DMCA, DRM & Piracy

One of the most bizarre things about the DMCA debate is the way its advocates hyperventilate about the horrors that would ensue if anyone were ever allowed to circumvent DRM technologies, while conveniently ignoring the fact that many existing DRM technologies are as airtight as Swiss cheese. Ed Felten has a partial list of the ways that Sony’s MediaMax DRM scheme (for those who haven’t been following this closely, Sony uses two different DRM scheme, and this is the less spyware-like one) can be circumvented. And not a single one of these methods require any sophisticated “hacker” techniques–they involve such devious techniques as holding down the shift key while inserting the CD.

DRM advocates might counter that DRM acts as “guard rails” to encourage lawful users to obey the law, rather than locking up content to make piracy impossible. But if that’s true, why bring the law into it in the first place? MediaMax would be every bit as effective if the DMCA were repealed: casual users would still be deterred, while determined pirates are barely slowed down by the MediaMax DRM scheme.

As I’ve said before, the labels are in denial. Software like MediaMax isn’t an anti-piracy tool, it’s a security blanket for music industry executives. It won’t actually prevent people from infringing their copyrights, but it allows the record companies to feel like they’re “doing something” about the avalanche that’s overwhelming their industry.

SHARE: 2 comments

Well how about that! On Thursday I mocked James DeLong’s assertion that “the market” will give TiVo users the opportunity to transfer video content to the iPod. And now TiVo seems to have proved me wrong by announcing plans to sell a new software that will enable compatibility between its video recorder and the iPods. “The market,” it seems, has vindicated Mr. DeLong. DRM technology really does give consumers the content they want at a price they can afford!

Not so fast. The premise of DeLong’s argument was that DRM technologies allow copyright holders to earn more revenue for their products, thereby creating a greater incentive to creativity. But TiVo doesn’t own the copyrights to the TV shows and movies recorded with its devices. Indeed, TiVo implemented its DRM scheme over the vociferous objections of the content lobby last year. So where exactly does TiVo get off charging consumers for the privilege of watching other peoples’ content on their iPods?

The DMCA protects DRM systems, not copyright holders. And DRM systems often benefit their creators more than they benefit the owners of the copyrighted content the ostensibly protect. The TiVo DRM scheme benefits TiVo far more than it benefits Hollywood. Apple’s FairPlay scheme benefits Apple far more than it benefits artists or the recording industry.

TiVo achieves iPod compatibility by essentially abandoning DRM protections for TV shows transferred to the iPod. The videos have a “watermark” attached to them, but watermarks are easily removed and seem unlikely to have much deterrent effect. The bizarre upshot of the announcement is that TiVo thinks it may “circumvent” its own DRM scheme in order to transfer video to an iPod (and charge customers for the privilege, even though it’s not their content), but customers who “circumvent” the DRM scheme without TiVo’s help to achieve the same objective are guilty of violating copyright law.

If I were Hollywood, I think I’d be giving serious thought to a lawsuit against TiVo for attempting to profit from others’ copyrighted content. And if I were Mr. DeLong, I think I’d avoid using this announcement as a cast study on the virtues of DRM or the DMCA.

SHARE:

Alan Wexelblat has a good point. Policy debates–especially esoteric ones like the DRM controversy–depend crucially on the way they’re framed. For years, the copyright industry has sought to frame the debate as a debate between “property” and “piracy”–with them on the side of property rights. This was disingenuous, because most of their critics were in fact defenders of America’s copyright traditions. We were pro-copyright, we just didn’t like the aggressive expansion of copyright that has occurred over the last decade. But disingenuous or not, the framing was devastatingly effective, because it allowed them to stake out a “principled” position while forcing us to dwell on seemingly nitpicky details.

The recent Sony BMG controversy gives us the opportunity for a little payback: “DRM equals spyware.” Although not all DRM schemes are as horrible as Sony’s software, in a fundamental sense I think this characterization is entirely fair. DRM is all about seizing control of consumer’s computers to prevent them from doing things they have traditional been accustomed to doing, such as listening to their legally purchased music on the device of their choice. It has so far largely escaped consumer notice because the recording industry has been careful to keep its existence below the radar.

For many consumers, their first exposure to the concept of DRM will be through news reports on Sony’s spyware. I hope the label sticks, not just to Sony’s particular software, but to DRM schemes in general. It’s hard to imagine the recording industry winning a debate over whether it should have the power to put spyware on its customers’ computers.

SHARE:

In my latest column, I point out that the decision of Sony BMG and other music labels to antagonize their paying customers with ineffectual copy-protection tools is a bad business strategy.

SHARE:

Here’s yet another example of how DRM is leading to pointless balkanization of the media marketplace:

Apple has been loath to license its FairPlay DRM, used to protect songs sold from the iTunes Music Store. That has been a sticking point for record companies, which yearn to provide iPod compatibility for their copy-protected discs. EMI–in the news earlier today for announcing Apple would be raising the price on some downloads–is now saying that it anticipates supporting the iPod with its DRMed discs.

