A Copyfighter’s Musings

That’s obviously not true, but from the way people talk about Rhapsody and other music “rental” services, they believe that the story could happen, at least in principle.  This is part of yet another misunderstanding about how the DMCA reworked the nature of copyright.

Too often, people confuse defenses of DRM+DMCA based on their ability to prevent *infringing* uses and defenses based on protection of new business models predicated on preventing *non-infringing* uses. The former defense is about protecting copyright holder’s exclusive rights, the latter is in effect about expanding those rights. These days, this confusion typically involves online music rental subscription services like Rhapsody.

The DRM on Rhapsody songs can (in theory) prevent some infringing uses. But Title 17 grants the copyright holder several exclusive rights in 17 USC 106 (e.g., copying, distribution, public performance), and keeping songs after your subscription ends doesn’t infringe any of them. When the DRM prevents you from listening to the song, it’s limiting a private performance. The copy you downloaded was lawfully made, and you’re entitled to make fair use [*1]; to the extent the uses would be protected with a purchased copy, you can move this “rented” copy to a portable player or make a back-up copy of it [*1], for instance.

At first, this might seem strange to some, but consider a DVD you rent from Blockbuster. If you fail to return the movie, can the copyright holder or Blockbuster sue you for copyright infringement? No, they can’t; you can keep watching that movie for as long as you like. Put aside DRM+DMCA and focus on 17 USC 106 for the moment — if you rip a copy to your computer, it’s a fair use just like ripping a DVD you bought at Wal-Mart; to the extent that the latter is non-infringing, so is the former. The copyright holder could argue that this ripped copy of the rental threatens the market for the work and thus is not a fair use, but ripping the purchased DVD threatens the market in much the same way; after all, if you can rip your purchased DVD, then it threatens the market by making it harder for them to sell you a second copy for use on your computer or your portable player. [*1] You can apply the same reasoning to rented or purchased VHS.

To be clear, you could be violating your contract with Blockbuster. And services like Rhapsody could sue you for violating their Terms of Service. In principle, they could get an injunction and actual damages.

However, you aren’t infringing under 17 USC 106 and thus copyright holders couldn’t get statutory damages on that basis. The DRM and DMCA don’t change this analysis [*2], strictly speaking. If you use FairUse4WM to unwrap your Rhapsody WM DRMed songs, you may violate their ToS, you may violate the DMCA (17 USC 1201) and have to pay statutory damages, but you are not infringing (17 USC 106). The public is still technically entitled to fair use, first sale, and all your other rights under copyright, but in exercising them you might violate the DMCA.

So this suggests one way the distinction matters (the DMCA radically changes the available remedies), but there’s a bigger issue here. In reality, the people who support the DMCA’s protection of this business model are not supporting the protection of copyright holder’s limited exclusive rights, let alone supporting the prevention of “Internet piracy” — they’re supporting in effect an expansion of copyright holder’s rights.  The DMCA gives copyright holder’s essentially a broad, exclusive right to control any uses of the work and compatible devices.

Some people may still argue that we need the DRM+DMCA because it protects Rhapsody’s business model and thus this expansion of rights is a good thing. You return your rented DVDs not because Blockbuster will sue you, but because they’ll cut you off from renting again. Rhapsody has no similar threat to hang over your head, so you could download the entire catalog and unsubscribe.

I would dispute that the subscription models would go away for this reason, but let’s assume they wouldn’t offer downloads any more. The endangerment of a business model, by itself, is not a sufficient reason to extend the scope of copyright holder’s rights. Title 17 entitles copyright holders to certain rights, not to certain business models. There are a lot of old and new business models copyright holders would love to protect. For instance, the movie and television studios’ business models were ostensibly threatened by time-shifting, and they’d love to be able to limit it in many ways today in order to enable new revenue models. But that wasn’t and isn’t a sufficient reason to block time-shifting and creation of compatible devices via the DMCA, or to mandate DRM a la the broadcast flag.

A more valid argument here would be that the public benefits by protecting the rental model. Again, I would dispute that the DMCA+DRM really provides a lot of public benefit there. But, regardless, I think most would agree that there are many endangered business models that don’t need protecting. I think many dislike how protection of the rental model also involves inhibiting innovation and competition in the development of compatible music devices. I think many would agree that prohibiting time-shifting and backing-up of purchased media doesn’t benefit the public, even if it enables some new business models. And I bet there are many more ill-effects of the DMCA that they would disapprove of , as well.

