There’s an interesting discussion going on at Freedom to Tinker about the interaction among the DMCA, DRM, and contract law. After David Robinson painted a stark dichotomy between legal restrictions on the freedom to tinker (such as the DMCA) or legally mandatory tinkering rights, I pointed out a middle ground: that the law should neither restrict the freedom to tinker nor give that freedom special legal status.
Cory Doctorow had a response that I think is worth highlighting:
I think that an important point is often missed in discussions of this sort: that a marketplace works best when both opponents and proponents of business-models engage in discourse and attempt to sway customers towards or away from a market.
So while I favor the abolition of the DMCA and the clarification of copyright law to improve the tinkerer’s lot, I likewise believe that it is useful and good to warn people that in a no-DMCA world, it would *still* be a bad idea to contract out of your freedom to tinker, and to agitate against the contracts under discussion here.
There’s an important distinction between the two positions: On the one hand, I think that the law regarding the DMCA should be changed–this is a political/legal response I want to see from government. On the other hand, I have arguments I’d like to publicize arguing against accepting DRM even in the absence of the DMCA, but those arguments don’t call for a legal or governmental response, they merely seek to change a potential customer’s mind.
Imagine that there was a law against spearmint gum. I might want this law repealed. I might also want to convince you that you should buy spearmint gum and not cinnamon.
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Corey Doctorow has a good article on the DMCA on Information Week:
The DMCA makes the kind of reverse-engineering that’s commonplace in most industries illegal in copyright works. For example, in the software industry, it’s legal to reverse-engineering a file-format in order to make a competing product. The reason: The government and the courts created copyright to provide an incentive to creativity, not to create opportunities to exclude competitors from the marketplace.
Reverse engineering is a common practice in most industries. You can reverse-engineer a blender and make your own blades, you can reverse-engineer a car and make your own muffler, and you can reverse-engineer a document and make a compatible reader. Apple loves to reverse-engineer–from Keynote to TextEdit to Mail.app, Apple loves reverse-engineering its competitors’ products and making its own competing products.
But the iTunes/iPod product line is off-limits to this kind of reverse-engineering. No one but Apple can authorize an iTunes/iPod competitor, and Apple’s not exactly enthusiastic about such authorization –the one major effort to date was the stillborn Motorola ROKR phone, which was so crippled by ridiculous Apple-driven restrictions that it barely made a ripple as it sank to the bottom of the cesspool of failed electronics.
Doctorow makes a good point about Apple’s own reverse engineering. I wonder if Apple believes it was guilty of adopting “the tactics and ethics of a hacker” when it reverse engineered Power Point in order to allow Keynote users to interoperate with Power Point users. Or for that matter, when they bundled Samba, a networking suite that was built by reverse-engineering Microsoft’s file and print sharing protocols, into Mac OS X. Maybe those products ought to be illegal as well.
David Berlind elaborates on the sticky situation “Plays for Sure” vendors will find themselves in if Microsoft launches a device that isn’t Plays for Sure compliant:
Short term, Microsoft will have something by the holidays that, from a specification point of view, compares tit-for-tat with one or two devices. But Sasse as well as his contemporaries are in denial if they think this isn’t going to impact their business over the long run. Microsoft, of course, has to do whatever it thinks it must do to keep Apple from eating its lunch in the world of multimedia entertainment which is what Apple is doing, at least on some fronts). On the other hand, this is exactly the sort of risk that companies licensing such foundational technologies (as DRM) take when those technologies are proprietary and why, if at all possible, it makes sense to hedge that risk with product R&D around something more open. If I were Sasse, right about now, I’d be picking up the phone and calling Sun to find out more about the Open Media Commons and Project DReaM. It may not be perfect. But at some point, businesses and users need to get a better handle on how much of their strategies, budgets, and their investments in technologies (eg:users buying music) they’re willing to subject to decision making processes over which they have no control (eg: those of the vendors of certain proprietary technologies).
There’s a cruel irony here. I’ve always thought the “plays for sure” label was cynical, given that it prevented consumers from playing their music on the world’s most popular MP3 player. But here we see DRM potentially screwing over not just users, but also companies that foolishly deployed DRM technology controlled by a potential competitor.
