Keeping politicians' hands off the Net & everything else related to technology
In my DCMA paper I note in passing the sad case of MP3.com, which settled its copyright lawsuit after losing its case in district court, and before it could appeal the case. What I didn’t realize is the reason the case wasn’t appealed.
I was delighted to receive an email from Michael Robertson, the founder of MP3.com (who has since founded Linspire and MP3tunes), who read the paper and wrote to explain why they didn’t appeal the case:
Last night a FCC commissioner came out in favor of…DRM? Yes, at a reception sponsored by the DC Bar Association in her honor, Commissioner Deborah Taylor Tate, the newest addition to the FCC, spoke eloquently on a number of issues but perhaps most remarkable was her advocacy for strong copyright protections. Hailing from The Music City, Nashville, this former Tennessee Regulatory Commissioner proclaimed her love for country music and the artists that wish to use DRM to protect their content.
Now I have no beef with DRM and think content owners should be free to utilize any scheme they want if informed consumers are willing to spend money on it. But regardless of your views of DRM (and TLF bloggers differ I know), I don’t think any of us here want the FCC to get more involved in this matter. The broadcast flag was an FCC rule that allowed the recording of digital broadcasts only by approved hardware devices that could recognize whether or not a certain data stream can be recorded, or if there are any restrictions on recorded content. That rule was invalidated last year in a case before the D.C. Circuit Court of Appeals, which found that the FCC had exceeded its authority by creating this rule.
Commissioner Tate said that despite the FCC’s lack of legal authority, she can still use her bully pulpit to bring awareness to content protection issues. Fair enough–policymakers, even Supreme Court justices, use their position of prominence to discuss many issues. The convergence of communications and copyright is indeed a legitimate policy issue. Hopefully Commissioner Tate will use her pulpit to advocate for market-driven solutions, not greater FCC authority. She would be effective at this too. She comes across as warm and engaging and persuasive.
Copyright protection shouldn’t be hindered by government through some sort of affirmative access requirement (see France). However, copyright protection shouldn’t be mandated by government either–hardware companies and content interests must learn to play together with the marketplace, not the Grand Ole FCC, as their venue.
A few months ago, I was pleased to see this post by ZDNet editor David Berlind, in which he did a great job of explaining why “open DRM” is a contradiction in terms:
Until last night, when I met Brad Templeton, chairman of the board at the Electronic Frontier Foundation, my position has basically been that DRM as an idea is a bad idea (especially the way it is being implemented) but that if we must have it, then at least let’s have one that’s based on an open standard so that the content you buy can flow frictionlessly from one of your devices to the other without running into a playback gotcha. But, based on what Templeton told me, I now realize that even an open standard won’t do much to solve the problem. This for me–a huge proponent of open standards–was such devastating news that Templeton will tell you that at first, I refused to believe it. But it’s true and perhaps just as troubling is how open source software is one of the reasons why.
Templeton taught me something about how DRM works that I had never stopped to consider. As it turns out, a proprietary DRM scheme relies on the proprietary closed source software that works with it to form the one-two punch of what makes DRM function. The great thing about open standards is that they make it possible for anybody including open source developers to implement them in their software. But if there was an open standard for DRM, the resulting open source implementations would very likely defeat the purpose of the DRM in the first place. The reason proprietary DRM works is that the vendor is in control of both the DRM technology that secures the content and the playback technology that knows how to unlock it and play it back. So, by virtue of what the proprietary playback software is capable of, that vendor is completely in charge of what happens to the content once it’s unlocked.
But in a Friday post, he seemed to be changing his tune, at least when it comes to Sun’s “open source” DRM scheme:
I wasn’t expecting my Tuesday post razzing Tom Giovanetti to get so much attention, and so I didn’t spend a lot of time making my point in the post clear. Giovanetti’s reaction on his blog has been basically that he doesn’t think there’s a DRM angle to the problem at all.
Without knowing the technical details of his particular device, it’s hard to know to what extent his specific box employs DRM technology. It’s conceivable that it doesn’t, although I think that’s unlikely.
However, my real point was a little broader than that: current trends in the design of digital media devices will make problems like Mr. Giovanetti’s more common. And a major driver of those trends is the DMCA.
In the olden days, consumer electronics devices were built to open standards. The specifications for a TV tuner, an RCA jack, or a compact disc, were publicly available. Anybody was free to build devices to the standard. That meant that if I didn’t like how a particular device worked, I could swap it out with a device from a competing manufacturer. That’s also how the PC market works: I can get my CPU from AMD or Intel, my graphics card from nVidia or ATI, my RAM and hard drive from several different companies, etc. Every component has alternatives, and any component will–more or less–work with other components that comply with the relevant standard. And there’s no centralize authority dictating what features devices must or must not have.
