DMCA, DRM & Piracy

Courtesy of reader Steve R, the Washington Post has a pretty good write-up of the mess that DRM is making of the digital music market:

Ah, progress. It used to be that you just went out and bought a compact disc and you didn’t have to worry about whether it would work on your player.

These days, in the age of digital distribution, we don’t need to buy CDs anymore. What we have, instead, are a bunch of online music services, offering songs for sale or rent via quick download to a bunch of digital music players that might or might not actually play them.

Take music fan Chauncey Canfield: He has a whopping 180-gigabyte music collection, an iPod and a smartphone he can fill with songs from his subscription Yahoo Music account. But he can’t put Yahoo Music songs on his iPod, and he can’t put songs purchased from the iTunes Music Store on his phone.

Canfield knows that iTunes is the most popular online music store, but he avoids it because of the playback restrictions. Instead, he prefers to shop at eMusic, which sells its tracks in the MP3 format, an open technology that works on every music player on the market. Even the iPod.

“The fact that they don’t have [anti-piracy controls] on them is absolutely a major plus,” he said. “I don’t have to segregate my music into various ghettos.”

The rest of the article is equally good. The only thing that’s frustrating is that he never mentions the DMCA. DRM is not a fact of nature that magically prevents consumers from converting their music between different formats. The reason that incompatible DRM formats are such a pain in the butt is that writing a utility to transfer music from one format to another is effectively illegal. If the DMCA weren’t on the books, someone could write a slick little utility that would take the music in your iTunes folder and convert it to Plays for Sure or Zune formats. But because the DMCA prohibits circumvention regardless of the reason, that’s illegal, and so we’re stuck segregating our music into various ghettos.

SHARE:

Related to my last post and Monday’s quote of the day, USA Today had an article on Monday headlined “closed systems leave song buyers out in the cold.” There’s little in the article that regular readers of TLF haven’t seen before, but the fact that a mainstream, lowbrow newspaper is starting to cover the issue indicates how far mainstream perceptions have shifted. Three years ago, when Apple launched the iTunes Store, the people warning that DRM would create compatibility nightmares for consumers were largely regarded as Chicken Littles. Now as Microsoft gets ready to release a third major DRM format that’s mutually incompatible with the previous two, the problem is becoming a practical headache for millions of consumers. If you’ve built up a music library at the iTunes Store, there’s no easy and legal way for you to become a Zune customers: you’ll have to download an illicit conversion program (which probably won’t be terribly user-friendly), burn all the songs to CD and re-rip them into Zune, or repurchase each and every song from the Zune store. None of those options are appealing to the busy professionals that are most likely to buy high-priced music devices. It’s only a matter of time before frustrations reach a boiling point.

I’m starting to think that my prediction of a DRM-free music industry by 2020 was pessimistic. I wouldn’t be surprised if a customer backlash forced the majors to start offering music in open online formats before the end of the decade.

SHARE:

We’ve all heard that the five stages of grief are denial, anger, bargaining, depression, and acceptance. It seems to me that Hollywood is going through a similar process with respect to the slow-motion train wreck that is digital rights management. When I started writing about DRM policy a couple of years ago, we were somewhere between the denial (“sure, CSS got cracked in a matter of months, but MovieLink and CinemaNow will save us!”) and anger (“If we tighten the screws a little bit more, those damn consumers will pay up!”) stages. Now, we’re starting to see signs that they’ve moved to the bargaining stage. Techdirt notes an article that suggests MPAA CTO Brad Hunt at least recognizes that they’ve got a problem:

During a question and answer session after the talk, Hunt conceded that many people already are frustrated at having to buy multiple copies of the same content to use on different commercial devices.

“I understand that if we frustrate the consumer, they will simply pirate the content,” he said. “The issue we face today is that consumers are buying content that uses specific DRM and that, in turn, is gradually creating a world of separate DRM systems.”

Hunt said the MPAA recognized the need to create an interoperability DRM solution (or, a DRM ecosystem as he described it) and said that “the consumer, if he or she has already purchased licensed material, should certainly be able to transfer that content to any other new or old device.”

So they’re in the bargaining stage: “OK, consumers hate the current crop of DRM, but if we roll out a kinder, gentler DRM with better interoperability, then consumers will jump on board!” The problem, of course, is that the lack of interoperability in the current generation of DRM formats isn’t a fluke. As I’ve argued before, interoperable DRM is a contradiction in terms. DRM technologies will always be plagued by compatibility problems, because they’re designed to restrict compatibility to approved devices.

Still, recognizing that you have a problem is the first step toward fixing it. It will probably take Hollywood a few more years to realize that all DRM is bad–that companies promoting “open” DRM schemes are selling snake-oil–but at least they’re taking the problem seriously. It’s only a matter of time before they move onto the stages of depression and, finally, acceptance. Then, maybe they’ll finally start tackling the difficult job of building online video systems that cater to the needs of their paying customers rather than treating them like criminals.

SHARE: 14 comments

“The notion that a track I buy in DRM is protected and one without DRM isn’t is a fallacy. It’s all nonsense. Music is never going to be protected, and anybody who tells you that is not being honest. Yes, you can put up speed bumps, but the people who really want to steal music are going to steal it. So you’re just making it hard for people who want to do the right thing to get the music they legitimately purchased on the devices and services that they want.”

