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.

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