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Legally Copying Software and Music

Monday, November 03, 2003 by TheDoc

We are living in the age of mass theft, or at least that's one way to look at it. The epidemic of software piracy and music and movie sharing is almost impossible to separate from the influx of computer use and especially fast Internet access into our homes. The two occurred so simultaneously that it seems amazing in retrospect that no-one realized what was going to happen.

Human beings are social creatures, and we do like to share what we enjoy. Of course, we are accustomed to hoarding things that are finite and consumable, like food or money, but files? Software? They don't run out or get used up, so human nature dictates that we share them.

Notions of value get tossed out the window when the product is essentially infinite. Unfortunately, the same values and methods of selling are used for digital products as for regular ones, and of course copyright and intellectual property rights still apply.

The RIAA, movie production companies and major software companies would have you believe that internet piracy is undermining the entire system of pay entertainment, and removing the livelihood from the creators of the products.

The advocates of music and file sharing argue that movie and music file sharing has not noticeably impacted the commercial prospects of the respective industries. Heck, file sharing may have even helped increase CD sales by exposing more music to more people.

Both sides have legitimate points, but we are not going to argue them here. What we want to look into is what you are legally allowed to do with your own software and music on your computer. Given the current climate of RIAA lawsuits and piracy crackdowns in the news, it's easy to see people getting a little worried over the handling of their legitimate software and music on their home system.

As rather little real information actually emerges from news soundbites, we wanted to dig a little deeper and clear up the somewhat grey area between backing up and retaining copies of your own software and music, and illegal or semi-legal file sharing and duplication.

This article is not intended to be legal advice, but rather a guideline on what you can and cannot do with your digital media under copyright. As such, we do not go deeply into the various legal questions that are raised. If you want more information on your rights and liabilities in your country, please see a solicitor. First stop, the omnipotent Digital Millennium Copyright Act.

The Digital Millennium Copyright Act

We will discuss the Digital Millennium Copyright Act (DCMA) briefly first as it relates to every other topic in this article, at least where readers in the United States are concerned. The DMCA, instituted in 1998, was designed to update American copyright laws to deal with the new issues posed by the Internet and the proliferation of the home computer. While it covers many areas, the most important in terms of this article are its effects on the rights of American consumers to privately duplicate digital media.

The DMCA currently considers the bypassing of a copy-protection scheme put in place by a copyright owner to be a violation of copyright, even if the person doing the bypassing purchased the copy-protected material legitimately. To put it simply, you cannot legally duplicate copy-protected material, even if you own it.

This section of the DMCA (chapter 12) has been massively controversial, since not only can it remove the right of consumers to duplicate their purchases, it also makes any tools that can be used to duplicate a copy protected product in violation of the copyright of that product, and thus the makers of these tools become vulnerable to civil law suits. As this article was written, activists are continuing to lobby the United States Library of Congress to change the DMCA and allow personal duplication of copy-protected material.

The DMCA is based on principles established in a pair of treaties by the World Intellectual Property Organization (WIPO). The two treaties, WCT (WIPO copyright treaty) and WPPT (WIPO Performances and Phonograms Treaty) have been signed by more than 30 countries, including Canada, though few besides the US have yet implemented laws based on it. A summary of the DMCA can be found here in PDF form.

Software and piracy

Unlike other forms of media, software is generally legally covered by two separate sets of rules. The copyright laws of the country apply as they would to any other media, with some specific provisions that apply to software alone (see below for more detail). In addition, most commercial software comes with an EULA or End User License Agreement which must be agreed to before the software can be installed. These are created by the company that created the software, and are unique to each product. The copyright laws apply automatically to the software once created, while the EULA is effectively a contract between the creator of the software (the copyright holder) and the purchaser, and comes into effect as soon as the purchaser agrees to its terms.

Commercial software is licensed, not sold. What this means is that by purchasing the software, you are buying permission to use that software subject to copyright laws and the EULA. You do not own the actual program itself; similar to how purchasing music gives you permission to play that music, but not ownership of it. You own the CD it comes on, not the contents.

The purpose of the software provisions to copyright laws, as well as EULAs is to discourage software piracy. What may not be widely known is what actually constitutes piracy. Obviously, if you have knowingly received an illegitimate copy of a commercial program, this is piracy. There are many other, often common acts that can constitute a violation of copyright, or the license agreement of an individual software program. Some examples include:

Installing software on multiple computers - The EULAs of most software packages, Windows XP being a good example of this, forbid more than one instance of the installed product to exist, meaning you cannot legally install the software on more than one of your home computers without an additional license for each system. Some packages are even more restrictive. With OEM versions of the Windows operating system (minimally packaged and sold in bulk to computer manufacturers), a purchased license is valid only for the specific system on which Windows is first installed. It may not be installed on another computer without violating the agreement.

When can you backup legally?

Making multiple copies of the software - Copyright law in the United States and most other countries including Canada and the UK allows for a single 'archival' copy of any given commercial software to be made, for use only if the original fails. The wording may actually allow for two copies, but one of these is considered to be the 'copy' that is installed to the hard drive in order to use the program. Making any additional copies for personal use is a violation.

Defeating copy protection in order to make a backup copy - Now this is a loaded issue. With the 1998 approval of the Digital Millennium Copyright Act (DMCA) in the U.S., it is illegal to change or remove any form of digital watermark or protection created by the makers of commercial software. This also makes the creation or use of software intended to bypass methods of copy protection unlawful. As much modern software (especially games) includes methods of copy protection designed to prevent duplication, this suddenly makes even legitimate software backups potentially illegal.

