Managing Rights Management

Copyright Protection and Recorded Content Distirbution Patents

{Haven't been blogging much because of the press of client work including travel. Will be on lighter publishing schedule until mid-May when things may calm down a bit.}

On Tuesdays the USPTO publishes newly issued patents. Both of today's Spotlight patents address various aspects of copyright identification and protection. Assigned to Audible Magic, the first patent concerns techniques for detecting and protecting against unauthorized transmission of digital works. Assigned to Immediatek, Inc., the second patent concerns a system for the distribution of recorded content.

NEC Watermarking and Sony Copyright Protection Issued Patents

Tuesdays the USPTO issues new patents. Today's Spotlight patents concern the use of watermarking and ways to protect copyrighted digital information. Assigned to NEC, the first of today's patents concerns techniques for electronic watermark detection. Assigned to Sony, the second Spotlight patent addresses the use of sampling in music recording and editing.

Surprise! MPAA Against Net Neutrality

Ya just have to love Variety-speak: "MPAA topper blasts Net neutrality."

"This effort is being called by its proponents 'Net neutrality,'" Glickman [MPAA's 'topper"] continued. "It's a clever name. But at the end of the day, there's nothing neutral about this for our customers or for our ability to make great movies in the future. Government regulation of the Internet would impede our ability to respond to consumers in innovative ways, and it would impair the ability of broadband providers to address the serious and rampant piracy problems occurring over their networks today ... Government regulation of the Internet would be a terrible reversal of American innovation policy."

Unnecessary alarmist misdirection aimed mainly at P2P file sharing, in my view.

Blogging From The FCC Hearing on Net Neutrality

I'm at the Havard Law School today. Thanks to the Berkman Center for Internet & Society, the FCC is conducting a public en banc hearing at the Harvard Law School on Net Neutrality (NN) and broadband management. There will be a live audo feed for those interested. I'll be blogging comments from time to time.

UK: ISPs To Be Held Responsible For Piracy - Maybe

The Beeb reports that the government has indicated that ISPs must take steps to curb piracy or face legal sanctions.

The culture secretary said consultation would begin in spring and legislation could be implemented "by April 2009".

Representatives of the recording industry, who blame piracy for a slump in sales, welcomed the proposals.

"ISPs are in a unique position to make a difference and in doing so to reverse a culture of creation-without-reward that has proved so damaging to the whole music community over the last few years," said John Kennedy, head of the International Federation of the Phonographic Industry (IFPI).

I used to think the Brits were a bit smarter. Since the record business is global, the business model is just as broken abroad as it is here in the US.

EU/UK Extension of Music Performance Rights

[Tip o' the Hat to CS]. The BBC reports on efforts to extend the EU copyright period for music from 50 to 95 years.

The European Union's internal market commissioner Charlie McCreevy said that "copyright protection for Europe's performers represents a moral right to control the use of their work and earn a living from their performances".

"It is the performer who gives life to the composition and while most of us have no idea who wrote our favourite song, we can usually name the performer," he said.

Sony and Ricoh Copyright Protection Patents

On Tuesdays the USPTO issues new patents. Both of today's Spotlight patents address copyright protection and rights management techniques.  Assigned to Sony, the first of today's issued patents addresses systems for authoring content data and techniques for protecting the content.  Assigned to Ricoh, the second patent addresses techniques for encrypting and reproducing digital data while protecting copyright.

Yamaha and Nokia Copyright Management Patent Applications

Thursdays the USPTO publishes pending patent applications. Both of today's Spotlight applications address various aspects of copyright / rights management. Assigned to Nokia, the first discloses a content distribution system. Assigned to Yamaha, the second discloses techniques for music generation and recording that incorporate automatic performance data requiring copyright protection.

DRM, Photography, and Public Spaces

Some years ago, the Pebble Beach Association tried to assert that the lone cypress tree could not be photographed without permission since they claimed they used an abstraction as a registered trademark. For a while, the city of Chicago apparently prevented professional photographers from taking pictures of  "the bean" statue. Paris wishes to forbid taking a picture of the Eiffel tower at night. And in the post 9/11 environment, some law enforcement folks have interfered with photographers taking certain pictures, of the ExxonMobil facility in Torrance, CA, for example.

One of the more interesting blogicles I've come across is this one concerning DRM and photography on the "Lady That's My Skull" blog written by a person whose online identity is "Sleestak". The blogicle is worth looking at in part because of the novel ideas and in part because of the way in which photographs have been modified to show an example of how DRM might work when photographing public spaces and other subject matter.

