Managing Rights Management

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.

The RIAA: What Can Get You Busted

Writing in CNet, Declan McCullagh exposes the kinds of consumer behavior that can bring the unwanted attention of RIAA's sleuths and law suits. This useful article covers shared folders, large collections of tunes, open wireless networks, and choice of P2P applications:

The RIAA has focused on copyright infringement on the more visible, centralized services such as Kazaa, Morpheus, and Grokster. It hasn't focused on file sharing through instant messaging or closed P2P networks. The more obscure the P2P network, the less likely it is to be monitored.

The RIAA is At It Again-Where Has All The Music Gone?

CNet reports that the RIAA is shooting new threatening letters across the bows of numerous colleges and universities coast to coast in what must be a failed attempt to deter piracy.

Critics charge that the letters are just a scare tactic, and the RIAA has admitting to goofing on identifying copyright infringers in the past. But the music industry still views its prelawsuit campaign as an important deterrent. Without such action, "an emerging legal marketplace...would have struggled to gain traction," spokeswoman Cara Duckworth said in a press release.

To quote a Pete Seeger song, "when will they ever learn, when will they ever learn."

The record industry business model is broken. The music industry is alive and well. The labels and their trade association had better figure out something different than alienating the very people who sometimes buy their products.

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.

MPAA Admits Mistake: College Students Not As Culpable As Previously Asserted

According to this AP news story, the MPAA nows says that there was a computational error in earlier results indicating that college student file sharing was a major source of pirated media. The MPAA said that it

has told education groups a "human error" in that survey caused it to get the number wrong. It now blames college students for about 15 percent of revenue loss.

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.

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.

Why the CEA Supports The Digital Freedom Campaign

Via email I asked Jason Oxman, Vice President, Communications, of the Consumer Electronics Association, why the CEA was supporting the Digital Freedom Campaign?

Thanks for your note.  CEA believes that fair use and customary home recording rights must be preserved in the digital age.  The Supreme Court’s holding in the Betamax case has been essential to ensure that new and innovate products are available to consumers.  We support the Digital Freedom Campaign’s mission to preserve the basic principles established in Betamax – namely, products that have substantial non-infringing uses are legal even if they could conceivably be used for copyright infringement.  The CE industry is built on intellectual property, and CE manufacturers respect the rights of copyright holders.  But home recording and piracy must not be conflated, and unfortunately, some in the content industry seek additional legislative or judicial “weapons” to target lawful consumer behavior.  This is why lawsuits like that against XM for making a device that allows consumers to time shift satellite radio content are so dangerous – it harkens back to the unfortunate challenge to the VCR and the threat to technology and innovation.

The Digital Freedom campaign helps protect artists and innovators who seek to use and enjoy lawfully acquired digital content.  On behalf of its 2,100 consumer electronics manufacturers, retailers, and installers, CEA is proud to support the Digital Freedom campaign.

Digital Freedom Campaign's Bill of Sights and Sounds

The Digital Freedom Campaign is trying to find a balance between the rights of consumers and the rights of content producers and distributors. The DFC has an interesting list of partners, including the Consumer Electronics Association, EFF, and the ALA.

Following a Preamble that references the Sony Betamax decision, which affirmed consumers' right to record programs, the DFC offers a 5 point Bill of Sights and Sounds with laudable goals. As is often the case when conflicting interests and conflicting principles are involved, the most interesting questions concern the meaning in practice of terms such as unreasonable restrictions, legal threats, and government mandates.

Here are the 5 points in the Bill:

Reigning In The RIAA and MPAA

The LA Times [registration required] is reporting that the Motion Picture Association of America and the Recording Industry Association of America are lobbying the California legislature for an exemption to proposed laws that would outlaw pretexting, the practice of misrepresenting one's identity in order to gain access to confidential or private information. Pretexting was at the core of the recent Hewlett Packard board brouhaha.

The trade groups are arguing that they need to use pretexting to pursue pirates of physical and digital goods and that the proposed legislation would deprive them of an import tool in combating piracy.