On that basis, I think that even those who laud the DRM+DMCA’s role in protecting rental models would be, on the whole, unhappy with the DMCA. To be sure, there are those who like the DMCA because it acts as a general right to control use of copyrighted works and creation of compatible devices; they laud price discrimination and platform monopolies predicated on restricting non-infringing uses. But I think many don’t share that view, particularly when they see that those models aren’t about stopping infringement, let alone “Internet piracy.”

[*1 – Update: Initially, I also stuck first sale in here.  We’ve had an interesting back-and-forth
in the comments about how I may be wrong that first sale would actually apply to the DVD or to your hard drive with the Rhapsody file on it. Indeed, a court might actually view giving away your hard drive with the song as protected by first sale, but giving the away the DVD wouldn’t be, since you can keep a permanent copy of the WMA file and don’t have to return it, but you were just borrowing the DVD that perhaps Blockbuster itself had acquired under a revenue-sharing license agreement rather than as an outright purchase. Thanks
to my interlocutor, “analoghole” The possible problem there doesn’t affect my fair use analysis, however. Note that it also doesn’t change my point that you’re still entitled to first sale to the extent you were with a DRM-free, rented copy. Finally, since people are really getting up in arms about a person being able to keep the songs and use them past the subscription (that’s the biz model at stake), I figured I’d just pull the first sale analysis out, for clarity’s sake.]

[*2 – Update: see a minor clarification in the comments on this. If a copy is *only* non-infringing because of some implied or express license from the copyright owner that vanishes when you circumvent, then that could change the analysis.]

Filed by Derek Slater at 5:43 pm under General news
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Skim the Digg commentary and you’ll find many users who can’t believe that Zune won’t Play For Sure. It’s so bizarre, they assume the report is inaccurate, despite citations to numerous press reports and MS’ own release. Even CrunchGear refused to believe it. I think most media reports were so confused, that they didn’t report on it — better to avoid the subject altogether than to write an erroneous report. (That, and the media got spun hard on the wireless sharing feature.)

To be fair, I was pretty shocked too. Sure, I can understand the possible business rationale, but the simple fact remains: Microsoft developed a player that can’t play protected Windows Media content from all services providers except the Zune Marketplace. Hell, that even includes the MSN Music Store. On its face, that just doesn’t seem to make sense — until it was official, I couldn’t believe any of the rumors.

Kudos to Wired’s Eliot Van Buskirk who did report this early and often, before the official Zune announcement this week.

Filed by Derek Slater at 11:56 am under General news
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Below I’ve talked about the what, now for the why. Microsoft’s J Allard can do a lot of hand-waving about Plays For Sure and Zune being two complementary solutions. Or perhaps you think that Microsoft is trying to run competitors out of the market and take Apple head-on with a similar integrated, vertical DRMed platform; perhaps they want the sort of anti-competitive power people ascribe to Apple’s iPod-iTunes tie; perhaps Microsoft was tired of its Plays For Sure licensees failing to attract many customers and wanted to take the wheel. Or maybe some mix of those.

But let me throw one more possible rationale out there: because Microsoft’s “Plays For Sure” WM DRM does not accomodate the Zune sharing feature (and that’s just my speculation), they ditched it. In other words, WM DRM failed to accomodate new, emerging, and potentially unforeseen lawful uses. The end result is that Microsoft decided to force customers to rebuy their preexisting WM DRMed collections in order to make use of Zune’s novel features.

Microsoft wants Zune to be just like iPod-iTunes.  They want customers to know exactly where to go to buy music, what software to use to manage their collection, and what the device will do. It’s a fully integrated platform.  Having customers buy Napster
2.0 music, load it onto the Zune, and then find out that the Zune would
play but not wirelessly stream it would have been a disaster.
It’s exactly the frustration they’re trying to avoid. 

And that’s to say nothing of the fact that many users were already having a lot of problems with WM DRM.  Janus DRM licenses would expire randomly and it wouldn’t sync with devices right for many users.  By starting fresh with Zune, they also avoid that frustration.