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David Robinson, guest blogging at Freedom to Tinker, points out this fascinating preview at Engadget of Zune, Microsoft’s answer to the iPod/iTunes juggernaut. Engadget predicts that Microsoft will “buy out” iTunes switchers, scanning the user’s iTunes library and buying the users those same songs encoded in Zune’s DRM format.
Like Robinson, I hadn’t thought of this possibility. The recording industry almost certainly gave Microsoft a steep discount on song-repurchases. It’s conceivable they even let Microsoft do this for close to nothing, simply to undercut Apple’s market power and (consequently) its negotiating position vis-a-vis the labels. If a substantial fraction of music listeners are using Microsoft’s Zune service, that gives the labels a credible threat to walk away from the bargaining table if Apple plays hardball next time contract renewals come around.
As Robinson said, some of us in the anti-DMCA choir probably underestimated the potential of markets to undercut the monopoly created by the DMCA. The development arguably undermines the argument I made last year that the labels are giving away the store to Apple. However, I don’t think development eliminates the concerns over the DMCA by any means. The barriers to entry into the music business remain extraordinarily high. To do what Microsoft is doing here, you not only have to build an MP3 player and develop jukebox software, but you also have to sign deals with all the major labels. Even if we assume the labels are giving Microsoft the music for free, it’s unlikely that very many other companies have the resources to replicate Microsoft’s feat. A company that wanted to develop a portable music player without also building an online music store and negotiating with the labels is still out of luck.
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It’s a small step to be sure, but I still think it’s pretty exciting that Sony BMG has allowed Yahoo! Music to release a Jessica Simpson song sans digital rights management. Yahoo’s Dave Goldberg has been a rare voice of sanity on DRM over the last few months, and it looks like his persistence may be paying off. Or maybe music execs have been reading my column from last November arguing that they’re handing control over their industry to Steve Jobs.
It remains to be seen if this is just a one-off publicity stunt or the start of a wider trend. But as Apple continues to twist the screws on the labels and as it becomes ever more obvious that FairPlay isn’t stopping a single person from downloading the music they want form illicit file-sharing sites, even music industry executives may come to realize the increasingly obvious point that DRM benefits Apple and Microsoft, not them.
Ars is reporting that Movielink has inked a deal with Sonic Solutions (makers of the Roxio burning software) to allow its users to burn downloaded movies to DVD.
Supposedly, the burning will be scrambled with DRM, but I haven’t been able to find technical details on how that’s supposed to work. My understanding is that the reason commercial DVDs can’t be duplicated is that the encryption keys are normally stored on a part of the disk that ordinary consumer burners can’t write. It’s not clear to me how you make a burned disk that can’t be duplicated.
In any event, I think Ars’s take on the subject is spot on:
The focus on DRM is starting to look downright silly. The Wall Street Journal reports that “many studios worry consumers will find new ways to pirate their products with downloadable DVDs, even though Sonic says the discs will be secure.” But it’s not as if normal DVDs are unrippable, and there’s no shortage of other illegal ways to gain access to the latest and greatest from Hollywood, if your dedication to Jolly Roger is strong enough…
You’d think that the movie industry would take a cue from its musical cousin, where anybody can rip MP3s from most any CD in her collection, and people still buy songs through iTMS and its brethren. Not to mention the relatively easy access to illegal downloads. WSJ says that “getting the movies onto DVDs would help boost the online movie-sales business, which, despite years of effort, hasn’t taken off.” Make that “despite years of half-hearted and self-defeating effort,” and we’re good on that.
Memo to Hollywood: The people who are plunking down their hard-earned money for your products are not your enemy. You should be focusing on making your products more convenient for your paying customers, not worrying about whether you’ve thrown up enough roadblocks to their enjoying the product they’ve purchased.
I sure wish I’d noticed the Kaleidescape lawsuit when I was writing my DMCA paper. Although not technically a DMCA case (they have a license from the DVD CCA, who is claiming its terms were violated), it’s clearly illustrates how the DVD cartel is wielding the power given to it by the DMCA. The dispute has nothing to do with piracy and everything to do with control: the DVD CCA wants to dictate what features DVD players are allowed to have, and Kaleidescape had the gall to include features that weren’t on the cartel’s list of approved features.
