Microsoft is neither judge, jury, nor legislature. Yet, they seem confident that they have the power to define, by fiat, what is "fair use" in digital media. The MS Zune iPod killer will apparently encourage users to believe -- incorrectly -- that fair use permits "three free plays" of copied media files. Thus, just as the Zune makes it mechanically easier for people to illegally copy digital media files between devices, Microsoft will be inducing them to do more illegal copying by confusing them about what is and is not permited by the law. Of course, at the same time that the Zune will encouage and induce illegal copying, it will also tend to make perfectly legal copying more difficult -- if not impossible.
One may argue that our legislatures have been slow in addressing the copyright issues that arise from the spread of the Internet and other new media, however, it can't be acceptable for a corporation, impatient for the resolution of some issue of public policy, to further their business goals by simply taking on themselves the roles that we assign exclusively and properly to our nation's law makers.
The issue of Microsoft's hubris comes in the recent announcement of the Microsoft Zune iPod "killer." A feature of the system, apparently considered critical to its commercial success, is the ability to easily share recordings, via WiFi, with other Zune owners. Supposedly in order to limit illegal music sharing, the Zune will wrap all shared music with DRM code that prevents shared files being played more than three times. Certainly, there is nothing wrong with MS doing this for files whose creators have agreed to it. The problem comes in that Microsoft will be wrapping ALL shared music with the DRM code -- whether or not the copyright holder has agreed to permit the three free plays that Microsoft seems to consider to be "fair use." User's will assume that the "three play" limit has a grounding in actual law. In this, they will be mislead. Of course, since the DRM is applied to *all* files shared via the Zune, Microsoft will be imposing it's "three free play" limit even on those copyright holders who, by using Creative Commons or some other means, have permitted *more* than three plays!
Microsoft's lawyers are well aware that copyright law clearly reserves *all rights* to a copyright holder. Under copyright law, any copying is prohibited unless explicitly permitted by the copyright holder or implicitly permitted as a fair use or via some implied license. It doesn't matter if the copying is for the purpose of listening to a song one time, three times, or a thousand times. Copying is simply not permitted -- we need no new law to clarify this point! As far as fair use is concerned, courts have often limited it to things like 18 second clips, the production of ephemeral copies when necessary to facilitate networked use, etc. To my knowlege (IANAL), no court has ever said it is fair use to copy an entire song, movie, or multi-hour digital media work -- no matter how many times it is to be listened to.
The problem in what Microsoft is doing is that they will create the impression in the minds of their users that "three plays" is "fair use." Most of their customers aren't lawyers and thus are likely to trust that Microsoft's lawyers have ensured that copying files among friends is legal -- as long as the number of plays are limited. Given this, we can anticipate that many users, who might have otherwise been held back by their fear of violating copyright law, will become comfortable about violating copyright law using a Zune. The result will inevitably be more illegal copying done with Zune's than is done using other media players like the iPod that make no implicit or implied statements about what is or is not permitted. Effectively, Microsoft will be indirectly inducing Zune users to violate copyright law.
So far, the only Microsoft "explanation" I've been able to find on the web is one offered by a member of the Zune team at Microsoft. He writes on his blog that:
There currently isn't a way to sniff out what you are sending, so we wrap it all up in DRM. We can’t tell if you are sending a song from a known band or your own home recording so we default to the safety of encoding... [See ZuneInsider.com]
Basically, he's claiming that it is "too hard" for them to figure out what should and should not be "protected" by their DRM encoding. The claim is simply not true and, in any case, isn't much more convincing than the arguments of teenagers that "music should be free" because it is too hard for them to pay for it... Microsoft can easily determine which recordings contain Microsoft DRM and were thus produced by those who have agreed to their "three play" policy. Any files which do not have Microsoft DRM in them should be considered files whose owners have not agreed to Microsoft's free play policy and should thus be left untouched -- no derivative works with DRM added should be created.
One must wonder if the precedent set in the Grokster case won't be used against Microsoft once the Zune is released. Certainly, Microsoft will be aware that there is much copyright violation using their product. Also, while Microsoft may argue that their DRM policy reduces the impact of illegal copying in some cases, they won't be able to dispute that the way they implemented their system actually encouraged some of the illegal copying by encouraging users to think that it was permitted -- if done the Microsoft way. It will also be very much the case that if the Zune is successful, a large part of its success will be due to features that differ from those of other players. In this case, just about the only unique thing in the Zune appears to be the support for widespread WiFi copying and the copyright-violation-inducing DRM system...
It may be that Microsoft is impatient for the law in this area to become settled or for the law to be changed so that it is easier for Microsoft to make money. Frankly, it doesn't matter what their motivations are. The law in the country is defined by the government -- not by the corporations.