However, just like Apple, Microsoft is discounting the frustration of people who want to use an alternative music vendor. Those customers who have bought PlaysForSure WMA files will certainly be confused when their Microsoft player is incompatible. Microsoft is also discounting that many customers will simply opt out of the
licensed services altogether, because they can’t trust their investment
in DRMed media. At the same time, it’s betting that the integrated platform will be worthwhile given the fact that most people’s collections are MP3s anyway.  Most people don’t own a lot of PlaysForSure files, and, just like with the iPod and iTunes, most Zune songs won’t come from the Zune Marketplace.

I still think this won’t be a winning business strategy, at least not in the short run; it’s not going to turn people away from the iPod (not this incarnation).  But, so long as they’re using DRM at all, one can make the argument that it’s a better business strategy for Microsoft than Plays for Sure. Both may be losing strategies, but Zune might be less of a loser.

Regardless, I think these DRMed services under the DMCA are a raw deal for users. These are the sorts of bizarre business decisions made in the DMCA+DRM world. But for the DMCA, this wouldn’t even be an issue.

[Updated a few times today for clarification and additions]

Filed by Derek Slater at 2:24 pm under General news
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In yesterday’s announcement of the new Zune media player and Zune Marketplace, Microsoft (and many press reports) glossed over a remarkable misfeature that should demonstrate once and for all how DRM and the DMCA harm legitimate customers.

Microsoft’s Zune will not play protected Windows Media Audio and Video purchased or “rented” from Napster 2.0, Rhapsody, Yahoo! Unlimited, Movielink, Cinemanow, or any other online media service. That’s right — the media that Microsoft promised would Play For Sure doesn’t even play on Microsoft’s own device. Buried in footnote 4 of its press release, Microsoft clearly states that “Zune software can import audio files in unprotected WMA, MP3, AAC; photos in JPEG; and videos in WMV, MPEG-4, H.264” — protected WMA and WMV (not to mention iTunes DRMed AAC) are conspicuously absent.

This is a stark example of DRM under the DMCA giving customers a raw deal. Buying DRMed media means you’re locked into the limited array of devices that vendors say you can use. You have to rebuy your preexisting DRMed media collection if you want to use it on the Zune. And you’ll have to do that over and over again whenever a new, incompatible device with innovative features blows existing players out of the water. Access to MP3s and non-DRMed formats creates the only bridge between these isolated islands of limited devices.

The real culprit here is the DMCA — but for that bad law, customers could legally convert DRMed files into whatever format they want, and tech creators would be free to reverse engineer the DRM to create compatible devices. Even though those acts have traditionally been and still are non-infringing, the DMCA makes them illegal and stifles fair use, innovation, and competition.

May this be a lesson to those who mistakenly laud certain DRM as “open” and offering customers “freedom of choice” simply because it is widely-licensed. With DRM under the DMCA, nothing truly plays for sure, regardless of whether you’re purchasing from Apple, Microsoft, or anyone else.

Take action now to support DMCA reform and to stop the government from mandating more DRM.

[Postscript: In an interview with Engadget, Microsoft Zune architect J Allard pointed out that Zune has sufficient video format support, in part because there’s “Lots of DVD ripping software out there that encodes to those formats, so the most popular formats out there, whether it’s MPEG-4 or H.264, we’ll support those.” Gee, he isn’t suggesting that his business model benefits from customers using tools like DeCSS or Handbrake to evade the DRM on DVDs, right? Especially since Microsoft is furiously trying to squash the FairUse4WM tool, that would seem rather hypocritical.]

(Cross-posted at DeepLinks)

Filed by Derek Slater at 1:55 pm under General news
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Is this bird animation awesome? Bad? Awesomely bad?
https://www.comingzune.com/

I’m confused.

Filed by Derek Slater at 9:28 pm under General news
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Bruce Schneier suggested that it was folded into Patch Tuesday security patches, but he didn’t cite a source.  I have a Windows XP box, and these are the updates I was sent this week. None of them appear to be Windows Media related. Are the updates coming through Windows Media Player, and not the normal Windows Update process itself?  Perhaps my version of Windows Media Player is one of the versions they couldn’t patch for? Are systems like Napster 2.0 pushing out the patch (Rhapsody didn’t push me an update)? Or is there something else going on here? Or is the patch being sneaked in with these unrelated security updates?