Keeping Honest People Honest

The BBC has published a Q&A with entertainment industry execs that's worth reading. The questions cover a broad range of topics, including: Why not have simultaneous global release; What's being done to save cinemas; Why not illegally download; Why have region encoding on DVDs; and What's the point of DRM?

The response of the MPAA's Dan Glickman is noteworthy:

Content owners use DRMs because it provides casual, honest users with guidelines for using and consuming content based on the usage rights that were acquired. Without the use of DRMs, honest consumers would have no guidelines and might eventually come to totally disregard copyright and therefore become a pirate, resulting in great harm to content creators.

DRMs' primary role is not about keeping copyrighted content off P2P networks. DRMs support an orderly market for facilitating efficient economic transactions between content producers and content consumers.

There's some truth to this point of view.

2005 Winners and Losers - P2P

Thomas Mennecke's end of the year review of P2P winners and losers is worth a look.

Winners: BitTorrent, Apple Computer, LimeWire, Open Source P2P, and thePirateBay.

Losers: RIAA, SonyBMG, Sharman Networks, Grokster, and pay P2P.

Mennecke also opines that the SonyBMG rootkit fiasco may be the death knell of DRM. While I strongly agree that Sony behaved badly, it's unlikely that DRM will disappear any time soon. Rather, monies will be paid in compensation, Sony will agree not to do it again, and the industry will move on to the next generation of DRM. This time, however, the interests of consumers will be taken into account  before the DRM technology is released to the public.

Well one can hope.

Snippets:

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:

DMCA Rulemaking Fails Consumers, Says EFF

Every 3 years, the US Copyright Office is required to examine the impact of the DMCA and to determine if it should recommend exceptions to certain provisions regarding the circumvention of DRM technologies. The Electronic Frontier Foundation has accused the US Copyright Office of "repeatedly discounting consumer concerns."

The present EFF campaign is consistent with their past efforts to eliminate effective information security and DRM technologies from the marketplace.

I strongly believe that the Copyright Office should NOT recommend exceptions under any circumstances to the law that prohibits circumvention. To do so, would effectively gut the provisions of the DMCA that protect these technologies and the content they protect.

A far better approach would be the deployment of DRM systems that recognize "fair use" contexts and have the flexibility to permit a broader range of fair uses, such as backup. Apple's FairPlay DRM, for example, enables a limited number backups and sharing across a limited number of devices.

HRRC Opposes RIAA On Recording Digital Radio

The Home Recording Rights Coalition issued a press release stating its opposition to an RIAA proposal that would limit the rights of consumers to record so-called "high definition radio." Snippets:

Microsoft's Machiavellian Manoeuvring

Check out security expert Bruce Schneier's comments on Microsoft and the Trusted Computing Group which has issued a best practices document, Design, Implementation, and Usage Principles for TPM-Based Platforms. Acronyms: "TMP" refers to a hardware-based Trusted Platform Module . "TNC" refers to a software-only Trusted Network Connect specification. Snippets from the Schneier article:

The Broadcast Flag Rises From The Ashes - Maybe

[tip 'o the hat to Dave Farber's IP list.] In an attempt to protect high definition video content, major content companies have been lobbying for some time to include a "broadcast flag" in the video stream indicating that the stream was protected content [The full standards document is here-big PDF technical document]. At the other end, TVs sold in the US were supposed to recognize the flag and act accordingly.  The broadcast flag was mandated by the FCC until struck down by the courts. See Declan McCullagh's Politech blogicle for pointers to the appeals court decision and related news.

Now in a recently published paper  and open letter, the Center for Democracy and Technology has addressed its concerns regarding how any future broadcast flag should and should not be implemented. Rather than opposing the flag outright, CDT is trying to provide practical advice to Congress.  Snippets from their open letter:

UK Anti-DRM Lobbying Group Seeks Funding

The Online Blog at The Guardian has a Bobby Johnson blogicle on Danny O'Brien's attempt to raise money for an Anti- DRM lobbying group. Snippet:

Slashdot Darknet Review

Check out the Slashdot review of J.D. Lasica's Darknet: Hollywood's War Against The Digital Generation. Snippets:

Supremes Side With RIAA, Studios - 2nd Update

The New York Times says:

Two lower courts previously sided with Grokster without holding a trial. They each based their decisions on the 1984 Supreme Court ruling that Sony Corp. could not be sued over consumers who used its VCRs to make illegal copies of movies.

