A Copyfighter’s Musings

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(Cross-posted at DeepLinks)

Filed by Derek Slater at 11:48 am under General news
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Bill McGeveran sez, “I am delighted to report that the Berkman Center has released the white paper on which I have been working, along with Professor Terry Fisher and a terrific team of Berkman fellows and Harvard Law students, for the last year. The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age explores the ways in which copyright-related restrictions impede innovative educational uses of digital content.”

Get the paper here.  Congrats to Bill and the whole team on the release!

[update: whoops, seems my post led to Cory to think I was an author.  Love the paper, but I didn’t work on it and can’t take any credit for it.]

Filed by Derek Slater at 11:29 am under General news
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Here’s Tim Armstrong’s lengthy response to me. Tim’s right that you can “draw a distinction between objections to the types of digital rights management (DRM) measures that are deployed to protect copyrighted works, and objections to the legal regime that protects those DRM measures against circumvention.” But what he concludes from that distinction and other related notions is seriously misguided. Supporting wholesale DMCA reform is based on principles Tim has not dispelled, and it is also the pragmatic tact. (**Footnote 1)

Let’s start with his “analytical” objection and the several examples of “good” DRM uses he cites. I am not a lawyer, but last time I checked, Title 17 is the Copyright Act — it’s meant to encouarge creation and distribution of artistic (and related) works insomuch as it benefits the public. Title 17 is not the Medical Privacy Act, nor the Privacy in Embarassing Pictures And Emotional Distress Act, nor the Confidentiality Agreement Enforcement Act. It’s the Copyright Act, and it shouldn’t be turned into a Christmas tree on which everyone hangs a pet project that they think technical restrictions might achieve.

Tim already knows this, and when he teaches his students about the Lexmark and Skylink cases, I suspect this is roughly what his sentiment will be. Why this insight doesn’t apply in Tim’s cited examples, I don’t know. (**Footnote 2)

This insight is actually at the core of what’s wrong with the DMCA, and it applies with respect to restrictions on digital entertainment content as well. Consider the iPod-iTunes tie and similar situations. Reverse engineering for compatibility and distribution of compatible devices have been protected as non-infringing. And yet the DMCA turns Title 17 into a broad Compatible Device Restrictions Act, bootstrapping dramatically increased control over *devices* onto copyright holder’s limited control over *works*.

But what about actual infringing uses — wouldn’t it be worth using DRM to stop them? As we’ve already discussed, DRM doesn’t stop the only illegal use that matters — “Internet piracy.” The other infringing uses it could stop — heavily caveated in this post — are of marginal concern (please, come up with those hypos). Regardless, DRM would still have to limit non-infringing uses and innovation to stop such infringing uses. DRM that truly permits the full range of non-infringing uses wouldn’t be worth using, because it wouldn’t be practically useful in stopping any infringing uses either. (**Footnote 3)

Therefore, saying “all DRM under the DMCA is bad DRM” is not a tautology. The DRM *that anyone would ever actually use* limits lawful uses, and, to the extent the DMCA prohibits circumvention for those uses and distribution of circumvention devices with substantial non-infringing uses, *that DRM is bad.* Absent the DMCA, the DRM would not necessarily be bad inasmuch as people could get around it to make lawful uses.

Of course, this argument doesn’t necessarily hold if you believe that it’s good for society to enable “new business models” that rely on restricting non-infringing uses and compatible devices. Tim offers a headfake this way, but I don’t think he actually buys this, and as I’ve argued before, I don’t think these restrictions are actually good for society. Even if they were good some of the time, they don’t balance out the severe damage done by the DMCA.

I hope I’ve convinced you of the flaws in Tim’s analytical arguments. Now let me turn to his pragmatic ones. He thinks that my arguments don’t move the DMCA reform ball forward.

IMO, he’s wrong, and, what’s more, positions like his can sometimes move the reform ball *backward*. Unless you actually think DRM’s restricting legitimate uses and innovation is good for society, pushing for wholesale DMCA reform is a more pragmatic response.

Of course I’d prefer DRM that allows more lawful uses to DRM that is draconian, and I’d prefer more statutory exceptions for lawful uses than less. There’s room to discuss legal alternatives and assume for the sake of argument that you can’t convince policymakers of the best and correct choice: allowing circumvention for all non-infringing uses and distribution of circumvention tools with substantial non-infringing uses.

But that exercise too often becomes a distraction from getting real reform. Tim’s suggesting that some more statutory exceptions would “solve” the problems I’ve identified is one such incorrect notion. There are others, though — most importantly, ignoring that DRM doesn’t actually prevent Internet piracy. In repeating that “DRM isn’t inherently good or bad,” people also often ignore that DRM is ill-suited to meaningfully stopping infringement and serving any worthwhile uses without seriously restricting non-infringing uses.

At best, strained attempts to find this “good” DRM and anti-cirumvention laws middle ground are simply treated as beside the point. At worst, those who want wholesale reform get painted as misguided extremists. In suggesting this intentionally or not, such depictions hurt the cause for real, substantive reform. These real reformers become “outraged bloggers, snarky comment[ers] on Slashdot, FSF dress-up protest[ers], and poison-pen law review [authors]” (and/including me). Why not describe them as principled bloggers or law review writers making the correct policy prescription even though it’s hard to push through Congress? Meanwhile, those lauding “good” DRM appear like consummate moderates, offering up a “compromise” pitched as the right solution. (**Footnote 4)

This isn’t just an issue with regard to the DMCA. Take the broadcast flag, a fundamentally flawed policy that cannot be fixed. My colleagues and I were deeply disappointed when CDT tried to offer a compromise solution and seemingly supported the flag. Fortunately and rightly, they backed off their original comments to some degree.

Anyone is free to play the role of consummate moderate. But if you actually agree with people who want wholesale DMCA reform, call any “moderate,” “compromise” DMCA reform what it is — a second-, or third-, or billionth-best policy, a policy that is better than nothing but not the correct and appropriate policy. Consistently call out the ways that it still isn’t up to snuff. Speaking for only myself, one person in this fight, I would appreciate that.

**Footnote 1: This is long too, but I have a lot of respect for Tim and I do think we’re ultimately on the same side of the fence. For that reason, I want to give convincing him a shot and that requires some lengthiness.

**Footnote 2: And that’s to say nothing of the inefficacy of DRM in these contexts. If you think you can use DRM to restrict a third party that you don’t trust with medical information or that wouldn’t sign a medical confidentiality contract in the first place; or if you rely on DRM to keep your employees from retyping and distributing confidential info; or if you rely on DRM to prevent your friends from taking a photo of their computer screen and then sending your embarassing pic around the Internet, then you’re in for a world of disappointment. His only example that could work is the “enterprise” one, and that’s because Tim isn’t talking about DRM there, he’s talking about “conditional access” systems — that’s like putting password protection on your website, and, yes, that can be effective, even without the DMCA, as any website operator knows. That’s different than an “access control” like on DVDs, where you’re storing the key with the attacker and giving them access to unencrypted analog copies in a compliant player. Those access controls are like locking the door while leaving the window wide open. (Also: everything in this post – but esp. this paragraph – is informed by discussions with Seth Schoen and Cory Doctorow, as well as Cory’s article cited above).

**Footnote 3: I’m going to skip giving a refresher on how fair use and other exceptions to c-holders’ exclusive rights is a context-sensitive affair that cannot be modelled by finite DRM rules.  It’s worth noting that my argument includes the hypothetical fair-use-challenge system Tim describes in his article – to truly permit the full range of lawful uses in that way, it would have to be capable of giving the user a cleartext copy no longer subject to the audit trail. For instance, say you have a networked video device without digital restrictions on its inputs/outputs. If you can challenge the DRM (which, for non-infringing uses, you clearly should be able to despite the lack of trusted inputs/outputs), you will then have access to the unencrypted copy in transit from or to that device. That copy can be captured and used outside the audit trail.

**Footnote 4: I’m not saying Tim is the only one who’s ever done this, or that his writing always has fallen into this camp. He ends his paper by saying “If digital rights management, in one form or another, is truly here to stay, there is a vital public interest at stake in the form DRM ultimately takes.” He could have also said “if strong anti-circumvention laws are here to stay….” At the same time, he doesn’t seriously rebut arguments that DRM stops piracy, and he has also intimated in his post that simply implementing exceptions to c-holders rights’, short of wholesale DMCA reform, “would solve what you rightly label the ‘bad DRM’ problem.” Sorry, it wouldn’t “solve” that problem.

Furthermore, to the extent I have fallen into this trap and made similar errors in my own writing, I am equally critical of myself.

Filed by Derek Slater at 1:31 am under Big Ideas
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Tim responds to me here.

The principal — practically the sole — reason to use DRM is to restrict lawful uses and get a veto over innovation by third parties.  Certainly, Hollywood and content intermediaries today only use DRM for this purpose, but I cannot imagine what other purposes they would seriously seek to use it for.  It doesn’t stop the only illegal use that matters — “Internet piracy”; all the other illegal uses it could stop are so marginal, and I don’t think DRM would fair much worse at stopping them in a non-DMCA world.

So when Tim poses this as a choice between “bad” and “good” DRM, I think that’s completely wrongheaded.  The reason to use DRM is to use “bad” DRM and exploit the DMCA. A DRM system that “permitted the full range of” lawful use wouldn’t be worth implementing — it would have few if any practical uses. 

The DMCA only (or at least almost exclusively) supports ill purposes — that’s why it’s objectionable. A law of that sort ought not be on the books. Calling it “technology agnostic” is beside the point.  (Again, you can try to defend the DMCA as price discrimination and platform monopoly enabler, but I don’t see those as purposes we should support insofar as they depend on depriving the public of its rights in copyright, and I think Tim agrees on this point.)

Apparently, Tim thinks it’s useful to “shift the focus” from this bad statute to bad media company choices.  But, again, there is no reason for them to use this hypothetical “good” DRM.  Using “bad” DRM may be a rational choice for them (at least, but for other forces e.g. P2P), even though they’re bad choices for society as a whole.  The problem is giving those bad choices the protection of the law.

Tim thinks that attacking the DMCA wrongly deflects the blame. To the contrary, I think discussing the merits of hypothetical “good” DRM wrongly deflects attacks on the DMCA. Many people seem to think that we can just throw enough geeks at this issue, then DRM and lawful use will co-exist in harmony, just like DRM will stop piracy some day.  Surely, there are better and worse implementations of DRM, but all DRM under the DMCA is bad DRM.  The focus should remain squarely on that point.

[note: edited on aug 1 to make the opening to third paragraph follow first paragraph’s qualifications).

Filed by Derek Slater at 11:38 am under General news
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This week, Mashboxx announced a licensing deal with EMI. Over a year ago, it announced its first licensing deal with Sony.  The service is still not even in its first beta.  After many laudatory articles and nearly a year after a Snocap rep contacted me because I had called the P2P filtering and payment service “vapor” over at Paidcontent, Snocap’s announced its new Linx retail service. Yet, so far as I know, the P2P system still has not been implemented in a live service.

Meanwhile, Kazaa settled and will open up a new licensed service at a later time.  Given the above, I bet Licensed Kazaa will launch some time in 2009.

Now that’s what I call progress.

(To be fair, the implementation of Linx here is actually kinda neat, and I’m all for rights aggregation of this sort.  But it’s sad (and predictable) how slowly these licensed distribution services are being rolled out.)

Filed by Derek Slater at 6:16 pm under General news
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In the comments of a post about Urs Gasser’s new paper on anti-circumvention laws, Tim Armstrong made this rather peculiar statement: “[M]y
paper on fair use and digital rights management (linked from the blog
posting) is in some measure an attempt to show that the DMCA has gotten
a bum rap — the statute has been blamed, incorrectly in my view, for
some problems that in reality stem from particular choices among
competing technological designs.”

What is the rap that Tim is referring to?

The main rap on the DMCA is that it has been completely and utterly ineffective in serving its chief aim: preventing “Internet piracy.”  This rap is wholly deserved. A cleartext copy of any given DRMed song or movie will be practically as readily accessible if there were no DRM at all.  The DMCA has done nothing to keep unencrypted media off P2P networks and other darknet sources.  This all holds true in what I like to refer to as “reality” – not to be confused with the pre-Napster time warp that too much scholarship still resides in.

The DMCA has also stifled fair use and innovation.  It greatly expanded copyright holders’ rights.  I don’t see how that’s a bum rap simply because one can imagine DRM that does less damage.

Moreover, given the first rap, why do alternative technological designs even matter? If the DMCA isn’t creating its intended benefit, then any damage is a net loss for society.  Tim has done a lot of careful thinking about alternative designs for DRM that better accomodate fair use and his paper is a nice extension of scholarship on this subject, starting roughly 5 years ago with a paper by Dan Burk and Julie Cohen and many papers on so called “rights expression languages.” But before weighing whether and how to accomodate fair use, it seems appropriate to examine whether DMCA+DRM can achieve their intended goals. If they can’t, then “better” DRM is a moot subject.

Now, there may be some other illegal uses DMCA+DRM could limit. For those who are unwilling or unable to find and acquire unencrypted content from alternative sources (e.g. P2P) *and* are unwilling or unable to use circumvention devices *and* are unwilling or unable to use the analog hole to make an unencrypted copy, perhaps DMCA+DRM could have an effect.  If someone would like to try justifying all the damage the DMCA+DRM have done to fair use and innovation based on limiting these other unlawful uses, please go ahead. 

A more likely tact, taken by Randy Picker among others, is to defend how the DMCA+DRM can limit *lawful* uses in order to enable platform monopolies and price discrimination.  Note that it seems Tim would be very much against this line of thought, since he’s saying the DMCA would be fine if only DRM accomodated fair use.

Tim Lee has recently spent a lot of time considering this issue, and it’s also worth checking out Pam Samuelson and Suzanne Scotchmer’s article related to this subject from 5 years ago. While I’m in Lee’s camp here, there are some decent arguments on the other side. For the moment, all I’d like to say is this: I would love it if the policy discussion around the DMCA merely focused on this point.  Enough about whether the DMCA prevents piracy (it doesn’t) or limits fair use (it does).  Please defend the DMCA openly as an abrogation of fair use and celebrate a world in which upstarts can’t come along and create new
cool tools that help you get more from your music and movies.  Please defend it as a reversal of established caselaw, and explain why that caselaw got it wrong in the first place.

Filed by Derek Slater at 3:37 pm under General news
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As a former California public school student, working to improve this bill was especially fulfilling and fun.  Here’s hoping that the curriculum turns out alright. Stay tuned….

Filed by Derek Slater at 2:46 pm under General news
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SethF sets the Deleting Online Predators Act in historical context.  Like CIPA, this bill would condition certain government funding for schools and libraries on the adoption of censorware — but this bill goes even further, targeting myriad communication tools including but not exclusively social networking. In its recent testimony, the ALA concisely explains the bill’s many problems.  The comments to this post are also instructive.  As the ALA points out, there are many reasons for kids to use online communication tools in the classroom or library, and here’s a heart-string pulling anecdote to cement the point (via Sivacracy).

Filed by Derek Slater at 2:37 pm under General news
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Filed by Derek Slater at 5:18 pm under Big Ideas
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So with the general review done, let me note one point from The Long Tail that is particularly relevant for copyfighters.  Some argue that draconian copyright legislation, while pushed for primarily by major entertainment companies, is actually about protecting the institution of copyright law as a whole and thus all artists, big and small, hit or niche.  But as Anderson points out:

In fact, while some artists from the Head and Tail certainly share Hollywood’s sentiments, many of both groups do not.

More broadly, such restrictions are bad for our economy as a whole and tremendously harmful to innovators and consumers as well.  We do have a lobby, but we all have to make our voices heard now.

Filed by Derek Slater at 2:27 am under General news
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Chris Anderson’s The Long Tail is coming out soon, and he was nice enough to send bloggers review copies.  You’ve probably already read his earlier article, so I won’t spend time summarizing it — in fact, if you’ve read his article and all his blog entries, you probably don’t need to read the book. 

Anyway, here’s a quick take: This may be the most important work on digital media written in the last two years.  That doesn’t mean the book says something wholly novel or that this will be the one book-about-the-future to rule them all.  Rather, Anderson has made a critical contribution by matching empirical evidence with leading edge cases, pointing out how a long-theorized future is now becoming the present while also recognizing how past projections now need to be rethought.

The Internet and digital technologies have made it far easier to produce and access niche content, changing the power held by traditional mass media gatekeepers — that’s a familiar notion by now.  As The New Yorker’s review points out, Alvin Toffler among many others have made similar insights. Anderson acknowledges such thinkers early on and throughout his book.

But many other authors have started from macro-trends and then tried to deduce particular effects on our society. In contrast, Anderson generally builds out from particular cases (e.g., Amazon, Netflix, and Rhapsody) to a theory of how business and culture as a whole will change. More than naked anecdotes, he presents the most in-depth look at these companies’ sales stats yet.  Anderson’s not just talking about some far off future world — he’s describing our world as it exists today and tomorrow.  In that way, he’s closing the loop on earlier futurists’ visions; at the very least, he’s helped put to bed once and for all many myths built around the mass media world and “hit-ism.”

At the same time, Anderson tempers and adjusts the futurists’ visions.  For instance, Anderson is quick to point out that abundant choice isn’t very useful if consumers can’t adequately navigate those choices with “filters” and recommendation tools.  He also notes that it’s critical to aggregate both the “head” and the “tail,” both hits and niches, so that consumers can start navigating from a comfortable place. All this may seem obvious, but go back just a few years to the time of the original MP3.com’s clutter of niches.  Certainly many of the articles about that site overstated how it would change the game for independent artists.

Most importantly, Anderson doesn’t confuse evidence that niches are becoming more prominent for evidence that mass culture is going to totally die off.

