Podcast Episode 73 Transcript Episode 73 of Steve Gibson'sSecurity Now podcast with Leo LaPorte has a terrific primer on the intertwined history of advancements in technology making it easier for consumers to copy content, fair use, the lobbying efforts by the content industry that resulted in U.S. copyright law amendments up to and including the 1996 WIPO Copyright Treaty, the DMCA implementing the treaty, and the detrimental effects these new laws have on consumer fair use rights.
Text of Report
The UK think-tank, Institute for Public Policy Research (ippr) has released a study, “Public Innovation: Intellectual Property in a Digital Age” where, among many other things, it recommends that U.K. citizens should have the right to copy their own content for their own personal use – something currently prohibited in the U.K. It concludes:
…in seeking to limit pirate activity, emphasis should be on commercial harm to the rights-holder, rather than the act of sharing itself. As such, we recommend UK law be amended to include a private right to copy. Again, this will serve to increase legitimacy of the IP regime by legalizing actions that thousands of individuals already undertake without significant harm to the rights-holder.
The BPI had come to the same conclusion earlier this year. As it stands now millions of U.K. citizens are breaking the law when copying their purchased DVDs or CDs onto their computers and iPods or creating compilation tapes of their own music. The existing law is silly. Kay Withers, one of the report’s authors, said:
The idea of all-rights reserved doesn’t make sense for the digital era and it doesn’t make sense to have a law that everyone breaks. To give the IP regime legitimacy it must command public respect.
In the U.S. personal copying for private use is enshrined in law as part of their fair use doctrine. In exchange for paying levies on blank media, the private copying exemption contained in section 80(1) of the Copyright Act makes it legal for Canadians to reproduce musical works for private use.
As Michael Geist and others have recommended, Canada and Britain should explicitly make copying of purchased content of any type (audio, video, text) for private use legal – without a media levy and without penalties for circumventing DRM/TPMs to do so. Any click wrap/shrink wrap or other end-user license terms to the contrary should be unenforcible.
The current rumour has it that to compete with iTunes, Microsoft’s pending Zune service will scan the users’ computer for a list of all songs purchased from iTunes and then repurchase the songs in Zune’s proprietary format for new Zune customers – effectively buying-out iTunes. In this “Rethinking DRM Dystopia” piece, David Robinson is optimistic about the free market’s ability to overcome the lock-in affect of iTunes “Fairplay” DRM system. I am not!
Dale’s Comment: I am decidedly less excited about this prospect than Mr. Robinson. If copyright law does require a competitor to “buy-out” users from a competitive service, that only does a disservice to consumers. Once a consumer purchases a song, copyright law should protect that consumer’s right to play that song on any device. A system of copyright laws where ONLY the behemoths of an industry can compete hardly leads to innovation and competition. The very fact that, owing to the DMCA, Microsoft may have to resort to such extreme measures in order to compete with iTunes is one of the reasons I created this iMedia law website. This is bad policy, bad for consumers and ultimately bad for the music industry.
In this fun article, the EFF suggests a dozen or so questions that should be asked of the Entertainment Industry when challenging their legal/technological tactics used to thwart emerging technologies that they perceive as threatening their business models.
Text of Committee Report A British Parliamentary Committee is recommending regulations that require digital content packaging/websites to clearly inform consumers as to exactly what they can and cannot do with digital content “protected” by DRM. At present, details of the DRM restrictions applied to digital content are typically buried deep within legalese-laden license agreements that are unpenetrable by the average consumer.
Sources:ars technica | BBC | P2PNet | The Register | Silicon.com | PC Pro | vnunet.com | ZDNet | Cathy Kirkman Dale’s Comment: It has been my belief from the day iTunes launched, that its success has been largely due to the fact that consumers have no idea that the songs they purchase on iTunes will not be playable on competitive devices they buy in the future, that they cannot legally sell their music, give it away, or will their music library (purchased for thousands of dollars) to their heirs when they die. A requirement that a company stamp a warning label such as “Not Playable on Your iPod” on the back of locked-down CDs would go a long way towards ensuring content owners think twice before imposing restrictions that are clearly counter to the reasonable expectations of their customers.
Full-Sized Ad Copy The Consumer Electronics Association has created a new ad, that will run in two Capitol Hill publications today. The add argues that it is time the content industry learns the difference between real pirates and average consumers and that consumers of lawfully acquired music should be able to use it however they wish.
