Archives for the 'DMCA, DRM, and Piracy' Category
DMCA takedown notices should take fair use into consideration
A U.S. district judge got it right yesterday when he refused to dismiss a lawsuit against Universal, ruling that copyright holders should take into account fair use prior to issuing DMCA takedown notices. The dispute arose last year when a woman received a takedown notice over a YouTube video featuring a kid dancing to a Prince song owned by Universal.
Over at Ars, fellow TLFer Tim Lee has a good overview of the issue in which he explains how the various legal arguments played out. EFF, which represents the plaintiff in the case, offered several compelling reasons why ignoring fair use in a takedown notice might actually constitute “bad faith” under the DMCA.
As Cord discussed a few months ago, my employer, the Competitive Enterprise Institute, recently received a meritless takedown notice for a global warming ad we posted on YouTube which featured about seven seconds from a copyrighted video clip. Our use of a trivial portion of a copyrighted video was clearly both transformative and non-commercial, yet the content owner still deemed it worthwhile to try to get the video removed.
ACT to Come Out against DMCA and Software Patents?
I was pleased to see Braden’s excellent new paper on the use of self-serving lobbying tactics to limit competition and promote particular business models at the expense of others. As Braden and his co-author point out, some of the most important competition in the software industry has become less about products than about business models. Some software companies sell the software directly, while others give software away as a means of selling hardware, services, or advertising. And in many cases, public policy debates in the software industry are thinly-veiled attempts to give some business models unfair advantages over others.
Braden produced a chart that gives some helpful examples of policies that tilt the economic playing field toward one business model at the expense of the others:
As you can see, software patents promote proprietary software business models at the expense of business models based on giving software away for free (and, it should be said, at the expense of people who want to give software away for free on a non-commercial basis). Similarly, the DMCA promotes proprietary software business models. They neglected to put it on the chart, but the flip-side is obviously true: the DMCA harms free software, commercial and otherwise, by making unauthorized interoperability with DRMed software a crime.
Continue reading this post »
FCC’s DRM ban may derail distribution of new-release films on cable TV
There’s been a lot of FUD floating around about the MPAA’s plan to offer new release films for cable subscribers to watch at home on pay-per-view channels. Currently, movies come out on DVD about four months after their theatrical release, and are typically available on pay-per-view a month or two thereafter. As box office receipts have waned, Hollywood has warmed to the idea of letting consumers watch movies at home just a few weeks after being released in theaters.
Due to piracy concerns, new movies would be subject to an extra layer of copy protection. The movie studios want to use a technology called Selectable Output Control (SOC) to prevent new release films from being viewed on analog outputs. SOC makes it possible to seal the “analog hole” by disabling all unprotected paths.
Consumers are willing to pay to watch new movies at home, and content producers are willing to transmit them, but government is standing in the way. FCC regulations forbid multi-channel video programming distributors from activating SOC, but firms may apply for a waiver from these rules if they can demonstrate that consumers stand to benefit. The MPAA has applied for a waiver, arguing that “These new Services are exactly the type of ‘new business models’ that the Commission contemplated when it adopted the encoding rules.”
Under Section 304 of the Telecommunications Act of 1996, the FCC is tasked with “assuring commercial consumer availability of equipment used to access services provided by multichannel video programming distributors.” FCC regulations, therefore, mandate that all video transmitted on cable TV must be viewable on all outputs, including legacy analog connectors like RCA and S-Video. In a 2003 Notice of Proposed Rulemaking, the FCC stated that, “we are concerned that selectable output control would harm those ‘early adopters’ whose DTV equipment only has component analog inputs for high definition display, placing these consumers at risk of being completely shut off from the high-definition content they expect to receive.”
But it’s expected that early adopters will sometimes encounter technical hurdles. Why should Selective Output Control be any different? Just as HD-DVD players are effectively obsolete, and K56flex modems are no longer supported by most dial-up ISPs, people who bought HDTVs several years ago prior to the adoption of HDCP might have to live without the ability to watch new release movies at home.
Under-Appreciated Existing Legal Remedies for Trolling, Defamation and Other “Malwebolent” Invasions of Privacy
Anyone interested in the long-running debate over how to balance online privacy with anonymity and free speech, whether Section 230’s broad immunity for Internet intermediaries should be revised, and whether we need new privacy legislation must read the important and enthralling NYT Magazine piece “The Trolls Among Us” by Mattathias Schwartz about the very real problem of Internet “trolls“–a term dating to the 1980s and defined as “someone who intentionally disrupts online communities.”