The next generation of digital media devices is evolving in a much different direction. In the DRMed world, every platform has an owner that has complete control over what components are allowed to work with the platform, and what features those components can have.
If you live in the DC area, you should mark your calendar for Wednesday, April 26, when the Cato Institute will be having a half-day conference on copyright law. Three TLF contributors will be participating. First, co-blogger (and conference organizer) Jim Harper will be appearing on the first panel on “the foundations of copyright.” He’ll be sharing the stage with Jim DeLong of PFF, who I imagine will argue for IP, and David Levine, author of Against Intellectual Monopoly. I bet you’ll see some lively disagreement there.
Far more important, however, is the third panel on the DMCA. I’ll be participating, as will co-blogger Solveig Singleton, Business Software Alliance attorney Emery Simon, and Consumer Electronics Association president Gary Shapiro. Word on the street is that the BSA loves the DMCA while the CEA hates it, so I expect some fireworks on that panel as well.
It should be an entertaining and informative debate, so I encourage you to sign up today. There should also be a live video stream of the proceedings for those of you who don’t live near DC.
I couldn’t help but chuckle at Tom Giovanetti’s post today concerning his inability to back up his favorite shows from his PVR, which crashed last night. As he laments:
The problem is, we have been using the PVR to record 2 years worth of a Spanish language curriculum that is broadcast over an educational channel, and we’ve been using this content to teach our son Spanish. Now the curriculum is gone. It’s not like I’m just inconvenienced in not being able to watch my “24” episodes. An educational curriculum is lost.
For those who aren’t familiar with Mr. Giovanetti’s work, he’s a frequent and pugnacious commentator on intellectual property issues, and an avowed supporter of the DMCA and digital rights management technologies. He’s a frequent critic of “IP skeptics” and “commonists” who argue that copyright law–and the technological measures designed to protect copyright–have gone overboard.
Today he discovered that sometimes, technological measures designed to deter piracy are a pain in the ass for ordinary consumers–like him.
Here’s a radical proposition: Mr. Giovanetti should be permitted to make a backup copy of the television programs on his PVR, as long as his use of that mateiral stays within the bounds of copyright law.* Moreover, someone else should be permitted to sell him a device allowing him to do so. And finally–here’s the truly radical part–it should be legal to manufacture such a device without getting a license from Dish to do so.
That’s precisely what HR 1201, Rep. Boucher’s DMCA-reform legislation, would permit. Giovanetti’s organization published a paper by Prof. Richard Epstein cricizing Boucher’s bill. Epstein wrote that there “isn’t much of a case” for reforming the DMCA.
I’m not sure what to think about all of this. We DMCA critics find it awfully frustrating when DMCA proponents paint anyone who wants to circumvent DRM as amoral hackers bent on undermining all copyright. Yet Giovanetti (perhaps without realizing it) has just discovered that he, too, would like to circumvent a DRM scheme for a perfectly legitimate purpose. Yet any company building the backup hard drive he seeks would probably be guilty of a felony under the DMCA.
I hope this incident will lead him to take the concerns of DMCA critics–who are inconvenienced by DRM in situations quite analogous to his own–more seriously.
* It’s worth mentioning that Mr. Giovanetti was probably breaking the letter of the law by keeping an entire season of copyrighted television shows on his PVR, as the Supreme Court’s ruling that “time shifting” was fair use was based on the assumption that the content would be viewed once and then erased. But let’s assume, for the sake of argument, that his library of educational programming is in fact a fair use.
Here’s a pair of tech articles released this week by young libertarians. First, my former flatmate Julian Sanchez has an engaging take on network neutrality in Reason:
Take heed, unsuspecting Web surfer, for the end times are upon us! Lo, your Internet Service Provider shall open the sixth seal, and the moon shall be as blood; and there shall be voices and thunderings and excessive white noise on your VoIP phone; and Google shall be devoured by locusts–or at least load really, really slowly.
Well, maybe it’s not that bad, he says, questioning the wisdom of getting the government involved this early in the game.
Secondly, Peter Suderman of the Competitive Enterprise Institute has a great article on the French DRM legislation over at National Review:
Somewhere in between the U.S. and French approaches to DRM lies an appropriate middle ground. The DMCA makes DRM far too strong, but the French proposal renders it nearly useless. Individuals ought to have control over their media, but digital-music vendors like Apple ought to be allowed to protect and control their property. Vive la (digital) revolution!
