I studied Law for three and a half years. I even went to some of the lectures before I dropped out and became a computer nerd. The attitude of nerds to the law has always interested me, especially what we think the law can, and can not be made to do.
It has the same basic rules. Rules like gravity. What you must learn is that these rules are no different to the rules of a computer system. Some of them can be bent. Others can be broken. —Morpheus, in The Matrix
Programmers, or people who associate with programmers too long, often fall into the trap of believing the law is like a software system: that like vulnerabilities in code, logical flaws in the law can be exploited to break the system wide open, and make it do things it was designed to prevent. Viz, today's much-linked-to Cringely “Son of Napster”article:
First the law. Snapster is built on the legal concept of Fair Use, which allows people who purchase records, tapes, and CDs to make copies for backup and for moving the content to other media.
Cringely proposes a single company buy copies of all available music. That company issues shares, making everyone a part-owner of that music. As owners, the shareholders then (according to Cringely) have Fair Use rights to space- and time-shift the music, and listen to it whenever they want.
All in all, a brilliant hack of the legal code.
And totally useless.
Cringely's plan quite obviously turns the concept of Fair Use on its head. It's a classic computer hack where two components that were developed separately: Corporations Law and Copyright Law interact in an unexpected way, to produce results that the designer quite obviously never wanted to occur. As such, the courts will not have even the slightest problem in declaring it illegal.
The law is not code. It is not compiled into an inviolate binary and run by a deterministic system. It is passed through the heads of human beings whose job it is to interpret the intent of the law. Courts generally look with disdain upon ‘clever’ interpretations of the law, unless that interpretation follows the court's conception of justice. The human beings themselves can be hacked, but by out-of-band methods requiring money or political clout.
In Cringely's case, any court would take one look at the idea and laugh. It is so obviously a perversion of the concept of Fair Use that it would never survive the judicial process.
Bravo! The core set of laws of this country are purposefully phrased such as to protect the intent of the law rather than rigid rules of what is and isn't legal. The word "reasonable" appears everywhere.
Unfortunately US Law has gotten the reputation of being riddled with holes and workarounds, mostly because of TV dramas where criminals find their way around evidence and procedural rules, and the tax code.
Should be interesting to see if anyone is foolish enough to try this scheme.
It wouldn't apply in Australia anyway: it's illegal to make media-shifted copies of CDs, even if you own them. A friend of mine works as a sysad at Adelaide Uni and their legal dept checked the law, as a result they all had to delete the digital copies of the music they had, even if they owned it.
Yes, I know that. It's one of the more annoying things about Australian copyright law: that making mix tapes for your car, recording shows off the TV or 95% of the uses for an mp3 player are ALL completely illegal.
It's one of those laws that, if it was ever enforced, would be quickly overturned. It's just there because it's never enforced.
When a law like that exists, it's ripe for abuse: selective enforcement means that individuals that the powers that be don't particularly like can be victimised under these sorts of laws, even while the rest of the populace blithely ignore them. And yet it's too big a political football (Copyright) to ever change.
Sucks, huh.