Category — Fair Use/Dealing

Steve Gibson’s Intertwined History of Copyright and Media-related Technologies

January 12, 2007 at 2:14 pm - by Dale Dietrich

Podcast Episode 73 Transcript
Episode 73 of Steve Gibson's Security 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.

Click here to listen to Episode 73 of the Security Now podcast. (This will download an 8.0 MB MP3 file that your default media player should load and play). For a higher quality version of this podcast click here (32 MB).

Categories: BigMedia v NewTech, Copy Restrictions, Copyright, DMCA-like Laws, DRM Analysis, DRM Restricting Use, Fair Use/Dealing

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EMusic Sells 100 Millionth Song without DRM

December 15, 2006 at 2:31 pm - by Dale Dietrich

Online music seller eMusic is second only to DRM-laden iTunes for legitimate online music sales. Most of its library of 2 million songs comes from independent labels. It's success proves that consumers are more than willing to pay fair prices for DRM-free music. While it took the eMusic two years to sell its first 50 million songs, it has taken less than a year to sell the next 50 million.

Dales Comment: While I applaud eMusic, it too has a business model that I don't like. While individual songs can be purchased, their business model requires the user to pay a minimal subscription fee every month. Song purchases are deducted from the monthly fee. If you spend more than the fee, then you have to pay extra. My perfect world of music sales is to buy DRM-free songs with no minimum monthly commitment. I would be able to buy as many or as few as I want. Frankly, I'd like eMusic service to mimic that of AllofMP3.com's. Charge a fair per song price, allow me to purchase whatever I want in whatever format I want. That is a service I'd use!

Related Posts:

Steve Jobs Calls for the End of DRM for Online Music Sales (February 7, 2007)
Wired Article: Signs Music Industry May be Abandoning DRM (January 8, 2007)
EMusic Sells 100 Millionth Song without DRM (December 15, 2006)
EMI's Blue Note & Yahoo! Music Sell a Few More Songs DRM Free (December 6, 2006)
ifpi Board Member Quoted as Saying Major Labels About to Abandon DRM (November 27, 2006)
First a Song, Now a DRM-Free Album - Yahoo! (September 19, 2006)
Weird Al Yankovic's New Single: Don't Download this Song (August 23, 2006)
Yahoo! Offers DRM-Free Jessica Simpson Song (July 20, 2006)
Yahoo! Exec Says Labels Should Sell Music Without DRM (February 24, 2006)

Categories: DRM-Free Services, Fair Use/Dealing, Milestones, New Business Models

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TiVo Decode Manager v1.0 Automates TiVo’s Cracked DRM on Macs

December 8, 2006 at 2:58 pm - by Dale Dietrich

This was inevitable. I didn't expect it so soon.

Within days of TiVo's DRM being cracked, someone has automated the rather difficult to use TiVo Decode Manager and created an easy to use TiVo2Go application, without DRM, on Apple computers. The software automatically discovers local TiVos. With one mouse click shows are downloaded from the TiVo, DRM-free, to the Mac by episode, recorded date etc. The resultant Mpeg-2 files still need to be converted to a PC-usable format such as .wmv using a program like VLC. My guess is that it won't be long before the end-to-end process is fully automated.

Dale's Comment: I foresee TiVo-released DMCA take-down notices being sent to whoever controls thebenesch.com (the site hosting the program) in the near future!

Sources: Engadget | PVR Wire

Related Posts:

TiVo Decode Manager v1.0 Exploits TiVo's Cracked DRM on Macs (December 8, 2006)
TiVo's DRM Reportedly Cracked (December 4, 2006)

Categories: Copyright, DMCA-like Laws, DRM Arms Race, DRM Circumvention, DRM-Free Services, Fair Use/Dealing, Piracy

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Australian Copyright Reform: Copying CDs to iPods, Legal - Breaking DRM or Archiving Recorded TV, Illegal

December 6, 2006 at 5:31 pm - by Dale Dietrich

Text of Copyright Amendment Bill 2006
Australia is set to amend its copyright laws to finally make it legal for consumers to record TV shows and to copy music they own on CDs onto their iPods and other portable music devices. Such copying is now illegal under Australian and British copyright law. The Copyright Amendment Bill 2006 passed through both houses of Parliament and most of it will become law by January 1. According to theage.com.au:

"It will legalise format shifting of materials such as music, newspapers, books, meaning that people can put their CD collection onto iPods or mp3 players."

