In the ongoing discussion concerning iPods, personal use copying, and copyright, Marty Schwimmer originally asked why we should worry about this stuff. Both I and Dennis Kennedy responded (A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright). Now Marty responds once again (Dennis Re Marty Re iPod Etc.).
My real point to Dennis is - is that if he were leaning in the doorway of my office, worrying whether various personal activities were copyright infringements, I would say, yes, copyright law is uncertain, as is the tax code. However the copyright cases that are presented to us as being egregious (City of Heroes and the 'RIAA sues dead grandmother' cases leap to mind), are (in my anecdotal perception), those that involve people performing some public act with regard to the copyrighted work. In other words, if they were wronged by the copyright holder, it wasn't because of intrusion upon seclusion.
I acknowledge that the Internet may be blurring the distinction between personal and public acts, but the copyright cases that are getting the headlines are, to my mind, not unclear on this point. This isn't private (using private to mean solitary) behavior.
Absolutely. In my original response to Dennis, I emphasized that copyright should focus on distribution, not reproduction. What I didn't emphasize was my belief that type of distribution we should be concerned with is
public distribution, not
private distribution.
In my view private distribution shouldn't be illicit. There are a number of reasons for this, one of which is what Marty alludes to, the difficulty in enforcing against it. However, even though Dennis doesn't have to worry on a practical level about personal use copying, that doesn't mean the question isn't important to ask.
For example, if private, personal use copying is technically illegal, that can be used to justify laws like the Digital Millennium Copyright Act. It may also make a huge difference with regard to questions of secondary liability. If personal use/private copying is perfectly legitimate, then many technologies have a clear and obvious legitimate use. If personal use/private copying is illicit, even if unenforced, then many technologies are much more likely be used for illicit purposes.
Finally, from an ethical point of view (and lawyers should always be ethical, right?), one should obey a just law regardless of the risks of punishment. Dennis has many good reasons to ask if what he is doing is legal. And, because I don't want Dennis to be live in a morally nebulous state, I think we should make clear that private copying (if not distribution) is perfectly legitimate. This way Dennis doesn't go to hell because he engages in "normal use."
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. matt on June 9, 2005 11:40 AM writes...
this cuts to the crux of a problem i've had with the DMCA since the beginning. that is, it now criminalizes certain activities, which i (and most people) would consider legitimate personal uses.
most of my personal uses can be categorized as "format-shifting". for downloaded music this may be changing it from a DRM laden format (WMA, AAC) to an open format (MP3, OGG), for which there are many justifiable reasons. for DVD content, i may want to put all my legally purchased movies onto my personal media server, so i don't have to dig through my 300 dvds to find the one i want.
both of those activities, which should be considered, if not common, then at least reasonable, are illegal under the DMCA. can someone explain why to me?
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