DMCA, DRM & Piracy

The BBC confirms that Microsoft’s Zune platform and its “Plays for Sure” platform will be incompatible:

Microsoft has said it will stop selling music from MSN music from 14 November, when Zune goes on sale in the US.

But in a move that could alienate some customers, MSN-bought tracks will not be compatible with the new gadget.

The move could also spell problems for the makers of MP3 players which are built to work with the MSN store.

The problem has arisen because tracks from the MSN Music site are compatible with the specifications of the Plays For Sure initiative.

This was intended to re-assure consumers as it guaranteed that music bought from services backing it would work with players that supported it. MSN Music, Napster, AOL Music Now and Urge all backed Plays For Sure as did many players from hardware makers such as Archos, Creative, Dell and Iriver.

In a statement a Microsoft spokesperson said: “Since Zune is a separate offering that is not part of the Plays For Sure ecosystem, Zune content is not supported on Plays For Sure devices.”

Amazing.

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My DMCA paper focuses on the law’s most controversial section, the part that prohibits circumventing DRM schemes. When I was writing it, I briefly considered discussing its other provisions, most notably the “notice and takedown” provisions of §512. After all, EFF has a whole web site documenting the chilling effects of that provision. But although I think EFF has some legitimate gripes, I ultimately concluded that the anti-circumvention provision was far more problematic, and decided to focus my paper exclusively on that section.

Today Tim Wu has an interesting article in Slate arguing that we should be grateful we got §512, because if Hollywood had gotten its way, things would have been much worse:

This summer, Sen. Ted Stevens, R-Alaska, earned the bemused contempt of geeks everywhere when he described the Internet as “a series of tubes.” But back in 1995, Hollywood was insisting that the Internet be characterized as “a bookstore.” And a bookstore, unlike a series of tubes, breaks the law if it “carries” pirated novels. So too, Hollywood urged, Internet companies should be liable if they carry any illegal materials, whether the companies know it or not.

Had that view prevailed, there would probably be no YouTube today, and also no free blog sites, and maybe not even Google or Web 2.0. What venture capitalist would invest in a company already on the hook for everything its users might do? But, in one of the lesser-known turning points in Internet history, Hollywood never got its law. Its unstoppable lobbyists ran into an unmovable object: the Bell companies, who own those “tubes” over which the Internet runs. In the mid-1990s, fearing a future of liability, the Bells ordered their lobbyists to fight Hollywood’s reforms, leading to one of the greatest political struggles in copyright history. (This paper provides a history of this and other struggles.)

Hollywood employs legendary lobbyists, like Jack Valenti, but when they ran into the Bells, it was like Frazier meeting Foreman. The Bells quickly put holds on all the legislation the content industries wanted. Telecom lobbyists like Roy Neel, a close friend of Al Gore (and later Howard Dean’s campaign manager), went to Congress and began saying things like, the “copyright law threatens to put a damper on the expression of ideas on the Internet.”

Copyright law is at its worst when it’s unclear where the boundaries of liability lie, because then deep-pocketed, risk-averse companies will decline to take the risk of incurring large copyright liabilities. The “safe harbor” provision gives businesses clarity regarding what they need to do to avoid liability when it comes to user-generated content. And that, in turn, has allowed individuals to push the boundaries of copyright law and produce absolutely brilliant works of likely copyright infringement.

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Today’s Cato podcast features yours truly discussing the DMCA. Anastasia was obviously a friendly interviewer, but I still found it challenging to boil the complexities of the issue down to something that could be readily understood in a 10-minute interview. We discuss the French protests from earlier this month, what the recently-passed French law did, and how the courts were handling reverse engineering cases before Congress enacted the DMCA.

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A coalition including the Consumer Electronics Association, Public Knowledge, and EFF have launched a digital freedom campaign. These are good groups and I’m always happy to see them highlighting an important set of issues, but frankly, if I weren’t already well versed on this controversy, I think I’d find their website a little bit confusing.

The campaign talks about innovators, artists, and consumers all having their freedom threatened. And it’s true: all of them can be harmed by aggressive expansions of copyright law. But the only concrete example the digital freedom campaign mentions is recording satellite broadcasts. As important as that issue is, that’s not likely to spark a nationwide backlash.

