David Berlind wonders why Apple hasn’t sued Real or Navio for reverse-engineering FairPlay, Apple’s iTunes copy protection scheme:
I’m wondering how many more commercial enterprises have to reverse engineer Apple’s digital rights management technology (so as to emulate the iTunes Music Store as a source of iPod-compatible protected content) before it activates the laywers on that front. Today, two companies–RealNetworks and the recently launched Navio–have commercial offerings in the market that involve a reverse engineering of Apple’s DRM (or should I call it Apple’s DNA given how crucial it is to the long term success of the company) to the point that they can serve protected content that’s compatible with Apple’s iPods and iTunes. The existence of such copycats marginalizes Apple.
Originally, it looked as though Apple’s legal eagles were going to lower the boom on Real. Then, instead of following through, it updated its DRM technology in hopes of disabling Real’s hack. Real stayed in technical lockstep but has somehow managed to stay out of Apple’s legal cross-hairs. Now, Navio is in the game and thinks that it’s safe because of the way Apple dropped its case against Real. But does that mean Apple won’t try again? How can it not? I see another suit coming. Either that, or more iTunes Music Store knockoffs.
There’s a crucial legal distinction that Berlind is missing here: as far as I know, no one has hacked FairPlay to make their devices compatible with iTunes. All the reverse engineering efforts–including Real and Navio–have gone in the opposite direction: making Apple’s device (the iPod) compatible with their music store. The distinction is crucial.
The DMCA makes it illegal to “circumvent a technological measure,” which it defines as “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” The “without the authority of the copyright owner” is the important bit. If you’re the copyright owner–or his licensee–you can reverse engineer to your heart’s content. It’s only if you’re decrypting someone else’s content that you have to worry about DMCA liability.
What that means is that the lock-in created by the DMCA only works one way: if you’ve got a music store, you get to decide which devices can access the music. But if you’ve got a playback device, anybody can hack your device to put their music on it.
Ars reports on the likely battle over Slingbox, a device that plugs into your TV and lets you watch TV content on the road. Major League Baseball doesn’t like the device because it allows users to evade the geographical restrictions of its licensing agreements with cable operators.
I’m having trouble seeing the legal argument against Slingbox. It only allows users to watch content they’ve already paid for (in the case of cable or satellite) or that’s broadcast over the air for free. It doesn’t facilitate re-distribution to others or commercial-skipping. If any device is modeled to pass Sony with flying colors, this is it.
On the other hand, the courts do make mistakes. Slingbox bears a striking resemblence to My.MP3.com, which was killed off in a poorly-reasoned decision by a district judge. MP3.com was another service that allowed users to more conveniently consume their legally acquired content. As I’ve written before, MP3.com was prevented from appealing the decision by the requirement to post a bond for the excessive statutory damages imposed by Judge Rakoff. If this does go to court, I hope it will provide an opportunity for the courts to repudiate the MP3.com decision.
Virginia Postrel points out the shameful behavior of the National Kidney Foundation in the organ debate:
When I first got interested in organ donations, I naively thought that the foundation would be in the business of doing everything possible to encourage kidney donations. I was terribly wrong. The group vehemently, and successfully, opposed a bill that would have allowed tests of incentives for organ donors. (CEO John Davis brags here, scroll to second item.)
So determined is the NKF that kidney donors should never, ever, in any way be compensated for their organs–no matter how many kidney patients current policy kills–that the organization is now trying to stamp out public discussion of the idea. When they heard that AEI is planning a conference on the subject for June 12, they wrote a letter to AEI president Chris DeMuth suggesting that the conference shouldn’t be held.
And my friend Chaim Katz points out that South Carolina governor Mark Sanford vetoed legislation that would have given the survivors of an organ donor a $1000 tax credit. Sanford cited the NKF’s opposition in his veto message.
