A Copyfighter’s Musings

See here.

Not a whole lot of change. Just two additional exemptions: obsolete formats for computer programs and video games (a narrow version of the Internet Archive’s proposal) and lack of e-books for the disabled.  Also, the censorware and damaged “dongle” exemptions have been narrowed a little.

Ernest has got the linkage going. I hope to write some longer analysis later, too, but for now I don’t think I can get through all the docs. Here are my notes as I read the short version and a quick skim of the longer recommendation (198 pages!!!) - I will read them both more closely later:

“These commenters [proposing an exemption for public domain works] have overlooked that if a work that is entirely in the public domain is protected by an access control measure, the prohibition on circumvention will not be applicable. Therefore, no exemption is needed.”  The good news: nice clarification about public domain works. I had always thought this was obvious given the language of the statute, but many have asked for clarification just in case. The bad news: this doesn’t affect public domain works bundled with copyrighted works. The weird news: The commenters didn’t “overlook” how public domain works aren’t protected. The EFF specifically advocated that position - they just wanted clarification.

The Register rejects an exemption for obsolete or damaged audiovisual works because “the proponents have not made the case with respect to fragility of DVDs, nor have they shown that the making of backup copies of DVDs is a noninfringing use.” Sigh on both accounts. What more do we have to prove about DVD rot? And now courts and legislators can cite to this for the proposition that backups are infringing, even though the contrary has been asserted.

After the accepted exemptions, the Register’s first positive response to a comment is to Ernest’s. While the Register agrees that quotation is important, it sides with Reimerdes in stating that all he’s asking for is mere convenience.  Shockingly, the Register urges people to use the analog hole and redigitization to make their fair use. Nevermind Macrovision for the moment - can you believe the Register actually advocated creating unencrypted copies using the analog hole?  The Register also completely dodged Ernest’s argument about CSS not being an access control.

The Register totally rejects arguments about region coding.  Though even DVD-CCA and MPAA weren’t clear about whether multiregion players are circumvention devices, the Register asserted that they are in footnote 213 of the longer recommendation.

The Register also does not agree that “space-shifting” is necessarily a non-infringing uses and thus works “tethered” to certain devices do not require an exemption.  The Register also concludes that allowing the creation of a Linux-based DVD player will lead to increased piracy.  Apparently, if people need a DVD player, they just shouldn’t use Linux. We can all say goodbye to interop.

What’s really bizarre is that the Register says, “The purpose of tethering is to limit subsequent redistribution.” If that’s the case, then that sounds more like a copy-control, not an access control. The point of an access control tethering has more to do with limiting what devices you can use to play/access the copy, not whether you can copy and redistribute its contents.

There’s an interesting if confusing discussion of copy controls on CDs that sometimes act like access controls becaues of malfunctions - see the EFF’s comment.  First, the Register agrees that the copy-protection in these CDs is not an access control - that means you can circumvent some copy-protected CDs.  However, in cases that do not involve malfunction, like dual session CDs as merged access and copy controls, the Register didn’t find sufficient harmful effects.

The Register states that webcaster’s don’t need an exemption because they already have one in 17 USC 112(e)(8).  Webcasters didn’t want to have to ask for non-encrypted versions first, and the Register balked.

Really interesting note on the Lexmark v. Static Control case. The Register says, “The Register concludes that an existing exemption in section 1201(f)addresses the concerns of remanufacturers, making an exemption under section 1201(a)(1)(D) unnecessary.” Because there’s already an exemption, the Register won’t go any further and will simply let the courts sort it out.  The Register used similar reasoning when refusing to grant further exemptions for security testing and encryption research.

Later on, “It would also appear that to the extent that such a file format is unreadable, and to the extent that the file format is the product of a “computer program,” one may be able to utilize the reverse engineering exemption in §1201(f) in order to access the information for which one has lawful access.” Here, we end up with some really weird definitional problems because of the way “computer program” is defined. They seem to be talking about the sort of data to program interop that I had read was prohibited. Apparently, file formats could be a program, which you might even be able to use to gain interop with a file format, but it doesn’t include the files on a DVD for some reason.

