DMCA, DRM & Piracy

Cato Unbound Debate: Lessig’s Code at Ten (Part 3: Thierer response)

by Adam Thierer on May 8, 2009 · 7 comments

The Cato Unbound online debate about the 10th anniversary of Lawrence Lessig’s Code and Other Laws of Cyberspace continues today with my response to Declan McCullagh’s opening essay, “What Larry Didn’t Get,” as well as Jonathan Zittrain’s follow-up.

In my response, “Code, Pessimism, and the Illusion of ‘Perfect Control,'” I begin by arguing that:

The problem with peddling tales of a pending techno-apocalypse is that, at some point, you may have to account for your prophecies — or false prophecies as the case may be. Hence, the problem for Lawrence Lessig ten years after the publication of his seminal book, Code and Other Laws of Cyberspace.

I go on to argue that:

Lessig’s lugubrious predictions proved largely unwarranted. Code has not become the great regulator of markets or enslaver of man; it has been a liberator of both. Indeed, the story of the past digital decade has been the exact opposite of the one Lessig envisioned in Code.

After providing several examples of just how wrong Lessig’s predictions were, I then ask:

[W]hy have Lessig’s predictions proven so off the mark? Lessig failed to appreciate that markets are evolutionary and dynamic, and when those markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable. With the exception of some of the problems identified above, a largely unfettered cyberspace has left digital denizens better off in terms of the information they can access as well as the goods and services from which they can choose. Oh, and did I mention it’s all pretty much free-of-charge? Say what you want about our cyber-existence, but you can’t argue with the price!

Continue reading →

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Supreme Court Decision in FCC v. Fox (Part 6: Other Articles & Opinions)

by Adam Thierer on April 30, 2009 · 11 comments

I’ve been blathering on about this week’s big Supreme Court decision in FCC v. Fox, [See Parts 1, 2, 3, 4, 5], so I thought I would just wrap this series of essays up with a collection of other articles and views on the decision in case readers are looking for alternative perspectives:

Mainstream Media Stories
* Associated Press
* Reuters
* New York Times (+ more analysis)
* Washington Post
* Wall Street Journal
* Legal Times
* TV Week
* Variety
* Kansas City Star
* USA Today
* Ars Technica

Conservative, Religious, & “Family” Groups
* Parents Television Council
* Common Sense Media
* Concerned Women for America
* Town Hall.com

Free Speech Advocates or Other Views
* The SCOTUS Blog
* Free Expression Policy Project (Marjorie Heins)
* ACLU
* Media Access Project (Andy Schwartzman)
* Center for Creative Voices in Media (Jonathan Rintels)
* First Amendment Center (David Hudson)
* Free State Foundation (Randy May)
* Michael Dorf
* Marc Randazza
* Reason’s Hit and Run
* Volokh Conspiracy (Eugene Volokh)
* TechDirt

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Hollywood vs technology…again

by Sonia Arrison on April 23, 2009 · 9 comments

Here’s a new study released by the FreedomWorks Foundation regarding yet another Hollywood lawsuit — this time against RealNetworks. FreedomWorks Chief Economist Dr. Wayne T. Brough argues that “the lawsuit will do little to achieve its stated goal of curbing DVD piracy and protecting intellectual property since the RealDVD product does not permit users the ability to burn movies onto a disc or load movies onto the web. Instead, the lawsuit, if it wins, would not only ban RealDVD, but set a dangerous precedent in hampering competition and technological innovation in one of the most dynamic sectors of the economy.”

This seems to me to be a continuation of Hollywood’s efforts to maintain its old business models in a new era, but if I am missing something I’d love to hear about it.

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CwF + RtB = $$$$

by Jim Harper on February 5, 2009 · 147 comments

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A Blanket License for Music Soon To Arrive?

by Berin Szoka on January 26, 2009 · 14 comments

The Isle of Man may soon implement a “blanket license” whereby Manx broadband users could download as much music as they like in exchange for paying a “fee” (also known as a “tax,” since this would be non-optional) to their ISP that would supposedly be as low as $1.38/month. The Manx proposal sounds a lot like how SoundExchange administers a blanket license in the U.S. for web-casting of copyrighted music:

the money collected by the Internet providers would be sent to a special agency that would distribute the proceeds to the copyright owners, including the record labels and music publishers. They would receive payments based on how often their music was downloaded or streamed over the Internet, as they now do in many countries when it is performed live or on the radio.

