On Justice

Many cities have a link to their city code of ordinances on their city web page, but as I have discovered, they often just reference a web page called Municode.com.  This web page has compiled the local ordinances for many cities and counties across the nation. One thing you should probably keep in mind is the question: what ordinances apply to me?  Municode has both city and county ordinances.  If you live within city limits, you will be under the jurisdiction of that city.  Otherwise you will be under a county jurisdiction.  And of course, there are always state and federal laws, but you will have to go elsewhere to find them.

If you are looking to improve your writing, my strongest recommendation is to read Joseph M. William’s book Style: Toward Clarity and Grace.  This was the text for my advanced philosophical writing class in undergrad.  I’d like to mention one of my favorite grammatical tools mentioned in this book—modifiers.  I like to use resumptive, summative, and free modifiers.  They help mix up the flow and pack more information into a sentence without becoming awkward. Resumptive modifiers are created when you “repeat a key word close to the end of a clause and then resume the line of thought with a relative clause, elaborating on what went before.” Style at 140.  For example:

The recent downturn in the economy has many people troubled, people who rely heavily upon the low cost of fuel for their businesses.

Summative modifiers are created when you “end a segment of a sentence with a comma, then sum up in a noun or noun phrase what you have just said, and then continue with a relative clause.” Id. at 141.

This last week, one of Obama’s campaign volunteers offended a muslim supporter by not allowing her to wear a hijab where it would be seen on television, a mistake that will likely cost him a few voters.

Free modifiers are those that “follow the verb but comment on its subject.  It usually makes more specific what you assert in a preceding clause.” Id. at 142.

The answer to the question “what is the meaning of life?” is one that I have spent years contemplating over, reading many books and taking long walks at dusk.

I probably use free modifiers the most.  In fact, I used them quite a bit for the law review write-on competition.  In that context, it worked well because a case note requires alot of summary.  I found myself using these modifiers to give context to the facts described without having to begin a new sentence.

In a previous article, I addressed the limitations of license agreements of major online mp3 distributors.  For the purpose of simplicity, I assumed that any change in the digital file would be a modification that would be out of the scope of the liscense.  In this article, I consider arguments that creating a ringtone is not a modification at all. First consider the most pratical situation: no modification.  On some devices, especially phones designed to store and play mp3s, the phone may be able to play the mp3 with no modification at all.  In such case, the ringtone is exactly the same as an mp3 stored and played on a device of the person’s choosing.  This is clearly allowed in license agreements for DRM encoded digital files. The more complicated question is whether an mp3 that has been edited down to a 30 second sound clip is a modification in violation of copyright?  Editing down to a 30 second clip is likely the more common method for creating custom ringtones due to technical limitations.  This editing could either be a breach of contract or a breach of copyright. Is editing for length sake a breach of contract?  Probably No. Is editing for length sake a breach of copyright?

All the major music sellers give limitations to what can be done with songs purchased from their sites. Generally, they allow a person to copy, burn, transfer, and store songs for personal, noncommercial purposes. Napster, Amazon, and Walmart make no mention specifically regarding the creation of ringtones but provide as follows: Napster: “You may not authorize, encourage or allow any Tracks or Materials used or obtained by you to be reproduced, modified, displayed, publicly performed or displayed, broadcast, transferred, distributed or otherwise used by anyone else.” Amazon: “Except as set forth in Section 2.1 above, you agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-license or otherwise transfer or use the Digital Content.” Walmart: “You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Contents, the Site or any related software.” Thus, all three clearly prohibit modification of their songs, and as long as a court would view the creation of a ringtone as a modification, a person would not be legally justified in such an endeavor. ITunes has a taken a different approach. Its does not contain one of these limitations clauses but provides that a person may “copy, store and burn iTunes Plus Products as reasonably necessary for personal, noncommercial use.” (Section 9(xii)). Though the license has specific limitations on purchased ringtones, the legal status of a purchaser created ringtone is left unclear. ITunes has a function that allows users to create a ringtone from a full song if it was previously purchased from ITunes. The catch is that the user created ringtone must be purchased for an additional 99¢. Thus, the user created ringtones are separate works purchased individually and are limited to be used only “as a musical ‘ringer’ in connection with phone calls.” (Section 9(viii)). Though the language of the ITunes license appears to allow modification, it later provides:

All copyrights in and to the Service, including but not limited to, the iTunes Store (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources), and software, are owned by Apple and/or its licensors, who reserve all their rights in law and equity. THE USE OF THE SOFTWARE OR ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THESE TERMS OF SERVICE, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT. (Section 13(c)).

Even though ITunes does not explicitly prohibit modification, this clause indicates that the license is limited only to those actions explicitly granted above. Similar clauses appear in the licenses for Amazon, Walmart, and Napster. It appears that there is no way to create custom ringtones from song’s downloaded from these companies without being liable for either breach of contract or copyright infringement. In a subsequent post, I will address the more complicated question of whether in the absence of specific limitations, creation of a ringtone is nonetheless a copy or derivative work in violation of federal copyright law.

