Information Law Possum (discontinued)

My friend and colleague Richard Staeuber has been interviewed by TheStreet.com about the headwind Apple is facing in many European countries because of its non-interoperable DRM system (FairPlay).

The article also mentions that Steve Jobs has recently blamed the major labels for obliging Apple to impose DRM protection on iTunes, and that he would be happy to sell non-DRM’ed music.  EFF’s Jason Shultz doubts that this statement could be taken at face value.

At the current state of play it doesn’t seem to make much business sense to try to bind consumers to iPods through iTunes:  First, the vast majority of songs played on iPods is not DRMed, and–as anti-DRM activists rightly claim–it is logically impossible to prevent the use of non-DRMed music by selling DRMed music.  Second, iPods somehow appear to be cooler than a) iTunes files and b) MP3 players of Apple’s competitors, and they’re expensive:  If a consumer wants to replace her iPod, I surmise that it would be cheaper in most cases to replace it by a no-name player and either burn-and-rip her iTunes or buy the respective songs at another online music store, than buying a new iPod.

My take on the story is that Steve Jobs’ statement is compatible with Apple’s business interests–at least in the short or mid-term.  The situation would only be different if a) the next generation of iPods is a flop or if b) non-DRMed music were not available anymore.

This is–to take up the title of a post by Professor John Palfrey–day 4 of the Viacom-Youtube saga. Viacom has retracted its copyright claim regarding Jim Moore’s home video. Three things will remain:

1. Jim Moore’s video on YouTube.
2. 10,000+ articles/posts on the story that will eventually go the way of everything on the web–to the Internet Archive.
3. A loss of reputation on the part of Viacom (allbeit certainly limited both in terms of time and audience).

I’m not quite sure whether Viacom was aware of this reputation risk when it decided to send cease-and-desist letters to Youtube. But the big echo this case has caused hopefully will change that and thus lead to a more targeted use of cease-and-desist letters under the DMCA. And the risk isn’t likely to decrease in the future, as the community is organizing around takedowns.

By the way, it would be interesting to know which risk a corporate compliance risk manager would quantify as higher: the risk of having to pay compensation under DMCA § 512(f) (see latter part of this post by J.P.) or the reputation risk associated with sending unjustified cease-and-desist letters.

Urs Gasser and Richard Staeuber has dug out one of the earliest decisions based on the European Copyright Directive (EUCD), rendered on December 31, 2003, by a court in Bolzano (Bozen), South Tyrolia, Italy.

The judgment (no English translation available anymore), which is summarized here, essentially declared illegal the seizure of Sony Playstation consoles that use modified chips to permit uses of the console not authorized by Sony, e.g. playing disks with a different regional code.

Delivering one of the most consumer-friendly decisions in Europe in the realm of digital copyright and anti-circumvention laws, Judge Edoardo Mori made a hilarious metaphor worth keeping in mind. He wrote:

Sarebbe un po’ come se la Fiat vendesse un’auto con il divieto di uso per extracomunitari e per strade extraurbane.

which can be translated as:

This would be a bit as if Fiat* sold a car, but prohibited its use by non E.U. residents and on highways.

Indeed, GPS might make it possible to design such a technical protection measure. The legal problem in this scenario would be, however, that nothing on a Fiat car seems original enough to be copyrightable subject-matter …

*) Fiat is the Italian equivalent to a Chevy, just smaller.

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