See page 44 and footnote 74 for more definitions about access controls - quite expansive.

Filed by Derek Slater at 4:21 pm under Big Ideas
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Awhile ago, I suggested that (among many other reasons) mandating the broadcast flag would be unwise because spectrum policy is currently in flux.  Any tech mandate based on incumbent broadcasters’ wishes will necessarily ignore the broadcasters of the future.

It occurred to me that the FCC’s ownership rule making also provides a significant argument against the flag.  Chairman Powell repeatedly asserted that over the air televsion is merely one small part in a large, competitive media market.  It has to compete with print, radio, and the Internet.  Well, if it’s such an insignificant industry, then why should it get to determine policies for the entire tech industry? I’m not necessarily saying that I agree with the ownership rule changes; rather, I’m saying that the FCC has already stated that broadcast TV shouldn’t be treated specially.

Filed by Derek Slater at 11:33 am under General news
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I keep reading about one (latest here, but do a Google search and you’ll find many more).  Does anyone know where I can find it?

Filed by Derek Slater at 11:08 am under General news
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Update: Even Eeyore’s writing to Swarthmore, so I figured I should get in gear and do so too (after all, if an Eeyore feels he can make a difference, then anyone can).  Here’s my letter.  And here’s a link to the Diebold docs at my Harvard account.

I hope you’ve been following the Diebold story - Techlawadvisor has a nice array of links.

What is most frustrating for me is that Swarthmore should know better. I’m not just saying that because the law and the media are on their side. Sure, they’re in a good strategic position.  But they’re also an elite academic institution and should know, strategy or no strategy, that this is a stand that needs to be taken. This matter cuts to the core of the university’s mission: to encourage and provide a haven for serious debate and scholarship about important issues. How can a copyright C+D make them forget all other academic principles?

Swarthmore’s actions, I think, are part of a larger trend. Copyright’s dominance of Internet and technology issues is now bleeding into the university, from Penn State to Swarthmore to Wyoming to Harvard and many more.  Copyright holders have colleges running scared. Are we willing to let serious academic issues be determined in this simplistic way?

I’ve noted in the past that some colleges, though feeling overwhelmed, have reacted with moderately good policy solutions without sacrificing academic freedoms, fair use, and the university’s independence. There have been some bright spots. But on the whole, it hasn’t been pretty.

Ever since my frustration with Harvard’s silly new repeat offender policy, I’ve started to think that someone needs to write a best policies manual for universities specifically. Universities need to be reminded what’s at stake and instructed on how they can accomodate the law without crippling academic freedom.  Such a manual would make very clear what the law actually says so that universities like Harvard and Swarthmore do not unnecessarily go beyond it to avoid liability.  The EFF has something similar to what I’m thinking of; also, Fred von Lohmann outlined some ideas here, and I noted others here. I’d like to see something even more comprehensive - if one already exists, please tell me - if one doesn’t, I’d love to help someone write it.

While nothing requires Swarthmore to stick up for their students in this case, I am saddened that they haven’t.  Hopefully, other universities will learn from Swartmore’s mistakes.

Filed by Derek Slater at 8:55 pm under General news
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So the rumor is that Jack Valenti will be stepping down and Rep. Billy Tauzin will be taking his place.  Kevin Werbach asserts that this is will help centrists in the copyfight.

I might be wrong, but it seems that over the last two years Valenti’s aloofness has actually started to hurt the MPAA.  All Valenti has right now is his moral rhetoric, and he’s had to make it more and more extreme over the years, because he doesn’t have any hard evidence to back up his argument. At some point, the extremism is no longer “downright reasonable.”