—Yahoo Music general manager David Goldberg

Hat Tip: EFF

SHARE:

The New York Times reports on a protest against France’s new anti-circumvention law:

In mounting their protest, members of the group in Paris saw themselves as foot soldiers of the digital generation battling against ever-tighter controls over songs, film and all digitized culture.

Greeted at the police station by almost as many armed riot police officers as there were protesters, they explained their infractions to passers-by.

“Not only did I not use an iPod to listen to an iTunes song, but I transferred the film ‘Blade Runner’ onto my hand-held movie player,” Mr. Martinez, 28, said. “I am willing to face the consequences of what they consider an offense.”

By his own calculation, Mr. Martinez could face a fine of as much as 41,250 euros, or about $52,000, and six months in prison.

Mr. Martinez patiently laid out the case he built against himself, offering details about his infractions, which included switching music from one format to another and transferring the DVD’s to different players.

“They say the law is intended to stop piracy, but I am not a pirate,” Mr. Martinez said. “I support artists with legally purchased works, but I do not want to be forced to use a particular device to play them.”

This is a clever publicity stunt, but the problem is that Big Content is too media savvy to prosecute individual consumers. They focus their legal guns on the makers of third party media devices. As a result, the average consumer just knows his media devices don’t interoperate. He has no idea that laws like the DMCA and EUCD are responsible for the lack of compatibility.

SHARE: 22 comments

I got an email from Tom Giovanetti chastising me for the tone of my previous post about his organization’s study. And he has a point: the rhetoric of my post was unduly inflammatory, and for that I apologize. I should have thought twice before hitting the “post” button.

Mr. Giovanetti urged me to re-read the study, and I’ve done so. After further reflection, my opinion of the substance of the study remains unchanged: the study is poorly reasoned and its conclusion is misleading. The headline-grabbing $20.5 billion number is meaningless.

Also, this ought to go without saying, but since Mr. Giovaenetti brought it up: I believe that piracy is a serious problem, and I applaud the MPAA’s vigorous action to combat it. What I object to isn’t their anti-piracy agenda, as such, but the use of misleading statistics to promote it.

SHARE:

The Institute for Policy Innovation has released a study on the costs of movie piracy. It’s a truly remarkable exercise in hand-waving. We’ve written before about the shoddy methodology that copyright industries often use in studies purporting to show the costs of piracy. One of the most common tricks is to assume that every person who pirates a work would have otherwise purchased the work at full price–a clearly false assumption. Some infringers would have purchased the work if they’d been unable to get a pirated copy, but a lot of others would have simply done without it. Hence these estimates are invariably inflated, and any such study funded by the affected industry should be taken with a large grain of salt.

But the Institute for Policy Innovation is a Texas think tank, and everything’s bigger in Texas. That includes sophistry. Not content with the MPAA’s official, numbers, which found that worldwide piracy costs the movie industry $6.1 billion, they’ve taken the MPAA study as a baseline, added a heaping helping of fallacious economic reasoning, and concluded that the cost of piracy is, in fact, $20.5 billion. This is complete and utter nonsense, as I’ll explain below the fold.

Continue reading →

SHARE: 28 comments

I’ve written before that Chris Castle is a technically clueless lawyer whose blog specializes in juvenile and mean-spirited insults of his ideological opponents. He and I clearly don’t see eye to eye on a lot of copyright-related subjects. Yet it seems that even a stopped clock is right once in a while:

I believe there is a good business case that can be made for selling in mp3. At the risk of stating the obvious, I would point out that the iPod, and almost every music player in the market, supports mp3. So the reason to sell in mp3 is not because DRM is bad. I completely disagree with Professor Lessig’s radical fringe that opposes DRM in all forms, and unlike many in the fringe, I support a copyright owner’s decision to sell in any format they wish–DRM or non-DRM.

But the business argument over selling in the unprotected mp3 format shouldn’t have anything to do with how you feel about DRM. The reason you sell in mp3, and the reason you sell in Fairplay, Windows Media and any other common format is because–they are common formats. A lot of people use them. It just happens that more people use mp3 than use Windows Media or Fairplay.

If a copyright owner sold an mp3 file, it could be suitably watermarked to carry identifiers that would allow accounting if an online service wanted to sell the tracks. The point is that if you sell in mp3 you are not giving a fan anything that they couldn’t make themselves if they bought a CD and ripped it.

I think he over-estimates the effectiveness of watermarking technologies. And Castle is wrong when he says that Lessig is in the “radical fringe” that opposes DRM in all of its forms. He’s not, much to my disappointment. But otherwise, this analysis is dead on. And given that Castle is clearly not an apologist for piracy or a critic of the music industry, maybe the music industry will listen to him.

I wonder if it’s occurred to Castle that it’s not a coincidence that MP3 is more widely deployed than FairPlay and Windows Media. The whole point of DRMed formats is to limit interoperability with third party devices. Hence, we shouldn’t be surprised that DRM is plagued by incompatibilities.

Update: I struck out the bit about Lessig’s attitude toward DRM, which on re-reading Lessig’s post clearly isn’t right. What I should have said is that Lessig is more sympathetic than me to the notion that some DRM is better than others, and that we should therefore settle for the least-bad DRM we can get, rather than focusing on persuading publishers to ditch it altogether.

SHARE: