A Copyfighter’s Musings

First, check out these two articles by Professor Pam Samuelson: Trade Secrets v. Free Speech and Resolving Conflicts between Trade Secrets and the First Amendment. The former is a short piece just on Bunner. The latter is more in-depth, fitting Bunner into larger issues about trade secret law - here are my notes on the piece.

Second, Frank’s got some good bits on the “right of access” we’d like to find in the First Amendment and in fair use. Seth “Eeyore” Finkelstein (who’s been posting a lot about Bunner) and I discussed this awhile back. Kevin Heller has a short argument about it.

The content-based/-neutral test is unwieldly in the case of code. The Corley court used the Internet as an excuse - that because code is functional and the Internet transmission has such immediacy to it, that functionality can be targeted separate from the actual speech. Immediacy makes far more sense if restricted to object code, but Corley included source code. Regardless, all speech is functional in some way, and code (certainly source code) is no different in that regard than recipes or blueprints, which are also pure speech.  At the same time, code that is not part of any expressive activity should not be regarded in the same way as pure speech. Addressing this unique speech rigidly, by looking only at whether function is targeted, is not adequate. Instead, we should shift more focus to how the speaker uses code in context, rather than what the code does (discussed more here).

The content-based/-neutral distinction works a bit better in this case because the UTSA isn’t focusing on one type of expression. The DMCA targets specifically encryption circumvention code/speech. The UTSA is more neutral in its application, so the argument works a bit better here. But, as Judge Moreno argues, it still inhibits Bunner from speaking about a particular type of information. Whether that’s enough to shift from content-neutral to -based, I’m not sure.

What Frank is really talking about, I think, applies less to code-as-speech and more to fair use. Frank is talking about how, without a right of access, we do not have fair use and thus the First Amendment activities it enables. Asking a court to include that in a fair use analysis is hard enough (Kevin’s argument sounds nice, but the cases he cites sound distinguishable - they sound like unique exceptions regarding distribution, not private fair uses, like time shifting). Asking a court to include that activity in its consideration of the DMCA as content-based towards circumvention code would be too much. They’re really two separate issues.

Third, the public/private concern distinction seems odd to me (see Volokh’s argument). I don’t see how this wasn’t a matter of public concern. The real question is: was it presented as an expressive practice? Was he posting the code to engage in a discussion, or just to post circumvention code? Here, too, looking at context is key. I suppose looking at private concern as part of the context is okay [added:] and can help sort out secrets relevant only to a private competitor who won’t be hurt too much by the delay; it makes sense to assess the harm to the public in this special exception to the rule against prior restraints (note: the public/private concern is not a wholly foreign line-drawing measure in free speech cases, e.g. libel law). But a strict, binary public/private distinction shouldn’t be wholly determinative - what is private concern to these judges is public to many interested in IP and encryption. The judges are too dismissive of this argument.

So, to the extent that the CA Supremes didn’t take seriously how Bunner’s posting the source code was part of an expressive activity in a public debate, I question the decision. But, I don’t know enough about exactly how Bunner posted the code (was it part of an article? did he try to explain parts of the code as a matter of security research?) to say if that would have made a difference.

Indeed, given all that the Appeals Court and CA Supremes assumed about Bunner, it surely would not have made a difference at this stage. If you assume he knowingly misappropriated code that still is a secret, then the public/private concern matters far less. And that’s why this decision won’t matter too much after the Appeals decision, and why both sides are claiming victory in this decision.

Hopefully, the Appeals Court will sort the trade secret issue out correctly. Intuitively, I don’t see how CSS is still a secret.

Finally, as Samuelson argues, calling trade secrets “property” goes too far. To the extent that IP laws exclude people in the same way trespass laws do, the analogy works, but unfair competition laws might work better. (I’m not sure what the difference would be in practice, but Samuelson suggests there is one - “property” seems more exclusive and comprehensive than “unfair competition”, I suppose, but the Court’s remand accepts that the right can be exhausted.) At least the court did not let “property” alone end the analysis.

Filed by Derek Slater at 8:14 pm under General news
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From Slashdot:

If you search Google for Kazaa Lite, you’ll find the results a bit lacking. Ironically enough, Sharman Networks, using the DMCA, filed a legal complaint to block Kazaa Lite sites. ” Google links the DMCA request at the end of the results which contain the URLs in question, but the URLs aren’t really the point. It’s scary that the DMCA makes URLs a copyright violation. How long before libraries can’t index books? Or own them?

I wonder if a real infringement suit is to follow.

Filed by Derek Slater at 2:36 pm under General news
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The Economist has a decent piece about movie piracy.  It’s got some good balance, discussing problems in the MPAA’s approach. It points out how Movielink is “clunky” and notes that consumers and electronics companies hate DRM. Interestingly, it doesn’t discuss legislative actions taken by the MPAA - that would have made this a far more complete copyright piece, the sort of thing I’ve come to expect from this mag.

(Also, doesn’t it annoy you that articles like this always ignore how the MPAA represents TV, too?) 

Filed by Derek Slater at 11:53 pm under General news
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After reading the Library Journal article on fair use, I wanted to link together some pieces from the article by two Berkeley SIMS students about evaluating DRM systems. The latter cites a paper by Deirdre Mulligan, Berkeley Samuelson Clinic Director, and Aaron Burstein, a Berkeley grad student, about creating DRM that can expressly permit certain fair uses and allow customers to request uses through third-party rights servers (without giving up their privacy). You might also want to check out this similar paper by them.

Honestly, I can’t say I totally understand their suggestions on a technical level. But, if their plan is possible, it puts an interesting spin on DRM.

Most of the time, we think of DRM as the embodient of the ”alls” in the copyright debate. With Mulligan and Burstein’s version of DRM, we have something a little closer to “some” - not the true ”some” of Creative Commons, of DRE, but a bastardized “some” nonetheless, somewhere in between. It runs counter to part of David Weinberger’s fears in “Copy Protection is a Crime,” for perhaps DRM can provide latitude and exceptions.

Certainly, though better DRM might be better than the “hard-coded software incapable of applying the snicker test” that Weinberger’s thinking of, it’s still just software. It’s not a human.

That’s why Mulligan and Burstein realize that there needs to be, along with basic expressions of fair use, some sort of messaging between consumer and creator, and potential for immediate and deferred decisions.  Again, not perfect, but better than just software - better than our worst fears about DRM. This balance is reflected in and expected by Professors Burk and Cohen’s proposal, Fair Use Infrastructure for Rights Management Systems (which I originally discussed here).  They condition copyright protection on allowing a baseline of fair uses and condition DMCA protection on escrowing circumvention keys for potential fair use requests and arbitration.

Using this dual system, Burk and Cohen have brought together two sides of fair use proposals, which actually fit into a larger legal debate about rules versus standards. Groups like Digital Consumer push for specific fair use rights that cover many consumer expectations. These rules would remove much of the uncertainty in the currently fragmented, broad, and thus somewhat meaningless doctrine. No longer would fair use mean merely that you have the right to hire a lawyer. At the same time, having broad fair use standards allows for the spontaneity that the doctrine requires; fair use is always evolving and cannot be pinned down to a particular set of uses. Indeed, by legislating a specific set of rights, standards-supporters say we risk making it seem like those rights are the only fair uses (I’ve always found this a silly criticism, since most legislation of this sort specifically states that it is not a comprehensive list).

Like many aspects of copyright, the proper solution is probably a “some.” Both strategies have upsides that we should try to capture. Rights can be enumerated, and that list can be updated over time. Standards can be improved to specify the underlying principles of the fair use test (public interest balancing? market failure? a clearer mix?).

In the DRM context, the escrow key system can also help fill in some gaps. Ultimately, I’m not sure if such a key escrow system is feasible. I’m also not too optimistic that such a thing could ever be legislated. 

If we are not moving to more compulsory licensing (which would diminish the need for DRM), enumerating some fair uses with a right to hack is superior to letting the market work itself out. That would simply perpetuate the idea that fair use is about market failure, not about protecting public interests.

With that in place, Burstein and Mulligan’s proposal could help in other ways. Of course, without a legislative mandate, its effect is contingent on copyright holders using it to allow fair uses. Still, by allowing such systems to develop privately, without a single center, key escrow and better DRM is a possibility. And, if it isn’t, then we can sort that out after it’s been tried. At the very least, better DRM gives us some chance to move past DRM as the spectre of pure “all.” If there is truly going to be a competitive market in digital music services and thus DRM, then it will have to involve these flexible proposals.

Update, 9/1, to not give anyone the wrong impression: I’m not writing this to advocate DRM. As I’ve said before, I am incredibly suspicious of DRM/”trusted” systems and the often oligarchical market they are being born into. DRM will never be able to fully preserve the ambiguity that allows new fair uses to develop alongside technology. But, if we are to allow DRM to exist, then flexible DRM is better than what we’ve got now. Hopefully, the competitive process will make it less and less restrictive, making digital media as - if not more - capable of fair use than analog media. Flexible DRM might play an intermediate step between our ideal DRM-less digital media and today’s DRM.

For more on this thread, see this debate from last summer about Lessig’s “better DRM” article. Ernest Miller is still right that DRM, flexible or not, is restrictive, and that the market conditions are not ideal. At the time, I agreed with him completely. Now, as I see competition in digital music services beginning, I am more hopeful that he is wrong.

Filed by Derek Slater at 4:16 am under General news
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TechLawAdvisor points to an appeals decision regarding Video Pipeline; however, it’s an appeals decision regarding the preliminary injunction by the District Court, not the summary judgment. In the third footnote, the court chides both sides for pursuing this action without alerting the District Court. See my other post for more.

Couple things of interest:

The first factor is treated a bit better with more details. It makes a decent distinction comparing the clips to a movie review, which has more transformative informational content. Given this analogy, I understand  why it’s not a greatly transformative work in the court’s opinion.

The court distinguishes Kelly because the previews are unauthorized copies whereas the thumbnails link to the Kelly’s displayed images. I’m not quite sure that the distinction is as stark as the court tries to make it. In the end, the function in both cases is similar. If you’re searching for a movie/image and you want to see if it’s one you potentially want to see more of, you look at the abridged version first. Had Kelly created his own thumbnail images, I don’t think the case would have come out differently - Arriba’s purpose in putting the thumbnails in the search engine would still have been a different sort of information acquisition than Kelly’s use. In any case, this court’s explanation here is superior to Simandle’s.

Still, this court also compares the clip previews to Disney’s own trailers, not just the original movie. Again, I believe that this is a poor basis for comparison and should have been left for the fourth factor. The first factor does not require determining if the fair use will supercede all current and possible derivative uses. Why should this case come out differently if Disney had not made the trailers first?

To put it another way: Let’s say that Disney had created clips of nearly infinite permutations, covering all the scenes in the films in separate chunks.  Should the basis for deciding whether re-use of a particular scene will supercede or complement the copyrighted work be whether that scene has already been put in its own separate clip?

Or another way: let’s say you use a sample from a song for a dance remix of a rock song. Now, under the fourth factor, you’re probably going to lose. But under the first factor, it would be odd for the court to say your remix shares a similar purpose as the copyright holder’s because copyright holders typically make their own licensed dance remixes. That shouldn’t end the analysis.

How about a little broader and scarier: Amazon provides short, downgraded previews of songs  and movies to help sell them. Should Amazon have to pay a copyright holder everytime it makes and distributes one of these previews? Maybe, maybe not. As the prelim injunction ruling notes, Quality King Distribs. v. L’anza Research Int’l  and 17 USC 109 might allow people to advertise works they resell under the first sale doctrine. I wonder how far Amazon would be protected under 109(c), particularly since it only deals with display. [added:] Judge Simandle states that transmission online would probably not qualify for this exemption, so they’d have to argue it under fair use. Given Video Pipeline, I’m not sure how clear cut that sort of case would be. [added:] For music, 17 USC 110 (7) should also help, though it depends on how it’s mapped to the Internet and whether a court says it covers derivatives (the sound snippet).

Regardless, the court said that first sale doesn’t apply here because Video Pipeline is not the retailer. No matter if it’s first sale or fair use or any other exemption, how important is this distinction between Video Pipeline and retailers in practice? Like in many other cases, including MP3.com and Kinkos (and, most likely, the DVD redistributors in the Clearplay cases), making a fair use on behalf of someone for a profit is not ok.  Is this a reasonable distinction?  It seems odd that Amazon’s previews could be ok but Video Pipeline’s aren’t. It all depends on how you conceptualize fair use.

(See my post below for more explanation about the first factor.)

Interestingly, this court says that Video Pipeline wins on the third factor because the clips use small portions of the film and “do not go to the ‘heart’ of the movies.” This is why fair use is like flipping a coin.

Filed by Derek Slater at 7:35 pm under General news
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At a used-book store, I picked up a copy of What’s Yours is Mine: Open Access and the Rise of Infrastructure Socialism, from the Cato Institute and its friend, the Regulatory Blob Monster.

This book presents the overall anti-regulation argument for so-called “natural monopolies” and “essential facilities”, including case studies of the electricity grid, phone network, broadband, must-carry mandates, and software applications. As far as broadband goes, they favor letting cable and DSL do whatever they want with their lines and, naturally, point to the potential competition from wireless, satellite and other forms of broadband. They believe that broadband providers need control over their wires to recoup their investments and that providers will voluntarily allow others access.

Though I always feel like there is a degree of exaggeration in these libertarian rants, many of the economic arguments seem rather sound. If you want this side of the argument, the book’s definitely worth checking out - it’s a succinct, well-written read. For the other side, see Lessig and Lemley’s The End of E2E. To them, there is plenty of reason to believe that broadband providers will regulate the content Internet users can access. Even though cable providers might not discriminate, the possibility will discourage innovation.  Because providers have shown little willingness to voluntarily provide access to other ISPs, Lessig and Lemley argue that it’s worth regulating now to avoid future harms.

I was disappointed that the Cato book didn’t address an alternative to open access mandates that could be a decent compromise - a rule mandating the preservation of e2e. As Lessig and Lemley point out, there is a lot to be gained from competition between ISPs through an open access requirement; but, if the principle we’re trying to protect is e2e, why not target it directly? Broadband providers could recoup their investment through monopoly prices and bundled ISP access so long as they preserve the Internet’s architecture.  Lessig proposes this towards the end of The Future of Ideas. This plan would constrain business models to an extent, but it seems far more mild than open access.

This seems to be the direction of the new coalition seeking further cable regulation.  Lessig links to an interesting example of how such a neutrality principle could work.

Filed by Derek Slater at 4:13 pm under General news
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UPDATE: See above for more.

I will get to Bunner soon - I have to get through a couple of trade secret docs first. See Matt’s list of links for the scoop and have fun parsing the victory spins from each side.

For now, I want to get in the wayback machine and talk about the Video Pipeline case.  Matt and Frank were both a little up in arms about this case with good reason. Not that it came out wrong - given caselaw, it’s not necessarily wrong. But it is a bit troubling for several reasons.

I agree with Matt that, at least for the sake of clarity, the judge should have dealt with the clip previews (Video Pipeline’s own trailers) and the copied trailers separately.  I also found it hard to discern to which copyrighted work he’s comparing Video Pipeline’s materials.  The original film or Disney’s trailers?

This is especially disconcerting because of the weird reasoning regarding Disney’s entering the trailers market. In both the first and fourth factors of the fair use test, Judge Simandle focuses on how Disney has already created trailers that serve the same purpose as Video Pipeline’s. Ruling against fair use in regards to Video Pipeline’s copied trailers makes sense for this reason because they do not complement Disney’s trailers. (Yes, there is the registration issue here, but I don’t think that’s a huge deal. Since they do already own the underlying elements, it makes some sense that they also own the trailer they actually created.)

But if we apply that to the clip previews the reasoning starts to fail. Though they supplement Disney’s trailers, they complement the original work. I don’t get how, just because the clip previews do not explicitly “add additional or critical evaluative information,” they aren’t complementary to the movie. I don’t understand why Disney’s entering the market first makes the use non-transformative and without a separate purpose.

Part of this confusion stems from the conflating of the first and fourth factor. The ruling makes sense to me as far as the fourth factor goes given current caselaw. As we saw in MP3.com, entering any derivative market that a copyright holder normally occupies will go against a fair use claim. But this shouldn’t factor into the first factor, the purpose and character test. That test has to do with what type of use, not what the market impact will be. [added:] Indeed, commerciality does impact the burden for the fourth factor (even though commerciality should not imply actual damage to the copyright owner), but that’s ultimately beside the point when analyzing the purpose of the fair use in relation to the original work. Since the potentially fair use is of the original movie, the proper comparison is to the original movie, not the trailers. So when you put conflation of the factors together with the conflation of the original movie and the trailer as well as the trailers with the clip previews, you end up with a total mess.

Look at it this way: let’s say Disney hadn’t entered the market yet and that Video Pipeline won the case. So Video Pipeline is now distributing original trailers, and Preview Maker comes along and starts distributing original trailers which are substantially unlike Video Pipeline’s. Now, as we know Disney would lose to Preview Maker just as it lost to Video Pipeline. But, Video Pipeline now brings suit against Preview Maker. Video Pipeline would most certainly win given Judge Simandle’s reasoning.

Does that make any sense? We want to determine who makes trailers based solely on who moves into the market first? Is the proper comparison for Preview Maker to Video Pipeline, not Disney? (Matt says that he has since decided that this wasn’t the basis for the court’s ruling: “I have to acknowledge that that reasoning makes more sense than what I was originally thinking, which was that the mere fact of making trailers precludes anyone else from also making trailers.” Given the judge’s reasoning in the first factor section, I actually think Matt’s original sentiment is somewhat correct. I think the judge might have been saying both.)

Again, this doesn’t mean the ruling was totally wrong as a matter of caselaw. Hardly anyone survives the fourth factor when the copyright holder has already entered the market. And since it was  a commercial use using key scenes, I can see why the judge would rule against. He just didn’t make his reasoning as strong as it could be.

As Matt suggests, he would have been better off ignoring Kelly v. Arriba Soft. In many ways, Kelly is an outlier in today’s fair use doctrine. It looks at how the copyright holder would be actually damaged and carefully weighs the interests involved.  The court clearly recognized how Arriba’s images have a dissimilar purpose (first factor) and a complementary relationship (fourth factor) with Kelly’s. The court found little reason to believe Kelly would be harmed and much reason to believe that Arriba’s use would promote creativity:

“The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike. To preserve the potential future use of artistic works for purposes of teaching, research, criticism, and news reporting, Congress created the fair use exception. Arriba’s use of Kelly’s images promotes the goals of the Copyright Act and the fair use exception….[T]his first factor weighs in favor of Arriba due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images.“

Had Judge Simandle actually read this case and used its logic, his approach to Video Pipeline would have been far different.  Fair use cases like Video Pipeline simply treat fair use as a solution to market failure. If you’re making money that could be made by the copyright holder, it’s not a fair use. I hope, if this case is appealed, the judges actually read Kelly.

Filed by Derek Slater at 7:57 pm under General news
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For those of you who followed this, you’ll know why I can’t resist reposting this brief discussion from pho.  Really interesting technical debate.

Update: Just want to point to this article again, which cites the relevant caselaw that has sometimes said that it is distribution. See this article that counters those cases.

Filed by Derek Slater at 5:45 pm under Big Ideas
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Back for now. I hope to catch up over the next week, but things are going to be a bit busy over the next 3 weeks or so as I see family and return to school.

Speaking of which, Brown has updated its computer use policies. As you might remember, Brown received many DMCA notices last year and warned its students about its copyright infringement policy.  The new policy is superior to Harvard’s, though it seems a bit harsh. I am still troubled by the requirement of removing files from student’s computers. That might make sense if a file were downloaded, but uploaded files might have been acquired legally.

I hope other schools mimic Brown’s fair use faq (more succinct than Stanford’s) and its explanation of copyright infringement.

Filed by Derek Slater at 5:16 pm under General news
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GartnerG2, a business strategy firm, and the Berkman Center have published the first paper in the Digital Media Project entitled: “Copyright and Digital Media in a Post-Napster World“. It chronicles the major legal and business developments in the copyfight and is a lead up to a discussion of possible future scenarios. I had a hand in writing the legal sections and am quite looking forward to the next stages of the project. For those of you who have devotedly followed the development of digital media, the law section might be a bit of old news, but the business section will definitely satisfy you.

Filed by Derek Slater at 11:54 am under General news
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…not gettin’ hitched, but my brother is. Until then I’ll be a bit busy finishing up work stuff, saying goodbye to friends, and winding up this wonderful summer in SF. I should be back in about two weeks.

Filed by Derek Slater at 3:54 am under General news
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Matt links to Cringely’s update to Snapster. He takes into consideration the basic fair use considerations and thinks he’s in the clear.

Cringely asserts that Snapster 2.0 is legal because it’s based on lending. But he’s actually talking about a pseudo-rental scheme, which isn’t legal because of the Record Rental Amendment of 1984. It tacked the following onto Section 109 of the copyright code (the part dealing with the “first sale doctrine”):

“Unless authorized by the owners of copyright in the sound recording… and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord … may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord … by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.”

You ever wonder why we don’t have a music version of Blockbuster? This is it.  I think the words “indirect commercial advantage” pretty much kill Snapster 2.0.

(Note: post updated to correct name of 1984 act - had it as Sound Recording Amendments Act)

Filed by Derek Slater at 3:45 am under Big Ideas
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Ernest Miller (of Lawmeme) and Fred von Lohmann (of EFF) have joined the fun on pho. I’m reposting their messages here - they’re really insightful.

In discussions like these, I quickly realize my limits. I can’t immediately and conclusively say anything on the technicalities they bring up - I’m not a statistics whiz, so I can’t say for sure that sampling or censuses or audits will fix everything. For instance, I don’t know if Aaron Swartz’s recent point about power laws is right or wrong or can be compensated for in some way. Hopefully, I’ll be able to do some research on it later. Perhaps Professor Fisher will incorporate some commentary on these issues into his next draft.

For now, I can just enjoy their insights and try to think them out, slowly. I’m most interested in getting the proposal on the table, so that we can start trying to figure these problems out. There is no Answer, but I think we can get a lot closer. This open dialogue is, I hope, part of that process.

I will try to continually update this. If someone would like their comments taken down, I will do so - I’ve posted everyone’s comments so far.

Update: Plenty to digest here. I have updated the post to include more of the messages. I included most every email, although I did leave out some that reiterated points already made by others, or strayed from the basic topics. If you are reading or writing on pho and think I missed something, please write to me.

Filed by Derek Slater at 6:31 pm under Big Ideas
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Professor Lessig has a great post about a C+D MP3.com recently sent to Creative Commons.  Michael Robertson is still innovating, we can still fondly remember the old MP3.com - too bad it’s all gone.

Filed by Derek Slater at 3:22 pm under General news
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As noted before, there’s been a bit more discussion about Professor Fisher’s plan. Mikael asked this question, off the privacy topic:

“If I take a copyrighted work, remove the watermark and then redistribute it (i e as unmarked data) - what happens according to Professor Fisher?”

I responded:

“Just like ballot-stuffing, I’d assume there would be penalties. The key is
that, unlike with watermarks like SDMI’s, there’s no strong motivation to
strip them out. (Note: Fisher’s proposal now uses a simple registration code, rather than a true watermark, but the practical difference is irrelevant.)”

Mary Hodder from bIPlog then wrote to pho:

“Actually, as far as motivation for stripping out watermarks or flags from
content, I would think that many different people would have incentives to strip and leave blank, or strip and replace watermarks, because they would want to help or hurt particular musicians or creators, companies, or maybe all those who are represented by the RIAA or MPAA verses those who are not.  I’m sure there are many lesser motivations that we could go on and on about.  The point is, there will be people who try and so any system will have to try to minimize this.

“The other problem with watermarks is, as far as I know, there are none
that can’t be gamed right now, and so while there are people working on
this, a system that relies on watermarks or some other way of making
a count of content flowing through routers isn’t yet feasible. And
the motivation to game the system is a primary concern, at least with the
researchers I’ve talked with about making some kind of reliable, secure watermark system for counting content.”

I then responded:

Mary,

That’s a fine criticism, so let me explain what I mean a bit more.

The reason why I say there’s no strong motivation is that this sort of watermarking does not restrict use in anyway. It is most certainly a watermark in the DRM sense. So, the typical assumption that all watermarks are bad falls away.

I think the urge to game the system as you suggest is a bit weaker. It’s not that people aren’t motivated in those ways - it’s just that there’s probably less motivation to actually do something about it. DeCSS at least had some practical, tangible value to creators and users. People screwing over the RIAA/MPAA by altering the marks would just get a laugh.

At the same time, I concede that replacing the watermarks for personal financial gain is a bit more likely.  But I wonder how much one could gain financially by changing the watermarks. If one changes too few, then it is unlikely a substantial amount of people will download the song. If one changes too many, it is far more likely that s/he will be caught.

In any case, there are various ways to make it less likely, bringing it to tolerable levels.  I’m not quite sure why Professor Fisher has switched to only requiring a reg number in the actual filename. To make the system a little harder to game, a watermarking system would be superior. Yes, people could crack it - but the key is to make it hard for the average user to do so.  Even using ID3 tags or some form of metadata would be superior (and far less inexpensive than watermarks).

In addition, I wonder if a certain degree of cross-checking could be done. If the tag does not match the file, song, or artist names repeatedly, then those downloads would not be counted.

Such cross-checking would be particularly useful if the registration index were made available to digital media services.  Say someone searches for song X or clicks to download song X after searching for artist Y. The system could alert the user if the watermark does not match the song or if the search found similar songs with multiple registration codes, and then ask how s/he wishes to proceed anyway.

Of course, there are often multiple song titles and this would not work for all systems. But, perhaps it could keep misuse down to reasonable levels.

Filed by Derek Slater at 1:31 am under General news
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