As Adam Thierer has noted, Larry Lessig has endorsed at least a voluntary version of this idea, but Adam has raised a number of tough questions: Continue reading →

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Boxee vs. the DMCA

by Tim Lee on January 18, 2009 · 18 comments

I was very interested to read Berin’s post about the Boxee, a device I had not heard about until today. I’ve been asking for years why there are no good video jukebox products on the market, so I’m always interested to see new entrants in the market.

If Wikipedia is to be believed, Boxee is a fork of the XBMC Media Center, which I first wrote about way back in 2006. The reason you may not have heard more about the XBMC Media Center is that it sits in an uncomfortable legal grey area. Thanks to the DMCA, one of its most inportant features—the ability to play and rip DVDs—is illegal. And there are probably other DMCA- and software-patent-related legal impediments to releasing a product like the XBMC. As a consequence, the major consumer electronics manufacturers have released relatively crippled set-top boxes that have not caught on with consumers.

Boxee’s wikipedia page suggests that Boxee uses libdvdcss, a cousin of the DeCSS library that the courts ruled to be an illegal “circumvention device” back in 2001. And the DMCA holds that someone who “trafficks” in a circumvention device “willfully and for purposes of commercial advantage or private financial gain” should be fined up to $500,000 and imprisoned for up to 5 years.

Now, the NYT article says that “Lawyers say that Boxee does not appear to be doing anything illegal,” although it doesn’t quote any actual lawyers, nor does it say which legal issues those lawyers examined. It’s possible that Boxee stripped out libdvdcss and replaced it with code that has been approved by the DVD founders. Moreover, it seems that Boxee’s strategy is to just build cool technologies and let the legal chips fall where they may:

Mr. Ronen said that like many start-ups, Boxee was definitely leaping without looking. “Don’t assume we have lawyers. That’s expensive,” he said.

This is a very risky strategy, both from a business perspective and for Ronen personally. But it’s also likely to pay off. If Ronen is able to get enough customers before the MPAA can be roused into taking legal action, they have a pretty good shot at winning the resulting PR war and forcing the MPAA to back down, even if the MPAA has the law on its side. And indeed, that may be the only way to break into this market, because if he plays by the rules he’ll never get the studios’ permission to build a set-top box the studios don’t control.

Fortunately, courts tend to be swayed by the perceived “legitimacy” of a technology’s designers. Remember, for example, that just 7 years after suing to keep MP3 players off the market, the recording industry insisted to the Supreme Court that everyone knew MP3 players were legal. There weren’t any changes to the law in the interim. Rather, MP3 players had become a familiar technology and so judges intuitively “knew” that any interpretation of the law that ruled out MP3 players must be wrong. If Boxee can grow fast enough, and can cultivate a “good citizen” image, it may be able to pursuade judges that any interpretation of the DMCA that precludes Boxee must be wrong.

The more fundamental point, of course, is that it’s ridiculous that Ronen has to worry about these legal issues in the first place. The copy protection technologies Ronen is circumventing haven’t stopped piracy, they’ve simply given Hollywood a legal club with which to bludgeon technology companies it doesn’t like. Had the DMCA not been on the books, we likely would have seen a proliferation of XBMC-like device and software on the market several years ago.

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The Right Way to Allow Cell Phone Jammers – And the FCC’s Way

by Berin Szoka on January 8, 2009 · 40 comments

Adam Thierer noted in mid-December that the FCC was considering allowing the experimental use of cellphone jammers in prison. The FCC just issued (PDF) a Special Temporary Authorization to allow the DC Department of Corrections to test a cell phone jamming technology.

This technology sounds like an excellent solution to a serious problem: The illicit use of cell phones inside correctional facilities by prisoners across the country. In particular, the technology appears to be “directional,” meaning that unlike traditional jammers, which simply block signals within a certain radius around the jammer, this technology appears to be capable of blocking signals inside the confines of a particular room or building. In fact, I’m sure millions of Americans would love to see such technologies implemented in cinemas, theatres, and other performing arts venues across the country. I, for one, am tired of having the exquisite acoustic delicacies of Bach interrupted by annoying ring tones, such as the (painfully) immortal “Who Let the Dogs Out?”

So Much for The Rule of Law

But there’s one important problem: The FCC isn’t waiving a rule here against cell phone jammer. unless I’m missing some subtle statutory quirk, they’re essentially “waiving” a statute—specifically 47 U.S.C. 333:

No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government.