While all trolls “do it for the lulz” (”for kicks” in Web-speak) they range from the merely puckish to the truly “malwebolent.” For some, trolling is essentially senseless web-harassment or “violence” (e.g., griefers), while for others it is intended to make a narrow point or even as part of a broader movement. These purposeful trolls might be thought of as the Yippies of the Internet, whose generally harmless anti-war counter-cutural antics in the late 1960s were the subject of the star-crossed Vice President Spiro T. Agnew’s witticism:
And if the hippies and the yippies and the disrupters of the systems that Washington and Lincoln as presidents brought forth in this country will shut up and work within our free system of government, I will lower my voice.
But the more extreme of these “disrupters of systems” might also be compared to the plainly terroristic Weathermen or even the more familiar Al-Qaeda. While Schwartz himself does not explicitly draw such comparisons, the scenario he paints of human cruelty is truly nightmarish: After reading his article before heading to bed last night, I myself had Kafka-esque dreams about complete strangers invading my own privacy for no intelligible reason. So I can certainly appreciate how terrifying Schwartz’s story will be to many readers, especially those less familiar with the Internet or simply less comfortable with the increasing readiness of so many younger Internet users to broadcast their lives online.
But Schwartz leaves unanswered two important questions. The first question he does not ask: Just how widespread is trolling? However real and tragic for its victims, without having some sense of the scale of the problem, it is difficult to answer the second question Schwartz raises but, wisely, does not presume to answer: What should be done about it? The policy implications of Schwartz’s article might be summed up as follows: Do we need new laws or should we focus on some combination of enforcing existing laws, user education and technological solutions? While Schwartz focuses on trolling, the same questions can be asked about other forms of malwebolence–best exemplified by the high-profile online defamation Autoadmit.com case, which demonstrates the effectiveness of existing legal tools to deal with such problems.
Cuil’s Incredible Privacy Policy
First, an excerpt:
[W]hen you search with Cuil, we do not collect any personally identifiable information, period. We have no idea who sends queries: not by name, not by IP address, and not by cookies (more on this later). Your search history is your business, not ours.
Next, the obligatory read the whole thing.
Because you can. It’s just a little over 500 words.
PC Game Software Sales Actually Growing
I hate to burst a theory, but Adam is wrong to say that PC gaming is on the decline. But I understand how appearances can be deceiving. Walk into your average GameStop or Best Buy and you’ll see row after row of console games placed front and center. You’ll usually find the PC games stuck in a corner with routers and external hard discs.
Retail numbers also support the theory that PC games are on the decline. NPD Group says that while North Americans spent $18.8 billion on game software in retail stores last year, just $910 million went to PC games, down from $970 million the year before. So, PC games are roughly 5% of retail sales. It sounds a lot like a death nil.
But retails isn’t the only place games are sold these days. Just like iTunes and its online component—the cleverly named iTunes Store—have revolutionized the way music is sold, so too have PC game makers revolutionized software sales in recent years.
My most recent gaming experience has been barreling through Half-Life 2 and Portal as I make my way through the Orange Box. When I installed the Orange Box, a package of 5 games by Valve Software, I wasn’t just installing games, but also a game-buying service. I’m now a proud registered user of Steam, one of the largest online game buying services. The Boston Globe recently published a story covering the rise of Steam:
Today Steam sells more than 250 games by Valve and other PC game publishers. The service has 15 million registered users, and posted 2007 sales growth of 158 percent. Valve cofounder Gabe Newell recently said he expects Steam sales will soon surpass Valve’s retail store revenues.
Even with services like Steam around, aren’t the consoles swimming in dough after the release of mega-hits like Grand Theft Auto IV? Not when you factor in the subscription fees being forked over on a monthly basis by those who have given over countless hours of their lives to massive multi-player online games (MMOs).
Google vs. Google
Google has found itself stuck between a rock and a hard place in its legal battle with Viacom over the question of whether IP addresses constitute “personally identifiable information,” as Jim pointed out yesterday. It’s worth noting, however, that EU regulators have left Google little choice but to stake out uncharted territory in order to defend its data collection practices.
Under the European Union’s strict privacy directive, websites are prohibited from retaining “personal data” for more than six months. What exactly constitutes personal data is up for debate. Google, which retains IP addresses for 18 months, has taken the position that IP addresses don’t constitute personal data and therefore are not subject to EU data retention limits.
That argument has placed Google in a double-bind in its legal proceedings with Viacom. In his recent ruling, Judge Stanton specifically referenced Google’s recent blog post which argued that IP addresses should not be considered personally identifiable information. If IP addresses aren’t private, Stanton reasoned, then what’s the harm in Google handing them over to Viacom?
Whether an IP address can identify an individual is a matter of context. Google stated recently, “Based on our own analysis, we believe that whether or not an IP address is personal data depends on how the data is being used.” That makes sense; an IP address alone is generally not enough information to identify an individual, absent a court order.
Yet while IP addresses are not capable of overtly identifying individuals in the same way as phone numbers and addresses, IP addresses combined with other details often make it possible to positively identify individuals with a high degree of accuracy. Anybody can run a reverse DNS lookup on an IP address, which usually reveals the city and state in which the user of that IP address is located, along with the service provider. The YouTube logs that Google has been ordered to produce include not just IP addresses but also usernames and specific viewing times, so it’s all but guaranteed that quite a few individuals could be personally identified given enough man-hours of data mining.
Bruce Everiss on video game piracy
Bruce Everiss, a UK-based video game industry veteran, and author of the blog Bruce on Games, has penned a comprehensive essay on video game piracy through the years. I recommend you read the entire piece, but here’s the take away:
And the game industry continues to grow and prosper, despite the piracy. This is because the proliferation of platforms allows publishers to more easily abandon platforms that are pirated to the point of being uneconomic. Instead they concentrate on platforms where there are windows of opportunity to run a viable business. Either because the anti piracy technology is on top or because there is a sufficient number of honest customers to get a return, even sometimes with a heavily pirated platform. Games with an online element can often be made very pirate proof which has been a major incentive for developers to go down this route.
So for 25 years or so game players have been stealing games in truly massive numbers with zero chance of being caught and punished for their crime. Very often far more copies of a game title have been pirated than have been bought. This self evidently causes harm to the games industry, ultimately leading to less money being invested in games for the pirated platform. So, the game player suffers for his theft by having less games and lower quality games. All pretty obvious to anyone but the pirates who make all sorts of feeble excuses to justify their stealing.
[My own views on video game piracy can be found here and here.]
Space Shifting: A New Frontier for Innovation and Cool Stuff…Or a Black Hole of Lawsuits?
I’d like to invite TLF readers to a lunch panel discussion next Tuesday at noon on copyright law and space shifting - and for the geek in you, live demonstrations of the Slingbox, Apple TV, and a Windows Media Center tied to the XBox 360.
Space shifting
includes such activities as copying music from a CD to an MP3 file for use on a
portable player or watching your local television broadcast on a computer
located outside your home. Essentially it’s using digital content on a device other than
the one for which it was originally intended. We’ll discuss space
shifting, its legal implications (including how/if litigation between wary parties can be avoided) and suggestions for continued success in
bringing consumers cool stuff.
The
lunch discussion will feature Morgan Reed and Debbie Rose of ACT (Debbie was on last week’s TLF podcast about file sharing), Gigi
Sohn of Public Knowledge, and Patrick Ross of the Copyright Alliance.
Details: 12:00 noon, Tuesday, October 23,
2007, B340 House Rayburn. email or RSVP to
mmoskal at actonline dot org
Why DRM Doesn’t Work
It’s a few weeks old, but be sure to check out Cory Doctorow’s excellent explanation for why copy protection can never work:
[Encryption] works brilliantly. You can download an email privacy program that uses standard, public encryption algorithms to scramble your email so that only its intended recipients can read them. You know that messages can only be read by the authorised sender and the authorised receiver because you are the only ones who know have the key.
It’s great for email, but it can never work for movies, TV shows or music, because in the case of “copy protection” the receiver is also the person that the system is meant to guard itself against.
Say I sell you an encrypted DVD: the encryption on the DVD is supposed to stop you (the DVD’s owner) from copying it. In order to do that, it tries to stop you from decrypting the DVD.
Except it has to let you decrypt the DVD some of the time. If you can’t decrypt the DVD, you can’t watch it. If you can’t watch it, you won’t buy it. So your DVD player is entrusted with the keys necessary to decrypt the DVD, and the film’s creator must trust that your DVD player is so well-designed that no one will ever be able to work out the key.
This is a fool’s errand. Because the DVD player has the key, it’s always possible that it can be extracted by academics, hardened hackers – or just kids who are in it for the glory.