The lower courts reasoned that, like VCRs, the file-sharing software can be used for "substantial" legal purposes, such as giving away free songs, free software or government documents. They also said the file-sharing services were not legally responsible because they don't have central servers pointing users to copyright material.

But in Monday's ruling, Souter said lower courts could find the file-sharing services responsible by examining factors such as how companies marketed the product or whether they took easily available steps to reduce infringing uses.

"There is substantial evidence in MGM's favor on all elements of inducement," Souter wrote.

DCIA Looking Forward to Grokster decision

The Distributed Computing Industry Association (DCIA) announced in a recent press release that the organization had reached the 50 member milestone.  The release goes on to note that:

The DCIA looks forward to the US Supreme Court’s imminent ruling in the high-profile MGM v. Grokster case, and the Australian Federal Court’s ruling in a related case, which should represent landmark decisions informing how content providers and technology suppliers interact in the digital realm generally and with respect to P2P file sharing in particular.

The Supremes could announce the decision as early as today, Monday.

Badges?

Check out Annalee Newitz's column on the MPAA's efforts to establish a scout merit badge. 

(Since the answers are widely known, I'll resist the temptation to start a quiz on which actor in what movie actually said, Badges? We ain't got no badges. We don't need no badges. I don't have to show you any stinking badges. Sorry.) Education regarding respecting copyright is a good idea.

Snippet:

THE MOTION PICTURE Association of America has apparently been begging the Boy Scouts of America to create a merit badge kids would earn by respecting the rights of entertainment companies and refusing to engage in online sharing. But, as everyone from BoingBoing to CNN reported last week, the only group the entertainment oligarchy could persuade was the co-ed Hong Kong Scouts Association. The group, which is part of the international scouts brand, just unveiled its new "intellectual property rights" merit badge. Kids earn it by attending summer seminars on why it's bad to download the latest Nine Inch Nails album from their friends and sell knockoff versions of Harry Potter books.

More on The Mobile DRM Licensing Fracas

Most of the articles in the "mobile" category here have  covered  the ongoing fracas between the MPEG-LA group and cellular operators regarding patent licensing for DRM. This week numerous outlets covered the latest.  John Borland has a good overview article. Snippets:

 

Another WIPO Perspective

Open Democracy has an article with a perspective on the recent WIPO meetings reported earlier on this site here.

OMA Distances Itself from MPEG LA

In a press release issued this morning, the standards group Open Mobile Alliance says it is not involved in the patent licensing activities of the MPEG LA group, which recently struck a deal with handset manufacturers. Snippets:

In response to ongoing industry concerns about licensing terms proposed by MPEG LA for the Open Mobile Alliance (OMA) Digital Rights Management (DRM), OMA reiterates its earlier statements distinguishing itself from MPEG LA and its licensing terms for OMA DRM. OMA is a specification setting organization focused on interoperability. It exists as a means for companies involved in the mobile industry to develop open, interoperable mobile specifications based on market requirements.

Music group to sue students over downloads

Several sources including this Boston Globe article  are reporting that the RIAA will file suit later today (Wednesday) against students using the superfast Internet2--a network created to support research--to swap copyrighted songs. Snippets:

The super-fast "Internet2" network that connects universities researching the next-generation Internet is also apparently popular among college students who download pirated music and movies.

Entertainment groups said Tuesday they intend to sue hundreds of students accused of illegally distributing copyrighted songs and films across college campuses using the private research network, which boasts speeds hundreds of times faster than the Internet.

Recent Additions & Corrections

The Writers Guild of America, which represents film and TV script writers,  the Distributed Computing Industry Association, which represents the P2P industry, the GSM Association, which represents mobile operators and others using the GSM standard, and the  Entertainment & Leisure Software Publishers Association, which represents the British computer and video games industry, have been added this week to the list of Interest Groups & Trade Associations in the lower left column.

The link to InteRight.com, Nic Garnett's site has been fixed. Mia culpa.