I mostly agree with Tom Lee’s point here, but I think he’s being a little bit unfair in his characterization of Ed Felten’s post on the AACS/Digg incident. Tom says:
I’m no fan of DRM, and I think the AACS LA’s actions are pointless and stupid. But Doctorow and Felten are being disingenuous — they’re simply too smart not to see the problem with this argument. Namely, that any type of data, sampled at a chosen level of precision, can be represented as a number. Consequently, if you believe that one or more types of information deserve legal protection — as Felten seems to, when he refers to songs & movies — then the argument that “it’s just a number!” becomes ridiculous.
Sixteen bytes is probably too short to merit a copyright. But that’s not the right that the AACS LA is asserting: they’re calling the code a “circumvention device” under the DMCA. And even if you don’t recognize the DMCA’s validity, there are other forms of intellectual property protection that may apply — there are laws related to trade secrets, for example. If you just think about it a little, it should be obvious that even a very short piece of data can enjoy some kinds of legal protection. Sixteen bytes is more that enough room to encode the words “Coca-Cola”, after all.
The thing is, geeks like to pretend that the legal system is some sort of Rube Goldberg contraption, easily foiled by their unparalleled cleverness. Sadly, this isn’t the case. All the IANAL-prefixed prattling on Slashdot about quick & easy ways to make yourself legally bulletproof when the cops/MPAA/interpol come knocking are little more than wishful thinking. It’s like holding your finger an inch from your sibling’s face and yelling, “I’m not touching you!” over and over. Your parents weren’t dumb enough to fall for that, and neither is the legal system.
He’s right about the Rube Goldberg thing. As a matter of law, the fact that something is “just a number” won’t help you if you’re guilty of violating copyright law. Moreover, the position that anything that’s “just a number” should never be restricted is obviously ridiculous. I’m perfectly comfortable with restricting (say) numbers that are JPEG representations of child pornography or PDFs of sealed grand jury testimony. Clearly some “numbers” ought to be legally restricted.
Continue reading →
In October, I wrote about the five stages of DRM failure. At that point, I wrote that the MPAA was just moving from the anger stage to the bargaining stage. Now, it’s looking like they’ve reached the bargaining stage in earnest:
In his speech to industry insiders at the posh Beverly Hills Four Seasons hotel, Glickman repeatedly stressed that DRM must be made to work without constricting consumers. The goal, he said, was “to make things simpler for the consumer,” and he added that the movie studios were open to “a technology summit” featuring academics, IT companies, and content producers to work on the issues involved. He also pointed to the $30 million MovieLabs project that the studios are currently funding as proof of their commitment to interoperability.
Speaking to Ars after the speech, Glickman acknowledged that the plan was still in the early stages. I asked him specifically about DVDs, which are currently illegal to rip under the DMCA, and how the law would square with his vision of allowing consumers to use such content on iPods and other devices. “You notice that I said ‘legally’ and in a protected way,” Glickman responded, suggesting that some form of DRM would still be required before the studios would sign off on such a plan. He noted, however, that no specific plans have been made.
Continue reading →
Ed Felten reports on the high-def video cartel’s hopeless campaign to keep a 128-bit key that can be used to unscramble HD-DVD and Blu-Ray discs secret.
I’m not going to post the key here, because I don’t especially want to get a takedown notice myself, but a little searching is likely to turn up dozens of copies posted around the web. As Felten points out, once the key has been posted to a significant number of websites (and “significant” here probably means about a dozen), it becomes counterproductive to continue to pursue it, because sending out takedown letters only generates more publicity (like this post!) which in turn causes more people to hear about the key and get a copy for themselves.
The whole incident makes me feel nostalgic for my college days, when I had friends who got T-shirts with the DeCSS algorithm printed on them. It took four years for the DVD CCA to formally concede that suppressing the DeCSS code was impossible. Hopefully the people in charge of the AACS keys will give up sooner than that.
One of the most convincing critiques of Steve Jobs’s February letter on DRM was that Apple had refused to sell DRM-free music from smaller labels even when those labels requested it. It’s not clear why Apple refused to sell DRM-free music to smaller labels—whether it was a matter of administrative convenience, or whether Apple liked the lock-in effect of DRM. But regardless, Apple appears to have addressed that criticism with an announcement to smaller music partners that starting next month they’ll have the option to sell their music DRM-free if they want to. Good for Apple. Now we’ll just have to wait and see how much longer the other major labels persist in shooting themselves in the foot.
There’s a good article in the LA Times by David Sarno about the Pirate Bay that includes a short quote from me. As usually happens with these things, a 15-minute conversation got distilled down to a couple of short paragraphs, where I basically pointed out that the MPAA’s 2006 “piracy study” wasn’t a study at all, but the MPAA’s summary of a study that they commissioned and refused to release.
