A Programming Note

For those still tuning in, writing is likely to stay sporadic for a bit as I’m changing jobs. I’m starting a new gig as a Policy Analyst on Google’s public policy team, which means you may see me here from time to time. Google is at the center of the storm when it comes to essentially every Internet policy issue, including digital copyright, and I’m incredibly stoked about jumping into the fray, not being evil, and doing some good.

Of course, it goes without saying that I’m going to really miss working at EFF with my copyfighting and freedom-defending colleagues. I have been so lucky to work with and learn from such an amazing, talented, and devoted group of people. It has been, quite literally, a dream come true.

So you won’t see my EFF cross-posts here any more, but please do keep hitting up DeepLinks and the Action Center for the latest in the fight for your digital rights.

iTunes Ringtones: Making You Pay Again For Music You Already Own

Tired of paying several dollars to buy ringtone versions of music you already own? When it comes to songs ripped from your CD collection or downloaded MP3s, widely-available software tools allow you to roll your own ringtones instead and put them on a variety of phones.

But what the world of unencrypted music giveth, DRM-locked media taketh away. DRM allows media vendors to restrict your fair use rights so that they can be sold back to you piecemeal as “features.”

The latest example: Apple’s announcement that you can now create ringtones of DRM-locked iTunes-purchased music. Apple will only let you convert those tracks to ringtones if you pay another dollar, and, just as you can only move iTunes DRM restricted tracks to the iPod and not other portable players, these ringtones only work on the iPhone. If you’d rather create your own ringtone using a tool like iToner, too bad — the DRM won’t let you, and circumventing the lock could violate the Digital Millennium Copyright Act (DMCA).

Imagine if this is how the CD world had worked. Your investment in CDs has paid all kinds of dividends over time because third parties could freely enable novel personal uses, like ripping MP3s and moving them to a portable player of your choice. Innovators didn’t need to beg copyright holders’ or record stores’ permission first in order to help you get more from your music collection.

DRM can take away that freedom and the innovation it enables, as rights holders and vendors can block new tools outright and make you pay again and again to use music you’ve already purchased. Restricting compatible players and the creation of ringtones is just the tip of the iceberg.

(As we pointed out earlier, Apple is also apparently trying to frustrate turning unencrypted songs into iPhone ringtones using iToner. Will Apple try to use the DMCA to squash this legitimate use as well? Time will tell.)

(Cross-posted at DeepLinks)

Mark Lemley’s One Safe Harbor to Rule Them All

Prof. Lemley works through how we might standardize and unify Internet intermediary safe harbors across the board, from defamation to copyright and beyond. Read his paper here. (Via Eric Goldman)

Pam Samuelson’s Copyright Reform Project

Read about her ambitious plan for a model copyright law here. (via Patry)

Copycrime Bill Raises its Ugly Head, Again

Two months ago, the Justice Department floated draft legislation to expand the scope of, and stiffen the penalties for, criminal copyright infringement, and now a related bill has been introduced in the House. This isn’t the first time that Congress has taken up the DoJ’s copycrime wishlist, and, for all the reasons we listed in a blog post about a proposal offered up last year, H.R. 3155 is an awful idea.

This bill goes even further than the prior bill in that it would ratchet up statutory damages in certain instances. Under copyright law, copyright owners don’t need to prove that they have been harmed in order to get damages and can instead elect to get statutory damages, which a court can set between $750 and $30,000 per work infringed. Such disproportionate penalties can be especially dangerous when it comes to lawsuits against mass-market products like the iPod or TiVo that enable the making of thousands of copies.

H.R. 3155 makes matters worse by allowing a judge to dole out damages for each separate piece of a derivative work or compilation, rather than treating it as one work — for example, copying an entire album could translate into damages for each individual track, even if the copyrights in those tracks aren’t separately registered.

This is particularly unfair because record labels register entire albums as single works principally to strip their artists of reversion rights they would otherwise enjoy if the songs were registered individually. (As some may remember from the 2000 flap over a stealthy RIAA amendment slipped into the Copyright Act, record labels register albums as “compilations” or “collective works” in an effort to characterize them as “works for hire,” which are owned outright from their creation by the labels, and thus can never revert to the artist.)

Let’s hope this bill meets the same fate as last year’s DoJ proposal and is stopped dead in its tracks. Take action now to stop it, and make sure you also support the FAIR USE Act, which would put much-needed limits on statutory damages.

(Cross posted from DeepLinks)

Legislative Shot Across Colleges’ Bow Over P2P

Last week, Sen. Harry Reid proposed and then withdrew dangerous legislation that threatened to make universities do the entertainment industry’s dirty work and use ineffective, burdensome copyright filtering tools on their networks. The Higher Education Reauthorization Act has now passed the Senate without that language. Thanks to everyone who took the time to call their Senators over the last day.