“Apple is nearly finished with the technical work necessary to enable consumers to transfer music from content-protected discs to their iPods,” the label said in a statement detailing its copy-protection plans. “This is an important step for EMI and Apple, but even more so for music consumers who will soon be able to legitimately port music from protected discs they own to the iPod.”

It would be an important step, if it were about to happen. When asked about EMI’s statement however, Apple said in so many words that it wants to know what EMI is smoking and where it can get some, stating that there’s no agreement in place and none on the horizon.

Keep in mind that there’s absolutely no technical barrier to putting music from “unprotected” CDs (i.e. the CDs they’ve been selling for two decades) on an iPod. What Apple is refusing to do is to support EMI’s proprietary copy-protection format, or to allow EMI to use FairPlay, Apple’s proprietary copy-protection format. If that means consumers can’t play their legally purchased music on their iPod, that’s just too bad for them.

The worst thing about this particular pissing match is that it’s doing practically nothing to prevent piracy. After all, CD-based copy protection doesn’t make it impossible to upload songs to peer-to-peer networks, it just makes it irritating. As Ed Felten has reported, when consumers complained to Sony BMG that they couldn’t import their copy-protected CDs into iTunes, Sony actually told them how to use Windows Media Player to burn an unprotected audio CD. That audio CD can then be “ripped” into iTunes and transferred to an iPod. But of course, that audio CD can also be “ripped” to MP3 format and uploaded to KaZaa. So what was the point of having the copy-protection in the first place?

To put it bluntly, the labels are in denial. Their shiny new DRM schemes aren’t doing a thing to stop piracy, but the possibility that DRM can’t work is too horrifying to take seriously. So instead, they’re continuing to cripple their own products in the hope that somehow, inconveniencing their paying customers will teach the pirates a lesson. At some point, it will dawn on them that this brick wall isn’t going to fall down no matter how many times they bang their head against it.

Of course, if it weren’t for the DMCA, someone would write a utility to circumvent EMI’s copy-protection and convert the songs to an open format like MP3. But instead we have to wait for “the market” to sell us the right to put our legally purchased music on our iPods.

SHARE: 2 comments

Supporters of the DMCA keep telling us that “the market” will give us the fair use privieges that the DMCA took away. What about this one?

TiVo puts a DRM wrapper on the MPEG-2 video they store, so once you download it, you can only view it if (a) you have a media access key (comes with the TiVo) and (b) their software on your PC to control the viewing experience. If you remove the DRM wrapper, then you’ve circumvented the TiVo DRM.

The iPod, of course, doesn’t understand the TiVo DRM, which is based on a Microsoft DRM technology. There’s no way to view TiVo video on your iPod without removing the wrapper. There’s the rub. As a consequence of the DCMA, if you download a show from your TiVo and remove the TiVo DRM to put it on your iPod, you’ve broken the law. Keep in mind that we’re not talking about putting the show on the Internet, giving it to your friends, or anything else. Just moving it from one device you own to another device you own to watch then throw away.

DCMA supporters would jump in here to state that the DCMA is protecting the rights of people who distribute the shows. After all, perhaps NBC doesn’t want me to watch “The Apprentice” on my iPod. Ironically, however, it’s not NBC’s rights that are being protected since NBC has no say in the matter. They may, in fact, like the fact that I’m going to watch their show and the advertisements which are built into it in large part. One more viewer!

So what is being protected by the DCMA in this case? TiVo’s business model. I have to buy TiVo boxes or use their program to watch shows recorded with a TiVo. This has nothing to do with protecting the intellectual property of NBC and everything to do with protecting the interests of TiVo. TiVo is using the DCMA to lock in customers. It’s as if Congress made moving your stock data from MyYahoo! to Motley Fool a crime so that Yahoo! could retain its customers.

I wonder if James DeLong or other DMCA supporters could tell us when “the market” will give me the opportunity to buy the right to watch TiVo-recorded TV shows on my iPod. I’m not going to hold my breath.

SHARE:

Today’s hearing was chock full of clueless statements. Here’s Cliff Stearns, Chairman of the subcommittee:

While I would like to explore the issues HR 1201 seeks to remedy, I think the cleaner solution to this lies in technology, not necessarily legislation. On that note, I have a number of issues I would like to discuss here today. The first question I have is whether we have gotten any closer to technology that would allow a limited number of protective copies to be made of copyright-protected works. According to Mr. Valenti, representing the Motion Picture Association before the Subcommittee last year, “Keep in mind that, once copy protection is circumvented, there is no known technology that can limit the number of copies that can be produced from the original.” I would like to know about the state of technology in this area. I can’t think that this is not a solvable challenge. Why don’t we make it the copyright equivalent of the race to the moon. We went to the moon almost 40 years ago–it seems to me technology should afford a means of limiting the number of copies we can make of a protected work. Absent promising news on the technology front, I assume we will have to allow the legislative process to work and see if that will yield a solution, although perhaps an inelegant one.