But, and this is a big but, it will be illegal/infringing to breach a technological protection measure (TPM) to copy or format shift content you own. This pretty much nullifies the importance of this amendment beyond the CD format as virtually all content will be locked down with TPMs/DRM going forward. Too bad.

Importantly, the Australian Attorney General makes it clear in this FAQ that building up a library of programs recorded from TV broadcasts for a permanent archive is not permitted. I have argued for years that permanent archiving of TV shows (whether on VHS cassette tapes or TiVo) constitutes copyright infringement under U.S. and Canadian copyright law. Few have wanted to believe me. Well, the question is answered with clarity in the Australian context at least!

And one more thing, the bill makes it legal to sing "Happy Birthday" in public - an act which was also previously illegal in Australia!

Dale's Comment: While the CD-to-iPod amendment is a nice short term measure, the bill, overall, is anti-consumer in the long run. Australian's have a one-time get out of jail free card. If the past is any indication of the future, the prohibition against breaching TPMs for content owned by the consumer will be completely ignored by most consumers as it is patently unfair to preclude the purchaser of content from using it/reading it/accessing it on any device of their choosing. Hence, the law is set up to fail from the start - just as the previous prohibitions against copying failed to stop consumers from copying their music onto iPods.

Related Posts:

Australian Copyright Reform: Copying CDs to iPods, Legal - Breaking DRM or Archiving Recorded TV, Illegal (December 6, 2006)
Australian Copyright Reform to Add New Time/Format Shifting Exceptions (May 15, 2006)
Australian Parliamentary TPM Report Accepts User Concerns (March 1, 2006)

Categories: Copyright, DMCA-like Laws, DRM Restricting Use, Fair Use/Dealing, International Legal Reform

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TiVo’s DRM Reportedly Cracked

December 4, 2006 at 5:17 pm - by Dale Dietrich

Gizmodo, Engadget and others are reporting that the folks at SourceForge.net have successfully hacked the TiVo DRM using a program they call the TiVo File Decoder.

Dale's Comment: If true, expect a patch from TiVo soon! :) Unfortunately for those of us waiting for the TiVo Series 3 software upgrade that was due out about now, my guess is we'll be waiting awhile longer while TiVo's engineers work at sorting this one out.

Related Posts:

TiVo Decode Manager v1.0 Exploits TiVo's Cracked DRM on Macs (December 8, 2006)
TiVo's DRM Reportedly Cracked (December 4, 2006)

Categories: Copyright, DMCA-like Laws, DRM Arms Race, DRM Circumvention, DRM-Free Services, Fair Use/Dealing, Piracy

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Paramount Sues Loan ‘N Go For Loading Purchased Movies Onto Customer iPods

November 20, 2006 at 3:44 pm - by Dale Dietrich

Text of Complaint (Nov 3, 2006)

This one doesn't surprise me. It is more of the same - big media bites off its nose to spite its face by bringing lawsuits against any new business model that they don't sanction. In this case, Boston's Load 'N Go offers a service to their DVD-purchasing customers, by copying their purchased movie onto an iPod. You would think Paramount would appreciate vendors adding value for customers buying Paramount's products. But no, they choose to sue, presumably to force honest purchasers to purchase the movie twice, once on DVD and again as a download. The DMCA makes such copying, even for what otherwise would be fair use, illegal. So, thanks to the DMCA, Paramount seems to have a case. Chalk another one up for Paramount and another loss for honest consumers. This is precisely the thing that drives honest consumers to BitTorrent.

[Nov 29 Update: No doubt Paramount wishes to do what Warner Bros is now doing with videos sold at Walmart. According to CNN, Techcrunch and others, if you buy Warner's “Superman Returns” at Wal-Mart, you can pay an additional $1.97 to play it on portable devices, $2.97 more to play it on PCs or laptops, or $3.97 to play it on either portable devices or PCs/laptops. Ah, the old Big Media nickel and diming profit strategy. Don't you love it!]

