Duke University Compsci 182S: iTunes DRM Project

Legal analysis

2006-03-24T12:38:00.000-05:00

The legal definition of "fair use" contained in the 1976 Copyright Act explicitly mentions that use of a copyrighted work for "purposes such as criticism, ... scholarship, or research... is not an infringement of copyright." Therefore, the nature of our circumventions of the iTunes DRM and subsequent duplication of the copyrighted songs as a classroom exercise intended to examine copyright puts us on fairly stable legal ground. However, the important question is whether circumventing the iTunes DRM in exactly the same way we have, and using the files in the same way we intend, is a legal activity outside the context of the assignment; that is, is this activity legal in its own right?

There are several details of our circumvention of the iTunes DRM that may affect its legality. Most importantly, we purchased each of the songs that we cracked, and so the parties that stood to profit from these songs were appropriately compensated. Furthermore, when the copies were made, the originals were destroyed, and each song was given to only one member of the group. Each member agreed to use these files privately and not re-distribute copies of them to others, and we assume in this argument that this agreement will be upheld. Under this scheme, then, no actual "file-sharing" takes place, and each song remains in the possession only of its rightful owner, albeit with one less barrier against potential future copyright infringements in place.

Recognizing these special details, we find that no cases yet argued in a federal court have set a precedent that directly relates to the legality of our exercise. Explicit omissions in the summary arguments of three important digital copyright cases—each judged in favor of the respective plaintiffs—do indicate, however, that the reigning interpretation of copyright law in federal courts today would consider ours a legal activity.

First, there is the DMCA case Paramount v Ladd, decided in 2004. The defendants distributed DVD copying software that included CSS circumvention capabilities. The plaintiffs alleged that the DMCA's prohibition against "trafficking in circumvention tools" to defeat "digital walls guarding copyrighted materials" applied to this case, and the court found in favor of the plaintiffs. The court awarded the plaintiffs damages equal to the profit made from selling the software, a total of almost $2 million. We see from this case that precedent exists prohibiting the commercial distribution of a program like Audio Hijack Pro, so long as the court decides that its intended purpose is contributing to copyright infringements; however, this case does not address the use of such software. It is likely that this case could also be used as a precedent prohibiting non-commercial distribution of such software as well, since the argument against the defendants did not rely on the commercial aspect of the software; instead, it was used only in determining the damages awarded. Since Audacity is both non-commercial and is intended primarily for non-infringing uses, it is almost certainly in the clear with regard to this judgment.

Second is USA v Slater, decided in 2003. The defendants ran a pirate software ring online, defeating copy protection schemes on commercial software and distributing it for free through the web. They claimed fair use during the appeal, but the court turned it down, and the defendants were convicted of conspiracy to commit copyright infringement. Damages were calculated based on a very conservative estimate of the total retail cost of the copies of software that were downloaded for free, rounding out at about $1.5 million, and awarded to the plaintiffs. This case clearly shows that the courts are not willing to stretch fair use to cover copyright infringements that clearly eat into the original copyright holders' abilities to profit from their works.

Third, there is BMG v Gonzalez, decided in 2005, which established a precedent prohibiting downloading commercial, copyrighted materials for free. The defendant downloaded over a thousand songs from Kazaa and kept them on her computer. She asserted that downloading as a "try-before-buy" mechanism was covered as fair use, but the court disagreed, and it seems they would likely have upheld their judgment even if she had diligently deleted all old files after making a purchasing decision. The court stated that downloading these files robbed the publishers of revenue, including revenue ordinarily generated through licensing in try-before-buy mechanisms like radio broadcasts, iTunes preview clips, and subscription music services like Rhapsody. It is notable that, while most RIAA lawsuits focus on uploaders on file-sharing networks, this case prosecuted a relatively small-time downloader for copyright infringement and awarded damages to the plaintiffs.

One additional case that relates somewhat to our current discussion is the high-profile MGM v Grokster. While the legal precedent set by this judgment affects the creators of peer-to-peer file-sharing networks that traffic mostly in copyrighted works, rather than their users, a comment made during the proceedings indicates an interpretation of copyright law on the part of the petitioners—the record industry—that allows for behavior like ours. While arguing before the Supreme Court on March 29, 2005, Donald Verrilli stated that "the record companies, my clients, have said, for some time now... that it's perfectly lawful to take a CD that you've purchased [and] upload it onto your computer". Our format-shifting (from DRM-encumbered to regular audio file) has the same intention as ripping one's own CD for personal use; that is, backup and freedom to play on any device. Since the copyright holders were compensated for every file and no redistribution of the files took place, both this statement and the much-paraded Sony Betamax decision support an interpretation of our actions as legal and not infringing upon copyright.

