Well, looks like both boingboing and kleinschmidt beat me to this critique in the NYTimes of Apple’s use of DRM in iTunes, but just thought I’d add a link to this in the Straight Dope on the Fair Use clause, that ubiquitous piece of copyright legislation that some of my friends swear justifies their peddling of bootleg movies on eBay. (Actually I think the argument was that it was legal to copy CD’s to give it to friends, which is still untrue, “technically” or otherwise.) Lest we might get “legal” confused with “everyone does it,” here’s the Straight Dope on Fair Use, inspired by common sense for the most part:

• It’s OK to copy music onto an analog cassette, but not for commercial purposes.
• It’s also OK to copy music onto special audio CD-Rs, mini-discs, and digital tapes (because royalties have been paid on them) – but again, not for commercial purposes.
• Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of a CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:
• The copy is made from an authorized original CD that you legitimately own.
• The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
• The owners of copyrighted music have the right to use protection technology to allow or prevent copying.
• Remember, it’s never OK to sell or make commercial use of a copy that you make.

There are certain exceptions to these general principles (that, contrary to popular belief, don’t magically apply when you really want a copy of starcraft), and more importantly, a discussion of what is legal is inevitably confounded with what people think ought to be legal, the latter being much more controversial than the former.

There is plenty of pseudo-libertarian rhetoric out there (i.e. the more virulent elements on Slashdot) vehemently denouncing the RIAA for its money-grubbing legislative empire, a position that intersects with, but not to be confused with, the hacker idealism of the open-source movement. On the other hand, businesses of varying degrees of evilness (which is proportional to the occurence of “windows” in its product titles, inversely so to the number of lowercase i’s) have touted “rights protection” and “secure computing” in an apparent commercial victory.

Maybe I’m just an optimist, but I’m inclined to think the two interests will converge over time, not because compromise is good in principle, but because of market forces that favor cooperation between seller and consumer. The RIAA obviously shouldn’t distort existing copyright legislation for intimidation purposes, but our DRM woes are rooted in deeper anachronisms inherent in the very notion of copyright. How that definition evolves is a question for the courts. As a question of business model, Apple isn’t so much as founding an empire on outdated principles of property as it is leveraging its engineering prowess to extend the profitability of those principles. Its bottom line is more driven by the latest incarnation of the iPod than by FairPlay, and as such, should be amenable to changing consumer tastes, especially faced with market innovators like eMusic. The NYTimes piece is a key step in the right direction for public awareness of the issue.

Links to part 1, part 2, part 3, and part 4 of the Straight Dope series on copyright law.