While some Congressmen will listen to and speak Valenti’s language, it hasn’t gotten a lot done.  I see Congress responding to the RIAA’s statistics and their supposed business problems; bills are springing up specifically to address them. What has the MPAA gotten done? The Hollings proposal and the broadcast flag.  The former is the exemplification of Valenti’s extreme stance and thus had no traction.  The latter is actually an example of Valenti and the MPAA situated within the “political fray.” He’s getting it done because he has the right connections in Congress (Tauzin and Hollings) so as to get the FCC. He’s acting just like a political “street fighter,” slipping the proposal in through the backdoor because even Congress knew it was unreasonable.

Filed by Derek Slater at 5:39 pm under General news
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SethS hits the nail on the head re: interop with DRM.  In response, to Microsoft employee Dave Fester’s criticizing Apple’s AAC/Fairplay and suggesting they use WMA, Seth writes:

“Interoperability isn’t a popularity contest. It’s about the answer to this question: What does a prospective implementer have to do in order to make the implementation work? ‘Read the public specification’ is the right answer. Answers involving signing contracts and paying money are the wrong answer. Microsoft and Apple both have media formats with the fatal defect of an attempt to require contractual privity with implementers. (In the free world, that attempt will fail, but that’s little comfort to us in the United States.) Here Fester is suggesting that Microsoft’s media format is obviously preferable because more implementers have signed Microsoft’s license than Apple’s.”

As discussed earlier, even if all the major market players (RIAA, music services, and device manufacturers) used WMA, that still wouldn’t make it a good format. Remember, the ensuing format lock-in is backed up by the DMCA - without it, you could circumvent and reverse engineer for interop.

Filed by Derek Slater at 3:55 pm under General news
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The broadcast flag is well-covered here. I’ve got nothing more to add, except for the fact that I can’t believe we’re actually moving towards this sort of tech mandate.  Earlier this year, I thought organizations like this were going to step up and help the public interest groups in this regard.  Guess not.

In any case, I want to point out that the DMCA Rulemaking is right around the corner too - it should come out next week.  We’re probably screwed on many of the issues, but I have some hope that Static Control and the Internet Archive, among a few others, might get their exemptions.  Let’s hope.

[added:] To refresh your memory, read the Notice of Inquiry (via SethF, who argued for the censorware exemption), as well as the record from the 2000 rulemaking, specifically the final ruling.

Filed by Derek Slater at 12:12 pm under General news
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Frank’ll love this article (via Kevin Doran on pho) about Penn State’s new download service. It doesn’t make me feel any better than I did before. 

“Vaught said the program will not be free for the university, but it will be provided to the students at no additional cost. ‘The university bulk buys newspapers and then provides them to students, at no additional charge,” he said. “It’s the same as the movies in the HUB; they are being paid for, but not by students.’”

The money comes from somewhere.  If students aren’t paying for it through increased tuition, then some other service is losing money to fund this program.  Nice to see that the university is already trying to hide the costs.

“Mahon said illegally downloading music is a big issue and is causing traditional music stores to close their doors, but it also has an effect on students here at Penn State. The university wants the work of students who write plays and produce television shows to be protected, he said. ‘[The students] have a lot at stake with copyright,’ Mahon said.”

They’re doing all this to protect students’ copyrights! That’s why the service covers RIAA music only (maybe some indie labels, too, but still a limited selection of music and copyrighted works in general).  Yet again, someone has narrowed the public interest in copyright (in this case, framed in terms of the students’) into nothing more than the private interest in compensation.  But that private interest is really just a proxy for part of the public interest: balancing incentivizing production of new works with the societal benefits of unimpaired use (see here).  The students’ stake in copyright is broader than protection of works, whether theirs or others.

“Spanier said the university wants to put a legal file-sharing system in place before any students get in trouble with the law.”

But this program doesn’t allow sharing. It allows streaming from a central server and use of songs on portable devices - it doesn’t even allow you to burn CDs.  But that’s enough, right?

“Although he will not be able to burn CDs, [student Evan] Schoss said, ‘It’s good to just have an MP3 collection.’”