Backing up your software legally


This step cannot be stressed enough. Since software is governed not only by copyright law but also by the contract that you agree to when you accept the EULA, make sure you know what is there. Too many people simply accept the EULA without reading it, even in business environments, opening themselves up to legal problems.

STEP 2: Making an archival copy

Unless it is specifically prohibited by the EULA (very unlikely) you may make a single backup copy of any software you have purchased. This backup is for archival purposes, and may only be used if your original purchased copy is no longer functional, as CDs still suffer badly when scratched. For the same reason, this backup must be destroyed if you transfer the original software to another owner. If you are unable to successfully create a working backup copy of your software due to copy protection measures, see step 3.

STEP 3: What if you can't make a working copy?

If you are unable to make a useable copy of your software, chances are it is secured by some form of copy protection. In the United States, this falls under the Digital Millennium Copyright Act, which among other things makes it illegal to attempt to bypass or defeat copy protection that has been instituted by the copyright holder. At the time of writing, no legal recourse exists for making archival copies of your software. Efforts to change this portion of the DMCA are already underway from various lobby groups.

STEP 4: Other measures

Commercial software generally includes a warranty, the same as any other product. Though the terms will vary depending on the package, these generally provide for replacement of the software media (CD) and/or a refund from the point of purchase, providing all original packaging is returned. Of course, warranties are never easy to claim... If you are concerned about not being able to backup your expensive software, contacting the publisher is really your only current recourse other than violating copyright.

Freeware and Shareware software is still governed by copyright, though special permissions given by the authors of the software may affect this. For example, shareware is still commercial software and is governed by all the rules of copyright that are applicable to commercial software; however, the EULA of a shareware program will generally state that the user is free to use and distribute the unlicensed version of the software in question for a certain period, after which he or she must purchase it to go on using it legally, and it becomes identical to any other purchased software.

Freeware programs may be shared publicly, but may or may not allow the user to alter the original source code, and if they do not, then this is subject to copyright. Use common sense and READ THE EULA.

Music, MP3s, and Backing up your CDs

Unpaid sharing of MP3s, compressed versions of commercial musical tracks, long ago reached epidemic proportions due to broadband Internet and file sharing applications like Napster and Kazaa.

Unlike the software and film industries which have not offered much unified resistance to piracy, the RIAA (Recording Industry Association of America) has hit back hard, using the DMCA as a tool. From closing down Napster and Audiogalaxy (two of the premiere music sharing applications that led the early wave of internet file swapping) to their recent controversial lawsuit crusade against individual music swapping offenders, the RIAA is taking no prisoners and is becoming massively unpopular in the bargain.

The main issue here of course is that compressed digital music can be easily transferred from person to person without cost, consumption of media, or loss of quality. This makes music swapping an attractive proposition since, as stated before, people love to share, especially when no personal cost is involved.The RIAA's crusade is intended to add that personal cost, and thus discourage generosity.

Commercial music is protected by federal copyright laws which generally prohibit its duplication, except for personal use. There is no law against converting your legitimately bought CDs, cassettes or LPs into MP3 files, however.

Since the introduction of the Digital Millennium Copyright Act, some major music distributors have been adding various forms of copy protection to their audio CDs, often designed to make them unplayable in computer CD drives. Though these methods can generally be easily bypassed, doing so would of course be a violation of the DMCA, and thus of copyright. One notable circumvent has the user hold down the shift key while the Audio CD spins up.

'Fair use' of personally purchased music does not apply to making it available online for download. This is true in both the United States and Canada. The actual downloading of music is not technically a violation of copyright in Canada however.

Under the DMCA, copyright holders in the United States are considerably more able to target violators with civil lawsuits, which explains why all the current RIAA lawsuits and warnings are aimed south of the border. This is not to say that music sharing is legal in Canada, however. There is a false perception that it is, but sharing music files online is still a violation of Canadian copyright law.

Handling music on your computer legally

You may copy music you have purchased onto another medium for personal use, and this includes converting it into MP3 files for use on your computer or a portable player. Legally, you may not share these files privately or publicly over the Internet without violating copyright.

As with software, the Digital Millennium Copyright Act in the United States makes it illegal to circumvent copy protection on digital audio media, meaning that if you have purchased a copy protected audio CD, you may not legally defeat these measures in order to transfer the audio tracks to MP3s on your computer. Efforts to have this portion of the DMCA changed have been underway for some time now.

Movies and DVDs

The advent of common broadband connections and file sharing has also impacted the film industry. Versions of first-run and even unreleased movies of varying quality can be easily found on most file sharing networks. While the comparatively massive size of these files makes them harder to download than music or software, they are obtainable.

Also, DVD recording is on its way to becoming a common feature of home PCs, a fact which no doubt gives Hollywood (and your local video store) the cold shivers. While copying to videotape from television is old news, DVD has changed things somewhat.

The DVD format is encrypted to begin with, and various legal action has revolved around the sharing and use of software that can duplicate DVDs to other DVD disks, and to sets of multiple CDs or a file.

In a sense, DVDs are at the vanguard of the whole DMCA/copy protection issue, since the large size of DVD movies makes them difficult to trade online, they are more likely to be duplicated for personal use by a legitimate owner.

However, such act involve bypassing the built-in CSS encryption of the DVD, which is currently a copyright violation under the DMCA in the United States. Currently there is no legal way to duplicate a commercial DVD that you do not own the copyright to. That means, backing up your favorite Matrix DVD would break its copyright.

I hope this helps explain a little more to everyone!

Originally posted here on PCStats by Mike Dowler

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