Today, Universal Music Group sued Grouper and Bolt.com for hosting copyrighted music videos uploaded by individual users. According to Reuters, Universal “made clear that … [it] retain[ed] the right to add” to the lawsuit Sony Pictures, which recently bought Grouper.

And thus the record industry lawsuits roll on, even as they cut deals with YouTube. To learn more about the protections that copyright law might offer these video sharing sites, check out this recent article by EFF’s Fred von Lohmann.

(Cross-posted at Deep Links)

In a Reuters article published yesterday, Yahoo Music general manager David Goldberg offers this choice quote:

“The notion that a track I buy in DRM is protected and one without DRM isn’t is a fallacy…. It’s all nonsense. Music is never going to be protected, and anybody who tells you that is not being honest…. [Y]ou’re just making it hard for people who want to do the right thing to get the music they legitimately purchased on the devices and services that they want.”

Nicely put, and this isn’t the first time Yahoo Music’s sharply criticized DRM and openly expressed its desire to sell major label music in unencrypted formats. When will the major labels come around?

(Cross-posted at DeepLinks)

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.

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)

In response to the RIAA’s irrational lawsuit campaign against the tens of millions of American P2P users, EFF set up a petition asking Congress to stop the madness and support ways for artists to get paid without fans getting sued. We’re now close to our goal of 100,000 signatures, and, with your help, we hope to surpass it by a longshot and deliver the petition to Congress.

After over 18,000 lawsuits and counting, file sharing has continued to increase rapidly. Meanwhile, music fans, like 12 year-old Brittany LaHara, college student Cassi Hunt, and parent of five Cecilia Gonzalez, are being forced to pay thousands of dollars they do not have to settle RIAA-member lawsuits, and many other innocent individuals are being caught in the crossfire.

But resistance to this shameful crusade is growing. Just this week, many top Canadian musical artists, including Barenaked Ladies and Avril Lavigne, called the lawsuits “destructive and hypocritical,” and a court threw out a lawsuit against 14 year-old Brittany Chan.

It’s time for Congress to join the chorus of opposition and stop kowtowing to the content cartel. Sign the petition, and donate to EFF to support a better way forward.

(Cross posted at Deep Links)

Tim Lee, who continues to be on a roll over at TLF, writes about how Hollywood’s new Moviebeam service will force consumers to throw out their current, perfectly HD capable devices and buy restricted ones.  Meanwhile, Ed Felten has started a series of posts on the culprit: HDCP (and HDMI).

See also my recent post, “This Is how Hollywood Thanks its Best Customers.”

See this report
from Gartner researchers Martin Reynolds and Mike McGuire.  Just
another level of bizarre stupidity in this mess. Reynolds and McGuire
sum it up nicely:

If you’re not already sick of my voice, here’s a second podcast,
a
revised version of what I presented at the conference.  It’s not
totally fleshed out, but it’s got the main points.  A video
was taken of the conference, so maybe you’ll get a chance later to see
what I actually said.  Perhaps I’ll be able to type this up in
a more succinct format later, but for now I had to just talk it out.

For more analysis, see Content and Control, the paper on which some of my presentation was based.

Via PaidContent comes the Association of American Publishers’ PR.  More from News.com. 

At first glance, I don’t get what this “ISBN solution” is, or,
rather, how it differs from the general request for Google to ask permission before
scanning anything – why is ISBN relevant, beyond the fact that it
allows people to connect a publisher with a book published after 1967?

Inducement lawsuits, coming to a P2P provider near you!

Cary Sherman expressed optimism at FMC that converting the existing systems to
licensed, filtered networks will be important, but I’m not so
sure.  Why won’t we see the same behavior that we saw after
Napster started filtering, with users flocking to unfiltered
networks?  Only if the converted services – whether they use
Snocap or some other technology – are truly attractive from the
consumer perspective will behavior be any different this time around.

Only have a few minutes here before I head out, but wanted to talk out some of my notes before I forget the day’s takeways.  In the process, figured I’d try out podcasting.

FMC Podcast, #1

James DeLong’s recent comment on this article from Glenn Reynolds raises an intriguing question for me: where do groups like PFF and others who are normally at loggerheads with the EFF stand on proposed revisions to Section 115?

Let
me back up a step.  Reynolds laments the difficulties in licensing
podcasting.  One of the key problems is that podcasters not only
need licenses from holders of the recording copyright (typically record
labels), but also from holders of the composition copyright. 
What’s more, for a single use of a composition, podcasters are being
asked to pay twice – once to those who license performances (PROs),
once for those who grant mechanical licenses (Harry Fox Agency). 
Those organizations represent the same artist, but are effectively
competing with each other for licenses.

This problem doesn’t just affect podcasters.  As Register of Copyright Marybeth Peters explains, problems licensing compositions have held back all online digital music services.  In fact, basically everyone
in the music industry agrees that some change must be made to licensing
compositions and, more specifically, mechanical licensing, though they
haven’t been able to agree on the particulars.