[Nov 30 Update: Ha! It appears the EFF has come to the same conclusion - I wonder if they read my blog before writing this.]

Categories: BigMedia v NewTech, Cases, DMCA-like Laws, Fair Use/Dealing, New Business Models

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ippr Report Recommends U.K. Copyright Law Include a Private Copy Right

November 1, 2006 at 2:04 pm - by Dale Dietrich

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.

Related Posts:

BPI Finally Recommends Legalizing the Copying of Purchased Music for Personal Use (May 10, 2006)

Categories: Copyright, DMCA-like Laws, DRM Analysis, DRM Restricting Use, Fair Use/Dealing, International Legal Reform, Policy Analysis

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YouTube Faces Heightened Copyright Scrutiny Since Google Buyout Announcement

October 30, 2006 at 9:42 pm - by Dale Dietrich

As you can see from the "Related Posts" links, below I have blogged about YouTube's copyright liability in the past. It seems like the deep-pockets behind YouTube's new parent, Google, have brought out the copyright infringement vultures, and those that wish to speculate on the future (or demise) of YouTube specifically and copyright infringement on the Internet generally. The stories linked-to below are only a few of the avalanche of stories and blog posts on this topic over the last week.

Faced with an increased level of DMCA take-down notices, YouTube is busily working on taking down 10's of thousands of copyrighted works as requested by media owners. It's a difficult chore. Some 60,000 new videos are posted on YouTube every day. Offending materials are often put back up as soon as they are taken down.

YouTube says it will take a tough action to avoid such problems in the future and has committed to developing and deploying technology that can sniff out copyrighted video clips and bits of music. YouTube will also provide "copyright owners with user identification information" of users that post infringing content - after receiving a valid subpoena (See this CNet article).

While there may be some bumps and no doubt many legal hurdles and lawsuits along the way, if I were a betting man, I'd bet that YouTube will survive all legal challenges in-tact. This is a new and emerging area of the law. The DMCA provides the s. 512(c) safe harbour for this (the take-down scheme). YouTube is complying with its take-down obligations under the DMCA and similar laws around the globe.

More interestingly, YouTube's 10 minute video clip limit can dovetail with the self-interest of Big Media - those most likely to sue, and have the resources need to sue, Google. After initially fighting with YouTube over the posting of this Natalie Portman skit on Saturday Night Live, in the face of a furor from Internet bloggers, NBC backed-off, and allowed the post to remain on YouTube for awhile. NBC discovered that YouTube was a terrific way to promote its show as new and hip to a coveted younger demographic. Ahhhhhhhhh —- self interest (with strong lobbyists) … wins every time!

Cranky Geeks Videocast on Topic (Episode 31) John C. Dvorak, Sebastian Rupley, West Coast Editor, PC Magazine, Matt Mullenweg, Founder, WordPress.org, Gary Messiana, CEO, Netli, Inc.

Related Posts:

Why Google & YouTube are Not Getting Sued Out of the Water (December 11, 2006)
YouTube Faces Heightened Copyright Scrutiny Since Google Buyout Announcement (October 30, 2006)
YouTube Sued by L.A. News Service (July 17, 2006)
How YouTube Avoids the Internet Copyright Police (July 17, 2006)
RIAA Sends Cease and Desist Letters to YouTube/Google Video Users (June 15, 2006)
YouTube's Looming Fair Use Battle (May 5, 2006)

Categories: Big Media v Internet, BigMedia v NewTech, DMCA-like Laws, Fair Use/Dealing, New Business Models, iVOD/iTV

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Michael Geist Concludes 30 Days of DRM

September 18, 2006 at 7:28 pm - by Dale Dietrich

Source: Michael Geist’s 30 Days of DRM Page

Categories: Artists Against DRM, Big Media v Internet, Copyright, DMCA-like Laws, DRM & Research, DRM Analysis, DRM Arms Race, DRM Circumvention, DRM Restricting Use, DRM as Market Lock, Fair Use/Dealing, Intrusive TPMs - Rootkits, Legal Reform, Lobbying, Piracy, Policy Analysis

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New Canadian Coalition of Canadian Art Professionals on Copyright Reform

June 6, 2006 at 3:56 pm - by Dale Dietrich

500+ members of Canada’s art community have formed a new coalition, the Coalition of Art Professionals, arguing for three principles to be enshrined in Canada’s copyright policy: (i) fair access to copyrighted material lies at the heart of copyright; (ii) artist and other creators require certainty of access; and (iii) anti-circumvention laws should not outlaw creative access.

