Another DRM Train Wreck

by Tim Lee on August 24, 2006 · View Comments

Cory Doctorow points to an article (that’s currently slashdotted) about Microsoft’s plan to disable high-def video playback in 32-bit versions of Windows Vista. It seems that there are too many ways to hack around Microsoft’s copy protection scheme in the 32-bit version, so Microsoft has simply thrown in the towel and told a substantial fraction of its customers that they’re out of luck.

As Doctorow notes, this creates an interesting perverse incentive, since movies downloaded from illegal file-sharing sites will work just fine. Is Hollywood trying to drive its customers into the arms of pirates?

View Comments Posted in: DMCA, DRM & Piracy

  • Mike, you hit on the topic of prior art, which deserves a thread in itself...

    Tim, by citations I mean the part of the patent claim from which you draw your conclusions. In this week's post, you compared the summary to the main body of the claim, found them almost identical and argued that in essence the patent wasn't saying much. You tied your argument to whats actually expressed in the patent, rather than just to your opinion.

    The cost of litigation reflects a flawed system, with vague patent claims adding to the issue. Yes, we agree. But how does this prevent you from presenting a patent's legal interpretation/ eforcement? That would bring you closer to your goal of proving the need for banishing software patents. You're still only addressing patent administration, while your conclusions on software patents assume that you've presented evidence of their value/function. From this methodology, you hop over all administrative policy options to argue for the far reaching move of eliminating over 100K patents.
  • I think that if minimizing the power and influence of the government on research is your goal, then minimizing the amount of time that patent suits can last is an important first step. All of that time and money could be better spent on R&D.;
  • Doug: I appreciate your support, but I don't think calling Noel names is helpful. I prefer to let his words speak for themselves.

    Noel: I'm still confused about what you mean by citations, but I'm glad I stumbled into providing them for you.

    As for analyzing the claim rather than the interpretation by the courts: the problem is that a litigant only gets to find out what a patent means after he's spent several million dollars in legal fees. If you can't tell the scope of a patent just from reading the claims, then that, in itself, is a big problem, is it not? Imagine if the property lines to your physical property were only described in vague terms, and you had to sue your neighbors before you could figure out exact where the property line lay. That would be a nightmare. If the general scope of patents can only be determined after they've been litigated, that's a huge problem, isn't it?

  • Noel, might I make a simple, Occam's Razoresque proposal on how to fix the system... change the law to allow the defendant to file a request for summary judgement when they have an example of prior art, and then end the right of appeal. Prior art? Case dismissed, patent invalidated, sorry, no one wants to hear your screams. This would probably do wonders for every industry for that matter...


    On that note, all evolutionary changes should be folded into the legal definition of obvious. I have no problem whatsoever with quantum computers being patented, as they represent a revolutionary jump in design. However, the USPTO and courts allow almost every little hack out there to be patented.

  • Yes we do agree there's a problem with the patent system Doug. Its what to do about it that draws diagreement.

    You see, I've suggested that the patent of the week posts would be more informative via several changes. One of my suggestions of adding citations, Tim did this week, and I found the post much more informative than previous ones.

    Another suggestion is to include how a a patent has been interpreted by the courts. Even when a patent has gone through litigation and is the focus of Tim's attention, he still only criticizes the claim, which I don't think is that informative. An analogy: Can you tell the value of a statute by its words, or do you look at the judicial or agency interpretation. You simply don't know enough by the text alone.

    Tim's position is that bad patents shouldn't be in the system to begin with, but by his methodlogy he can at most conclude that badly constructed patents don't belong in the system. This is a far way for justifying the elimination of software patents.
  • Doug Lay
    Wow, you are so smart you can repeat back what I just said, like a parrot with an attitude. Yes, big software companies are getting burned by trolls wielding dubious patents. Now please tell me why it is silly or pointless for Tim to show examples of these pad patents, week after week after week. We all agree there is a problem, don't we?
  • Once again, everyone hates bad patents. While we agree on that I want to point out something.

    Yes, Apple, Microsoft and RIM are the latest victims of the patent system. They are examples of big companies getting trolled by smaller guys wielding obvious patents. Thats quite the opposite from typical scenario anti-software patent advocates propogate (big companies going after smaller ones).
  • Doug Lay
    Let's see - RIM and Apple stuck paying out 100s of millions of dollars to failed competitors wielding dubious patents, you don't think that shows some sort of a problem out there? The software industry, acting no doubt in their own self-interest, is asking Congress quite loudly for patent reform. This isn't a bunch of open-source developers asking for help, it's Microsoft, Adobe and Autodesk (PFF's idea of the "good guys") saying there's a real problem.

    I don't know if there are any "good" software patents out there, or if it is feasible to eliminate software patents as a category. (Certainly if it were up to me I'd try to eliminate patents on gene sequences, medical tests and business processes before going after software patents.) But it is pretty obvious that:

    there are a LOT of really bad software patents out there;

    some of these bad patents are doing real damage to successful companies;

    some sort of reform is needed to curb these bad patents; and

    patent reform had better go beyond just asking the PTO to do a better job (having worked in and around government I'm pretty sure the PTO can't and won't do a better job, not now and not ever).

    Whether or not you agree that all software patents should be eliminated (I am still undecided on that position), it's clear that Tim's series is helping to illustrate a serious problem.
  • Yes Doug, precisely. Tim is enviable... he knows how innovation works:):):):)

    Tim assumes the industry is hurting. ITS NOT!! He thinks that if nobody provides him with an example of a good patent, none exist despite him critiquing not even 1/10 of 1% of software patents!! etc et etc.

    I actually worked in the software industry for years, and no, I'd rather not be the head of any agency...

  • Noel, I am not sure that Tim actually expects them to be altruistic, but rather expects the government to create policies and laws that don't allow them to control everything about their products. I share that approach as I think that there is no natural right to control your product beyond first sale.


