My DRM piece was noted in a piece on fair use and DRM. I am among other things critiqued for referring to information as a “product” and the end user as a “consumer.” For Pete’s sake! The article adds some more substantive claims about fair use, which I’m happy to respond to. But before I get there, enough of the deconstruction already!
Quite a lot of energy is being expended in various circles thinking about what language is used to frame various debates in copyright. It’s not that the issue isn’t worth thinking about at all–language can be used in tricky ways and carelessly, so that the underlying concepts are obfuscated. But for the most part, if the concepts are the problem, fiddling with the language won’t fix it. Some people use the concepts of efficiency and marginal cost pricinghttp://weblog.ipcentral.info/archives/2006/08/the_marginal_co.html in ways
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Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Jerry Brito, Tim Lee, Adam Thierer, and Jim harper. Topics include,
- The REAL ID Act gets hot in the states and in Washington
- Rep. Rick Boucher introduces a watered-down copyright fair use bill
- the FCC slaps it largest fine ever on Spanish-language broadcaster Univision
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I’ve got a lengthy analysis of Rick Boucher’s latest copyright reform legislation. Despite being titled the “FAIR USE Act,” and despite the fact that Boucher’s press release focuses on the harms of the DMCA, the bill itself would do little or nothing to remedy the problems created by the DMCA:
If Boucher’s legislation passed, a film studies professor would be permitted to use software such as Handbrake to circumvent the copy protection on DVDs and create an audiovisual presentation featuring scenes from various movies. However, developing or distributing Handbrake in the United States would still be a crime.
Obviously, as a practical matter, that college professor already has the ability to use Handbrake without any real fear of prosecution. The MPAA knows that prosecuting a college professor for showing videos in his class would be a PR disaster. The problem is that, unlike previous versions of the legislation, Boucher’s new bill offers no legal protections for the developers of software like Handbrake. As a result, the tools required to exercise fair use are difficult to find, not as user-friendly as they could be, and not supported by major software companies like Apple and Microsoft. Perhaps worst of all, the law makes it impossible for legitimate software firms (in the United States, at least) to develop new software to make innovative uses of content obtained from DVDs, iTunes, or other DRM-encumbered formats. In the 1990s, software companies developed MP3 software that revolutionized music over the objections of the recording industry. An entrepreneur wanting to do the same thing for DVDs would run afoul of the law–and Boucher’s legislation would do nothing to change that.
Needless to say, this is disheartening to those of us who see DMCA reform as a high priority. Granted, Boucher’s bill didn’t go anywhere in previous sessions of Congress, and would likely have been a long shot again this session. But it was still nice to at least have somebody in Congress carrying the torch. Now, it doesn’t look like anyone will introduce meaningful DMCA reform in this session of Congress.
What’s going on here? Read the rest of the article for my take on Boucher’s apparent change of priorities.
Jane Ginsburg of Columbia Law School has a paper called “The Pros and Cons of Strengthening Intellectual Property Protection: Technological Protection Measures and Section 1201 of the US Copyright Act.” The paper paper is a thorough and readable survey of recent legal decisions regarding the DMCA’s anti-circumvention provisions.
The paper highlighted something that I hadn’t given a lot of thought to before: the DMCA ostensibly prohibits two separate kinds of circumvention. Section 1201(a) prohibits circumventing “technological measure that effectively controls access” to a protected work, as well as “trafficking” in devices for that purpose. Section 1201(b), in contrast, prohibits trafficking in devices that circumvent a “technological measure that effectively protects a right of a copyright owner.” Ginsburg discusses this distinction at some length.
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Steve Jobs appears to have made a convert of the Economist on the merits of ditching DRM, which, as far as I’ve seen, has not come down firmly on the anti-DRM side previously:
The music giants are trying DRM-free downloads. Lots of smaller labels already sell music that way. Having seen which way the wind is blowing, Mr Jobs now wants to be seen not as DRM’s defender, but as a consumer champion who helped in its downfall. Wouldn’t it lead to a surge in piracy? No, because most music is still sold unprotected on CDs, people wishing to steal music already can do so. Indeed, scrapping DRM would probably increase online-music sales by reducing confusion and incompatibility. With the leading online store, Apple would benefit most. Mr Jobs’s argument, in short, is transparently self-serving. It also happens to be right.
Hat Tip: Julian
Eric Bangeman at Ars is reporting that music giant EMI is seriously considering allowing its music to be sold DRM-free:
Reports are surfacing that EMI is in negotiations with some of the leading music stores to offer a substantial portion of its music catalog without DRM, with an announcement due as early as today. Under one scenario, music stores like Napster, Real Rhapsody, and others would fork over sizable advance payments in exchange for the right to sell music as unprotected MP3s. Another industry source reports that EMI was also discussing the possibility of selling MP3s on MySpace using SnoCap.