Canadian Privacy Minister Cautions Against DRM

Privacy is a touchy subject. For nearly 20 years, I have advocated that consumers be informed in advance and "opt in" to any collection of usage information by DRM technologies. The reason is that this information has value. In some business models, it's perfectly reasonable to provide compensation to consumers for access to their usage information. Compensation might be in the form of discounts or free digital goods.

These and related issues are now being discussed in Canada. Jennifer Stoddart, Privacy Commissioner of Canada, has sent a letter to Jim Prentice, Minister of Industry, and Josée Verner, Minister of Canadian Heritage, regarding the privacy implications of proposed changes to Canadian copyright law. Ms. Stoddart is most concerned about the use of DRM implementations that collect user related information without their consent:

If DRM technologies only controlled copying and use of content, our Office would have few concerns. However, DRM technologies can also collect detailed personal information from users, who often do no more than access the content on a computer. This information is transmitted back to the copyright owner or content provider, without the consent or knowledge of the user. Although the means exist to circumvent these technologies and thus prevent the collection of this information, previous proposals to amend the Copyright Act contained anti-circumvention provisions.

RIAA Declares Using Brain to Remember Songs is Criminal Copyright Infringement

[tip o' the hat to Bob Horn] Well, it's only satire, but great satire from NewsTarget.com. Written by Mike Adams, the piece begins:

On the heels of the RIAA's recent decision to criminalize consumers who rip songs from albums they've purchased to their computers (or iPods), the association has now gone one step further and declared that "remembering songs" using your brain is criminal copyright infringement. "The brain is a recording device," explained RIAA president Cary Sherman. "The act of listening is an unauthorized act of copying music to that recording device, and the act of recalling or remembering a song is unauthorized playback."

The RIAA also said it would begin sending letters to tens of millions of consumers thought to be illegally remembering songs, threatening them with lawsuits if they don't settle with the RIAA by paying monetary damages. "We will aggressively pursue all copyright infringement in order to protect our industry," said Sherman.

RIAA Argues Riping CDs Illegal - Institutionalized Stupidity

As readers know, I'm favorably disposed to technical means such as DRM, watermarking, fingerprinting, conditional access, and encryption for protecting digital content provided that the technology is reasonably user friendly and that those who use it to protect content provide full disclosure to consumers.

As reported by Marc Fisher in the Washington Post, the RIAA is arguing in a legal brief in a suit against Jeffrey Howell (and elsewhere) that the mere act of ripping tunes from music CDs and storing those tracks constitutes making illegal copies.

The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

David Pogue: The Generational Divide in Copyright Morality

NYTimes columnist David Pogue asked his college audience about various use scenarios for music and video. Few found any moral or ethical problem with violating copyright. Pogue concluded this piece with:

I don't pretend to know what the solution to the file-sharing issue is. (Although I'm increasingly convinced that copy protection isn't it.)

I do know, though, that the TV, movie and record companies' problems have only just begun. Right now, the customers who can't even *see* why file sharing might be wrong are still young. But 10, 20, 30 years from now, that crowd will be *everybody*. What will happen then?

Is ecomputerblog.com legal?

On Friday I reported that BD+ has attracted additional licensees. I use a number of Google and Yahoo filters to track various DRM related topics that are in the news or that have been discussed in the blogosphere. My filter found a link to ecomputerblog.com with my headline as their headline. They provided no attribution or link back to this site.

Going to their main site indicates that none of the articles noted there have links back to the originating site. So it appears that ecomputerblog.com exists to attract people to their site and to generate page views using news and blog posts that belong to others. When I've been there, the advertising points to Diino, apparently a Swedish company. Slick.

They have obscured owership in the DNS database, and they did not respond to email sent to their DNS registrar per instructions by that registrar.

I'll have to modify my copyright notice to preclude using ANY portion without attribution, even if that portion would be deemed a fair use under US copyright law or fair dealing under UK and EU law.

Geist On Canada's DMCA Debate

Although I don't always agree with his positions, Canadian Prof. Michael Geist's blog is often a good source of information regarding copyright, DRM, and other issues up North. Apparently in response to consumer and interest group pressure, the government did not introduce a copyright bill this week as had been expected.

Regarding the evolution of the copyright debate in Canada, Geist had this to say:

...the debate around Canadian copyright has been altered from one focused exclusively on creator rights and "piracy", to one that includes (and this week focused on) user rights and consumer property.  That change is at the heart of the thousands of letters and phone calls from Canadians who come from across the country and across the political spectrum.  It is also evident in the media coverage of this issue.  There was a time - not that long ago - that a group like CRIA [Canadian Recording Industry Association] could put out a press release criticizing the government's decision to delay copyright legislation and could expect the media to cover the release as if it were the last word on the subject.  No longer.