Lawrence Lessig presents a terrific speech/slide show explaining how promoters/users of each of the player piano, records, broadcast TV, cable TV, the Sony betamax etc. were, in their time, considered pirates and how, ultimately, the law evolved to favored the “pirate”. Laws adapted to changing technology. He points out some of the absurdities taken by the content industry then and now and argues against locking down content in a way that limits people’s creativity and fair uses of content. He argues against laws (such as the DMCA) that limit fair use rights to the 20’th century paradigm (as the RIAA and MPAA argue) and that limit the ability of content purchasers to fairly use content with future technologies. He argues against the rhetoric of the “war on piracy” and advocates that artists start speaking up to bring their thoughts ideas to the debate.
In this CBC ‘The Hour’ episode Michael Geist is interviewed about the recent proposed French National Assembly Bill. If passed by the French Senate, the law would require companies such as Apple, Sony and Microsoft to open their DRM/TPM so that competitive media player manufacturers can make their products interoperable. With this law, just as CDs can be played on any CD player, regardless of the manufacture, digital content (eg: movies and music ) purchased online would be playable on any media player. Consumers would be assured that the thousands of dollars spent to purchase music online from, say Apple’s iTunes, will be playable on any competitive media player purchased in the future. Online music consumers would not be locked into using only the hardware provided by the music vendor. Michael argues, as do I, that Canada should consider following the more consumer friendly, ‘fair use’ copyright trends in France, Australia and Denmark rather than the overly restrictive RIAA/MPAA-lobbied-for DMCA/DRM approach adopted by the U.S. and Britain.
Source:CBC’s ‘The Hour’ Show <-- Note: Follow this link and select the first “France Tunes Apple out; Apple Bites Back” segment (dated March 22, 2006) to play the interview in Windows Media Player or Real Player. Related Posts:
Sun’s DReaM Project Architectural Overview Sun has worked with Creative Commons to create an open-source, patent-free, royalty-free DRM scheme endorsed by Lawrence Lessig as the lesser of possible DRM evils. DReaM content players/readers would be certified by an independent standards body. DReaM supports fair use by including the means for copyright works to be duplicated for educational purposes, parody, criticism, etc. However, Sun’s ‘fair use’ mechanism is optional for rights holders.
As Sun is the originator of java, Sun seems well-placed to be the purveyor of a universal, open-source and fair DRM scheme. And, of course, any open-source standard can be scrutinized by the vast open-source community to guard against problems such as the one caused by Sony’s recent root-kit debacle.
This particular scheme tackles the prickly issue of content owners being locked into a particular player/reader or format (eg: Apple’s oxymoronic ‘Fairplay’ scheme). Sun’s proposed open-source DReaM scheme tackles this problem by using a certification process whereby player/reader manufactures can certify their music, video, e-book, video games, etc. player/reader.
Another issue this scheme goes some way to alleviating is the issue of “fair use”. The obvious concern is that Sun’s “fair use” paradigm is currently “optional”. This should be mandatory.
Such a standard may pass muster with France’s proposed new DRM bill. But, it seems at odds with the proposed DRM-free GPL3. If DReaM can ultimately provide a scheme whereby the purchasers of content can: (i) play/access their content on any certified device; (ii) sell, give-away, transfer or otherwise alienate their content; (iii) re-encode their content indefinitely so that their legally purchased content is playable on all future certified devices (ie: not held hostage to the state of the art at the time of purchase); and (iv) otherwise fairly use their purchased content in accordance with evolving fair use/fair dealing standards/jurisprudence; I would heartily endorse such a DReaM scheme. Will the DReaM scheme evolve in such a way that it becomes a DReaM come true? I wouldn’t bank on it!
What Might Conservative Copyright Look Like? April 2, 2006 With the new Harper/Conservative Parliamentary session starting in Canada this week, Michael suggests that the new conservative government approach to copyright reform should include the following three elements: (i) enshrined fair dealing/use rights should be illustrative (as in the U.S.) rather than a comprehensive list; (ii) eliminate the stricture of Crown copyrights; and (iii) legal protection for digital locks (ie: technological protection measures (TPMs) and digital rights management (DRM) schemes) should be approached with trepidation to guard against how TPMs are frequently used to limit interoperability of new technologies, impede new market entrants, and foreclose competition”.
Canada should adopt legislation similar to that currently under consideration in France, whereby consumers of legally purchased content would be explicitly permitted to: (i) circumvent any TPM to make copies of purchased content interoperable with any media player; and (ii) convert digital content into alternative emerging formats for personal use and playback (eg: convert CDs, to MP3s). [See related articles posted on March 21, 2006 and March 22, 2006]
Content providers should be legally required to work with others seeking interoperability to ensure that all content can be played-back using competitive products.
