'd have to pay for those things because they aren't yours to begin with.

2. The "nature of the copyrighted work" is clearly commercial, especially in the case of iTunes Music Store.

3. The "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" is obvious: it's *all* of it, not just a 10 second clip.

4. "the effect of the use upon the potential market for or value of the copyrighted work" has clearly been demonstrated as damaging to the owners of those copyrights. You can all stop yammering about the quality of music sucking and "filler" and expensive CDs as the real reason CD sales have plummeted and CD-R/RW sales have soared. Those are hollow, empty argument and it's becoming laughable. The real reason is that people are stealing the music, and making their own CDs. That particular problem is exacerbated by the ability to, due to unscrupulous recording engineers and editors, get high profile artist's music *before* it's released commercially.

The bottom line on fair use as an argument in favor of file piracy or the creation of software to crack any digital rights management scheme is obvious. Downloading music from someone else, offering that music to someone else, or claiming that the software you created to facilitate that theft is based in "fair use" is, in short, nonsense.

Fair use was made part of the copyright law to encourage the journalistic and educational exploration of copyrighted works. A clear example of fair use would be a 10-second clip of Fleetwood Mac's "Don't Stop" in a news story about the Clinton presidential campaign - it's relevant, and it doesn't include the whole work.

Another would be a small thumbnail of a piece of art in a thesis on art in wartime, not a full size reproduction, suitable for framing and display.

Clearly, the wholesale copying of complete works is never fair use. Even if the artist (or the artist's legal representative) gives permission for you to copy their works, that's not even fair use at work - it's simply an authorization to copy the work.

You can choose to dismiss this all as BS (or move to argue that since Johansen is in a foreign country, that it doesn't apply - it does via the Berne Convention, an international treaty to which both of our countries are party), but I assure you, it is not. It is, however, a clear series of facts that file pirates don't want to face because it would negate a common argument to the "information wants to be free" crowd.

By the way, if information wants to be free, I assume that includes your ATM PIN? May I have it please?

Face it. People steal and hack because they can. And because so many others join them in what is essentially a hard-to-track-and-prosecute crime (or so they think), the sheer numbers of illegal downloaders make bravado and brazen statements like "So sue me." easier to spout.

Unfortunately, trying to rationalize the behavior of John Johansen and the millions of people who use KaZaa and eDonkey and earthstation5 and now, his tool, to pirate, and do so via sheer volume is just as stupid as claiming that lynching a black man was OK because the majority of white men in this country felt no misery in doing so.

John Johansen is enjoying a brief respite from legal sanity. So are all music pirates. I urge you to reconsider your actions.

Some guideposts:

Stop trying to use fair use in your quest to justify your illegal activity.

Respect intellectual property rights.

Work to change laws you don't like, but don't break them in the meantime.

Respect the music.

Don't pirate.

Copyright 2003, David Lawrence.

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