Fred von Lohmann also applauded Peters’ reform proposal.  As he explains:

Perhaps most importantly, these MROs
would have the power to grant blanket licenses to individual P2P
file-sharers, just as envisioned in EFF’s white paper, A Better Way Forward.

This is an important step in the right
direction, creating the prerequisites for a real, market-based solution
to the P2P dilemma.”

And that brings us back to James DeLong and PFF. They continuously
beat the drum of market-based solutions.  They must recognize that carefully structuring and allocating rights can be crucial to achieving efficiency,
just as Peters appears to.  DeLong urges laws in this context that
would reduce transaction costs and ease licensing of novel digital
music services, without incorporating “compulsory licenses and
price-fixing.”  Peters’ proposal is precisely that sort of
proposal; it even eliminates the Section 115 compulsory.

Thus we might have found at least some elusive middle ground. 
At least I hope we have.  If I’m wrong and this proposal (or other
similar proposals) isn’t something PFF could get behind, then I’d love
to know why.  Hopefully, they will allow an exception to the Everything Fred is False (EFF) axiom, which states that the right answer is opposed to whatever Fred von Lohmann avers.

(For what it’s worth: in the post Patrick Ross cites,
Fred doesn’t say that rights holders should simply “throw up their
hands” in the face of the Darknet.  Instead, he lays out the
options we have given that the DMCA is and will be entirely
inefficacious in preventing widespread infringing distribution of
copyrighted works online.  Some options do involve heightened
enforcement of various kinds.  Fred suggests voluntary “collective licensing”,
which is, of course, what Register Peters is also supporting.  At
no point does Fred demand that we “junk the current copyright system”
in favor of compulsory licensing.  In fact, EFF’s white paper
specifically says, “Government involvement [through compulsory
licensing], however, should be a last resort.”)

You can see me in the background of this shot taken by The Economist on July 30, 2001. On that day, over 150 protestors, organized by the EFF, gathered in San Francisco to free Dmitry Sklyarov, who the government had imprisoned for allegedly violating the DMCA.

That’s when I became a copyfighter.

When I read about Dmitry and saw this picture of him and his family, I had a gut level reaction—instinctively, his imprisonment was insanely wrong. I didn’t think twice about joining the protest.

There are many issues to be concerned about in this world, but I don’t generally have that kind of automatic response; I was not an eighteen year old causehead. Why did this issue strike such a chord then, and why does it continue to captivate me today?

My brother and mother played Space Quest with me and taught me a little BASIC. I was raised on BBSes, Mosaic, IRC, and the like. The Internet provided a technological playground and most importantly a revolutionary means to interact and connect with others. As I was uprooted from California to New Zealand and New York, I formed meaningful relationships online. I fondly remember visiting my rotisserie sports league-mates at the Department of Education in DC. Those leagues also spurred me to start writing and publishing and inspires my own dorky version of remix culture [WMV] today.
My interest in digital media grew beyond the sheer excitement and profound cool factor I felt when I got a Rio PMP 300 for my sixteenth birthday. My concern with copyright developed over the next two years as I tried to puzzle out MP3s, Napster, Gnutella, and the DeCSS case in articles for my school newspaper.

Increasingly, copyright directly impacted ordinary people, and putting Dmitry’s face on the damage being done made this even clearer. What’s more, Dmitry’s imprisonment demonstrated that you cannot simply hide in a cyberutopian dream. You are in meatspace, so are agents of control, and they can put you in a real prison. Another e-petition wouldn’t stop those constraining our cyberfreedoms. The copyfight has to happen outside, in the streets.

My amazement seeing everyone there who shared these concerns has stuck with me—a crowd gathered just to fight against an obscure copyright law. I felt empowered and like I belonged.

And so the following summer I interned at the EFF. On the wall above my desk happened to be a shot like this one, a reminder of that inspirational moment.

Happy birthday, EFF.

(This post is part of EFF’s 15th Anniversary Blog-a-thon. Want to read other posts or submit one of your own and have a chance to win an EFF Blog-a-thon award? Find out how here.)
[Technorati tag: EFF15]

So says Jim DeLong.

Someone better tell the artists represented by collective rights
organizations ASCAP, BMI, and SESAC.  Do they have any idea how they’re being oppressed?

Artists must rise up and stop Marybeth Peters, whose proposed reform “effectively substitutes
a collective licensing structure for the existing Section 115 compulsory
license.”

Perhaps Delong was only referring to compulsory licenses or
“Alternative Compensation Systems.”  I guess I missed the part in
Professor Fisher’s book where people are worked to death in prison camps.

Come on, guys – do we really want to throw around terms like gulag?  Haven’t we just been over this?

In a related situation, Glenn Otis Brown pointedly framed what’s distasteful about casually using such loaded terms: