Boxee vs. the DMCA

by on January 18, 2009 · 18 comments

I was very interested to read Berin’s post about the Boxee, a device I had not heard about until today. I’ve been asking for years why there are no good video jukebox products on the market, so I’m always interested to see new entrants in the market.

If Wikipedia is to be believed, Boxee is a fork of the XBMC Media Center, which I first wrote about way back in 2006. The reason you may not have heard more about the XBMC Media Center is that it sits in an uncomfortable legal grey area. Thanks to the DMCA, one of its most inportant features—the ability to play and rip DVDs—is illegal. And there are probably other DMCA- and software-patent-related legal impediments to releasing a product like the XBMC. As a consequence, the major consumer electronics manufacturers have released relatively crippled set-top boxes that have not caught on with consumers.

Boxee’s wikipedia page suggests that Boxee uses libdvdcss, a cousin of the DeCSS library that the courts ruled to be an illegal “circumvention device” back in 2001. And the DMCA holds that someone who “trafficks” in a circumvention device “willfully and for purposes of commercial advantage or private financial gain” should be fined up to $500,000 and imprisoned for up to 5 years.

Now, the NYT article says that “Lawyers say that Boxee does not appear to be doing anything illegal,” although it doesn’t quote any actual lawyers, nor does it say which legal issues those lawyers examined. It’s possible that Boxee stripped out libdvdcss and replaced it with code that has been approved by the DVD founders. Moreover, it seems that Boxee’s strategy is to just build cool technologies and let the legal chips fall where they may:

Mr. Ronen said that like many start-ups, Boxee was definitely leaping without looking. “Don’t assume we have lawyers. That’s expensive,” he said.

This is a very risky strategy, both from a business perspective and for Ronen personally. But it’s also likely to pay off. If Ronen is able to get enough customers before the MPAA can be roused into taking legal action, they have a pretty good shot at winning the resulting PR war and forcing the MPAA to back down, even if the MPAA has the law on its side. And indeed, that may be the only way to break into this market, because if he plays by the rules he’ll never get the studios’ permission to build a set-top box the studios don’t control.

Fortunately, courts tend to be swayed by the perceived “legitimacy” of a technology’s designers. Remember, for example, that just 7 years after suing to keep MP3 players off the market, the recording industry insisted to the Supreme Court that everyone knew MP3 players were legal. There weren’t any changes to the law in the interim. Rather, MP3 players had become a familiar technology and so judges intuitively “knew” that any interpretation of the law that ruled out MP3 players must be wrong. If Boxee can grow fast enough, and can cultivate a “good citizen” image, it may be able to pursuade judges that any interpretation of the DMCA that precludes Boxee must be wrong.

The more fundamental point, of course, is that it’s ridiculous that Ronen has to worry about these legal issues in the first place. The copy protection technologies Ronen is circumventing haven’t stopped piracy, they’ve simply given Hollywood a legal club with which to bludgeon technology companies it doesn’t like. Had the DMCA not been on the books, we likely would have seen a proliferation of XBMC-like device and software on the market several years ago.

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    The video description of Boxee on boxee.tv says that Boxee works for all non-DRM media. So it sounds like they've chosen to avoid the problem you're describing—no?

    Of course, I was commenting not on Boxee's ability to play a wide range of media, but specifically its ability to aggregate content from multiple IVPDs (Hulu, Netflix, etc.) into one easy-to-use interface. Of course, it might turn out to be the case that the “killer app” would be to marry this functionality with the other functionality in Boxee, potentially including the ability to play DRMed media.

  • http://www.cs.princeton.edu/~tblee Tim Lee

    All the information I've been able to find suggests that Boxee plays DVDs. DVDs are DRMed media. So no, I don't think they've avoided the problem, although maybe the DVD cartel will choose not to sue.

    I certainly agree that the other features of Boxee are great, and they may not have DMCA problems. I do think consumers would be more interested in these kinds of boxes if they came with media-streaming capabilities and the ability to play/rip movies they already own.

  • http://pragmaticgeographer.blogspot.com/ Ben R.

    I use boxee at home and it will play everything I have so far thrown at it including DvD media.

    It is really a bigger threat to cable companies rather than content owners. Two years from now when a $100 set-top box is available that will stream Hulu, Netflix, the new TV.com, and perhaps even premium channels, why buy a remarkably overpriced bundled cable package?

  • http://zgp.org/~dmarti/ Don Marti

    Hollywood just thinks they're beating up on technology companies. They're just lending their political juice to the licensors of the DRM system to beat up on the other technology companies.

  • Dave H

    I look forward to when I can cut the cord myself. You see, the thing keeping me from cutting the cord is the fact that Time Warner is the only broadband option available in my area. The (up to) 7 Mbps connection I pay for gets bashed down to below 2 Mbps in the evening. This makes watching video on sites like Hulu an exercise in buffering. Only sites like that have video delivery that adapts to bandwidth fluctuations are watchable for me at this point (ABC.com's browser plugin is the only one that does this that I've found so far). Because TW's network in my area can't handle the load in my area, they're keeping me as a cable TV subscriber! I'd love to change to someone who can provider better speeds, but there is not option.

    I've never heard of this Boxee before, thanks for pointing it out. It's good to know that some are at least still trying to put out innovative media solutions outside of the standard channels, even if they do get punished for it in the end.

  • Ven

    Primary legal issues with Boxee are the same as with XBMC: libdvdcss, various non-open-format codecs and dlls used for playback and encoding, UPnP, and other borrowed source base.

    Some of these issues can be addressed by running Boxee on Windows, MacOS, or Linspire, which come with licensed codecs and CSS decryption libraries. As long as you are using a licensed equivalent of libdvdcss, you can play DVDs and legally archive them to hard drive. The archival technology must do a bit-for-bit copy of the DVD to preserve the CSS. In Linux, a simple “dd” command will do it, as long as the disk is playing.

  • Ven

    Primary legal issues with Boxee are the same as with XBMC: libdvdcss, various non-open-format codecs and dlls used for playback and encoding, UPnP, and other borrowed source base.

    Some of these issues can be addressed by running Boxee on Windows, MacOS, or Linspire, which come with licensed codecs and CSS decryption libraries. As long as you are using a licensed equivalent of libdvdcss, you can play DVDs and legally archive them to hard drive. The archival technology must do a bit-for-bit copy of the DVD to preserve the CSS. In Linux, a simple “dd” command will do it, as long as the disk is playing.

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