While not as exciting as the new phone books, the Copyright Office released its latest rulemaking on exemptions to the DMCA prohibition on circumventing technological protection measures of copyrighted works: Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works. The current exemptions include:
- Short clips from DVD’s “when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment” to meet the goals of fair use for:
- Educational uses by college and university professors and by college and university film and media studies students;
- Documentary filmmaking;
- Noncommercial videos.
- Programs to enable phone handsets to execute software applications (phone “jailbreaking.”)
- Computer programs that enable used wireless telephone handsets to connect to a wireless telecommunications network with the permission of the network owner
- Technological protection methods on computer-based video games, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if the information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and the information derived from the testing is used in a manner that does not facilitate copyright infringement or a violation of applicable law.
- Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
- Literary works distributed in ebook format when all existing ebook editions of the work contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
EFF: EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers “The Electronic Frontier Foundation (EFF) won three critical exemptions to the Digital Millennium Copyright Act (DMCA) anticircumvention provisions today, carving out new legal protections for consumers who modify their cell phones and artists who remix videos — people who, until now, could have been sued for their non-infringing or fair use activities.”
Nate Anderson, Ars Technica, Apple loses big in DRM ruling: jailbreaks are “fair use” “This time, the Library went (comparatively) nuts, allowing widespread bypassing of the CSS encryption on DVDs, declaring iPhone jailbreaking to be ‘fair use,’ and letting consumers crack their legally purchased e-books in order to have them read aloud by computers.”
Jon Healey, LA Times, More legal reasons to circumvent electronic locks: “The biggest beneficiaries may be documentary filmmakers and iPhone software developers. The former gained permission to circumvent the Content Scramble System software on DVDs to copy short portions of copyrighted motion pictures for non-infringing uses. In an interesting twist, the copyright office extended the exemption to anyone making a documentary, not just members of a recognized group of filmmaking professionals.”
MGE v. GE
In other DMCA Anti-Circumvention news, the Fifth Circuit ruled last week that in order to deserve protection under the anti-circumvention provisions, the technological prevention measures need to protect an action that copyright law reserves for the copyright owner. MGE UPS Systems Inc. v. GE (5th Cir. Jul. 20, 2010)
Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners… Without showing a link between “access” and “protection” of the copyrighted work, the DMCA’s anti-circumvention provision does not apply. The owner’s technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing.
GE was using a version of MGE’s systems that were modified to work without a copy protection dongle, but GE was not otherwise infringing on any of MGE’s copyrights. The circumvention was done to use the MGE products that GE purchased, but not to distribute or perform copies of MGE’s copyrighted works.
Nilay Patel, Engadget, Did the Fifth Circuit just make breaking DRM legal? Not quite.
Apple Unveils Higher Quality DRM-Free Music on the iTunes Store: “DRM-free tracks from EMI will be offered at higher quality 256 kbps AAC encoding, resulting in audio quality indistinguishable from the original recording, for just $1.29 per song.”
This allows the labels to go above the $0.99 price point, and Apple to give customers a justification to spend more per track– the $1.29 track is simply a better product than the $0.99 track in terms of sound quality and freedom to use.
The next question is: do the other majors sign on?
When does Apple offer the same terms to independents. Many indies would be willing to go DRM-free at $0.99. How price elastic are digital downloads?
Albums will remain at $9.99 with some price flexibility, but will be the premium, 256 kbps, DRM-free versions. It’s a subtle way of adding value to the higher priced album product.
The RIAA released a statement in response to Jobs’ open letter, available at Jon Healey’s Bit Player blog at the LA Times: “Apple’s offer to license Fairplay to other technology companies is a welcome breakthrough and would be a real victory for fans, artists and labels. There have been many services seeking a license to the Apple DRM. This would enable the interoperability that we have been urging for a very long time.”
