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July 24, 2004
You Bought It. They Own It.
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Rick Klau expresses the frustration that more and more of us will feel as the content industry begins to leverage the power it won through the broadcast flag mandate: "I understand NFL's concern about its product. But guess what? I pay them for their product. And I pay DirecTV. And TiVo. At what point have I paid enough people for the privilege of watching right to watch it when I want it?"
Good question. The broadcast flag allows copyright holders to take away your legitimate, personal uses, and they are perfectly capable of using that power to sell these uses back to you. The flag doesn't care about "first sale," "fair use," or any of that other stuff that copyright law traditionally allows. It listens to the signal embedded in a broadcast, not a judge. So you may *never* pay copyright holders enough to get reasonable, legal uses of digitally recorded programs. After all, it's not in their interest to stop you from paying -- again...and again...and again.
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1. Crosbie Fitch on July 25, 2004 6:21 AM writes...
So, if people haven't received a copy of the content (subject to copyright & fair use), what have they received?
It seems to me they've received a 'content relay', i.e. some device that relays, replays, or reproduces content in order for it to be performed to the purchaser.
So, the device is assuming responsibility (has authorisation) for any copies it produces.
Perhaps the purchaser may duplicate this device?
What protects the device from being adjusted in order to make it produce unlimited authorised copies? The DMCA? Which has the bigger penalty, DCMA infringement or Copyright infringement?
If the purchaser has not bought a copy, then they've got to determine precisely what they have bought and what they can do with it.
Things may be interesting from the content producer's point of view too, because they are no longer selling copies, but having their work performed. Might affect their royalties eh?
So, theoretically, anyone can take any artist's normal CD, encode it, put broadcast flag on it, and it can then be performed via an authorised decoder, which is included in a new package burnt on to a CD-ROM. One can then sell these CD-ROMs without infringing copyright, because one isn't providing the end user with a copy, but a performance. One just needs to pay a miniscule performance license.
You don't even need to do this via CD, you can do it within a file that can be shared via Kazaa. You are not distributing a copy remember, just a device that is able to perform and reperform a particular work.
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