But you won’t have an MP3 collection. You don’t get to download songs, and you only get access as long as you’re connected to the network - once you leave for the summer, it’s back to KaZaA, Evan.  You don’t even get MP3s - you get WMA or AAC-M4P or some other DRMed format.

“The Associated Press and Claudia Vargas contributed to this report.”

If this were just a student journalist, then I could understand why they wouldn’t question anything or get any contrary opinions. But the AP? They didn’t even bother to get their facts right: “The program will not allow anonymous downloads such as those on Kazaa.” Ask the 261 about anonymity on KaZaA, please.

Echoing Frank’s comments about this seeming like MS’ ignoring student software piracy, Kevin Doran asserted on pho: “Aside from the easy and well-deserved ‘too little, too late’ analysis and an unlikelihood of impacting P2P use, my prime gripe here is that an RIAA streaming jukebox is aimed at displacing the college radio experience - and wiping out exposure to and competition from the indy label artists who are their historical stock in trade.  Added to the transparent effort to gain early-demographic market share from a captive audience lacking choice in vendor selection, I see nothing laudable about this wolf in sheep’s clothing that foists a closed, major label mandate onto what should be a free-market dynamic.”

Filed by Derek Slater at 10:14 pm under General news
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Deirdre Mulligan and Aaron Burstein of Berkeley’s Samuelson Clinic and John Han of SIMS have released, “How DRM-based Content Delivery Systems Disrupt Expectations of ‘Personal Use’”, in which they test and evaluate the DRM of various music services. If you haven’t read Mulligan and Burstein’s previous papers on DRM, see the links in this post.

The new paper notes that iTunes prevents ripped songs from being reburned to CD. I had never heard of this before, so I decided to test if it were true for the Windows version. In my tests using iTunes to do the initial burning, MusicMatch to do the ripping, and Easy CD Creator to do the reburning, I was able to create fully functional, DRM-free MP3s. I also successfully captured audio as it was outputted to the soundcard using TotalRecorder.

Filed by Derek Slater at 12:29 am under General news
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Update: Follow the discussion in the comments section - good points, and some clarification from me.

Read the editorial here. Then, check out Apple’s MPEG-4 page to see what a contradiction the AAC/Fairplay combo is.  Key quote: “No longer will content providers need to encode, host, and store media in multiple formats. Instead, a single format can reach a broad audience equipped with playback devices from not one, but a multitude of companies across a wide array of platforms.”

Where’s the multitude of devices for iTunes songs?  What’s the good of an open standard if everyone creates their own proprietary substandard?

In a sense, are the players - Apple, Microsoft together with the other music stores - acting like we’re at the “early adopter” phase? They’re laying the foundations by trying to win a standards battle. Apple is trying to win through restrictions and tie-ins to the iPod; the iPod is not affordable for most people, but that usually wouldn’t matter to early adopters, because they are generally more wealthy. And so long as the music industry is forcing them to use DRM, Apple might as well take advantage of it.

The thing is, MP3 and P2P have in a sense already pushed us past that early adopter phase. People have already chosen a format. Apple has to not only beat WMA, but also MP3.

So, I think the move is risky if Apple hopes to reach a wide audience. Short-term, it might work. But long term, I’m not so sure if consumers will put up with this format lock-in.  Any model that tries to make the digital world look like the analog world in this way is regressive, and, eventually, regressive models should die out in favor of progressive ones.

Perhaps Apple isn’t really seeking a wide-audience. Maybe they just want to get slightly past the 3-4 percent of the computer market they already control.  In that case, making people who buy from the iTunes Store also use expensive Apple hardware might be just fine, because all they need to capture are the wealthiest buyers.  In that case, iTunes itself is really just a blip on the digital music radar - it won’t be a significant music store.

Filed by Derek Slater at 11:35 am under Big Ideas
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Read this - I can verify that the bug they speak of is absolutely real. My computer hangs even when booting in safe mode. The only way to get my computer running again is to revert to a previous hardware configuration.