I can’t imagine what kind of twisted logic would lead an organization ostensibly dedicated to increasing “the availability of all organs for transplantation” to oppose such a common sense measure to increase the supply of organs. I suppose that once we allow widows to claim tax write-offs for their husbands’ organs, we’ve started down the slippery slope to prisoner organ harvests and baby farming.
Jeff Chester of the Center for Digital Democracy wasted no time responding to my recent Heritage piece on neutrality regulation, posting a comment on his blog over the weekend. Well, sort of responding. Actually, the piece didn’t discuss my arguments or facts at all. (Chester promised to do that later.) Instead, he focused on the scoop that Heritage has received money from AT&T and Verizon, which he says should have been disclosed. “Hey, Guess Who Helps Fund the Heritage Foundation?” the blog title breathlessly asks.
Hey, guess how Chester found this out? In the Heritage annual report, of course. Where it was disclosed. Along with the names of hundreds of other donors. Other donors that include pro-neutrality regulation Microsoft, as well as Verizon and AT&T. The report also discloses that only about five percent of our revenue comes from corporations of any kind. The rest comes from individuals and foundations.
Yet all of this is skipped over by Chester. There’s a tactical advantage to this. There are times that attacking your opponent’s motives is an attractive alternative to substantive arguments. But I won’t say that he wrote for merely tactical reasons. While not reciprocated, I’ll assume he actually believes what he writes.
Yet this may be the more disturbing prospect. His ad hominem approach represents a nice black-and-white picture of the policy world, one where pro-regulation consumer advocates fight for what they believe is right, and everyone else has somehow been paid off. That view is all too common among many on the left. These erstwhile trust-busters relish their own perceived monopoly on white hats, and won’t suffer competition.
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Via Techdirt, here’s another example of a pointless software patent battle. Creative sued Apple claiming that the iPod violated its patent on the concept of organizing music hierarchically (as if no one had thought of that before). Apple returned fire by claiming that Creative had violated four user-interface patents, and last week they filed a second suit alleging three more infringements of its patents.
What I want to know is: how do defenders of software patents explain Apple’s actions? After all, if those seven patents are valid, that means that Creative has been “stealing” Apple’s intellectual property in seven separate respects. There’s no doubt that if Creative had been violating Apple’s copyrights, say by using bootlegged copies of iPod software in their products, Apple would have wasted no time in suing them. Yet faced with an analogous situation with software patents, Apple has simply sat on its intellectual property.
Here’s my theory: software patents are little more than legal harassment devices. They’re typically so broad that any given product is covered by dozens of them, and so vague that it’s impossible to be sure which products are covered by any given patent. Large companies know that they’re violating dozens of their competitors’ patents, and that their competitors are violating dozens of theirs. They don’t sue because they understand that the result would be a zero-sum legal quagmire that could drown them both in legal fees.
Mike Masnick’s analogy for this is perfect: nuclear stockpiling. Everyone wants a big patent portfolio to use as ammunition in a possible patent war, but they understand the consequences of starting such a war with another big company would be suicidal for both parties. Creative launched a lone nuclear warhead at Apple; it’s about to discover just how painful a full-blown nuclear exchange can be.
The Progress and Freedom Foundation has a new study out by Michael Einhorn (who also did a Cato study on DRM last year) urging Canada to adopt stronger anti-circumvention laws. I have to admit I’m having trouble figuring out what his argument is. He describes the state of the marketplace in great detail, but he never gets around to explaining in any detail why the world would be worse without anti-circumvention rules like the DMCA.
Case in point: one of the longest sections, titled “The Music Services,” surveys the most popular DRM-based music services. We’re told that the growth of online music stores demonstrates “the potentialities of DRM.” Yet he doesn’t really make the case that things wouldn’t be working so well without DRM. He doesn’t mention the rapid growth of DRM-free eMusic. Nor does he mention My.MP3.com, a DRM-free service that attracted hundreds of thousands of users before it was shut down by the industry in 2000.