This is a key clarification, one many earlier writers struggled to make well and many critics of Anderson seem to gloss over. Sometimes even Anderson isn’t particularly clear — for instance, he repeats that we’re becoming a culture of niches and opens the book by describing a hypothetical typical teenager jumping effortlessly and continuously between mass culture and random niches, but it’s not clear to what role mass culture is playing.  By book’s end I think he makes clear that his analysis and predictions are actually more modest yet no less significant.

Anderson certainly doesn’t avoid some relatively speculative projections.  Because his stats derive from online entertainment content distributors, his predictions about other “long tail” businesses feel weaker.  The New Yorker’s right that the changes we’re seeing in the music industry won’t necessarily fit other businesses.  But by carefully considering these particular leading edge cases, Anderson’s focusing our attention on where to look next, and that’s quite useful.

I could make other quibbles (for instance, he could have made his chapter countering “Paradox of Choice” author Barry Schwartz much stronger, following thinkers like Virginia Postrel), but on the whole Anderson nails it.

Filed by Derek Slater at 12:32 am under General news
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Mike Gartenberg blogged some common sense on the HD-DVD v. Blu Ray.  Bottom line: like SACD and DVD Audio, these formats might never catch on and thus the format “war” may be entirely irrelevant. As Michael points out, HD and Blu Ray don’t offer significant added value compared to typical DVDs. With hardly any content available that can make the quality difference noticeable, consumers have no reason to shell out for new hardware.  The heightened DRM restrictions certainly don’t help matters.

A good friend of mine is a wholesale AV dealer, and he offered much the same conclusions. He pointed out that older movies look downright crappy on an HD or Blu Ray player — it makes imperfections far more apparent.  With that in mind, why are “Goodfellas” and “Blazing Saddles” among early releases on HD-DVD?

Filed by Derek Slater at 12:04 am under General news
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Last week, Congress held yet another hearing about “plugging the analog hole.” Why is Hollywood so bent on making all analog-to-digital technologies obey copyright holders’ commands? Because in an age of DRM on digital media, the analog hole is often the last refuge for fair use and for innovators trying to build new gadgets to take your rights into the digital age.

Take the Neuros MPEG4 Recorder 2 (the “R2”), an endangered gizmo that digitizes analog video output and records it to a CF card or a memory stick in MPEG4 format. The video can then be put on your computer, burned to DVD, moved to your video iPod, or slotted right into your Sony PSP. You can also output video to a display device from the R2.

In turn, the R2 helps you make legitimate use of your media and lawfully escape DRM restrictions. For example:

• Free your recorded TV content: TiVo and other PVRs restrict moving recorded video to other devices. The DMCA limits removing these DRM locks, and, if the broadcast flag proposal passes, these restrictions will get even worse. Regardless, you can lawfully use the R2 to create a DRM-free copy, recording straight from your TV or TiVo.
  
• Free your DVDs: DVD ripping software is widely available, but using it to rip a film to your computer and video iPod may violate the DMCA. The R2 gives you a legal (albeit more cumbersome) alternative. Similarly, though region-free DVD players are available, you can use the R2 to help create a region-free copy of the movie itself.
  
• Free your VHS tapes: You’ve probably faced the unhappy choice between rebuying your VHS collection on DRM-restricted DVDs or lugging around a legacy player. The R2 helps you liberate your movies from their VHS chains.

The good folks at Neuros Technology were kind enough to give EFF a device to test out. Recording both from VHS and DVD, it worked like a charm (I didn’t test recording from a TiVo because I don’t own one, but doing so shouldn’t be any more difficult). This clever gadget is light, fitting neatly in your hand. Setup is simple, and you can customize the recording resolution to suit your needs. (If you want to see some sample clips at different resolutions, check out The Gadgeteer’s nice review.)

But you might not get to use the R2 or other innovations that rely on the analog hole if Hollywood gets its way. In fact, you shouldn’t even expect that such devices will stay on the market for use with DRM-free media (e.g., digitizing your own home movies) — after all, the manufacturers will suffer great expense to install these bogus analog hole plugs and will be forced to get permission from Hollywood and regulators before innovating.

Take a stand now and save these endangered gizmos.

(cross posted at DeepLinks)

Filed by Derek Slater at 11:43 pm under Big Ideas
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Bill Patry: “if I have to read any more about John Locke and copyright I will puke.”

Hear hear — read the whole post, Does It Matter if Copyright Is Property?

Filed by Derek Slater at 10:56 am under General news
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Take action to stop the Corruptibles now!

Filed by Derek Slater at 1:22 pm under General news
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