One of the weaknesses of the case against the DMCA is that there’s a limited number of concrete examples of innovations that have been chilled. I think that’s because most of them never got off the ground: their perspective inventors didn’t bother creating because they knew their inventions would be illegal. Of course, that’s sheer speculation on my part. But here’s a concrete example of a category of device that probably would exist right now if not for the DMCA: video jukeboxes. It does for DVDs what MP3 players did for CDs. If the iPod is 1000 songs in your pocket, a Kaleidescape is 1000 DVDs in your living room.
I think it’s almost certain that in the absence of the DMCA, there would today be a thriving market in home media devices that allow you to rip your DVDs and then stream them to your TV. Instead, there’s only one such device, it costs $25,000-$100,000, and the DVD CCA is doing its best to force it off the market.
I haven’t been able to find any news reports on the case in the last year. Does anyone know what became of the lawsuit? Kaleidescape appears to still be selling their product.
While I disagree with Public Knowledge about neutrality regulations, they’ve fighting an important and lonely battle against DRM mandates. PK president Gigi Sohn has a great post debunking the notion that the video flag is a kinder, gentler technology mandate. Here’s her response to the claim that the video flag, unlike the audio flag, protects the right to personal copying
It is true that if you have the right equipment you should still be able to make personal copies with the video flag. (Remember, some old devices may not work with flag-compliant devices, and once you buy one brand of flag-compliant device, you must buy the same brand for all downstream devices). However, regardless of what the FCC claims that the broadcast flag scheme prohibits, all but one of the broadcast flag technologies approved by the FCC prohibit all Internet redistribution, not just “mass, indiscriminate” redistribution. So if I want to email a copy of my appearance on the local news to my mother, the flag prohibits me from doing so. Essentially, the video flag permits me to retain my fair use rights circa 1992. Not a significant improvement over the audio flag, if you ask me.
She addresses several other arguments commonly used in defense of the video broadcast flag, so please read the whole thing. The bottom is that Washington shouldn’t be in the business of telling private companies how to design their products.
Radley at the Cato blog notes that Majority Leader Frist is making sure that the telecom Christmas tree has a present for the RIAA under it:
Majority Leader Bill Frist (R-Tenn.) quietly has gone to bat for the Recording Industry Association of America and other groups to make sure that a key industry priority was included in the massive overhaul of telecommunications laws that the panel approved just before the July Fourth recess, several Senate Commerce, Science and Transportation Committee aides confirmed.
The provision Frist helped place prevents satellite radio listeners from being able to record, store and rearrange music they receive from popular subscription services such as XM and Sirius. Music industry officials say that such copying would cheat labels and artists out of fees that consumers otherwise would pay when buying music on CDs or from online music services.
But the push by the record labels is rankling radio, electronics and consumer groups, who argue that listeners should be able to store songs for personal use as long as they are not selling or passing them along.
Several Commerce Committee aides confirmed that Frist had made it clear that he would allow the telecom bill to come to the floor only if it included the measure, which is commonly called the “audio flag” provision.
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Beyond what appears to be a home-state interest in the issue, aides and lobbyists close to the debate noted that former Frist Chief of Staff Mitch Bainwol now heads the record labels’ lobby, the RIAA.
The more I hear about the telecom bill, the more I root for gridlock.
The LA Times has an editorial attacking the entertainment lobby’s pet causes this year: tech mandates for copy protection in digital TV and radio:
The bills would pressure device makers and service providers to limit or eliminate features from some products, such as the ability to record individual songs off satellite radio. In essence, tech companies would have to alter what they are selling to safeguard the entertainment industry’s wares.
Protecting intellectual property is a legitimate goal for Congress–after all, the Constitution called on Congress to give authors and inventors exclusive rights “to promote the progress of science and useful arts.” The task has grown more urgent with the emergence of an Internet-fueled global information economy. But what the entertainment industry is seeking in this year’s proposals isn’t merely protection from piracy; it’s after increased leverage to protect its business models.
That’s why lawmakers must bear in mind the balance needed between copyright holders’ interests and the public’s, something Congress has not done well lately. In 1998, it gave copyright holders broad power to block legitimate uses of works, even those in the public domain, through the use of electronic locks that impede copying of digital products. And that same year, it prolonged the public domain’s starvation diet by extending copyrights an additional 20 years, to 70 years beyond the death of the creator.
Whatever your views on the DMCA and copy protection in general, mandating particular copy-protection standards is clearly bad policy.
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