All of the parties reportedly involved are remaining close-mouthed on whatever negotiations may be taking place, but the scuttlebutt is that the negotiations have been going on for months. Needless to say, any decision by one of the big four labels to make a sizable chunk of its music available for download sans DRM would be ground-breaking.
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Ed Felten has a great analysis of Steve Jobs’ DRM essay:
[Jobs’s] real scorn is for outcome (2), where Apple licenses its DRM technology to other companies. It’s easy to see why this is the worst outcome for Apple–the company loses its ability to lock in customers, but everybody still has to put up with the cost and hassle of using DRM.
What the letter really does, in typical Jobsian fashion, is frame the debate. It does this in two respects. First, it sets up a choice between two alternatives: stay the course, or get rid of DRM entirely. Second, it points the finger at the major record companies as the ones making the choice.
This is both a clever PR move and a proactive defense against European antitrust scrutiny. Mandatory licensing is a typical antitrust remedy in situations like this, so Apple wants to take licensing off the table as an option. Most of all, Apple wants to deflect the blame for the current situation onto the record companies. Steve Jobs is a genius at this sort of thing, and it looks like he will succeed again.
Meanwhile, over at the Wall Street Journal is a great example of the point Felten made last week about the way the labels have framed the DRM debate. The Journal‘s coverage of Jobs’s essay has the sub-headline “Apple Chief Now Favors Making Downloads Of Songs Freely Tradable.” If you didn’t read the article carefully, you might get the impression that he’s advocating overturning the Grokster decision. But no, Jobs is simply saying that we should abandon DRM, an anti-copying technology that doesn’t actually do very much to prevent copying.
You should really read Jobs’ essay in its entirety, but here’s one other passage from it that’s worth highlighting (this one immediately precedes the one I quote below):
The second alternative is for Apple to license its FairPlay DRM technology to current and future competitors with the goal of achieving interoperability between different company’s players and music stores. On the surface, this seems like a good idea since it might offer customers increased choice now and in the future. And Apple might benefit by charging a small licensing fee for its FairPlay DRM. However, when we look a bit deeper, problems begin to emerge. The most serious problem is that licensing a DRM involves disclosing some of its secrets to many people in many companies, and history tells us that inevitably these secrets will leak. The Internet has made such leaks far more damaging, since a single leak can be spread worldwide in less than a minute. Such leaks can rapidly result in software programs available as free downloads on the Internet which will disable the DRM protection so that formerly protected songs can be played on unauthorized players.
An equally serious problem is how to quickly repair the damage caused by such a leak. A successful repair will likely involve enhancing the music store software, the music jukebox software, and the software in the players with new secrets, then transferring this updated software into the tens (or hundreds) of millions of Macs, Windows PCs and players already in use. This must all be done quickly and in a very coordinated way. Such an undertaking is very difficult when just one company controls all of the pieces. It is near impossible if multiple companies control separate pieces of the puzzle, and all of them must quickly act in concert to repair the damage from a leak.
Apple has concluded that if it licenses FairPlay to others, it can no longer guarantee to protect the music it licenses from the big four music companies. Perhaps this same conclusion contributed to Microsoft’s recent decision to switch their emphasis from an “open” model of licensing their DRM to others to a “closed” model of offering a proprietary music store, proprietary jukebox software and proprietary players.
This echoes a point I’ve made before: there is no such thing as an open DRM standard. By definition, an open standard is available for anyone to look at. And by its nature, DRM requires that at least some details of a DRM standard be secret, which means that it cannot be open. “Open DRM” is simply a contradiction in terms.
Wow.
Steve Jobs just posted an essay on DRM on Apple’s website. I started reading it expecting to hate it, until I got to this:
The third alternative is to abolish DRMs entirely. Imagine a world where every online store sells DRM-free music encoded in open licensable formats. In such a world, any player can play music purchased from any store, and any store can sell music which is playable on all players. This is clearly the best alternative for consumers, and Apple would embrace it in a heartbeat. If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store. Every iPod ever made will play this DRM-free music.
Why would the big four music companies agree to let Apple and others distribute their music without using DRM systems to protect it? The simplest answer is because DRMs haven’t worked, and may never work, to halt music piracy. Though the big four music companies require that all their music sold online be protected with DRMs, these same music companies continue to sell billions of CDs a year which contain completely unprotected music. That’s right! No DRM system was ever developed for the CD, so all the music distributed on CDs can be easily uploaded to the Internet, then (illegally) downloaded and played on any computer or player.
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