Managing Rights Management

Ad Blocking Poll: Norton Internet Security

It's not clear whether under copyright law consumers can strip advertising from web pages. One legal theory is that the stripped page is a derivative work. Under copyright law, rightsholders can reserve the right to create derivatives for themselves.

As noted, Symantec has dropped the adblocking feature from the 2008 version of Norton Internet Security. The poll results are in:

The number of voters is small--37--but the sentiment is clear: restore ad blocking.

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.

Podcast with Jake Ward, Digital Freedom Campaign

I spent some time during the recent Consumer Electronics Show in Las Vegas with people from the Digital Freedom Campaign, a group of innovators, artists, students and consumers who know that they also have rights in the copyright debate and who want to make themselves heard.

Sponsors and partners of the DFC include the Consumer Electronics Association, Electronic Frontier Foundation, the Home Recording Rights Coalition, Educause, and the American Library Association. 

I spoke recently with Jake Ward, a spokesperson for the Digital Freedom Campaign. Our wide-ranging conversation addressed fair use, CD ripping, network neutrality, the MPAA and RIAA, and legislation pending in Congress.

The podcast can be accessed here.

A time index to our conversation follows:

RIAA: $1.5 Million Per Ripped CD - It Won't Make Any Difference

While I believe that technical means can be useful in reducing piracy (e.g., Blu-ray's BD+ technology acquired late last year by Macrovision), I believe that the RIAA has been using litigation as a way of postponing the day when the major record labels are going to be forced significantly change their fundamental business models.

As reported here earlier, the RIAA has argued that ripping CDs is illegal. Not content to sue individuals for large sums of money, Ars Tecnica reports that the RIAA is now seeking through legislation to create a statutory penalty for ripping a CD that would add up to  $1.5M for a CD with a typical number of tracks.

The change to statutory damages is contained in the PRO-IP Act that is currently up for consideration in Congress. We've reported on the bill before, noting that Google's top copyright lawyer (and the man who wrote a seven-volume treatise on the subject of copyright law), William Patry, called the bill the most "outrageously gluttonous IP bill ever introduced in the US."

I'm reminded of the scene in Aliens when Riply and Newt have the following exchange:

Ripley: These people are here to protect you. They're soldiers.
Newt: It won't make any difference.

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.

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.

Microsoft blocks FairUse4WM v2

So says George Ou:

Just over a year ago when hacker “Viodentia” wrote FairUse4WM and broke Microsoft’s Windows Media DRM scheme wide open, Microsoft responded with record urgency in a mere 3 days.  But when Viodentia came back as “Divine Tao” and wrote a second major revision of FairUse4WM this July and broke Microsoft’s Windows DRM scheme wide open again, Microsoft didn’t seem to be as concerned and spent their usual 3 months to patch the issue. As of the last patch Tuesday, the current version of FairUse4WM no longer works so the ball is in the hacker’s court again to break Microsoft’s latest DRM revision.

The cat and mouse game continues.

Music Label Victory Case Appealed

A variety of news sources report that the verdict in favor of the major music labels in the Thomas downloading case will be appealed.  Declan McCullagh has a good analysis of why they won. Among his points:

3. "Making available." Jury Instruction 15 is more important. It says that the RIAA doesn't need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas' computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference.

This is not an outlier, by the way. A Pennsylvania judge came up with the same making-available-is-infringement conclusion in February. Marybeth Peters of the U.S. Copyright Office has argued that "making (a file) available for other users of a peer to peer network to download... constitutes an infringement of the exclusive distribution right, as well of the reproduction right." Judge Davis' interpretation of the law may not be the only one, but it's a defensible one. Here's his reasoning.

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.

DRM Isn't Going Away - In-stat Report

As several media outlets noted, market research firm In-stat has published an update on DRM that concludes it's not going away any time soon. I typically don't review proprietary market research that is inaccessible to the average person. However, Michael Paxton, who wrote this report, was kind enough to provide a few excerpts.

I believe that the report's principal conclusions are exactly right: There is too much at stake economically for rightsholders to give up. At the same time, there is a significant tension between content control and perceived "fair use" rights. I think Paxton's discussion of "fair use" omits some important issues. I address the specifics below.

Nevertheless, Paxton draws several main conclusions that I think are on the mark and consistent with the postings here on this blog, specifically:

• Interoperability will likely drive the next wave of DRM technology development.  The proprietary nature of many current DRM solutions prevents their use on different types of platforms, but this environment is slowly beginning to change.  In the near future, we expect platform-to-platform interoperability (such as transferring content from a cell phone to a laptop computer) to become more common.