Oh, now that I’ve looked at the home page again, I see that clicking on the people causes them to tell their story. That’s pretty cool. They ought to make it more obvious that you’re supposed to click on the people, as it took me a good 10 minutes to figure that out, and most people visiting the site aren’t going to spend 10 minutes poking around.

Anyway, my point is that advocates for digital freedom (myself definitely included) need to do a better job of getting down to specifics in a way that’s accessible to ordinary people. I think EFF’s endangered gizmos and DRM guide sites are good examples. When you tell people that Hollywood almost got the VCR outlawed, that immediately gets peoples’ attention. There are now thousands of consumers who’ve discovered that their “plays for sure” music doesn’t play on their iPods. If we can tie those controversies back to the current debates over the PERFORM Act, the broadcast flag, the Boucher bill, etc, we can help voters clearly understand what’s at stake and why they should care.

But without those ties to specific examples, all the rhetoric about freedom and consumer rights in the world won’t get peoples’ attention. Voters have heard all the freedom rhetoric before, and it’s usually hogwash. I thought the middle guy–the aspiring filmmaker with the tape over his mouth–did a good job of offering a specific example of what’s at stake. But the other two, and most of the copy on the rest of the website, is just too vague to get anybody other than me fired up.

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I’m embarrassed to admit I didn’t see this New York Times op-ed until today. It’s written by Damian Kulash, the lead singer of OK Go, one of my favorite bands. And it’s on one of my pet topics:

The truth is that the more a record gets listened to, the more successful it is. This is not our megalomania, it’s Marketing 101: The more times a song gets played, the more of a chance it has to catch the ear of someone new. It doesn’t do us much good if people buy our records and promptly shelve them. We need people to fall in love with our songs and listen to them over and over. A record that you can’t transfer to your iPod is a record that you’re less likely to listen to, less likely to get obsessed with and less likely to tell your friends about.

Luckily my band’s recently released album, “Oh No,” escaped copy control, but only narrowly. When our album came out, our label’s parent company, EMI, was testing protective software and thought that we were a good candidate for it. Record executives reasoned that, because we appeal to college students who have the high-bandwidth connections necessary for accessing peer-to-peer networks, we’re the kind of band that gets traded instead of bought.

That may be true, but we are also the sort of band that hasn’t yet gotten the full attention of MTV and major commercial radio stations, so those college students are our only window onto the world. They are our best chance for success, and we desperately need them to be listening to us, talking about us, coming to our shows and, yes, trading us.

To be clear, I certainly don’t encourage people to pirate our music. I have poured my life into my band and, after two major-label records, our accountants can tell you that we’re not real rock stars yet. But before a million people can buy our record, a million people have to hear our music and like it enough to go looking for it. That won’t happen without lots of people playing us for their friends, which in turn won’t happen without a fair amount of file sharing.

As it happened, for a variety of reasons, our label didn’t put copy-protection software on our album. What a shame, though, that so many bands aren’t as fortunate.

Don’t listen to me. Listen to the up-and-coming rock star.

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Fortune has a fascinating article about “DVD Jon” Johansen’s latest project, a company that licensing technology to make third-party devices work with Apple’s FairPlay DRM. His software will allow third-party music stores to transfer their music to the iPod, and it will allow third-party device makers to play iTunes songs. Fortune asks the obvious question:

There’s an obvious question: Isn’t opening the iTunes system illegal? There is no obvious answer. FairPlay is not patented, most likely because the encryption algorithms it uses are in the public domain. (Apple would not comment for this story.) And Johansen says he is abiding by the letter of the law – if not, perhaps, its spirit.

To let other sites sell music that plays on the iPod, his program will “wrap” songs with code that functions much like FairPlay. “So we’ll actually add copy protection,” he says, whereas the DMCA prohibits removing it. Helping other devices play iTunes songs could be harder to justify legally, but he cites the DMCA clause that permits users, in some circumstances, to reverse-engineer programs to ensure “interoperability.”

It seems to me that this is backwards. Johansen’s actions clearly are within the spirit of the law. There’s a reverse-engineerig clause in there for a reason. It’s extremely unlikely that creating platform monopolies was what Congress had in mind when it passed the DMCA.

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