Doctorow makes an analogy to the speed of light, but I think a better analogy is that DRM systems are to computer science what perpetual motion machines are to physics. Anyone who says he’s got an unbreakable DRM scheme is either clueless or lying. Yet DRM snake-oil salesmen, like the charlatans who periodically claim to have invented a perpetual motion machine (or infinite compression algorithms), are perpetually coming up with clever new ways to obfuscate the fundamental impossibility of what they’re trying to accomplish. If you make a system complicated enough, it can be difficult to explain its flaws in laymen’s terms. But that doesn’t mean it doesn’t have them, or that they aren’t fatal.
It Only Took Eight Years
Here’s a great talk by Yahoo’s Ian Rogers:
Eight years later, Amazon’s finally done what was clearly the right solution in 1999. Music in the format that people actually want it in, with a Web-based experience that’s simple and works with any device. I bought tracks from Amazon (Kevin Drew and No Age), downloaded them, sync’d them to my new iPod Nano, and had them playing in my home audio system (Control 4) in less than five minutes. PRAISE JESUS. It only took 8 years.
8 years. How much opportunity have we lost in those 8 years? How much naivety and hubris did we have when we said, “if we build it they will come”? What did we spend? And what did we gain? We certainly didn’t gain mass user adoption or trust, two prerequisites to success on the Internet.
Inconvenient experiences don’t have Web-scale potential, and platforms which monetize the gigantic scale of the Web is the only way to compete with the control you’ve lost, the only way to reclaim value in the music industry. If your consultants are telling you anything else, they are wrong.
Yahoo! Music demonstrates this scale discrepancy perfectly. Yahoo! is the world’s #1 Internet destination. Hundreds of millions of people visit Yahoo! each month. Yahoo! Music is the #1 Music site on the Web, with tens of millions of monthly visitors. Between 10 and 20 million people watch music videos on Yahoo! Music every month. Between 5 and 10 million people listen to radio on Yahoo! Music every month. But the ENTIRE subscription music market (including Rhapsody, Napster, and Yahoo!) is in the low millions (sorry, we don’t release subscriber numbers, but the aggregate number proves the point), even after years of marketing by all three companies. When you compare the experiences on Yahoo! Music, the order of magnitude difference in opportunity shouldn’t be a surprise: Want radio? No problem. Click play, get radio. Want video? Awesome. Click play, get video. Want a track on-demand? Oh have we got a deal for you! If you’re on Windows XP or Vista, and you’re in North America, just download this 20MB application, go through these seven install screens, reboot your computer, go through these five setup screens, these six credit card screens, give us $160 dollars and POW! Now you can hear that song you wanted to hear…if you’re still with us. Yahoo! didn’t want to go through all these steps. The licensing dictated it. It’s a slippery slope from “a little control” to consumer unfriendliness and non-Web-scale products and services.
I’m frankly not as optimistic as Rogers that the labels will be able to pull out of the tailspin they’ve gotten themselves into. The music labels have decades of inertia pushing them in the wrong direction, and large, bureaucratic institutions rarely show the kind of agility needed to negotiate new technologies in any event. So while it’s great that they’ve finally started to realize what was obvious to some of us years ago, my guess is that they’re going to continue to be five years behind the curve for the foreseeable future, always playing catch-up to other firms who are pioneering new ways of distributing and promoting music.
Paying Customers are the Enemy
Ars Technica reports on the latest DRM PR disaster:
BD+ is being rushed out to titles only shortly after the spec was finalized, partly in response to hackers cracking the protection on AACS earlier this year. This wouldn’t be the first time that extra layers of copy protection have harmed legitimate consumers: earlier this year Sony had to recall 20 DVD titles protected with ARccOS that caused problems on some DVD players.
When Paramount recently announced that they were switching to HD DVD releases, one of the reasons a spokesperson gave Ars was that the Blu-ray spec was not “market-ready.” Perhaps this is the sort of thing he meant.
Fox’s position is that the problem is entirely the fault of the player manufacturers. Steve Feldstein, Fox senior VP of marketing communications, told Video Business that “consumers should lobby their hardware manufacturers to release firmware upgrades post haste” and that “the title was well-reviewed and playing well on updated players.”
Isn’t that charming? It’s worth keeping in mind that only the legitimate customers have to jump through these kinds of hoops. If you’re stupid enough to follow the rules and pay hard-earned cash for your movies, Hollywood rewards you by making you spend a relaxing evening learning how to update your movie player’s firmware. People who break the law and get their movies via a P2P network don’t have to worry about these sorts of headaches, as those files tend to come pre-cracked and in an open format playable on any device.