Wired Shut: copyright and the shape of digital culture by Tarleton Gillespie

Tarleton Gillespie is an assistant professor in the Department of Communication at Cornell University and a fellow at the Center for Internet and Society at Stanford Law School. His recent book, Wired Shut: copyright and the shape of digital culture (MIT Press, 2007) may appeal more to students of media and communications, historians, legal scholars, and to sociologists of culture and technology than to technologists and entrepreneurs. Nonetheless, those with an interest in copyright, Digital Rights Management (DRM) and related topics should welcome Gillespie’s book as a timely and useful contribution to the field.

Although Wired Shut is an important analysis of copyright and DRM, I find two problems with Gillespie's arguments: one involving copyright and contract law, Fair Use, and business models; the other involving the role of encryption in DRM.

First, what is Digital Rights Management? I define DRM as “the association of rules governing use and use consequences (e.g., payment, audit information, etc.) with digital information of all kinds and the enforcement of these rules at a distance in time and space.” I’ll return to this definition.

Gillespie's basic argument is that attempts to impose controls on the use and/or distribution of copyrighted works through technical means are contrary to the societal goals of protecting creators and their works while at the same time fostering innovation and creativity.

Monday Nite's Digital Rights Media Debate - What Should the Model Be - 11/26/07

The Digital Media & Telecommunications SIG of the MIT Enterprise Forum held a panel discussion Monday evening, November 26, 2007, on the topic, Digital Rights Media Debate - What Should the Model Be?, . Thanks to the organizers for including me as a speaker. My presentation can be downloaded from here (PDF).

The panel also included noted intellectual property attorney Steve Henry, Wolf Greenfield & Sachs, who provided an overview of basic copyright-related laws as they relate to DRM. Steve was kind enough to provide me with a copy of his slides, which can be downloaded here [thanks to Steve and WGS for making the presentation available for distribution].

Another panelist was Jake Shapiro, a musician and Executive Director, the Public Radio Exchange (PRX), a content exchange for audio and radio programming and a rights clearinghouse. In addition to some history of PRX and his band, Two Ton Shoe, Jake showed a 4 minute animated video explaining PRX, which can be seen here.

Walter McDonough, a founder of the Future of Music Coalition, and noted music industry attorney, was also on the panel [no presentation]. Among his many useful insights, Walter agreed that the record industry (as opposed to the music industry generally) has fallen on hard times and not much relief is presently in sight. Rather than a DRM-based solution, Walter thought that  collective licensing might be part of a solution that would benefit both artists and consumers.  In one version of collective licensing, the ISPs collect some small fee per subscriber or per peer-to-peer user. The monies collected would then be passed back to a licensing agency for distribution to creators and rightsholders.

A lengthly Q/A followed the presentations.

User Generated Content Principles

The copyright principles issued by a coalition of media companies is published here.

Veoh Files Pre-emptive Law Suit

According to this AP story, online video sharing company Veoh filed a pre-emptive lawsuit in San Diego against Universal Music Group asking the judge to find that Veoh does not violate UMG's copyrights.

Veoh argued that it is entitled to protection under the "safe harbor" provision of U.S. copyright law because it doesn't encourage its users to infringe copyrights and goes beyond current legal requirements to investigate and remove infringing material when notified to do so.

Stay tuned.

YouTube Criticism Continues

A coalition of Japanese companies has critiziced YouTube for not doing enough to prevent unauthorized use of their copyrighted materials. The Associated Press reports that

The group also expressed skepticism over an automatic video recognition and purging system being developed by YouTube parent Google Inc. (GOOG), questioning the reliability of the technology and saying it was taking too long.

"YouTube has to stop how it runs its site and get rid of the illegal clips. We want them to reset the service," composer Hideki Matsutake told a joint press conference in Tokyo Thursday. The coalition met with YouTube and Google executives earlier in the week, the second such meeting this year.

MRT Holds Apple, Microsoft Responsible for Piracy

Media Rights Technologies put out a press release quoting CEO Hank Risan indicating that Media Rights Technologies will ask for an injunction against Apple, Real, Adobe, and Microsoft because they have failed to implement technologies to prevent recording of streaming audio. The MRT press release holds the vendors responsible for not solving the streaming audio piracy problem with existing, well vetted technologies.

The iTunes User Mark - Risks and Hacks

Chris Maxcer has written an informative article on iTunes embedding buyer information in each file and on the possible consequences of sharing such files with others.

It's been recently discovered, though, that each song sold through iTunes Plus --the section of iTunes that sells the higher-quality, DRM-free music -- is marked with the name and e-mail address of the user who bought it....