The first-sale doctrine should apply to all digital content marketed to consumers so that such consumers will have the unfettered right to transfer/give-away/sell their legal copy of content (without retaining copies) as can be done with books, records, CDs, DVDs, video games etc. Canadian and U.S. copyright law should explicitly pre-empt any EULA provisions attempting to override such first-sale rights.
Once these measures, the very measures the music industry is fighting, are universally adopted, I believe the first serious dent into online piracy will be made. Treat honest people fairly and they will purchase music online in droves. Treat them like criminals and, well, you know.
On the heels of France’s legislative push for DRM interoperability comes word that Denmark is thinking along the same lines. The legislation is not Apple-specific, however. Rather, France (and now Denmark) is pushing for general DRM interoperability that would eliminate customer lock-in. Sources:ars technica | The Register | Mac World | Engadget | iLounge | PC Pro | Inquirer
After quietly watching developments in the French National Assembly, Apple has responded by saying the proposed law would be tantamount to state-sponsored piracy. Apple may abandon the French market.
Dale’s Comment: How ironic! But for the fact that CDs do NOT contain restrictive DRM, the Apple iPod and iTunes would not exist! Apple now argues for a system of content restriction that will prevent future innovations, like the iPod, from being developed. France’s proposed law is similar to Canadian and U.S. laws passed in the 80’s requiring telephone companies to make telephone services interoperable with telephones manufactured by third parties. Apple’s response, of course, is pandering to its music industry clientèle. In the first instance, nothing about this bill facilitates piracy. Indeed, it includes new provisions to fine consumers that engage in music piracy. In the second instance, so long as Apple continues to innovate and Apple’s iPod continues to be the best portable music player on the market, Apple would benefit if this bill became law. In that instance, just as music from unprotected CDs play on the iPod now, music purchased in France from Sony’, Napster’s, Real’s and Microsoft’s online music stores (for instance) would be playable on Apple’s market-leading iPod. Apple must, however, feign disgust to appease its recording industry partners — the same industry players that Apple had to drag kicking and screaming to the increasingly profitable online-digital music distribution market. Digital music distribution is fast eradicating the losses that the music industry has suffered over the last couple years from decreased CD sales. See this related ars technica story: RIAA Crying Wolf All the way to the Bank.
Text of Report The CATO Institute has prepared a timely report where its author argues that while historically the courts have a proven track record of fashioning balanced remedies for the copyright challenges created by new technologies, the DMCA has cut the courts out of this role and instead banned any devices that “circumvent” digital rights management (DRM) technologies, which control access to copyrighted content and thereby limits or removes altogether consumers’ traditional fair use/fair dealing rights.
Text of Presentation Text of Talk Cathy Kirkman kindly posted her DRM presentation and speech materials from last week’s Practicing Law Institute’s 26th Annual Computer and Internet Law Institute in New York. They provide a very good summary and discussion of the state of the law and the current DRM, TPM, broadcast flag, EULA and other issues that are a focus of this website. Thanks to Cathy for making these publicly available.
“The BSA, MPAA and RIAA have officially objected to a proposal to let the public break DRM that “threatens critical infrastructure and endangers lives.” They argue that if it becomes legal to break DRM that could kill you that it might harm their business.” Source:Freedom to Tinker | The Register
The new law, now set for a vote on Tuesday, would allow consumers to circumvent software that protects copyrighted material–known as digital rights management (DRM)–if it is done to convert digital content from one format to another. Such circumvention is currently illegal in much of the world.
A law being proposed in France would force companies like Apple to open up content downloaded from, say, the iTunes Music Store to be used on non-Apple devices. If they don’t comply, customers would be allowed to break the DRM.
This article argues that Digital Rights Managements hurts paying customers, destroys ‘fair use’ rights, renders customers’ investments worthless, and can always be defeated. Why are consumers and publishers being forced to use DRM? Source:Security Focus
Yahoo Music chief Dave Goldberg raised eyebrows Thursday at the Music 2.0 conference in Los Angeles with a proposal rarely heard from executives at large digital music services: Record labels should try selling music online without copy protection.
[Update: February 13, 2007]Techcrunch and Valleywag have confirmed that as of February 13, 2007 Dave Goldberg, and Bob Roback have resigned from Yahoo! Music.
Legal options in digital entertainment are growing. But they come with restrictions that can hobble your ability to enjoy the content you’ve paid for–and even threaten your control over your system. Source:PC World