We won this battle in Congress, but we’re not out of the woods yet. Unfortunately, the RIAA’s college lawsuit campaign rages on, and universities remain under intense pressure to bully their students and install network surveillance technologies. While some schools have implemented draconian penalties for file sharing — including one strike and you’re off the network policies — others have gone further and started blocking certain P2P tools. Meanwhile, Congress has recently been scolding and scrutinizing colleges for file sharing on their networks, and more legislation may be in the pipeline.

Indeed, Sen. Reid still did tack on another amendment that instructs schools to tell students about the possible penalties for copyright infringement. This new language is far less worrisome, but it doesn’t move the ball forward in the P2P dilemma either. While students certainly should know the potential personal consequences of file sharing, all the finger wagging in the world isn’t going to stem the tide of “Internet piracy.”

The longer this futile fight against ordinary fans continues, the more universities’ resources will be wasted, the more legitimate uses of the network will inevitably be chilled, and the more money will be left on the table. After all, tougher enforcement isn’t putting a dime in artists’ pockets, but a sensible alternative like blanket licensing would.

Hopefully, last week’s fight in the Senate will be another reason for the university community to push hard towards a better solution that gets the entertainment industry off schools’ backs, ensures that artists are paid, and lets students keep sharing. For more on this topic, read Fred von Lohmann’s Washington Post editorial, “Copyright Silliness on Campus.”

(Cross-posted from DeepLinks)

FCC Should Make ISPs Play Copyright Cop, Says NBC

Not even a week after AT&T announced plans to adopt undefined technical measures to stop “piracy,” NBC-Universal has asked [PDF] the FCC to declare that “broadband service providers have an obligation to use readily available means” (emphasis added) to stop copyright infringement. On the unintentionally funny-and-scary scale of one to ten, this is easily an 11.

The comments were submitted as part of the FCC’s Notice of Inquiry about broadband policy. Most of the debate in this inquiry has focused around imposing “network neutrality” rules and limiting ISPs’ ability to break the Internet as an open platform for innovation by discriminating against particular content and application providers.

Remarkably, NBC’s not just asking for an exception in any neutrality regime to let ISPs block unlawful uses. And it’s not even asking for a loophole that would, for instance, let ISPs block or degrade a disruptive innovator like YouTube that has both unlawful and lawful uses. Instead, NBC is asking for mandatory discrimination.

In turn, NBC is essentially asking for the FCC to make copyright policy. The DMCA safe harbors clearly protect ISPs from liability for copyright infringement engaged in by users, subject to certain narrow limitations and without any obligation to monitor their networks for infringement.

Subverting Congress’ copyright policy would be inappropriate but not unheard of for the FCC. That’s exactly what it did — and what the courts smacked down — in the broadcast flag fight. Let’s hope the FCC simply disregards this outlandish, hail mary request from the content industry.

(Cross-posted at Deep Links)

AT&T to Play Copyright Cop, Sell Out Customers

AT&T has announced plans to sell out its customers.

No, this time we’re not talking about spying on telephone and Internet communications on the government’s behalf. AT&T is now kowtowing to the entertainment industry and jointly developing undisclosed technical measures in yet another desperate attempt to stop “piracy.”

On its face, this may seem reasonable, but problems arise once you start to ask hard questions about exactly what AT&T’s up to.

AT&T’s plan is currently pure vaporware, and it has stated that “once a technology was chosen, the company would look at privacy and other legal issues.” In other words, the AT&T Internet traffic cop appears poised to shoot first, and ask questions about the impact on your civil liberties and ability to access lawful content and applications later.

There are plenty of ways that an “anti-piracy” technology could do damage to online freedom. Innovation and free speech flourish online precisely because ISPs have traditionally routed all traffic neutrally, without discriminating in favor or against particular content or applications. Will AT&T arbitrarily degrade traffic from certain applications with lawful uses (a la the Canadian ISP Rogers)? Will AT&T start peaking into its customers’ packets with filtering technology that’s bound to haphazardly restrict legitimate, lawful traffic (a la Audible Magic)? For example, will users be able to use me-to-me services and send copyrighted files to themselves, such as by uploading them to a music locker service like MP3Tunes or streaming video via the Slingbox?

And will whatever measures the telco takes meaningfully reduce “piracy”? There’s scant evidence that filtering will make a dent, AT&T’s actions will inevitably spur countermeasures, and changes in technology are making it increasingly cheap and easy to copy data in a variety of ways, both online and offline.