That means iTunes doesn’t recognize that I have the necessary CD burning drivers. I can’t find (and I don’t think there is) a program aside from iTunes that can burn my purchased AAC encoded .m4p file.  Because of the DRM, there’s no way for me to convert the files. So I have an unburnable file. Update: Fixed this by reading through Apple’s discussion forum and uninstalling DirectCD. Apple has yet to fix the bug.

Also, for some reason, when I play any song - mp3 or m4p - in iTunes, it comes out all garbled.  I’ve been trying to find a different program to test the songs, but I can’t find any program that plays m4p, which is one of four AAC file formats. Update: I fixed, at least temporarily, that part by messing around with some sound output options.  I wish I could just use Winamp.

Sometimes, I have questioned my own fears about DRM because most users won’t notice most restrictions (although, I’d say that’s a problem it itself).  Maybe I’m just hypersensitive to these issues, I think to myself. When Apple iTunes first came out, I was optimistic that we would see real progress with DRM. After this experience, I realize how far off we still are.

Filed by Derek Slater at 4:00 pm under General news
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About a year and a half ago, I celebrated that the broadcast flag had no movement in Congress. One week later, they slipped it on over to the FCC. Since then, I have been optimistic that the popular opposition would be enough for the even the FCC to see that this wasn’t something worth getting involved in. Seeing Senator Brownback and others oppose this sort of copyright regulation made me hopeful that the tide is turning.

Sadly, it’s not - at least, that’s what the feeling from the FCC is.  We might see a tech mandate here, crippling innovation, fair use, open source, and the future of digital television.

Please, go to the EFF Action Center and help burn the broadcast flag down to the ground.

I hope to write more about this later in the week. Many people have beat me to the punch - for more info, please see:

Donna, one and two; Frank; Ernest.

Once again, I ask: how can we avoid this in the future?  How do we make Congress listen to the technologists?  Why are we letting the FCC make this decision?  How do we make the public interest heard in the legislative arena?

Filed by Derek Slater at 3:16 pm under Big Ideas
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In a prior post, I talked about some of the features of new digital music services that are making much closer to ideal. A couple things I didn’t talk about that have been coming up in my head recently:

1.  Prices - as this article points out, the a la carte services could go lower if the record industry would take a smaller cut.  A la carte services have really tough constraints in part because of credit card charges, so it’s going to be up to the record companies to decide how low to go. Subscription services also could go lower, particularly with their CD burning prices.

I don’t know exactly how low these prices can go, but, if the Jupiter Research report cited in that Business Week article is correct, then the services are going to have to try to go lower.

2.  DRM as usage restraint - this one’s fairly obvious.  I am still not sure how necessary DRM is, particularly to the a la carte services.  You can get those songs out onto P2P via the analog hole or by recording the sound as it’s outputted to your soundcard, and those songs are probably on the P2P networks anyway from people who buy the CDs. So why annoy the customers?  What is Apple really gaining from the DRM?

3.  DRM and interop problems - as I said the other day, I think this is a big problem. Dave Haxton pointed out that iTunes Music Store is mainly a way to sell iPods, and that’s why using AAC/Fairplay and iPods’ not playing WMA is fine with Apple. For me, I have no interest in being locked into a given music store and portable player because of file formats. (I haven’t jumped on the iPod bandwagon yet. For now, MP3-CD players fit my budget much better.) Though many players support WMA, I don’t even like that lock-in. 

I want selection and flexibility in my format.  What happens when a better standard comes out? And what happens if I want to switch operating systems?  How will I convert my files?  On pho, Stephen Hill compared having to switch between formats to having to move from LP to CD.  If bits are bits, there’s no reason why a new file format should force me to rebuy my entire song collection.

This doesn’t mean that everyone needs to use one type of DRM, but we do need some way of guaranteeing interoperability.

Filed by Derek Slater at 2:44 pm under General news
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PR here; News.com article here; much more at Apple’s site.

The lowdown: same usage rights, still using AAC/Fairplay, bigger catalog including indy labels, tie-ins to AOL’s service, free iTunes jukebox software for Windows that is compatible with the iPod, audiobooks offerings, a new kids account, more exclusive content. Only works for Win XP and 2k.

Quick takes: As much as I hate the growing hegemony of WMA in music services, using AAC and FairPlay might not be a great move for Apple at this point because they’re not well supported. You can only use your AAC/Fairplay files on an iPod, and iPods can’t play WMA files that you download from any of the services. Who wants to put up with those compatibilty issues? How can Apple proclaim proudly, “And iPod is the only portable digital music player that supports the AAC format used by the iTunes Music Store for Mac and Windows.” That’s a bug, not a feature.

Also, what’s with this tie-in to AOL? How will that affect AOL’s MusicNet?

Filed by Derek Slater at 5:40 pm under Big Ideas
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As you may have read, SunnComm’s Peter Jacobs continues to talk about Alex Haldermann as a law-breaking thief. The absurdities of his “property talk” are dealt with well here, so I’ll leave some that aside.  I want to talk a little bit about where he’s coming from on licensing and MediaMax as “empowerment,” and then touch on Hiawatha Bray’s silly column. 

Jacobs states that, with Medimax, “honest people, may, for the first time, enjoy the pleasurable experience of legal and licensed copying and sharing of their music” (emphasis added).  Using both words means, I presume, that he knows there’s a difference. Otherwise, using just one term would have been adequate.  That means he knows that somethings - like fair use and private performances - can be legal and unlicensed.

Jacobs also states that, “MediaMax was designed to put a structure on the CD, itself, that empowers consumers to make licensed, legal and yes, limited copies of the music.” I get the sense from Jacobs that he sees licenses as inherently enabling and law as a constraint: the law says you can’t copy, while the license says you can.  At best, his intentions are to eliminate all legal uncertainty for potentially legal fair users.

But law isn’t just a constraint. It’s an enabler, too. It creates copyright holders’ limited set of rights as well as the exceptions to them.  You could think of it as very much like a license in that it’s a bargain, worked out in Congress, between creators and the public.

Many people think that bargain is just fine. They don’t need your license, Mr. Jacobs.  They already have one and it’s called the copyright law. And that doesn’t make them thieves or hackers by definition. If you want to have a discussion about whether ripping the CD is a legal use, fine, let’s get out the caselaw and the statutes.  But that’s a discussion separate from determining whether an unlicensed use can be a legal use - the answer to that is unequivocally yes.

Now perhaps Jacobs, like Harold Bowers and several judges on the Federal Circuit, thinks that his license should always be able to supercede copyright. I disagree, but let’s not go there for now. This issue wouldn’t really apply to ripping the CD anyway, but it would apply to the DRMed files.

When SunnComm asked Haldermann to sign a license to use the DRM, he didn’t sign it, and he didn’t use that part of the CD, because the license was fundamentally disempowering: “You will not reverse engineer, decompile, disassemble or otherwise tamper with or modify the Digital Content.” [Footnote: The DMCA might also make such actions illegal, but Haldermann could fit into an exception here.]

When Haldermann is presented with that click-wrap license, where is the “empowerment”? And is it empowering for Haldermann to even be forced to make that decision - to use with the license or not use at all -  and not have the baseline of copyright to rely on?

Finally, if Jacobs told you that this license was empowering, wouldn’t you call that “deceptive”? If he said the license would and should give you those rights, and it didn’t, would you call it “flawed”?

Yes you would, Hiawatha Bray.  Just as you would call “deceptive” Sunncomm’s boasting about its insecure and thus “irreparably flawed” DRM. Nobody says iTunes’ DRM is “irreparably flawed” because Apple never said that it would close the analog hole, and they never called ripping your CD a circumvention or a hack. SunnComm did purport to stop people from ripping their CDs. It doesn’t do that. That’s the difference.

Filed by Derek Slater at 8:24 pm under General news
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