    I also reject the notion that greed is good. Greed is a vice and has been responsible for much evil in the world. It's for that reason that I think that IP law should not hand over a comfortable life to anyone, but should be strong enough for them to just make a good living if they are good at what they do. That, not their being able to maximize their return, is my only concern with IP.

  • Doug Lay
    Noel:

    My, you just know everything, don't you? It's a wonder you're working as a lowly research assistant instead of setting policy as an agency head. Really, your latest comment is just another example of your totally unearned arrogance. You say Tim's views don't reflect "the industry" but you provide no concrete examples, or any evidence whatsoever that you understand "the industry." Do you think you learn about the software industry by surveying law review articles? You talk about widely accepted axioms in IP, yet you don't exen bother explaining what these axioms are. Why do I suspect these axioms are mainly taken as gospel within the walls of the PFF? Your other accusations are equally unsubstantiated. What mostly comes across in your incessant carping is a sense of jealousy that Tim, in a humble way, is something of a rising star, while you are stuck at the bottom of the totem pole in a think tank whose best days are behind it.
  • Noel Le
    Point taken Doug. But hey I dont dismiss Tim do I? I dont dismiss anyone. My disagreement w Tim (and strangely I find myself appreciating Enigma as more considered on market forces and MikeT on fair use than Tim although they and I never agree), is that his views dont reflect the *industry* as it is, nor widely accepted axioms in IP (nobody knows how innovatiom works BTW- Tim:). He also tends to be very politically charged, non accepting that firms work for profit and is too idealistic. Those arent bad things but they raise issues where I engage him. Tim *expects* firms to act altruistically and seems disappointed when they dont. I expect them to do their thing. I dont like everything MS does and I dont care much about them but I switch products rather than whine when firms arent doing what I want.
  • eric
    I think we'll find that hi-def DVDs will be somewhat of a niche market, because people are usually satisfied with less. As DRM issues go, this one is probably low on the priority list.

    Look what happened in high-def audio. DVD-Audio and SACD just aren't catching on. CD is losing market share and the lower quality iTunes, WMA, and MP3 files are increasing. People can't hear the difference or don't care. High quality doesn't sell. It's the old Monty Python maxim: "97% of British housewives can't tell the difference between Whizzo butter and a dead crab!"

    DVD is "high enough def" video for the majority. HD-DVD and Blu-Ray will not be an easy sell. Personally, I'll be switching to Linux not Vista, so the point is moot for me.

    I am unclear on one point, though. I thought Blu-Ray and HD-DVD had already been hacked by using WinDVD screen capture. That means folks were already playing the HD formats on their computers, which I assume were 32-bit. ARSTechnica mentioned the Qosmio G30 laptop. Sorry, I'm not that geeky to know.
  • Doug Lay
    Noel:

    So when companies act out of their own self-interest, that is a good thing, but when consumers speak out for their self-interest, that is a bad thing? Also, I don't see Tim telling MS what to do, just making an observation that the decisions MS and the movie studios are making may drive consumers to substitute with other options.

    I don't think Tim needs to change his writing style at all. He writes very well, with strong, concrete examples and a sense of humility (hint, hint). I don't agree with everything he says, but I come here nearly every day to read his stuff (along with Jim Harper's stuff), and I frequently pass along tidbits I pick up here to friends and co-workers. Perhaps instead of acting like you know better than Tim does, you should emulate his example. You may feel his posts are getting old, but apparently the market doesn't agree.
  • This "but what about me" attitude folks have when talking about companies is getting old. MS can do what it wants and if you think social welfare would be raised by certain actions apparently the market doesnt.


    Sure that's totally OK with me. MS bully people around? Great! They will be just that much quicker to switch to Apple, or Linux.


    The market is composed of consumers and producers. The history of the PC is the story moving towards progressively more and more open standards and formats, closed formats have always been dead ends. The only item that has not yet fallen to this trend is OS software. consumers will select freedom and empowerment over closed formats and bullying. The keyword in the last sentence is 'yet'.


    So markets yes, bring it on, bring it on...

  • Noel Le
    That summary of Lemley is a bit off mark but I applaud the effort. If you`re going to draw inferences from an article like that then CITE. A company like MS working for profit is healthy. This "but what about me" attitude folks have when talking about companies is getting old. MS can do what it wants and if you think social welfare would be raised by certain actions apparently the market doesnt.
  • In theory we live in a society based on mutual respect. When one party initiates abusive and capricious actions the other party will rationally respond by dumping their obligation to abide by the rules. Clearly M$ will be driving normally honest people into the arms into the arms of pirates.




    Forge: The big deal is that we have a company purposely obsolescing our hardware to aggrandize their profits. I recognize that equipment obsolescence is a fact, but this is ridiculous. Just think all the computers and cell phones now residing in landfills. This is an economic loss to our society.





    Also the phrase "won't have the hardware" is technically incorrect. This is what M$ hopes you will believe. M$ is purposely not making the drivers and other modifications that would allow you to see HD content. Technology allows you to do many things,so work arounds can usually be invented.





    An unanwsered question now, what will M$ and content industry do when third party's develop a work around. In a prior post I wrote: 2. Cohen and Lemley imply that patents foster innovation yet the examples seem to prove the opposite, large corporations quashing upstarts. For example "Microsoft has asserted patents on
    a popular video file format to block distribution of an open source version developed by reverse engineering."(Page 21)     In conclusion, another big deal is that the 900LBS gorrila may use its market power to squelch innovation.

  • Forge
    What's the big deal? Everyone will be using 64-bit Vista by next year anyway. The average person stuck with an old 32-bit computer won't have the hardware to play the disks without upgrading and it's more likely that they would just get a new PC.
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