If anyone has determined exactly how the patch is being pushed out (and why FairUseWM 1.2 could apparently get around it), I would be interested to know.

Filed by Derek Slater at 11:36 am under General news
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That’s what Engadget reports (via Schneier) — let the games continue.

Saturday, 9:25 AM: MS has appararently patched for this tool, and Engadget has the MS internal letter.

Filed by Derek Slater at 11:26 am under General news
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In an article covering Pandora, MusicStrands, and other novel recommendation tools, the NYT writes: “All told, music consumers are increasingly turning away from the
traditional gatekeepers and looking instead to one another — to fellow
fans, even those they’ve never met — to guide their choices.”

Nicely put. The paper on recommendation tools I co-authored is briefly mentioned.

Filed by Derek Slater at 3:38 pm under General news
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Congrats, Snocap – you finally matter, potentially in quite a significant way.  Apparently, Snocap will help 3 million unsigned on MySpace sell their songs in MP3 format.  The bands will be able to sell the songs from their own pages as well as on fan pages, using fan-to-fan recommendations to drive sales.

A month ago, I pointed out Snocap’s interesting new Linx/MyStore service, a move away from touting their vaporware P2P filtering.  The other (and the truly important) half of Snocap’s business model had always been their potential function as a rights clearinghouse.  I’ve briefly discussed the importance of efficient rights clearance on this blog before, and Snocap aimed to clear the rights thicket by creating a one stop shop for music distribution licensing. Their “digital registry” could help connect labels and artists — whether on major labels, indies or unsigned — with individuals and businesses that want to redistribute the music in myriad ways, beyond and including P2P.

Connecting unsigned bands and the millions of MySpace users is one potentially important use.  These bands have to go through an intermediary like cdbaby to get into iTunes (not so bad), they get no flexibility in price or DRM (much more problematic) and even then iTunes wouldn’t do a great job of feeding fans to them (more problematic still). MySpace provides a great alternative avenue, at least with the audience it happens to have at present.

Moreover, MySpace is a ready-made medium to take advantage of fan-to-fan taste sharing.  Jupiter’s recent research supports MySpace’s particular viability here.

Filed by Derek Slater at 10:54 pm under General news
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Engadget has the Microsoft internal email.  Though many may end up claiming this as a victory for DRM, that’s the wrong lesson to take away.

Meanwhile, Engadget is also reporting that Apple’s FairPlay DRM has also been broken, which is similarly less of a big deal than it sounds.

Filed by Derek Slater at 12:43 pm under General news
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On the one hand, I’ve said that most users won’t care about FairUse4WM
because they already could easily get unencrypted
copies. On the other hand, Janus DRM has discouraged music fans from subscribing and hurt online music businesses. 
In what sense can both these statements be true?  In short, music fans
would flock to a true all-you-can-eat mp3 subscription service, but, don’t be surprised if FairUse4WM has little impact on user adoption of subscription services.

Many users who currently rely on P2P
would put down money for a slick Rhapsody-like service that didn’t
restrict their uses, just like many online music users already flit
between iTunes and P2P depending on which happens to be more convenient
at a given moment.  And, in the long run, an all-you-can-eat mp3
service may be where we’re headed.

But in the short run, I don’t
think that’s how things will play out.  Most music fans still don’t
want anything that smells like a subscription “rental” service, and,
unless FairUse4WM gets integrated into Rhapsody in some form, it
doesn’t make the experience seamless enough. The iTunes Music Store has
dominated the market not just because of the price point, but because
it and the iPod work with no fuss.  In contrast,
Rhapsody-to-FairUse4WM-to-iPod still requires some energy, and, more to
the point, Rhapsody+P2P downloading will for many people be as or more
convenient than Rhapsody+FairUse4WM.  FairUse4WM may make some current
Rhapsody customers happy, but it won’t attract too many new ones. 

Furthermore,
remember that this hack could be cut off, potentially by forced
upgrades or by the roll-out of new subscription services and devices
down the road.  That could prompt users to tune out the licensed
services even more, but it will give certain industry folks the sense
that this was a victory for DRM. After all, if the DRM can’t be broken
once and then run everywhere forever, it “works,” right?

Of course not — as I said, most users who want
to get around the DRM already can easily do so through
non-circumvention means, and, as Engadget argued, the people who would
download the whole catalog and then cancel the subscription aren’t
going to be Rhapsody customers anyway. The DRM might get a few extra
pennies out of a few people, but that’s far less than the money
Rhapsody would attract with mp3s, and it certainly ain’t enough to
build an online music service business around.  The service providers like Yahoo already understand this, but the record labels don’t or have other interests in mind, and middlemen like Microsoft are indifferent.

So
my worry — one that in part motivated my initial analysis — is that the
music industry and others will take all the wrong lessons away from this, and none
of the right ones.  Stay tuned, and hope for the best. As both an Activist and a Rhapsody user, I’m keeping my fingers crossed.

Filed by Derek Slater at 4:45 am under General news
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My report on FairUse4WM, the Windows Media DRM evasion tool, focused on whether users would care. Again, I think most music fans won’t care about the tool, though the few subscribers who are unwilling or unable to use the readily-available alternative avenues for acquiring unencrypted content will be quite happy.

But the question remains: will online music subscription businesses be harmed by the tool? And will Microsoft block music fans’ ability to make fair use of legitimately acquired music and respond with DMCA threats or even lawsuits, perhaps at the record labels’ behest?

Engadget makes the case for why they shouldn’t in an open letter published today:

“We’re big fans of the subscription services [which currently use Microsoft DRM] … but let’s face facts: the damn things don’t work very well. It’s pretty easy to download tracks, but it’s a serious pain in the ass to successfully transfer them to a portable device…. [W]e get tons of emails from consumers complaining about how hard it is to get Napster, Rhapsody, Yahoo Music Unlimited, etc. tracks on to their players, or, god forbid, Macs.

“Are a lot of people going to pay $15 to sign up for a subscription service, download a ton of music, and then cancel a month later? Absolutely, but that’s not a big deal. Those people were never, ever going to sign up for a service that offers locked down music anyway, so be happy that you squeezed any money out of them at all. (Yeah, this does make it tougher to offer free, unlimited trials, but that’s not the end of the world.) Could those same people then put all the music they’ve just downloaded up on the P2P networks? Sure, but all that music is available there anyway, so it shouldn’t make a bit of difference in the grand scheme of things.”

Well said — the DRM doesn’t do anything to stop music “pirates,” but it does discourage potential customers from ever using licensed music services. In turn, the DRM hurts not only music fans, but also online music download and subscription businesses, as Yahoo! is quite willing to admit. Certainly, Microsoft and the record labels have some unique interests in perpetuating the Windows Media DRM and stifling start-up innovators. But let’s hope Microsoft and the major record labels lay off the lawsuits and, ultimately, the DRM.

(Cross-posted at DeepLinks)

Filed by Derek Slater at 12:12 am under General news
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Windows Media DRM has apparently been compromised. Reader Frank Payne pointed me towards a program called FairUse4WM that decrypts Windows Media files. I had heard of a similar program recently called drmdbg.  I cannot confirm how and the extent to which these function, including incompatibilities with certain software setups. I also can’t tell how new these tools are — I found posts about drmdbg from over a year ago, but only news in the last few months about FairUse4WM. Regardless, the tools apparently are ways around the DRM for WMA and WMV, including Janus DRM.

While interesting news, it’s rather irrelevant to online media services using WM DRM. Most users won’t care about these decryption tools, not because the DRM is “consumer-friendly,” but rather because there are already readily-accessible alternatives to acquire unencrypted copies and thus get around the DRM’s unfriendly limits.

About a year ago, I reported on the development of a work-around for pre-Janus WMA DRM. To my knowledge, this development never produced a working crack, and, given how readily other DRM systems like CSS have been circumvented, that may be surprising to some. One might wonder why it took so long for a decryption utility to become widely-available.

The most plausible answer is that the online music DRM is so easy to get around that essentially no one gives a damn about actually circumventing it. If iTunes or Napster Light users want to make a use that the DRM prohibits, he or she can burn the song to CD and rip, use the analog hole, or get on a P2P network.  All three are trivially easy ways to get an unencrypted copy and make circumvention practically unnecessary. The subset of users unable or unwilling to perform these steps is, I suspect, an incredibly low percentage of the whole userbase. (Which is not to say that the DRM causes no outrage or damage among users. That small subset of users is unfortunately prevented from making many non-infringing uses of purchased music, while the DRM does nothing to prevent “Internet piracy.”)

This answer is a lot more compelling, I think, than believing that the online music DRM was particularly well-designed and difficult to beat in the face of the DMCA. But my answer prompts another question: why would these WM tools come out at all, and why now?

I can think of two main responses.  First, people might still have wanted to create these tools for fun. Sure, few would have a practical use for them, but that discourage everyone. The alternative avenues for DRM evasion merely meant there was less incentive to work on a decryption tool and thus less people developing one — less, but not zero.

Second, the recent though meager growth of Movielink, Cinemanow, Rhapsody Unlimited, Rhapsody-to-Go, and similar services created a matching recent though proportionately meager increase in incentives to create decryption tools. All the content on those services remains readily-accessible on P2P. But burning and re-ripping is not possible, and, for movies, using the analog hole is a little bit more difficult. So, with those alternative avenues slightly cut off, that was enough to kickstart a little renewed interest in creating an actual decryption tool.

That’s my speculation. Again, this doesn’t really affect the argument over whether DRM+DMCA can achieve their intended purpose of stopping “Internet piracy” — they don’t and can’t, as I addressed at length in recent posts. But that would have been true had these tools never been created.

Update, 11:23 AM Friday: Endadget has screenshots and apparently successfully tried this tool. See: http://www.engadget.com/2006/08/25/fairuse4wm-strips-windows-media-drm/

Filed by Derek Slater at 1:04 am under General news
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The IP Scholars Conference recently took place at Berkeley — many papers are just early drafts, but plenty of food for thought.

And while we’re on the topic:
* This paper was forwarded to me, haven’t read it but looks interesting:
David Choi, “Online Piracy and The Emergence of New Business Models.” From the abstract: “This explorative paper examines the impact of online piracy on the emergence of innovative, legitimate business models. While often dismissed by academics and professionals alike, online piracy has shown to be a valuable source of innovation to both industry incumbents and entrepreneurs.”  See also, this blog thread from a year ago.

* Previously mentioned on this blog, now published in the Georgetown Law Review – Dotan Oliar’s “Making Sense of the IP Clause: Promotion of Progress as a Limitation on Congress’ IP Power.”  See also, Oren Bracha, “Owning Ideas: A History of Anglo-American IP.”

Filed by Derek Slater at 1:20 am under General news
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Felten’s put together a fine series on evolving defenses of DRM and related anti-circumvention laws. He’s right that the entertainment industry has begun more frequently offering alternative arguments to defend the DMCA+DRM, but I wouldn’t go so far as to say that they are “replacing” the DRM as speed bump to “Internet piracy” myth.  Yet if this were the case, I would welcome the switch. Indeed, if the DMCA’s existence hinged on these issues, I bet it would be wholly reformed.

Hollywood certainly can’t sell the public on these arguments, as Felten also suggests. They can’t convince consumers that restricting compatible devices is a good thing — heck, the record labels won’t even defend the iPod-iTunes tie, though they reluctantly go along with it.  And if the major entertainment companies’ best argument for price discrimination is that they’ll get to take away your ability to freely burn CD copies of purchased music, then they’ll be doing my job for me. Consumers don’t want fair use taken away so that it can be sold back to them bit by bit.

This isn’t to say no one can make a coherent argument defending these practices.  Rather, I think consumers are generally — and rightly — suspicious of them. Policymakers and judges might be similarly wary — remember, even as many legislators ignored the DMCA’s broad harms, the issue of music player incompatibility got a hearing relatively soon after its effects began to be felt. But, at present, the fear of “Internet piracy” blinds many of them to DMCA+DRM’s actual impact.

So I say: bring on the Property Rights Management wars and a fair evaluation of the DMCA+DRM’s impact.  Of course, because they don’t want such an honest look at the DMCA, the RIAA and MPAA will continue to focus on the DRM-as-speed-bump myth, and too many policymakers will continue to buy it.  But, hopefully, with enough convincing, the latter will one day change their tune.

Filed by Derek Slater at 1:27 am under General news
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