Last week, Napster joined those changing from Digital Rights Management (‘DRM’) encoded music to DRM free MP3 purchases. The move is not a surprise considering the long criticism of DRM. Some of the most significant criticism came from Steve Jobs, owner of Apple, who basically condemned DRM’s in 2007. Shortly thereafter, Apple began offering DRM free downloads of artists signed under the EMI music label. Job’s explained that Apple’s commitment to DRM free music is limited by the music distributors that sell their music through ITunes. So far, only EMI and some Indie labels have allowed their music to be sold in DRM free format to ITunes. These songs are denoted as “ITunes Plus” and usually have a ‘+’ sign next to them. Originally they were sold at $1.29/song (justified partly by the higher quality sound format of 256 kbps), but the price decreased to 99¢/song. ITunes also allows its users to upgrade their music to DRM free files for 30¢/song. To find ITunes Plus songs, click on the ITunes Plus link on the right side under “Quicklinks” or go here for a list of artists signed under the EMI label. While some people may continue hunting for songs on ITunes Plus, I might switch to Napster. Here is a relevant portion from the Terms and Conditions:

MP3Permanent Downloads: MP3 Permanent Downloads are sold in the MP3 format, at the bit rate indicated to you within your purchase path. Napster will not assign limits to the number of times MP3 Permanent Downloads purchased via Napster can be copyied, transferred or burned (though your own use will depend upon your own hardware and software and its limitations and you must abide by these terms and conditions and all applicable laws). Napster and/or its content licensors may include digital watermarks (embedded bits of information in addition to the sound file) in your MP3 Permanent Downloads that add sales information to each digital file such as (but not limited to) the fact that the file was purchased from Napster, the date and time of purchase, or information about the song (title, artist, etc.). Napster will not include any information personally connected to you in any such digital watermark or otherwise. You are only entitled to one copy of any purchased MP3 Permanent Download (see “All Sales Final” below”). (Terms and Conditions)

This agreement raises an interesting question: what is the scope of “copied, transferred or burned?” An additional clause sheds lights:

You may not authorize, encourage or allow any Tracks or Materials used or obtained by you to be reproduced, modified, displayed, publicly performed or displayed, broadcast, transferred, distributed or otherwise used by anyone else. (emphasis added, “Tracks and Materials”)

The words “anyone else” indicate an intent to prevent sale to others. Thus, the word “transfer” in the first clause probably grants permission only to transfer to other devices owned by the original purchaser. Amazon (89-99¢/song) and Walmart (94¢/song) also sell DRM free MP3 music. Even a cursory look shows that, like Napster, both have a wider selection of MP3′s to download than those offered via ITunes Plus. Walmart’s purchasing system, however, does not support Mac or Linux (unless you are clever). Like Napster, both Walmart and Amazon have provisions that limit usage to the purchaser alone and include the usual limitations guaranteed under federal copyright laws. This legal transition is still a welcome change from the hassel of DRM that limited the number of copies one may have at any given time. Though ITunes expanded user rights to allow up to 5 copies at a time, I refused to buy a DRM encoded song, and to this day, I have never purchased one. This kind of purchase and other copyright restrictions create agreements that violate fundamental principles of property rights and subvert the constitutional right of creativity upon which copyright laws are predicated . In a more philosophical article soon to come, I hope to explain why these contracts are unjust.

Sometimes its easy to buy into the idea that a judge’s decisions depend on what she “ate for breakfast.” Despite this potential problem, I’m not disillusioned with the law. If a judge makes a poor decision, the law may rest in its impoverished state; but sooner or later someone’s life is likely to come in contact with that law. At that moment, the chords of justice ought to pull at any judge’s heart and motivate him to change the law out of a natural respect for the dignity of man. Even though a judge may uphold a poor decision, eventually the people will overcome it because the judges are bound to respect the people. They know that the authority of their decisions rest on the respect of the people. With successive confrontations between the law and humanity each law becomes more correct, or in other words, more efficient–defined well enough that litigation is unnecessary. The next question is what are the criteria for understanding why men decide something is just or fair? I suppose the answer to this would be the whole study of law, but it seems from this short note that the most fundamental principles of laws rest on sustaining the dignity of man. Kant grounded this dignity in man’s inherent nature as a rational being. The idea explains quite well the relationship between judges and the people. Kant said:

For, all rational beings stand under the law that each of them is to treat himself and all others never merely as a means but always at the same time as ends in themselves. But from this there arises a systematic union of rational beings through common objective laws, that is, a kingdom, which can be called a kingdom of ends (admittedly only an ideal) because what these laws have as their purpose is just the relation of these beings to one another as ends and means.(Groundwork of the Metaphysics of Morals 4:433)

For more information, see Kant’s third formulation of the categorical imperative