The Anti-Libertarian Case for Copyright Maximalism
Here’s an essay that (based on the abstract, at least, I haven’t had a chance to read the whole paper) perfectly crystalizes the anti-libertarian premises at the heart of the copyright maximalist position:
The adaptation to the Internet economy of intellectual property law in general, and copyright law in particular, is at the center of a profound power struggle for governance that places democratically chosen legal rules against technologist-defined network rules. This essay argues that many of the technological challenges to intellectual property rights such as peer-to-peer software are a movement against democratically chosen intellectual property rules. These challenges reflect a basic defiance of the Rule of Law. In making this argument, the essay first maintains that intellectual property rights have an important public function in democracy marking political, economic and social boundaries. Next, the essay shows that the public law, as enacted by democratic government, has re-allocated intellectual property rights to adapt to the information economy. While many aspects of the new allocation of rights have been controversial such as the scope of copyright’s anti-circumvention provisions, these decisions nevertheless emanate from duly constituted public authorities. The essay then analyzes the rejection of those rules by technologists and their fight to take control of rule-making. In essence, the technical community seeks to replace the state’s decision on public intellectual property law with the community’s own private preferences in subversion of democratic choices. The essay concludes with the normative prediction that public law prevails over network rule-making.
The (mis)use of the term “rule of law” here is telling. The American founders understood the phrase to refer to the idea that government officials may use the coercive apparatus of the state only in accordance with general laws that apply equally to all citizens. The founders would be appalled at the way many people seem to use it today, to express the idea that citizens have a duty to obey Congressional edicts, no matter how vague or arbitrary they might be.
Nor would any libertarian be comfortable with the notion that a “re-allocation” of peoples’ rights was justified merely because such an allocation “emanates from duly constituted public authorities.” Libertarians believe that rights exist prior to and independently of government edict. One of my examples of this is in Hernando de Soto’s The Mystery of Capital which includes a lengthy discussion of the origins of American property law. The American Congress tried repeatedly to impose top-down property rights systems on frontier territories. These efforts were resisted by pioneer squatters, who were not impressed by the fact that their edicts had “emanated from duly constituted public authorities.” Instead, the squatters came up with their own indigenous schemes for establishing their own property rights and recognizing their neighbors’. Eventually, after repeated efforts by American troops to drive squatters off land that (according to the official property system) belonged to someone else, Congress was forced to give up its efforts to “re-allocate” property rights, and instead recognized and formalized peoples’ existing property claims.
In a sense, it’s absolutely true that “the technical community seeks to replace the state’s decision on public intellectual property law with the community’s own private preferences in subversion of democratic choices.” But technologists are not “fighting to take control of rule-making” in the sense of imposing a different set of copyright restrictions on people. Rather, they’re fighting for the right to be left alone, free of meddling from a distant and incompetent federal government. Most geek activists simply want meddlesome laws like the DMCA repealed, leaving people free to do as they please with their lawfully acquired property.
Rarely has the case for copyright maximalism been put in such starkly anti-libertarian terms.
Investor’s Business Daily on Filtering
Brian Deagon’s August 6, 2007 article in Investor’s Business Daily, August 6, 2007, “Technology Doomed To Failure, Some Critics Say,” includes some remarks about filtering worth thinking about. The assurance of the quoted critics is convincing, but they seem to be missing a good part of the picture.
Transformative Use vs. Fair Use?
Here’s another thing I disagreed with in this week’s podcast, from Solveig:
I think fair use often gets used very broadly as a generic term for any kind of limitation or exception to copyright law. But properly understood, the argument that fair use can evolve away and needs to change over time is really a pretty narrow one. It doesn’t mean that there shouldn’t be outer limits to copyright or that there can’t be exceptions to copyright. It just means that they don’t necessarily need to take the form of fair use. For example, there’s a hugely important outer limit that you can’t copyright ideas or facts. That’s not fair use, that’s just: copyright law doesn’t go there. Transformative use, another one. That’s not fair use, that’s transformative use.
Is that sentence right? My understanding is that the concept of “transformative use” comes from the 1994 Campbell decision, which concerned the fair use of parody. In particular, Justice Souter wrote that whether or not a work was transformative lay at the heart of determining “the purpose and character of the use,” the first and most important of the four fair use factors. For example, Judge Nelson quotes the Campbell decision in holding that displaying thumbnails in a search engine is a transformative use, and therefore fair.
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