Is this really the best of Jobs’ three scenarios for copyright owners? If Apple did choose to license to third parties, Apple’s proprietary DRM scheme would be the underpinning of the entire digital music industry. And while there would be competitors to the iTunes/iPod hegemony, Apple would be the 500 lb gorilla in the room. Its proprietary format would govern the way that music is used. Perhaps the record labels would prefer to have to deal with using antitrust law to reign in Apple’s dominance in the music distribution ecosystem, but that seems like the labels would be letting too much of that distribution ecosystem get to far out of their control.
It shows how confident Apple is in its product that the company is willing– if not enthusiastic– to prefer open competition to licensing its own proprietary protection scheme.
John Markoff, The New York Times, Jobs Calls for End to Music Copy Protection: “The Universal Music Group, the Warner Music Group and Sony BMG Music Entertainment declined to comment. But several industry executives said they viewed Mr. Jobs’s comments as an effort to deflect blame from Apple and onto the record companies for the incompatibility of various digital music devices and services.”
The Economist: Music wants to be free: “Mr Jobs’s argument, in short, is transparently self-serving. It also happens to be right.”
John Gruber, Daring Fireball: Reading Between the Lines of Steve Jobs’s ‘Thoughts on Music’: “Interoperability is a good idea. It is simply fair that you should be able to play the music you’ve downloaded and paid for on any brand of music player. “Open up FairPlay” sounds nice, but, as Jobs makes clear, makes little practical sense. If you really want interoperability, then what you want is no DRM, not “open” DRM.”
As Gruber, and others, have noted, there are many copyright owners– independent labels and artists, mainly– who are willing to distribute their recordings in DRM-free formats. In fact, many of these recordings are distributed DRM-free already. Unless the contracts with the Big Four prohibits Apple from distributing any non-protected content from the same store, Apple could distribute independent music without any DRM.
Previously: Apple, DRM and Digital Distribution
A few European countries, including Norway, Germany, and France, are considering requiring Apple, Inc. to make the songs sold on the iTunes store playable on music players from other manufacturers. ARS Technica reports: iTunes DRM called out by France and Germany: “Apple is being challenged once again to open up its DRM by consumer groups in Europe. This time, Germany and France have joined the slowly-growing number of countries who are asking Apple to allow the protected songs purchased from the iTunes Store to be played on other music players besides the iPod. Norwegian Consumer Ombudsman Bjoern Erik Thon told the Associated Press that France’s consumer lobby group, UFC-Que Choisir, and Germany’s Verbraucherzentrale are now part of the European effort to push Apple into an open DRM system, with more countries considering joining the group”
Steve Jobs responds in an essay on Apple’s web site, noting that use of DRM is at the requirement of the copyright owners who license music to the iTunes store. Apple would be happy to sell unprotected songs: Thoughts on Music:
To begin, it is useful to remember that all iPods play music that is free of any DRM and encoded in ‘open’ licensable formats such as MP3 and AAC. iPod users can and do acquire their music from many sources, including CDs they own. Music on CDs can be easily imported into the freely-downloadable iTunes jukebox software which runs on both Macs and Windows PCs, and is automatically encoded into the open AAC or MP3 formats without any DRM. This music can be played on iPods or any other music players that play these open formats.
The rub comes from the music Apple sells on its online iTunes Store. Since Apple does not own or control any music itself, it must license the rights to distribute music from others, primarily the ‘big four’ music companies: Universal, Sony BMG, Warner and EMI. These four companies control the distribution of over 70% of the world’s music. When Apple approached these companies to license their music to distribute legally over the Internet, they were extremely cautious and required Apple to protect their music from being illegally copied. The solution was to create a DRM system, which envelopes each song purchased from the iTunes store in special and secret software so that it cannot be played on unauthorized devices.
Jobs goes on to explain that Apple has refused to license its Fairplay DRM system because doing so would make the scheme less secure. Because licensees would need to know how to decrypt the protected files, allowing third-parties access to the Fairplay code would make the scheme much more likely to be cracked. Apple would be happy to sell music without DRM, if only the Big Four would be willing to let Apple sell unprotected files.