Sources: Coalition’s Press Release | Michael Geist | Digital Copyright Canada | P2PNet

Note: The Canadian Music Creators Coalition was also recently formed with a similar copyright policy reform agenda.

Categories: Artists Against DRM, Fair Use/Dealing

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Australia Copyright Reform to Add New Time/Format Shifting Exceptions

May 15, 2006 at 2:39 pm - by Dale Dietrich

Among other proposed changes, the Australian Attorney General has announced plans to add time shifting and format shifting exemptions into Australian Copyright Law.

Sources: Law Front | Michael Geist | Attorney General's Press Release

Related Posts:

Australian Copyright Reform: Copying CDs to iPods, Legal - Breaking DRM or Archiving Recorded TV, Illegal (December 6, 2006)
Australian Copyright Reform to Add New Time/Format Shifting Exceptions (May 15, 2006)
Australian Parliamentary TPM Report Accepts User Concerns (March 1, 2006)

Categories: Fair Use/Dealing, International Legal Reform

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BPI Finally Recommends Legalizing the Copying of Purchased Music for Personal Use

May 10, 2006 at 2:33 pm - by Dale Dietrich

The BPI, the body that represents British record companies, believes copyright on CDs and records should be changed to allow consumers to copy music if it is for personal use. Currently, it is technically illegal for anyone to copy a CD onto their computer for the purposes of downloading music onto their own portable music player.

Sources: Telegraph Co. UK | ars technica | The Register | P2PNet | Macworld | PC Advisor

Dale’s Comment: While this is a long-over-due recommendation, it amounts to nothing more than a token tilt towards consumer fair use/fair dealing rights. As music distribution models switch from CDs to electronic distribution of music protected by DRM and TPMs, the consumer will shortly be right back in the same place - having no legal way to copy their purchased music into alternative formats. U.K. laws implementing the WIPO Copyright Treaty will make it illegal to defeat the DRM/TPMs (that all future music will be wrapped in) thus effectively taking-away with one law what U.K. consumers might finally achieve of any such change to the U.K. Copyright Act is made.

Categories: Big Media Makes Progress, Fair Use/Dealing

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YouTube’s Looming Fair Use Battle

May 5, 2006 at 1:52 pm - by Dale Dietrich

In this interesting Engadget article, YouTube's fair use defenses are discussed in the context of an inevitable big media law suit alleging use of video clips infringes their copyrights. YouTube has been very conscientious about establishing copyright policies and removing infringing videos in their entirety, as required by the DMCA. For example YouTube quickly removed the Natalie Portman SNL video when NBC demanded this. But, the more interesting challenge will be when YouTube asserts that use of short video clips/snippets from big media sourced video (eg: a disputed penalty in a sporting event, the Janet Jackson wardrobe malfunction, a snippet from a David Letterman interview or top 10 list, etc.) is fair use under copyright law for educational, parody, commentary and/or criticism purposes. Assuming YouTube's current million-dollar-a-month burn rate doesn't take them down first, every fiber of my body tells me they are in for a fair use fight with broadcasters, organized sports and/or the MPAA at some point down the line.

Source: Engadget

Related Posts:

Why Google & YouTube are Not Getting Sued Out of the Water (December 11, 2006)
YouTube Faces Heightened Copyright Scrutiny Since Google Buyout Announcement (October 30, 2006)
YouTube Sued by L.A. News Service (July 17, 2006)
RIAA Sends Cease and Desist Letters to YouTube/Google Video Users (June 15, 2006)
YouTube's Looming Fair Use Battle (May 5, 2006)

Categories: Big Media v Internet, Fair Use/Dealing, New Business Models, iVOD/iTV

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Consumer Electronic Association Runs Pro-Consumer Ads on Capital Hill

April 26, 2006 at 9:29 pm - by Dale Dietrich

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.