The bottom line is that the telco giant appears ready to serve big entertainment companies’ interests regardless of its customers’ wishes. Instead, it ought to be pushing the entertainment companies towards a better way forward that lets fans keep sharing and gets artists paid.

See also Alex Curtis’ commentary on Public Knowledge’s blog.

(Cross-posted at DeepLinks)

Windows Media Center DRM – Now With More Bugs!

There was some Slashdot buzz earlier this week about Microsoft Windows Media Center users suddenly facing restrictions forbidding playback of recorded analog cable TV content. Was DRM smuggled along with an “update” into unsuspecting users’ machines?

In fact, Windows Media Center has always obeyed CGMS-A, a DRM system that TV stations can use. Pay-per-view, VOD, and premium channels like HBO can (and do) mark programming as “Copy Once” or “Copy Never.” Tech creators are free to build DVRs and other devices that ignore CGMS-A signals and create restriction-free recordings, but Microsoft opted to kowtow to content providers and infect Media Centers with the DRM anyway. (You may recall that TiVo decided to cripple its DVRs so that they recognize a similar DRM flag developed by Macrovision.)

As if the deliberate use restrictions weren’t bad enough, obeying CGMS-A has also caused technical errors and haphazard incompatibilities. Remember Windows’ “blue screen of death,” signaling an unexpected failure? DRM creates more ways for your system to fail — your Media Center may work reliably today, but a software or hardware change could create unpredictable limitations.

According to PC World, this sort of technical problem probably led to the complaints featured on Slashdot. You can bet that this won’t be the last time customers bump up against such problems both with CGMS-A and other DRM.

It’s worth noting that the DRM can get even worse when it comes to digital cable. Media Center users can look forward to even more limits on streaming throughout their house, copying to portable devices, and other legitimate uses.

Just because Microsoft decided to obey CGMS-A doesn’t mean you have to. You can look to PC DVR alternatives, and you can make DRM-free, analog-to-digital conversions of TV content using tools like the Neuros recorder that don’t recognize CGMS-A.

(Cross-posted at DeepLinks)

Tim Wu: On Copyright’s Authorship Policy

As with everything Wu, a must-read.

Ohio University Blocks All P2P File Sharing Software

Citing the burdens of responding to the RIAA’s flood of pre-litigation letters, Ohio University has decided to monitor its network in order to block all use of P2P file sharing software. Students caught using the software will have their network access disabled.

This policy may temporarily relieve the IT department, but it doesn’t get us any closer to a long-term solution to deal with file sharing. It won’t stop “piracy,” as students will simply migrate towards other readily-accessible sharing tools, and it certainly doesn’t put any more money in artists’ pockets.

But this policy — like related schemes implemented by other colleges — does create yet more collateral damage to academic freedom. Want to use P2P to distribute your own writing or to acquire public domain works for class? Too bad. Meanwhile, computer science students will to ask permission first to tinker with and study P2P software. Ohio University says it’s targeting a few applications, but it’s unclear whether the policy might extend to a variety of tools. For instance, there are lots of new “personal server” applications being developed for private sharing of movies, photos, and other data — how exactly will the university draw the line?

Blocking P2P is bad not only for the university and its students, but also for innovation more generally. Today’s computer science students are tomorrow’s technology leaders, creating tools that can empower millions. Remember, Google, Yahoo!, Facebook, and myriad other online technologies were created at by students at universities, and innovative companies like Skype, Joost and BitTorrent are built on basic P2P technologies.

The University’s policy is misguided, but the bottom line is that educational institutions shouldn’t be put in the position of wasting resources on the RIAA’s copyright nastygrams in the first place. The record labels need to get out of the business of intimidating schools and let fans keep sharing in a way that gets artists paid.

(Cross-posted from DeepLinks)

Taking Away Your Personal Use Rights, One Anti-Innovation Lawsuit at a Time

Last week, a California Superior Court judge ruled that Kaleidescape did not violate its contract with the DVD DRM licensing authority by distributing a home media server that rips and plays DVDs. This is an important victory for consumers, but it’s also a sad reminder of how your ability to make personal use of digital media is under attack.

As the LA Times’ Jon Healey nicely explains, this suit had absolutely nothing to do with stopping “Internet piracy” and everything to do with controlling innovation. In the DVD world, technology creators have to beg permission first from the DVD Copy Control Association, which is essentially controlled by the movie studios. That’s why to this day there are still no mass market tools for backing up your DVDs or copying movies to portable devices, for instance.

Kaleidescape is a telling exception. To sell its expensive, niche market, thoroughly locked-down media server, it has had to go through years of costly litigation. DVD CCA still claims that the license forbids this technology and may appeal the decision; in other words, Kaleidescape is still having to defend itself in court in order to deliver its award-winning, innovative new product.

Of course, Kaleidescape isn’t the only personal use technology under attack in court. Consider the lawsuits against Cablevision’s remote DVR service and XM Radio’s Inno portable player, which may become “victim[s] of the engineering police,” as Public Knowledge‘s Art Brodsky puts it in an excellent column here. Consumers have long used VCRs and audio tape decks to record off TV and radio, but the entertainment industry wants to decide if and how those abilities come into the digital age. Neither the Cablevision DVR nor XM’s Inno is about “Internet piracy”; just like in the DVD context, the entertainment industry is simply aiming to force innovators to beg permission first.

You can help fight back against this assault on your digital media freedoms — use EFF’s Action Center to support the FAIR USE Act and oppose the PERFORM Act, a digital radio restrictions bill.

(Cross-posted from DeepLinks)

Former EMI Exec Ted Cohen’s P2P Proposal

Will try to link up if/when the article becomes publicly available. Coolfer has the scoop — here’s an excerpt:

“What I propose is an aggressive six-month trial by a major P2P service (any takers?) that could finally give us clear insight into the behavior of P2P users. Is it about interoperability, community and deep catalog, or is it all about free? We need to know.

“Here’s how it would work: Leave the service exactly as it is: no filtering, no DRM, no changes to its current offering of unprotected MP3s. The rare tracks, bootlegs-they all stay there. Just charge for each piece of content and split the revenue between the service and the content owners.

“Yes, I know. Deals aren’t in place with labels and publishers. Some content out there (bootlegs, etc.) isn’t ‘cleared,’ and yes, it might keep some accountants working overtime. But wouldn’t it be better to figure out how to allocate all the revenue than not to have it at all? For the ‘gray’ content, I suggest labels consider a 50/50 percentage share with the artists, obviating arguments on who owns it.”

Fixing Copyright’s Corporate Death Penalty

I wrote an editorial for TomPaine.com about the FAIR USE Act:

“The punishment should fit the crime,” but copyright law’s harsh penalties don’t match up with this maxim, and the entertainment industry has taken full advantage of that in its misguided war on new technologies. A bill recently introduced in Congress would help address this imbalance and add crucial protections for the rights of innovators and fans.

Just last week, Viacom sued YouTube and Google for hosting allegedly infringing videos uploaded by users, and nearly every news headline highlighted the one billion dollars in damages that the entertainment company is seeking. In fact, the suit declares that figure as a floor, not a ceiling—the penalty could be billions higher if the suit is successful, even without Viacom proving that much actual harm.

The threat of so-called “statutory” damages hangs over the heads of technology creators of all stripes, not just YouTube. Reps. Rick Boucher and John Doolittle have introduced the FAIR USE Act of 2007 to limit this draconian penalty and provide innovators with some much-needed breathing room.

Read the whole thing here.

Links and Rough Notes on the Cablevision Remote DVR Decision

Sherwin Siy nails the bottom line on the Cablevision remote DVR decision — why should it matter whether customers store their DVRs at home or with Cablevision? There’s an artificial product-service distinction here, and the judge doesn’t clarify exactly why or how the law supports it. Bill Patry has a nice analysis of what’s lacking in the judge’s arguments.

The more I thought about the copying issue, the less clear it was to me — here are some rough notes:

One of things that caught my eye was the court distinguishing Netcom, in which a court held that an ISP and bulletin board provider was not directly infringing. The judge says that Netcom was “premised on the unique attributes of the Internet.”

This reading was notably rejected as an “overstatement” in CoStar, in which the court held “more must be shown than mere ownership of a machine used by others to make illegal copies;” instead, “the Copyright Act require[s] some aspect of volition and meaningful causation.” The Cablevision judge never really addresses this framing head-on.

The court declares that Cablevision is playing an “active” role in the copying of TV shows, and it thus is more like a copyshop clerk who copies a book on behalf of a customer, rather than simply providing machines for the customer to use himself. But no Cablevision employee hits the record button; the user is in control of what gets recorded.

The court highlights Cablevision’s “on-going participation” — it houses the system, monitors it, repairs it, and has a continuing ability to control it. These are all issues that would typically come up in the secondary liability context, but how they necessarily matter in terms of direct infringement isn’t clear to me. Kinkos performs all those functions too, after all. The sophistication of the technical system shouldn’t be determinative.

The court also points out that Cablevision supplies the content to be copied and has “unfettered discretion” over what particular content may be recorded. Now imagine a bookstore in which a fixed set of books on shelves were provided alongside photocopy machines. It too has “unfettered discretion” over what content will go on the shelves. The bookstore maintains the machines and even provides staff that will retrieve books for patrons. A customer gets a book and then copies it — is this so different from the Cablevision case?

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