• "Forensic" DRM technologies will see much wider usage.  These technologies, which are used to identify actual end-users of digital content, are being adopted by an increasing number of content developers.

• The recent "DRM-free" music tracks that were announced by Apple and Amazon.com do not herald the "death of DRM."  Instead, the DRM-free model will likely be viewed as a music industry-only experiment, albeit one that will be closely monitored to see if a viable business model emerges.

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.

Mom Fights Downloading Suit on Her Own

Jim Fitzgerald's piece for the AP regarding the battle of Patricia Santangelo against the RIAA is worth a read. Check out the Recording Industry vs The People blog site as well. Lots of useful information there. Snippets from the Fitzgerald article:

Breaking TiVoToGo

Mark Diller has an article on gameinfowire.com explaining how to move files from TiVo to your Sony PSP or computer. In the interest of fair use, Diller also explains how to circumvent the DRM that protects TiVoToGo files using DirectShow Dump.  Snippets:

Ian Dixon's Interview Podcast

Ian Dixon produces the Media Center Show and blog.  Ian has posted an audio interview with me and with Marcus Matthias from Microsoft. The topic is, of course, DRM. The show is nicely indexed by topic and time.

Bands Tell Fans How To Circumvent DRM

I'm all for rights management. I'm especially in favor of artists being compensated.  However, according to CNN, a number of bands including Dave Matthews Band, Foo Fighters and Switchfoot are telling fans how to break copy protection. Seems SO unfair that individuals get sued by the RIAA and MPAA for file sharing and the famous apparently flaunt the DMCA without consequence.  A cynic might think the time might be right for the RIAA and MPAA to cease and desist.

Snippets:

Internet Archives And Copyright

Miriam Clinton's thoughtful article, "The Internet Library: rip, mix or burn?" merits attention. Issues addressed include the impact of technology obsolescence on preservation and access. Snippets:

The Digital Consumers' Rights Act of 2005

The DMCRA of 2005 is short and worth reading. Introduced into the House of Representatives, it has not yet become law.

There is  much that I agree with, namely, the labeling requirements for copy protected CDs, especially if protected CDs behave differently than unprotected CDs. Consumers should clearly know before they purchase what restrictions, if any, come with the content.

What I object to is the gutting in Sec 5 of certain prohibitions in the  Digital Millennium Copyright Act against breaking  the security of protected content. Once broken, the unprotected versions will be freely and rapidly distributed. The assault on this provision of the DMCA, whether justified by fair use, research, or any of the other proffered reasons, is simply a way to make rights management ineffectual.

Dennis McDonald's Thoughtful Comments

[Apart from ad hominum attacks,  comments are always welcome here. I have, however, disabled automatic posting; each comment requires approval, this to avoid "comment spam."]

In his comments on my EFF/DRM blogicle, McDonald raises a number of issues that merit a response.

1. Context-based rules for addressing fair use concerns are difficult, but not impossible to implement well. And I agree that no matter how good the implementation, not everyone will be satisfied. Everyone can't be pleased; there are too many points of view. If a significant majority of fair use contexts can be addressed to the satisfaction of a significant majority of consumers, I'd be ready to declare victory.  But McDonald is right that there is no quick fix or simple implementation.

2. I'm not sure whether copyright holders should  or should not be able to design the players. This seems like a cute piece of EFF rhetoric but I'm not sure how telling it is.  Ultimately, these issues stem from the unwillingness of EFF and some other critics to recognize intangibles as intellectual property.  Rightsholders  may (or may not) want to control the consumer experience of their intellectual property. At the moment, I believe that player design will be one basis of competition.

3. I strongly agree that consumers must be clearly notified in advance of purchase regarding copy protection and rights management limitations. As McDonald implies, it engenders ill will to discover these limitations after paying for content.

4.  I also agree that regardless of complexity, poorly implemented and confusing  DRM will justifiably anger and further alienate consumers without advancing the interests of content distributors.  We are, in the 3rd wave of DRM implementations. As a group they have gotten more sophisticated and user friendly over time.  Nevertheless, Goldilocks DRM is not yet in the marketplace.

EFF's Anti-DRM Crusade

Let me be direct: Cory Doctorow and EFF's anti-DRM temper tantrum get it mostly wrong. There is probably no effective DRM that will make them happy. Ever. That's their right, of course.

In this posting, they claim that Sun's  Open Media Commons initiative to create non-infringing, royalty-free rights management implementations is more like a "gated community" and incompatible with consumer rights under copyright law:

Any software system, open or not, that blocks users from making legal use of digital content is not consumer friendly. And DRM systems are notorious for blocking people from making fair uses of content by preventing the duplication of all works, even if those works are in the public domain, are being copied for educational purposes, or are publicly owned materials such as government-gathered facts. Because the Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent DRM, there is no lawful way for people to override DRM systems -- even if they are doing it to make legal copies.