The closest we get to an argument is the statement that the growth in music sales occurred because “the labels feel safe enough with the security” provided with DRM to allow their catalogs to be used online. He apparently believes that without the DMCA, the labels would have refused to permit their music to be released in digital formats online. But that’s absurd: the labels have been releasing virtually every song they produce in a high-quality DRM-free format since the early 1980s. It’s called the CD. If Einhorn’s argument were true, we would have expected them to begin phasing out CDs as soon as DRMed alternatives became available. But of course they haven’t done so.
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I have a hard time writing about stories like this one without getting shrill. ZDNet is reporting that Net2Phone is suing Skype for violating its “point-to-point internet protocol” patent.
What does it cover?
A point-to-point Internet protocol exchanges Internet Protocol (IP) addresses between processing units to establish a point-to-point communication link between the processing units through the Internet. A first point-to-point Internet protocol includes the steps of (a) storing in a database a respective IP address of a set of processing units that have an on-line status with respect to the Internet; (b) transmitting a query from a first processing unit to a connection server to determine the on-line status of a second processing unit; and (c) retrieving the IP address of the second unit from the database using the connection server, in response to the determination of a positive on-line status of the second processing unit, for establishing a point-to-point communication link between the first and second processing units through the Internet. A second point-to-point Internet protocol includes the steps of (a) transmitting an E-mail signal, including a first IP address, from a first processing unit; (b) processing the E-mail signal through the Internet to deliver the E-mail signal to a second processing unit; and (c) transmitting a second IP address to the first processing unit for establishing a point-to-point communication link between the first and second processing units through the Internet.
Where to begin? This describes an absolutely pedestrian networking protocol. There’s nothing remotely novel or non-obvious about two computers communicating directly with each other without using a server. I don’t even understand what the “invention” is supposed to be. If you asked a random CS major how to implement a peer-to-peer network application, he’d probably come up with a description like this in about 10 minutes.
Some people seem to think that these kinds of bad software patents are anomalies–that there are good ones as well, and that we ought not to throw the baby out with the bath water. Yet I’ve seen news accounts of more than a dozen examples of bogus patent suits in recent months, but I have yet to see an example of a legitimate software patent. There’s an awful lot of bath water here, and I’m having trouble seeing the baby.
Via TechDirt, Hillary Rosen, former head of the RIAA, writes about file-sharing lawsuits and digital rights management:
But for the record, I do share a concern that the lawsuits have outlived most of their usefulness and that the record companies need to work harder to implemnt a strategy that legitimizes more p2p sites and expands the download and subscription pool by working harder with the tech community to get devices and music services to work better together. That is how their business will expand most quickly. The iPod is still too small a part of the overall potential of the market and its propietary DRM just bugs me. Speaking of DRM, it is time to rethink that strategy as well……… At some point, I will write more comprehensively about those years and these issues….then again, maybe not.
I hope she expands on these thoughts sooner rather than later.
My discussion at the ipcentral blog links to an interesting post by David Friedman on movies, games, DRM, and copyright.
Relatedly, the Register has an article on the legal battle over the Pirate Bay:
One pressure group associated with the site claims that the Swedish police were misled and incompetent in their actions.
“[Anti piracy group] Antipiratbyran has clearly misled the police in this case,” said Tobias Andersson of Piratbyran, a spin-off of Piratebay.org dedicated to promoting file-sharing. “They seem to have convinced incompetent police that the servers in question are filled with copyright protected materials.” The Piratbyran statement said that there is “no illegal material on the actual server”.
The servers contained not media files but links to BitTorrent files containing material. Christopher Wallin of the IT group of Swedish law firm Delphi & Co said that this is not likely to be a successful defence. “Our opinion is that that is silly. That is an argument they have been making for the last two or three years,” said Wallin. “They have committed a contributory offence, it is a contribution to copyright infringement.”
That defense wouldn’t fly in an American court, but it’s possible Swedish law is different.
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