The bulk of the article is about the growing popularity of the Pirate Party, which Sarno says has almost as many members as that country’s Green Party. Apparently, the unexpected popularity of the Pirate Party has prompted several of the larger parties to shift their platforms to be more sympathetic to file-sharing.
It’s an interesting question what the United States government will do if this movement proves to have staying power. It’s hard to imagine the United States slapping sanctions on Sweden, especially since they’re now part of the EU and the EU presumably wouldn’t cooperate with an effort to cut one of its members off from trade. And of course, if a country like Sweden gives file-sharing networks free rein to operate, it will be virtually impossible to prevent Internet users elsewhere from taking advantage of them.
The other strange thing about the Hollaar essay is how disconnected from the real world it seems on the subject of piracy:
To address such examples, as well as the parody or satirical movie trailers – such as “Brokeback to the Future” – that are clearly transformative uses of a minimal part of a movie, the movie industry might follow the Copyright Clearance Center example and establish an organization that would provide clips of movies that could be used for such purposes, at a nominal royalty or perhaps gratis in some instances. To address such examples, as well as the parody or satirical movie trailers – such as “Brokeback to the Future” – that are clearly transformative uses of a minimal part of a movie, the movie industry might follow the Copyright Clearance Center example and establish an organization that would provide clips of movies that could be used for such purposes, at a nominal royalty or perhaps gratis in some instances.
While this is not a solution that would have met the requirement of the Lofgren bill “to make publicly available the necessary means to make such noninfringing use without additional cost or burden,” it may provide a more attractive solution because it can limit misuse. The clips could be digitally watermarked so that any unauthorized copies could be traced back to their source. This would also prevent the assembling of a complete copy of a movie from “fair use” snippets, since it would raise questions when there was a request for an uninteresting portion of a movie.
Who is he imagining doing this? There are peer-to-peer networks with almost every movie imaginable available for download. While logging onto a peer-to-peer network is a hassle, it’s certainly far less hassle than submitting hundreds of snippet requests and then manually assembling them into a movie. So Hollaar’s proposed snippet security processes only make sense if we imagine that at some point in the future we’ll have eradicated peer-to-peer software from the Internet. If you believe that, I’ve got a bridge to sell you.
The Institute for Policy Innovation has an essay by Lee Hollaar on their website criticizing the fair use critique of the DMCA. The premise of the essay seems to be that DMCA critics haven’t been appropriately specific about which fair uses the DMCA restricts, and that in fact many of the things that DMCA critics call fair use are not, in fact, fair use under the law.
There are two problems with this line of argument. In the first place, Hollaar uses an absurdly narrow definition of fair use in order to argue that DRM systems don’t restrict it. For example:
Very few digital rights management systems prevent transformative fair use of a work, such as including quotes from a work in a criticism, comment, or news report.
It’s obviously true that DRM systems do not prevent you from watching a video and then typing up a transcript of what it says. In fact, it’s so obvious that I wonder if Hollaar’s being a bit obtuse. What DMCA critics are concerned about here is the ability to include video excerpts in their creative works. And DRM schemes clearly do prevent you from doing that.
Continue reading →
Ed Felten describes the latest phase of the cat-and-mouse game between the HD-DVD/Blu-Ray cartel and hackers trying to crack their AACS encryption scheme:
To reduce the harm to law-abiding customers, the authority apparently required the affected programs to issue free online updates, where the updates contain new software along with new decryptions keys. This way, customers who download the update will be able to keep playing discs, even though the the software’s old keys won’t work any more.
The attackers’ response is obvious: they’ll try to analyze the new software and extract the new keys. If the software updates changed only the decryption keys, the attackers could just repeat their previous analysis exactly, to get the new keys. To prevent this, the updates will have to restructure the software significantly, in the hope that the attackers will have to start their analysis from scratch.
Continue reading →
Earlier this week music label EMI announced that it would sell songs on Apple’s iTunes without digital rights management. Yesterday Microsoft said it would do the same thing for its Zune Marketplace.
So do we have the beginnings of a significant move toward DFM – DRM-Free Music? Is this evidence that the market is working and responding to consumer demand? I think (hope) so.
EMI plans to offer DRM-free music for $1.29, compared to $0.99 for DRM-protected music. That buck 29 will also get you double the bit rate, or 256kbps, on downloaded songs. 256kb/s is still a far cry from the 1,411 kb/s that you get when buying a CD, but it will sound good enough for most listeners except for the audiophiles among us.
It makes sense to pay more for a product if you get more rights to do something with it. But I know that there are those people that might say DRM shouldn’t be around anyways, so consumers are paying more for something they should already have. Ultimately, consumers will decide with their dollars whether to buy a DRM version or a DFM version of their favorite music. Stay tuned….
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.