Apple / Sony among those sued over DRM

AppleInsider has another apparent scoop. According to Kasper Jade, Apple and 4 other music download companies are being sued by Ho Keung Tse of Hong Kong for allegedly infringing  US patent 6,665,797.  The Abstract is on the continuation.

There are two possibly interesting facts about this patent. The first is that although the patent was filed in 1998, it is a continuation of an application filed on December 1, 1995.  Depending on what's in the original application, that's a reasonably early filing date (the US is first to invent, not file).

The major negatives are that only 5 pieces of prior art apparently cited to the patent examiner, all patents. No non-patent prior art is listed in the published application. It will be interesting to see if this stands up to challenge in court. On the other hand, it may settle prior to trial simply because it's often less expensive that way.

Stay tuned.

Music Industry Worried About CD - Burning

[tip 'o the hat to Dave Farber's IP list]. According to this NYTimes article, the music industry is becoming increasingly concerned about CD-burning as an abuse of their intellectual property. Snippets:

GPL Revision DRM - Not

Gavin Clarke's useful article in The Register describes the process the Free Software Foundation intends to use in revising the GNU General Public License.  Snippets:

Sharing - The New Strategy In Wireless Content Protection

Dow Jones says, Cellular News reports, that DRM-enabled content sharing will be a big driver of industry growth. Snippets:

Music Performers: Who Owns The Rights?

Who owns which rights (and where)? This is the topic of a UK-published article by Sally Ramage. Covering much ground, this useful article also features an extensive bibliography that may be helpful to those reading up on the topic. Her conclusions:

There is more protection for performers than there ever was. Contrary to fears, the better advanced technology becomes, the more it will safeguard performers rights as the criminal fraternity will not be able to keep up with the technological advances, made possible by multinational corporations who are all working in unity against the bandits. There will be inevitable disruption from hackers but on the whole performers will prosper.

Cold DRM Wind Blows Up North

P2pnet.net has an article by Contributing Editor Russell McOrmond arguing against the use and legal legitimation in Canada of Technical Protection Measures (TPMs), which include content protection and identity management. Snippets:

Michael Rosen on Lessig

San Diego-based attorney Michael M.  Rosen comments on the culture of free and Larry Lessig. Worth a read. Snippet:

A Canadian Anti-DRM Viewpoint

P2PNet.com has a provocative  article by Russell McOrmond titled Control Through DRM attacking rights management. Snippets:

Appeals Court Blocks Broadcast Flag

According to the Associated Press and other sources, the U.S. Circuit Court of Appeals for the Washington, D.C., District today ruled that the FCC had overstepped its bounds in requiring the so-called broadcast flag to be recognized by TV sets. The actual appeals court decision is here [PDF file, 34 pages] thanks to Publicknowledge.org, one of the appellants.

Snippets from the AP story via Excite.com:

Moral Rights of Authors - Again

An earlier blogicle here noted that US copyright law does not recognize the moral rights of authors, which in most commercially important countries prevents someone from altering a copyrighted work without the permission of author.

Citing our earlier posting, Art Hutchinson raises additional points:

A Nigerian Point of View

allAfrica.com has published an article entitled "Data Protection, Storage, E-Government And Nigerians" by Tayo Ajakaye.  Amoung the points:

So what happens in a country like Nigeria where such a law is just not there, what are the dangers to which people are exposed?

Odufuwa [Fola Odufuwa, CEO of eShekels, a Lagos consultancy] said the dangers are indeed grave. "The dangers are many and grave. Intellectual Property (and all the issues surrounding it e.g. copyright control, digital rights management, etc) is one of the four pillars of the new economy." He explained that one of the reasons why the music and publishing industries is hugely underdeveloped in Nigeria is due to the ineffectiveness of copyright control and enforcement. He noted that virtually any document, latest film, or music album, can be purchased for about a dollar from roadside hawkers. "You can imagine depth of lost revenue to property owners!" he exclaimed.

Clearplay and the Moral Rights of Authors

One of the ideas in copyright in most countries other than the United States is referred to as the moral rights of the creator or author. Moral rights include the right to maintain the integrity of the work.  This aspect of moral rights has not been implemented in US copyright law.

Clearplay has brought to market technologies that trample on the integrity of movies in the interest of shielding children and adults from sex, violence, and other content some find objectionable. Congress legitimated Clearplay-like technologies when they passed legislation outlawing recording movies in theaters.