We see from these cases that no legal precedent exists that clearly classifies our behavior as either legal or illegal. However, the arguments used in each case to convict the defendants of copyright violations rested on features of the case that are unlike those of our circumvention exercise. Furthermore, several cases explicitly mentioned limitations to the prosecuting arguments that excluded our behavior from the judgment of illegality. We are confident that our circumvention of the iTunes DRM and subsequent copying of the compromised music files falls under fair use and does not infringe upon copyright, since there is absolutely no negative commercial impact on the copyright holders. The DMCA's prohibition against defeating a copy protection scheme, however, does not necessarily require copyright infringement to classify an activity as unlawful. This is likely the only legal angle from which our behavior could be attacked in court.

Brief note on distribution

2006-03-24T12:23:00.000-05:00

I should mention this group has opted to divide the 30 songs from out iTunes certificate equally between its 4 members. This is not to say this is the only 'ethical' manner of distributing (the various songs), but it is impractical for us to try to think of criteria that would justify unequal distribution--most often, we see unequal distribution justifiable (or simply considered justified) in much larger contexts when inequality is thought to yeild a group benefit; naturally, we are not dealing with this sort of context. Moreover, we will have a remainder of 2 songs. Since we cannot fairly distribute these songs (equality will be our only guide for what is fair or ethical) we will opt simply to not use them because they place us in a compromised situation where an ethical decision is impossible (to pracitcally) make.

No Success with Virtual CD Burner

2006-03-23T23:36:00.000-05:00

The Virtual CD burner method was the method of choice but my quest for the appropriate software has proven fruitless. From a series of searches I have found that such software is apparently sought by many (here's a forum about it) but no one wants to develop it commercially as it seems to have few legitimate uses. Some major software titles dealing with virtual drives, such as Daemon Tools, have stated that they never intend to develop such functionality. Others, like Alcohol Software (makers of Alcohol 120%), who many thought might develop this, seem to have lost a lot of business and no longer have a distributor. I guess that means that aren't doing any more developing. While uses may be very limited, here are two examples (1, 2) that I found of people claiming to have a real need for virtual CD-RWs. Most discussion, however, is related to burning and ripping music.

In any case, all my searches point to one piece of software, Original CD Emulator from ZTekWare. So I downloaded the trial version of this software and quickly found it to be rather lousy. The trial expired so I can't get any screenshots anymore, but in short, the trial version didn't have much functionality and what it did do, it didn't do well. When I chose to mount a CD-RW all kinds of different disks mounted, some with various random content supposedly on them. In addition, I could only use the OCDE file format. iTunes, as expected, saw the drive but did not treat the disc as a legitimate one and burning efforts were foiled.

Here is a screenshot of OCDE from the ZTekWare site:

That image conveniently only shows virtual CD-ROMs not burners, which is what is supposed to make this software unique. But a good indication that the software is lame is that the company seems to only have one product and their website has about four pages total. As the person mentioned as an example of a legitimate user showed in this discussion, ZTekWare, what he calls a "fly-by-night company," is difficult to contact on top of the fact that their products are poorly made.

Focus has shifted back to the stream-capture method, but the search will go on...

Pre-legal Ethical Considerations

2006-03-23T22:24:00.000-05:00

Many of the other ethical concerns I’ve seen on other blogs have used the law as a basis for ethical consideration. I would like to make the point – though this is by no means my central point – that the law has zero necessary correlation with what we might consider a more transcendental and universal morality. As Luce Irigaray (a critical theorist and refugee of psychoanalytic schools) writes in a passage which is somewhat cryptic but also rather relevant: ‘The first of…two kinds of laws if often defined or redefined by the society of the State, whereas the second still derives from a morality or an ethics that, at least originally, is of divine order’ (Sexes and Genealogies 128). What Irigaray is getting at here is the manner in which legal code (one sort of law) is distinct from a transcendental moral law (another sort). I don’t think there is anything particularly startling about this sort of statement—how else can we explain the legal status of, say, American slavery?—but perhaps there is something less obvious in the manner in which we see our law ‘of divine order’ is something shaped by various social, economic, and political histories and circumstance. For example, I think we all may agree that ‘to steal’ is wrong - universally, unequivocally. However, this consensus is rooted in an acceptance of the morality or justification of the privatization of property, the commodification of whatever it is that has been stolen, and so forth; we scarcely think of the manner in which these sort of social and economic relations (so necessary to everyday life) may constitute and affect the manner in which we compose universal moral systems. This is not an entirely unproblematic example, but I think that perhaps we can still see from it that there is a way in which particular social and historical arrangements can shape our understanding of what is and what is not ‘ethical.’

I write this hoping that we can move away from regarding ‘the law’ as a singular structure and identifying it only with current legal precedents. I also write this in an attempt to say firstly that perhaps it is perhaps impossible – if not just excessively difficult – to qualify particular actions as ethical or unethical. Yet, I think we can acknowledge this and still remark that – given the experiments we are conducting here are entirely in the name of scholarship and without any real victim – what we are engaging in is not an overtly ‘unethical’ endeavor. Even if practicing whatever FairPlay DRM-resistive techniques we are exploring may be considered ‘illegal’—I do not recall that they are—we are practicing them under the protection of ‘Fair Use,’ which is detailed rather well in another blog.

Having made my philosophical advances (which I realize are rather incongruous to the more sterile, tangible, and legalistically-based subject of digital rights management), I think it would only be productive to engage is a more grounded discussion of the practical and ethical (a term which I hope we can understand as very limited and specific) implications. So, then: if we are to take an audio file acquired legally through iTunes and to record and export it as an mp3 file via Audacity – and if we are to do this outside of the classroom – do we stand to become unethical creatures? Clearly: no, we do not. Perhaps if we distribute this unfettered audio file in P2P networks we stand to commit an amoral act. However, simply because our method of defying Apple’s FairPlay would allow for this sort of distribution – there is nothing immediately morally subversive about it. This is true, of course, only insofar as we deem Apple something other than a divine and unquestionable arbiter of divine human moral truths. Yet it is, I venture, rather obvious Apple cannot be regarded rightly in this manner. Resisting what we may then understand are generally arbitrary demands of us in a way which harms absolutely no one can really not be considered unethical in any respect. Certainly and equally, though, there is nothing particularly noble about it – which I think we ought to keep in mind. If we think resisting FairPlay is a way of asserting a consumer’s right, a way of resisting encroachments on Fair Use, a way of waging a moral war – then perhaps we should recognize we are operating on a particularly subjective idea of what is and what is not ethical.

How to Rip

2006-03-23T17:53:00.000-05:00

This method requires a little more micromanagement than using other software, but all the software here is free, which I believe is more in the spirit of the project.

1) Install Audacity and the LAME file needed for exporting MP3s.

2) Open Audacity. Change the recording source to Wave Out Mix and got to Edit -> Preferences and change the number of Channels to 2(stereo).

3) Open iTunes and find the song you wish to remove the DRM from.

4) Hit the Record Button on Audacity and then start playing the song you wish to rip.

5) Stop Audacity when the song is over. If you're a little late in stopping it, Audacity has tools for trimming the recording. When you're satisfied with what you have File -> Export as Mp3.

Current Situation

2006-03-22T18:16:00.000-05:00

Audio Hijack Pro was successfully used before break to remove the DRM from iTunes. Since then I've discovered a free windows program with the same functionality of Audio Hijack, but it's also free, which I believe keeps more in the spirit of the project. Here's a link to Audacity. Step-by-step instructions coming soon.

Progress

2006-03-10T11:25:00.000-05:00

There does not seem to be a way to mount a virtual CD burner at the moment, negating the idea of having iTunes burn virtual CDs. JHYMN, while able to break the iTunes DRM in previous versions, does not work with version 6 yet. The Mac Audio Hijack program was successfuly used to remove the DRM from iTunes purchased songs, but it can only work as fast as the song plays.

Virtual CDs

2006-03-08T23:53:00.000-05:00

The problem with using the virtual CD method, is that typically virtual CDs are created by a program and then can be read using a Virtual CD drive. In order to exploit the iTunes burn/import hole using a Virtual solution, it would be necessary to mount a Virtual CD Burner, because it is necessary for iTunes itself to burn the disk, as it is the only one that can remove the DRM.

Initial Approach

2006-03-07T19:31:00.000-05:00

With any media, there is an analog hole which can be exploited for reproduction. Methods using this fact all experience quality loss, but the loophole can never be closed. At some point music must become audible and video must be visible and these media can be re-recorded from this state. Our initial approach to the problem was to record the music playback and save it as some format of our choice. There are three points where this can be done. In increasing order of quality of copy: 1) placing a microphone in front of the speaker, 2) taking a wire and connecting the audio out and audio in ports of the sound card, 3) capturing the stream entirely in software. Using a Mac and the legal-despite-its-name software Audio Hijack Pro, Mr. Louis is attempting to achieve method (3).

While writing the above status report I also thought of the following:
The Apple iTunes software allows the user to burn music to CDs a limited number of times. However, once on the CD and no longer in its original DRM wrapper, the music can be ripped to another format. Although there is quality loss, this method is fairly effective; however, it is time-consuming and requires a user to deal with the physical CDs. Perhaps the same strategy could be used with a virtual disc, eliminating the user and saving some time. Additionally iTunes has burning and CD ripping functions built in. With a piece of software to give iTunes instruction we could use its own features to export and re-import the unwrapped songs. Unlike and the stream-and-capture method burning to disc does not require music playback in real-time or near real-time. It would be much faster.

The Blog Is Born

2006-03-07T19:04:00.000-05:00

http://itunesdrm.blogspot.com

Make it your homepage to stay updated with awesome information about iTunes, DRM, and other legal and ethical hoopla!

The roles of the team members in this project are as follows:

Blogging Guru: Harish Srinivasan
Legal Consigliere: Jadrian Miles
Technical Liason: Sam Louis
Ethicist/Ombudsman: Michael Haley