Quite so. Read the whole thing.
ZDNet Australia has a very confused article about the merits of supporting digital rights management technology in Linux.
Jeff Ayars, a vice president at RealNetworks, said in a talk at LinuxWorld in Boston on Tuesday that if Linux does not offer support for DRM, people will not be able to run restricted digital content on the operating system, which will damage its success in the consumer market.
“The consequences of Linux not supporting DRM would be that fixed-purpose consumer electronics and Windows PCs would be the sole entertainment platforms available,” Ayars said. “Linux would be further relegated to use in servers and business computers, since it would not be providing the multimedia technologies demanded by consumers.”
He pointed out that Microsoft Vista is implementing a number of digital rights technologies, such as Protected Media Path, Protected Video Path and Protected User Mode Audio. “I would like Linux to be able to do that as well,” he said. The support must be included in the Linux operating system, as a DRM system would not be able to trust drivers that were separately installed, according to Ayars.
The article continues with a garden variety back-and-forth about the merits of DRM, with the Free Software Foundation saying consumers don’t like it, and Ayers insisting they do. What neither side seems to understand is that it’s impossible to offer “DRM support” (in the sense Ayers means here) in an open source operating system.
A couple of months ago, I blogged about the pointless restrictions imposed by the latest video DRM schemes. Today, in the Washington Post, Rob Pegoraro writes about another digital video device that’s getting a “lukewarm reception.” It’s got similarly pointless restrictions:
Eight of these movies were also available in high-definition format for an extra $1 each–making MovieBeam the only way to rent a flick in high-def at the moment.
But you can only see that extra resolution if your HDTV is new enough to provide an HDMI digital input. And if it does, everything MovieBeam rents will look about as good–the receiver automatically “upconverts” every release to a high-definition resolution. (The MovieBeam box also includes analog component-video outputs, plus S-Video and composite jacks for older analog TVs.)
I wish he’d expanded on this a little bit, because the vast majority of HDTVs in homes today are not “new enough to provide an HDMI digital input.” For those poor saps who purchased an older HDTV. (and here “older” means roughly pre-2004), they’ll get no better quality than if they’d bought an old-fashioned low-def TV.
I’m sure the response of the HDMI folks would be that this is just a transitional issue–that once everyone’s upgraded to “secure” digital formats everything will work with everything else. But that’s not the way things are likely to shake out in the real world, at least not if they’re serious about preventing piracy. Because a DRM scheme is only as strong as its weakest link. As soon as someone finds a fatal flaw in a version X of HDMI, it will be necessary to cut off compatibility with that version to prevent that vulnerability from undermining the security of the whole scheme. Yes, there are provisions for firmware updating of compromised devices, but that will only work with certain kinds of security vulnerabilities, and what consumer wants to worry about whether he’s installed the latest firmware upgrade on his Blu-Ray player?
Fortunately, I don’t think Hollywood or the consumer electronics industry has the stomach for that kind of confrontation with their customers. More likely, after a few years of constant compatibility problems, they’ll come to their senses and scale back their DRM schemes to “speedbump” levels. They should focus on deterring casual copying while admitting that they’re not going to be able to slow down determined pirates.
Update: Mike at Techdirt notes that this is the second attempt at launching this service. The first version was a Disney-centric device that had even more irritating restrictions. It folded around this time last year.
I’ve got a new article up at Brainwash about the new French copyright legislation:
French legislators were rightly concerned that enacting the EUCD into French law would stifle such intra-platform competition in the market for digital media devices, just as many charge has occurred in the United States. But in stereotypical French fashion, the legislature overreached. The legislation does much more than permit reverse engineering; it requires companies to share the technical details of their software with competitors and vests the French courts with the power to prod recalcitrant companies into disclosing the workings of their software. Such a mandate is likely to have unintended consequences, as the French courts could end up second-guessing the design of Apple’s products. And the rule is also likely to be abused by competitors seeking confidential information about their competitors’ products that isn’t necessary for interoperability…
Libertarians envision the state in the role of an impartial referee. On social issues such as contraceptive sales or the teaching of evolution, liberals and conservatives commonly urge the state to impose their social agenda on society. But libertarians insist that the state ought to remain strictly neutral. The same logic applies in this case. The state ought not to take sides in the debate between open and closed systems. Instead, permit both proprietary technologies and reverse engineering, and let consumers–not judges or bureaucrats–decide which is superior.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