Now, for the non-programmers in the audience: making an uncopyable file is akin to building a perpetual motion machine. It’s not just technologically challenging. It’s theoretically and logically impossible. Files are just strings of 1s and 0s. Computers manipulate 1s and 0s. There’s no such thing as an uncopyable 1 or 0, so there’s no such thing as an uncopyable file. If you’ve got one copy of a file, you can make as many copies of it as you like. That’s just the way computers work.

It’s depressing that that Rep. Stearns isn’t getting competent advice from his staff. But it’s heartening that the supporters of the DMCA have been reduced to such transparently bogus arguments. Congressman Stearns clearly accepts the premise that consumers have fair use rights that need to be respected. At some point, he’s going to realize that DRM developers are selling snake oil, and at that point the DMCA is going to be in big trouble.

SHARE:

This, from from James DeLong’s testimony before Congress made my jaw drop:

So, is it fair use to copy music to a portable device, as discussed earlier? The answer should be “yes,” under the old technological regime; but under the new one, the correct answer is, “Who cares”? Consumers have made clear that they expect such functionality, and the techies quickly supplied DRM that fulfills their wish. Consumers are getting these rights from the market. Perhaps in the future, as everyone gets more sophisticated, the rights granted and the price points will be calibrated more finely. Perhaps not. But it simply does not seem to be an issue with which the law, or the Congress, should be concerned.

If I purchase a song from the iTunes music store, I cannot transfer it to a Dell or Sony MP3 player. Moreover, any tool I might develop or download to allow me to do so would be classified as a “circumvention device” under DeLong’s beloved DMCA, and be illegal. To my naive eyes, it doesn’t seem to me like I’m “getting my rights from the market.” Rather, it looks to me like I’m having my rights taken away by a heavy-handed law passed by Congress at the behest of people like DeLong. And so far, “the market” hasn’t given me the opportunity to buy those rights back (rights I would otherwise have had for free) at any price.

Let’s consider a few other rights traditionally enjoyed under copyright. If I want to get permission to include a five-second sample of a song I purchased from the iTunes Music Store in another musical work, can I buy the rights to do that? Nope. What if I wanted to give my song to another person? Can I do that? Nope. Can I purchase the right to play it with jukebox software other than iTunes? Nope. How about if I want to transfer it to my high-end home stereo system? Not for any price.

I’m honestly at a loss as to how someone who I assume follows this issue closely can write something that so brazenly ignores the actual state of the market. Is he unaware that the market is being balkanized into incompatible DRM schemes that prevent users from transferring music between them? Does he imagine that Microsoft and Apple’s DRM schemes are going to magically become compatible at some point in the future? (They’re not.) Does he think that it’s just fine that anyone who purchases a song from Apple is locked into buying iPods for the rest of his life to play that song? Does he think that no consumer will ever want to do something with an iTunes song that Apple’s engineers hadn’t anticipated?

SHARE: 2 comments

Lovely:

Virus writers have begun taking advantage of Sony-BMG’s use of rootkit technology in DRM software bundled with its music CDs.

Sony-BMG’s rootkit DRM technology masks files whose filenames start with “$sys$”. A newly-discovered variant of of the Breplibot Trojan takes advantage of this to drop the file “$sys$drv.exe” in the Windows system directory.

“This means, that for systems infected by the Sony DRM rootkit technology, the dropped file is entirely invisible to the user. It will not be found in any process and file listing. Only rootkit scanners, such as the free utility RootkitRevealer, can unmask the culprit,” warns Ivan Macalintal, a senior threat analyst at security firm Trend Micro.

Now here’s the awkward question for supporters of the DMCA: what would constitute “circumvention” in this case? The DMCA doesn’t make an exception for poorly-written DRM schemes. It doesn’t say circumvention is illegal unless it’s necessary to safeguard the security and stability of your computer. So if I had a PC infected with Sony’s software, would I be a criminal if I removed it? Is a programmer who shares a removal tool “trafficking” in circumvention tools?

The fundamental problem with the DMCA is that it focuses on technological design decisions (“does this product circumvent a DRM scheme”) rather than on the behavior of people (“does this company’s business model undermine copyright holders’ rights?”). The members of Congress aren’t computer programmers, and so not surprisingly, when they tried to legislate about technological design decisions, it didn’t work very well. We get vague concepts like “technological protection measure” and “circumvention device” that don’t track well with the way actual computer software works.

One solution would be to amend the DMCA to make it clear that you can circumvent DRM schemes that threaten the security of your computer. A better solution, though, would be to get Congress out of the business of legislating about technological designs altogether by repealing the anti-circumvention provisions of the DMCA.

Update: I agree with Ed Felten. This is spyware, plain and simple. Felten also links to a great followup by Mark Russinovich, the guy who broke the story in the first place, on the embarrassingly complicated uninstall process that Sony has set up to dissuade users from removing its spyware from their computers. Sony needs to realize how badly it has screwed up, apologize to its customers, and publicly distribute a one-click un-installer for its spyware DRM.

Also, if you still have a PC (and really, isn’t it time you jumped on the Mac OS bandwagon?) you should disable auto-run to protect yourself from incidents like this in the future.

SHARE: