This, from from James DeLong’s testimony before Congress made my jaw drop:
So, is it fair use to copy music to a portable device, as discussed earlier? The answer should be “yes,” under the old technological regime; but under the new one, the correct answer is, “Who cares”? Consumers have made clear that they expect such functionality, and the techies quickly supplied DRM that fulfills their wish. Consumers are getting these rights from the market. Perhaps in the future, as everyone gets more sophisticated, the rights granted and the price points will be calibrated more finely. Perhaps not. But it simply does not seem to be an issue with which the law, or the Congress, should be concerned.
If I purchase a song from the iTunes music store, I cannot transfer it to a Dell or Sony MP3 player. Moreover, any tool I might develop or download to allow me to do so would be classified as a “circumvention device” under DeLong’s beloved DMCA, and be illegal. To my naive eyes, it doesn’t seem to me like I’m “getting my rights from the market.” Rather, it looks to me like I’m having my rights taken away by a heavy-handed law passed by Congress at the behest of people like DeLong. And so far, “the market” hasn’t given me the opportunity to buy those rights back (rights I would otherwise have had for free) at any price.
Let’s consider a few other rights traditionally enjoyed under copyright. If I want to get permission to include a five-second sample of a song I purchased from the iTunes Music Store in another musical work, can I buy the rights to do that? Nope. What if I wanted to give my song to another person? Can I do that? Nope. Can I purchase the right to play it with jukebox software other than iTunes? Nope. How about if I want to transfer it to my high-end home stereo system? Not for any price.
I’m honestly at a loss as to how someone who I assume follows this issue closely can write something that so brazenly ignores the actual state of the market. Is he unaware that the market is being balkanized into incompatible DRM schemes that prevent users from transferring music between them? Does he imagine that Microsoft and Apple’s DRM schemes are going to magically become compatible at some point in the future? (They’re not.) Does he think that it’s just fine that anyone who purchases a song from Apple is locked into buying iPods for the rest of his life to play that song? Does he think that no consumer will ever want to do something with an iTunes song that Apple’s engineers hadn’t anticipated?