The major labels seem to be getting closer to attempting large scale use of digital distribution without DRM. From MIDEM, Victoria Shannon reports in The NY Times: Record Labels Contemplate Unrestricted Digital Music: “As even digital music revenue growth falters because of rampant file-sharing by consumers, the major record labels are moving closer to releasing music on the Internet with no copying restrictions — a step they once vowed never to take.”
Independent labels are already selling unprotected MP3 files through eMusic. Other Music, here in New York City, is set to launch a digital download store selling indie music in high-bitrate, unprotected MP3 format. Eliot Van Buskirk, Wired News interviews: A Real Music Store Sprouts Online: “Other Music [will take] its handpicked approach to music sales online with the launch of its own digital music store. Located at digital.othermusic.com, the site will stock high-quality MP3s from Pitchfork-friendly bands, without using digital rights management of any kind.”
Yesterday, Apple, Inc. and Apple Corp. entered into a new agreement concerning the Apple trademark. In this new Agreement, the Jobs-helmed Apple, Inc. will own the Apple mark and license it to the Beatles’ Apple Corp. Terms of the deal were not disclosed.
Last week, Wendy Seltzer (Brooklyn Law) and Fritz Attaway (MPAA) debate DRM at the WSJ: ‘DRM’ Protects Downloads, But Does It Stifle Innovation?. The difference in opinions is about how end users relate to copyrightable works. The strong copyright/pro-DRM view is that once is a work is fixed, it is inviolably fixed in that particular arrangement unless the copyright owner decides to offer a different version. The argument against DRM is that copyright law allows individuals to use a particular copy of a work in any manner they want– such as cutting up a book and stapling the pages together out of order– but DRM makes it impossible to engage in these uses that are permissible under copyright.
The copyright maximalists are concerned about indiscriminate redistribution. The anti-copyright advocates are concerned with restrictions on lawful use. It is difficult to distinguish between the uses necessary for each end result, so to prevent indiscriminate redistribution constricts the ability to use lawfully acquired material. But the digital formats that allow users to remix and repurpose lawfully acquired copies in non-infringing manners also allow for indiscriminate redistribution.
A technological system can restrict the ability to make copies. The law can be fuzzier, because the boundaries between infringement, fair use, and non-infringing use are not clearly delineated– context is crucial.
Privacy and Anonymity
Kevin F. Berry, Law.com: How to Unmask an Anonymous Blogger: “When does it make sense to spend the time and expense necessary to determine the identity of an anonymous blogger who is damaging the company?”
New York Times: The Theater of the Street, the Subject of the Photograph: “The suit was dismissed last month by a New York State Supreme Court judge who said that the photographer’s right to artistic expression trumped the subject’s privacy rights. But to many artists, the fact that the case went so far is significant.”
Digital Music and Movies
At Last, Movies to Keep Arrive on the Internet – New York Times: “Six major studios plan to begin selling movies over the Internet today that buyers can download and keep for watching at any time.…New movies will cost about $20 to $30 to download”
John Gruber, Daring Fireball: The iPod Juggernaut: “In short, and I mean this in the nicest way possible, Apple’s iPod competitors are totally fucked.”
MP3 Insider: The truth about your battery life. It takes more processing power to play tracks with DRM. That processing power shortens the battery life of portable digital music players. “The Archos Gmini 402 Camcorder maxed out at 11 hours, but with DRM tracks, it played for less than 9 hours. The iRiver U10, with an astounding life of about 32 hours, came in at about 27 hours playing subscription tracks. Even the iPod, playing back only FairPlay AAC tracks, underperformed MP3s by about 8 percent.”
British Court Hears Apple v. Apple and ‘Le Freak’: “In a clash of cultural icons, the Beatles’ record company, Apple Corps, wants Apple Computer to stop using its familiar logo, in the shape of an apple with a bite out of it, on the iTunes Music Store. Apple Corps contends that the use of the logo infringes on a 1991 agreement, which it says barred Apple Computer from using the logo in connection with the sale of music.”
Creative Commons Canada: Dutch Court upholds Creative Commons licence: “Photographs made available on flickr.com under a Creative Commons Attribution-Noncommercial-Sharealike license may not be reproduced in a weekly magazine without the author’s permission.”
Raymond Nimmer: Can I download it to try out the music?: “No, not unless the copyright owner permitted or invited that. The idea that downloading a file is permitted because it is so easy on Internet is simply wrong. Downloading is copying and infringement. Indeed, it can have massive adverse effects on copyright owners.”
Slate: The Dan Brown Code: “Dan Brown, author of the mega-selling The Da Vinci Code, has brought forth his most thrilling piece of writing to date: a court document. Brown, who is being sued for copyright infringement in London by the authors of Holy Blood, Holy Grail, filed a 69-page witness statement with the British courts back in December.… In its textures—it is at turns snotty, contemplative, and disarmingly personal—it is clear Brown intended the brief less as a legal defense than as a literary memoir.”
Silicon Valley Media Law Blog: Materials from talk on DRM: law and technology
Mark Cuban: Digital Rights Management – The coming collateral damage: “Unfortunately for content owners, digital rights/copy protection schemes have always proven crackable. No matter how smart the good guys think their programmers are, the bad guys have programmers that are just as smart. More importantly, the good guys have to build the perfect protection scheme, impenatrable by any of infinite number of possible attacks.”
Barry Ritzholtz bought a My Morning Jacket CD and was dismayed to find that it contained a DRM program that prevented him from shifting it onto his iPod with his Windows computer. He looked a little further and found that the DRM is merely a way to annoy music fans who use iTunes and iPod: The Big Picture: DRM Crippled CD: A bizarre tale in 4 parts: “This DRM is not at all about making the CD immune to piracy. Instead, its part of a pissing contest between Sony and Apple: Variety writes that ‘the new copy protection scheme — which makes it difficult to rip CDs and listen to them with an iPod — is designed to put pressure on Apple to open the iPod to other music services, rather than making it dependent on the iTunes Music Store for downloads.'”
The band’s record label (Dave Matthews’ ATO imprint) isn’t happy with the decision of its distributor (Sony BMG) to implement DRM. Information Regarding Our Artists’ Music, Copy-Protected CDs and your iPod: “We at ATO Records are aware of the problems being experienced by certain fans due to the copy-protection of our distributor. Neither we nor our artists ever gave permission for the use of this technology, nor is it our distributor’s opinion that they need our permission. Wherever it is our decision, we will forego use of copy-protection, just as we have in the past.”
The label and fans have a reason to be unhappy. J. Alex Halderman describes how the DRM software Sony uses adopts some of the nefarious practices of spyware: CD DRM Makes Computers Less Secure
When XCP2 installs its anti-copying program, it also installs a second component which serves to hide the existence of the software. Normally, programs and data aren’t supposed to be invisible, particularly to system administrators; they may be superficially hidden, but administrators need to be able to see what is installed and running in order to keep the computer secure. What kind of software would want to hide from system administrators? Viruses, spyware, and rootkits (malicious programs that surreptitiously hand over control of the computer to a remote intruder). Rootkits in particular are known for their stealthiness, and they sometimes go to great lengths to conceal their presence
How do you keep unscrupulous publications from pirating your strip? Doonesbury has an answer.
Are aggressive copyright owners stifling innovation in media technology?
Ed Felten argues that TiVo has eschewed innovation in an effort to placate media companies. Why Hasn’t TiVo Improved? “TiVo made a decision, early on, to cozy up to the TV networks, to stay within their comfort zone. But the networks’ comfort zone is awfully confining. ReplayTV took a different path, seizing the technological lead with new features that angered the networks; and the networks brought a lawsuit that ReplayTV couldn’t afford to defend. At the time, TiVo execs probably chuckled and congratulated themselves for their caution.”
In response, PVRblog’s Matt Haughey suggests that TiVo
has been chilled from developing innovative new technologies, because anything that helps customers enjoy TV, movies, or music is a target for lawsuits.: “The content company dinosaurs are so wed to their antiquated business models that they’ll send off their legal department to attack at the slightest provocation (this includes imagined potential profit losses).”