Sources: EFF | Related CEA Fair Use Press Releases | Engadget

Categories: DRM Analysis, DRM-Free Services, Fair Use/Dealing, Lobbying

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Proposed “Perform Act” to Restrict Satellite & Web Streaming Recording

April 26, 2006 at 9:11 pm - by Dale Dietrich

Text of Proposed Perform Act
The PERFORM Act (”Platform Equality and Remedies for Rights Holders in Music Act of 2006“) was introduced into Congress yesterday. The bill prohibits satellite radio from offering its subscribers devices capable of recording off the air unless royalties are paid and content is locked with DRM. The catalyst for the bill was new devices XM Radio is bringing to the market that allow customers to save songs on the receivers. Sirius had already made deals with the major record companies that compensate them for downloads on its S-50 receiver.

Also in the bill is a provision that would effectively require music webcasters to use DRM-laden streaming formats, rather than the MP3 streaming.

Sources: EFF Deep Links | ars technica | BBC | TMCNet | Reuters | Billboard | CNet | Tech News - HRCC’s response | Red Herring | Hollywood Reporter | Washintgon Times | Techdirt | PublicKnowledge | Cathy Kirkman

Dale’s Comment: Aspects of this bill have merit. I agree that anyone wishing a permanent, transferable copy of a song broadcast through XM or Sirius should pay for it. If, however, the device does not permit the user to copy the song to an external device, then the concept is more akin to a PVR such as TiVo and fair use rights should allow the user to enjoy the song within the specific device for a reasonable period of time without an additional royalty payment - remember, XM and Sirius subscribers already pay compulsory royalties via their subscriptions to these services. To the extent an additional royalty payment is made to purchase a song, the user should have the right to copy/transmit the song off the XM/Sirius device to any other device owned by the user and, of course, all the other incidents of fair use for purchased music that I advocate for on this site should apply - the right to of the owner to transcode it to any other format, the right to play it on any device owned by the consumer, the right to sell/give-away/alienate the purchased copy (without retaining a copy) etc. If, however, this bill results in an obligation to pay for music that can’t be removed from the device or otherwise fairly used by the user, it should not be adopted.

Related Posts:

Music Labels Sue XM Over its Inno/Helix Recording Capabilities (May 17, 2006)
RIAA Negotiates DRM with XM and Other Digital Radio Operators (January 16, 2006)
Sirius S50 has been (siriusly) crippled by the RIAA (December 2, 2005)

Categories: Big Media v Internet, BigMedia v NewTech, Copy Restrictions, Fair Use/Dealing, Legal Reform, Satellite Radio

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Canadian Music Creators Coalition Formed to Counter CRIA/RIAA

April 26, 2006 at 9:06 pm - by Dale Dietrich

Many of Canada’s most prominent recording artists, including the Barenaked Ladies, Avril Lavigne and Sarah McLachlan have formed the CMCC to have their “voices heard about the laws and policies that affect our livelihoods”. Contrary to the lobbying efforts of the CRIA/RIAA, the CMCC believes that: (i) suing fans, as is done by CRIA and the RIAA, is destructive and hypocritical - “the government should repeal provisions of the Copyright Act that allow labels to unfairly punish fans who share music for non-commercial purposes with statutory damages of $500 to $20,000 per song”; and (ii) digital locks enforced by DMCA-like laws are risky and counterproductive - “laws should protect artists and consumers, not restrictive technologies - consumers should be able to transfer the music they buy to other formats under a right of fair use, without having to pay twice.”

Sources: CMCC Press Release | CMCC Website | Michael Geist | Howard Knopf | Globe & Mail | ars technica | P2PNet | Digital Copyright Canada | Wired Bogs | Tech News World | Linux Electrons | CD Freaks | EFF

Dale’s Comment: As Howard Knopf so eloquently says: “This is music to my ears”. The CMCC is essentially calling for copyright reforms similar to those passed by the French Legislature on March 21 (see story here). Let’s see if American recording artists follow suit.

Related Posts:

Geist’s CBC Interview: France Tunes Apple Out: Apple Bites Back (April 7, 2006)
Denmark May Follow France to Challenge Apple DRM (March 26, 2006)
Apple Responds to Proposed French Legislation (March 22, 2006)
French National Assembly Passes Bill to open iTunes (March 21, 2006)