You don’t need to be an administrative lawyer to know that agencies can’t just ignore acts of Congress—no matter how good the policy reason for the waiver is. That’s a big part of what the “rule of law” means. Period. Do not pass ‘Go’. Do not collect $3,101.09 (today’s equivalent of $200 in 1935, when Monopoly debuted).

Fortunately, as noted in the WSJ article Adam cited, at least one legislator realizes this and thinks it’s worth fixing: U.S. Rep. Kevin Brady (R., Texas) told the Journal that his office is “drafting the necessary legislation to remove this outdated FCC roadblock.” The FCC, of course, sped right past that particular roadblock. But then, what should we expect from an agency that has, under its outgoing (and none-too-soon!) chairman Kevin Martin, simply disregarded statutory limits on its authority when it found Comcast in violation of the agency’s non-binding net neutrality principles this summer? (My PFF colleague Barbara Esbin has eloquently condemned this violation of the rule of law in, “The Law is Whatever the Nobles Do: Undue Process at the FCC” (PDF).)

Now, when Congress considers this question, let us hope that they draw the right lesson from this episode: Whatever the wisdom of outright bans on particular technologies, writing such bans into statutes is a really bad idea. At least if such decisions were left up to regulatory agencies, they would have the flexibility to decide when to depart from a general ban. Thus, the best approach would be to repeal the ban altogether. Continue reading →

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The 12 Days of Christmas

by Jim Harper on December 24, 2008 · 12 comments

EFF-style.

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Some basics about edge caching, network management, & Net neutrality

by Adam Marcus on December 18, 2008 · 7 comments

The introduction below was originally written by Adam Thierer, but now that I (Adam Marcus) am a full-fledged TLF member, I have taken authorship.
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My PFF colleague Bret Swanson had a nice post here yesterday talking about the evolution of the debate over edge caching and network management (“Bandwidth, Storewidth, and Net Neutrality“), but I also wanted to draw your attention to related essay by another PFF colleague of mine. Adam Marcus, who serves as a Research Fellow and Senior Technologist at PFF, has started a wonderful series of “Nuts & Bolts” essays meant to “provide a solid technical foundation for the policy debates that new technologies often trigger.” His latest essay is on Network neutrality and edge caching, which has been the topic of heated discussion since the Wall Street Journal’s front-page story on Monday that Google had approached major cable and phone companies and supposedly proposed to create a fast lane for its own content.

Anyway, Adam Marcus gave me permission to reprint the article in its entirety down below. I hope you find this background information useful.
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Nuts and Bolts: Network neutrality and edge caching

by Adam Marcus, Progress & Freedom Foundation

December 17, 2008

This is the second in a series of articles about Internet technologies. The first article was about web cookies. This article explains the network neutrality debate. The goal of this series is to provide a solid technical foundation for the policy debates that new technologies often trigger. No prior knowledge of the technologies involved is assumed.

To understand the network neutrality debate, you must first understand bandwidth and latency. There are lots of analogies equating the Internet to roadways, but it’s because the analogies are quite instructive. For example, if one or two people need to travel across town, a fast sports car is probably the fastest method. But if 50 people need to travel across town, it may require 25 trips in a single sports car. So a bus which can transport all 50 people in a single trip may be “faster” overall. The sports car is faster, but the bus has more capacity. Bandwidth is a measure of capacity, of how much data can be transmitted in a fixed period of time. It is usually measured in Megabits per second (Mbps). Latency is a measure of speed, of the time it takes a single packet data to travel between two points. It is usually measured in milliseconds. The “speeds” that ISPs advertise have nothing to do with latency; they’re actually referring to bandwidth. ISPs don’t advertise latency because its different for each different site you’re trying to reach.
Continue reading →

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With US Patent Overhaul Dead, Agencies Ponder Changes As Industry Debates Role Of ‘Trolls’

by Drew Clark on December 8, 2008 · 5 comments

I attended the Federal Trade Commission hearing about the state of intellectual property on Friday, and wrote a piece about the event, “With US Patent Overhaul Dead, Agencies Ponder Changes As Industry Debates Role Of ‘Trolls’.”

The piece appeared in ip-watch.org, the excellent Geneva-based publication run by my friend and former colleague William New. Those of you who aren’t familiar yet with ip-watch.org should definitely begin following it: it’s a must-read for practitioners, advocates and activists concerned about all forms of intellectual property.

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