The Alleged Sins of the RIAA and Media Sentry

As readers know, I am, in general, favorably disposed to the preventatitve use of DRM and other anti-piracy technologies.

A Wired blog posting reports on a law suit filed on behalf of Tanya Andersen, who had been defending herself against the RIAA. The compliant should be required reading for all who are interested in copyright and related issues and can be downloaded here.

While it's true that all defendants are presumed innocent, the compliant does recount a horrific tail of alleged abuse. It also documents the alleged inadequacies of the Media Sentry (acquired by Safenet) software / system being used to identify alleged infringers. Here's a brief excerpt from the compliant:

 

Does Downloading Make Copyright Obsolete?

This is the question posed in Victoria Shannon's IHT article. The whole article is a good read. Here are a few snippets:

The youth craze for making and posting digitized audio and video on the Internet - their own creations and those of others, without regard to ownership or payment - is driving a wedge between the traditional "commercial" economy and the upstart "sharing" market, analysts say. Likewise, it is paralyzing and polarizing the groups that are supposed to make sure writers and composers get the royalties they are due.

At a self-described summit meeting on copyrights in Brussels last week, the world's major groups representing creative authors - the collecting societies at "the bottom of the food chain," griped one executive - vented, fumed and wrung their collective hands about their future. At the end of the event, Italian authors called for a "strike" to suspend licensing any form of public performance for a week in June to call attention to illegal downloading and authors' rights.

In the absence of a wholesale update of royalty systems, billion-dollar court battles - like the Viacom lawsuit against Google, which owns the YouTube video-sharing site - will most likely be the determinant of the value of digital copyrights, analysts say.

 

Finnish Court Rejects CSS Copy Protection

Because the DVD Content Scramble System (CSS) has been easily circumvented, a Finnish court refused to apply laws prohibiting publication of information useful in breaking copy protection and DRM. This according to an article in PC World:

The court heard from two technical experts, one for the prosecutor and one for the defense, who testified the CSS copy protection technology does little to stop consumers from copying DVDs due to an abundance of programs and decryption tools. CSS was cracked just a few years after its release by three hackers, including a 16-year-old Norwegian....

However, the ruling offers no definition as to when a copy-protection measure can be considered ineffective. But it could mean a tougher time, at least in Finland, of prosecuting those who publish code to break AACS (Advanced Access Content System), the copy-protection technology used in the new HD DVD and Blu-ray Disc high-definition formats.

Extension to 70 Years For UK Sound Recordings Copyright?

European Digital Rights (EDRI) reports that the UK House of Commons culture committee wants to extend copyright from 50 to 70 years.

The copyright term for sound recordings is back on the public agenda in UK, after a report from the House of Commons culture committee has recommended its extension from 50 to 70 years, despite the negative feedback received earlier from Andrew Gowers' report or a recent study commissioned by the European Union and made public in January 2007.

The Culture committee report considered that the musicians have a "moral right" to keep control of their creations while alive and that 7000 people will lose in the next years their royalties from the 50s and 60s recordings. Also the report considered there was a non-reasonable difference between the copyright term for songwriters, whose families keep the copyright 70 years after the  death of the author and the 50-year rule for sound recordings.

Extend Copyright and Patent Terms?

Writing on the OpEd page of Sunday's NYTimes, Mark Helprin calls for a substantial increase in the length of copyrights if not all intellectual property. Helprin's basic argument is that intellectual property should be treated like real property.

GPLv3 Draft - License or Contract

The latest discussion draft of the GNU General Public License has been strongly criticized for its position on the Microsoft-Novell deal in which Microsoft agreed not to assert whatever patent rights it might have. The Association for Competitive Technology has published white papers extremely critical of the new draft. These publications provide a legal analysis of the relevant portions of section 11 of the latest GPLv3 draft.

Richard Wilder and Noah Clements argue in GPLv3 is a Contract and Why it Matters that the GPLv3 draft contains provisions more like contract terms rather than provisions based on copyright law. Their detailed analysis is summed up this way:

Paragraph 4 of Section 11 is aimed squarely at Microsoft and states that a patent owner that grants a patent license that enables software covered by the GPLv3 to be used or conveyed is “automatically extended to all recipients of the covered work and works based on it.”1 The FSF recognizes that the GPL had no direct influence on Microsoft as they would not “convey” a work covered by the GPL. That is, Microsoft is not threatened by the loss of a license under the GPL if they do not comply with its requirements. Accordingly, the FSF drafted Paragraph 4 to require the automatic grant of a license to all recipients of a covered work if they “convey, or propagate by procuring conveyance of, a covered work.” The flaw in this provision is two-fold. First, Paragraph 4 is a contract term, not a license term. Because Microsoft and companies like them are not parties to the contract, they are not bound by it. Second, while aiming at Microsoft and the Microsoft-Novell agreement, the FSF has hit a much broader target that threatens the ability of the proprietary and open source communities to work together productively.

Those interested in the details and the specifics of their analysis can read the paper (6 pages).

Rights Are Territorial

E-Commerce Times and other outlets report the latest brouhaha involving Apple and the European Union over national online iTunes stores rather than a single store for the EU.

The EC's "Statement of Objections" against Apple and the major music labels whose wares are sold in Apple's online iTunes store is the first phase of a formal complaint. The commission, reacting to a complaint filed in 2004 by the UK-based consumer watchdog group Which? is questioning "territorial restrictions in online music sales" through iTunes.

In the world of copyright, rights have traditionally been territorial. Different companies may have the rights to the same work but for different countries or regions and may charge differently for the same work.

"In 2004 Which? found that in the UK iTunes was charging customers 79 pence (approximately 120 euro cents or US$1.60) to download one track," explained the consumer group in a statement. "In both France and Germany the cost was just 99 euro cents ($1.32), leaving UK consumers to pay a price differential of around 20 percent more for an identical service."

Will be interesting to see how this plays out.

Is DRM Dead?

David, one of my "Starbucks Buddies" and the CEO of a media related company, asserted that DRM is dead. The major music companies are being disintermediated by the artists who are ever closer to their audiences. For artists, the revenue streams are generated more by concerts, T-shirts, and the like. Artists don't need or want DRM because it restricts the interaction between them and their audiences.

Some other indicators of the death of DRM include Steve Job's recent speachifying in which he said that the music companies should agree to drop DRM. Today's media indicates that Apple and EMI may be getting together to offer the Beatles' catalog through iTunes without Apple's FairPlay DRM. Several have observed that since CDs aren't protected, protecting digital music online is a waste of time. In addition, the music companies and the Consumer Electronics companies failed to get consumers excited about a new, higher quality music delivery vehicle using DVDs (and DRM, presumably). Long ago, Alby Galuten, then at Universal Music, observed that Armageddon was coming: broadband, high quality compression, and inexpensive storage. For the music industry, Armageddon arrived. The reverberations are still echoing.

Theatrically released movies and HD TV programming remain the front lines of the DRM battle. Millions of dollars--perhaps many hundreds of millions of dollars--have been invested to secure the distribution chain. Examples of these investments include copy protection on Blu-ray and HD-DVD drives, the Protected Video Path in Microsoft Vista, and technologies that help ensure that HD video is sent only to devices authenticated to behave in accordance with the wishes of content owners and distributors.

The media and technology companies that have made these investments will not easily abandon them.

So in answer to David's timely question, no DRM is not dead and will be with us for a long time, in my view. It may be called different things: copy protection, authorization, permissions, entitlements, etc. But DRM by any other name.....

Draft GPL V3 and DRM

The Free Software Foundation today released its revised draft of the General Public License V3 for comment. The GPL is one of several licenses available for the distribution and use of copyrighted works although it's typically used with software. This version of the GPL has been controversial in at least two regards: Rights Management and Patents. Let's begin by documenting the GPLv3's position on DRM.

Under the terms of the draft GPLv3 authors and distributors of  DRM software cannot use GPLv3 as a licensing framework, that DRM software (and presumably hardware) cannot be used to restrict the use of the covered software, and that laws such as the DMCA will not be asserted against those who circumvent  DRM measures to access, use, and/or modify the software covered by the GPLv3.

Here's the specific language:

The Podcasting Rule Book (UK)

The Register (UK) has an article reporting a licensing scheme for those podcasting music involving The Mechanical-Copyright Protection Society (MCPS) and the Performing Right Society (PRS). In addition to a licensing fee, the agreement itemizes detailed requirements and prohibitions. Podcasters will be obliged not to:

France: Easy on The Downloaders, Harsh On the Crackers

Red Herring reports that France has passed a law that goes easy on downloaders but defines much harsher penalties for those who break security technologies. Snippets:

The National Assembly voted Wednesday night to approve a maximum fine of about €40 ($48.51) for those who illegally download music or other files, according to Régis Carral, head of the intellectual property group in the Paris office of Landwell, the legal services arm of PricewaterhouseCoopers.

But the assembly also voted the maximum penalties—three years of jail and a fine of €300,000 ($363,841)—to those who distribute software that enables consumers to get around copy restrictions put in place by DVD and CD manufacturers.