From: Tim May <tcmay@got.net>
Date: Fri, 11 Sep 1998 02:56:46 +0800
To: cypherpunks@cyberpass.net
Subject: Bits are Bits
In-Reply-To: <33CCFE438B9DD01192E800A024C84A1928463C@mossbay.chaffeyhomes.com>
Message-ID: <v03130304b21e7c88c3a5@[209.133.20.4]>
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At 1:54 PM -0700 9/10/98, Matthew James Gering wrote:
>> Um, actualy not. It is actualy illegal for me to allow you to
>> borrow my books, CD's, albums, etc.
>
>Uh, how so? Distribution copyright covers first-sale only, after that
>the owner can lend or sell that item. If it were not for this, public
>and private libraries could not exist.

Several misc. points. Perhaps related, but I don't have the time to try to
figure out all the relations.

* Books: OK to resell. OK to lend. May or may not be OK to rent.

* Recorded music: OK to resell. OK to lend to private parties for
noncommercial use. NOT OK to rent.

* Recorded videos: OK to resell, OK to lend to private parties for
noncommercial use, OK to rent. (There are video rental stores, but not CD
rental stores.)

* Software: OK to resell if license allows it, if original is destroyed, if
no copies are kept, blah blah blah. (Very complicated.) Not legal to rent
software since around the mid-80s, when software rental stores stopped.

* It is not illegal under the Act passed by Congress authorizing a blank
media tax. (I think it was called the Home Recording Act, or somesuch.
Circa 1992-4.) The Act requires that blank tapes be taxed and then says
that "noncommercial use" is declared to be legal. In other words, the
government is collecting money from us and says as a result we get to tape
stuff for our own use.

* I myself have taped about 600 CDs and DATs, digitally taped onto DAT. (I
use a Sony home deck for some purposes, a Sony DATMAN for others, and a
Tascam DA-P1 portable for others. The Tascam is neat in that it ignores the
SCMS bits and thus allows unlimited DAT-to-DAT copying.) A friend of mine
has taped over 4500 recordings...he's a bit obsessive about his library of
"free" music. He uses public libraries to get a dozen or so CDs at a pop,
then loads them into a carousel player and records for 3-5 hours each
night, and often during the day.

* There is talk that the Bern Convention, which the U.S. recently signed,
overrides this Home Recording Act (or whatever the title was).

* As to public and private libraries, I think the situation is much more
unsettled than Matthew makes out:

-- lending (and presumably rental?) of books is allowed, by convention.

-- rental of software is no longer allowed (court case?)...it seems to have
ended around 1984 or so, when the software rental place near me announced
it could no longer rent software titles

-- rental of CDs is not apparently allowed...but sales of used CDs
are...and liberal return policies on new CDs are common (defacto rental).
The music store chain, "Wherehouse," was involved in a major court case on
this several years ago. I presume from their continued sale of used CDs
that they won. (The case may have involved whether record labels could
refuse to sell to them, a choice I would of course support, in a free
society.)

-- rental of videos is allowed. (Why videos but not CDs? What about books
on tape? What about books on CD, either audio or CD-ROM?)

Anyway, I can discern no clear point here. It all seems hodge podge.

* Just today I was at a store which was selling many copies of major
programs at deep, deep discounts. A set of "used" installation diskettes
for Microsoft's "Excel" was selling for $24.95. And so on. There is little
enforcement of laws supposedly stopping this.

* There is no ipso facto reason why a book publisher could not require as a
condition of sale that no resales, rental, or lendings occur with the
publisher's permission. In fact, some have argued for this.

* If the courts intervene to say such restrictions are not allowable, how
can such restrictions exist for software? (Sure, the usual and tired
"replicability" argument. But a publisher and author are "losing" just as
much when a bestseller is rented or lent out a dozen times instead of
generating sales....)

In closing, it's all a hodge podge. Books are just bits. Saying one set of
bits may be lent out, but another set may not is not a stable solution.

And we all know what cyberspace is doing to all of these points.

--Tim May

(This space left blank pending determ. of acceptability to the gov't.)
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   831-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Licensed Ontologist         | black markets, collapse of governments.