About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance Of ... Law and IT.

Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T

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July 03, 2005

June 25, 2005

June 23, 2005

Gartenberg Responds on eBook DRM and Potential DMCA Violations

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Posted by Ernest Miller

A couple of days ago I wrote a post about Jupiter Research analyst and DRM-proponent Michael Gartenberg, who had grown so frustrated with Microsoft Reader's ebook DRM that he apparently circumvented the DRM, which is generally illegal under the DMCA (DRM Proponent Fed Up With DRM - Violates DMCA). Well Gartenberg has now replied, indirectly (My Last Word on DRM... Today).

Here's my last word on drm. I repeat, I'm not against the concept and most consumers aren't either unless they bump into it while trying to use content they purchased in a legitimate way. I am against the way msft has supported folks using their Reader software and being locked out of my content. Some of you also suggest I may have violated the dmca when I posted my solution. I don't know. Honestly. It seems to me the program does nothing to the files, they are quite protected and must be run on an activated computer that reads them. The DRM is not stripped out at all. That's more akin to ouputting my iTunes files to a CD or a cassette tape. But maybe not. So for now, I'm deleting the files and the program and will inquire of folks who know more about the legal aspects.
Perhaps, if he is promoting DRM, he ought to know a little bit more about the law that makes DRM viable for consumer goods. Hopefully, this will be a good learning experience. I hope that he will publish a posting giving his lawyer's take on the issue.

In related news, another good customer gets upset with faulty Adobe DRM (Open Letter to Adobe).

Let’s be clear about this. I’m not stealing your software.

But you’re treating me like a criminal. Twice in the past few weeks, I’ve had to talk to one of your activation support reps because your online activation system is broken. It has several times just decided that I’d activated enough, and was suspicious. Never mind that I was reinstalling on a brand new replacement computer. Never mind that on the first occasion this happened, there was no grace period, and the software simply would not run until I talked to a representative on the phone, who, by the way, are ONLY AVAILABLE DURING WEST COAST BUSINESS HOURS. [emphasis in original]

Read the whole thing.

via Darknet

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

June 21, 2005

DRM Proponent Fed Up With DRM - Violates DMCA

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Posted by Ernest Miller

Michael Gartenberg, Jupiter Research analyst and DRM-proponent, has grown fed up with Microsoft Reader's ebook DRM and taken his rights into his own hands (MS Reader DRM Issues Solved... Permanently).

While I'm still waiting for MSFT support to help me get back into the content I purchased for MS Reader (so far two emails and a rather fun 45 minute session with MS Tech support by phone, which is totally clueless about Reader. I was sent to Office support, Windows Activation and even though I kept telling them that there's no product activation code for Windows, my words fell on deaf ears). I finally took matters into my own hands. With a little help from a lovely free program called Amber LIT conversion, I was able to take all my MSFT .lit files and convert them to unprotected .PDF files for Tablet viewing and Word files that converted easily to eReader format. Took about a minute for each book. The program works with protected .LIT files but needs to be run on a machine with an activated and valid MS Reader. Since my old computer did have Reader on it, the process was a snap. This doesn't excuse MSFT. While DRM is a necessary evil, the notion of not being able to de-activate an older machine with a limited number of installs is user hostile at worst. Good case study for firms on HOW NOT TO IMPLEMENT DRM solutions. [link, ALL CAPS in original]
Despite the fact that the Gartenberg ran his program on files he legitimately purchased and the program requires an activated and valid MS Reader to run, this still sounds like a blatant violation of the anti-circumvention provisions of the DMCA, 17 USC 1201.

It appears as if Gartenberg BROKE THE LAW! If we were to ask Jack Valenti, I'm sure he would say that Gartenberg is a THIEF!

The company that made and distributes the software Gartenberg used appear to be a BUNCH OF DISGUSTING HACKER PIRATES!

Or, perhaps, this is a good case study for governments on HOW NOT TO IMPLEMENT ANTI-CIRCUMVENTION laws.

Comments (6) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

June 20, 2005

June 16, 2005

Record Labels Fear Apple's Lock-In?

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Posted by Ernest Miller

In the previous post, I discussed how the record labels' increasing reliance on audio CD DRM would be counter productive (Record Companies Intend to Make Criminals of Us All). There is another aspect to this worth discussing, however. The article from Pennsylvania's Times-Leader, republishing a Mercury News report, discussed the incompatibility of the new CD DRM and Apple's iPod and iTunes (Music Industry Eyes 'Casual Piracy').

Copy protection raises an even bigger problem for the millions of people who own Apple's iPod digital music player and use its iTunes software to organize their music and create custom CDs. Apple has refused to license its FairPlay rights-management software -- even to the labels. That means certain copy-protected CDs won't work with iTunes or the iPod without employing time-consuming work-arounds.

"They do not play on iPods simply because Apple has this proprietary approach," said Hesse of Sony BMG's copy-protected CDs. "We would be willing and able to put" FairPlay "on CDs in an instant if Steve Jobs would flick the switch and allow us to do that."

Poor, helpless Sony. You know, Sony, the company whose logo appears when you look up the word "proprietary" in the dictionary.

It isn't that Sony is opposed to proprietary formats, it is simply that Sony doesn't like it when they're other companies' proprietary formats. But it isn't only Sony that is backing these CD DRM schemes. EMI is also using DRM. Now, this will have virtually no effect on copyright infringement via P2P networks, so why spend so much money?

I think one very good reason is that the record labels are beginning to fear Apple's lock on digital music distribution. After all, if even Microsoft is sneezing, shouldn't the record labels be getting a cold? See, DRM and Lock-In: Apple vs. Microsoft.

A very large percentage of the songs on most iPods has to be coming from ripped CDs (21 iTunes per iPod). By making this means of filling iPods with music difficult, the record labels are in a much better position to convince Apple to license their FairPlay DRM and let the labels have a little control and reduce Apple's ability to lock-in consumers (and lock-out the record labels).

We shall see what Apple's response is. Steve Jobs is not likely to be pleased.

Comments (4) + TrackBacks (0) | Category: Digital Rights Management

Record Companies Intend to Make Criminals of Us All

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Posted by Ernest Miller

Pennsylvania's Times-Leader republishes a Mercury News report on the increasing use of DRM for audio CDs by the major labels (Music Industry Eyes 'Casual Piracy'). What disturbs me is the way that the music industry is now framing the argument:

The music industry considers the seemingly innocuous act of duplicating a music CD for someone else "casual piracy," a practice that surpasses Internet file-sharing as the single largest source of unauthorized music distribution. After fits and starts, the industry's largest players are taking measures to place curbs on copying.
Note especially that "casual piracy" is supposedly even worse than internet copyright infringement. Gee, if Congress has to pass laws against P2P filesharing services, what sort of laws will be necessary to stop what will likely soon be called "the greatest threat the music industry has ever faced"?

Instead of focusing their efforts on unrestricted public distribution via P2P networks, the record labels are poising themselves for an attack on copying/sharing among family members and friends. This doesn't seem to me a wise way to attempt to set copynorms. I've long supported the idea of "sharing with friends, not strangers" as a way to reinforce reasonable copynorms. See, Larry Solum, Copynorms and Nesson's Koan.

People want to share music with their friends and family and they see nothing wrong in doing this. In trying to characterize such sharing as criminal activity the recording industry will only be undermining support for copyright as a whole (To Save Copyright We Must Reform It):

The RIAA has taken the strategically foolish position that all filesharing is wrong. To most people outside of the ABA's IP bar, such an uncompromising approach to all filesharing is clearly incorrect. Most people believe that some sharing (particularly with friends or family) is legitimate, but other sharing is not. To the extent that the RIAA is not willing to compromise its position on filesharing, people will increasingly reject the idea that any filesharing is wrong. This is not a healthy development for those who believe that copyright is worth saving. The only way to save copyright is to reform it.
But that is precisely what the recording industry seems intent on accomplishing:
For consumers, it signals an abrupt change to the rip, mix, burn mania embodied by the 2001 Apple Computer ad campaign promoting the first iMac computer with a CD burner and software for creating custom music CDs. These new copy-protected discs limit the number of times people can create copies of music CDs or add individual songs to music mixes.
An "abrupt change", indeed. The music industry doesn't seem to understand that it is unencumbered MP3s that are filling the iPods of the world (21 iTunes per iPod).
"You can do with the CD you bought what you do with it if you're within the realm of personal use," said Thomas Hesse, Sony BMG's president of global digital business. "You can burn a copy that you play in your car or a copy that your son plays in his bedroom or make a personal mix. That's fine. That's the way people listen to music these days. If you attempt to burn 20 copies and distribute them to the kids who come to your son's birthday party, that's not possible."
Um, no. Please, three copies? That's not going to cut it, even if it is only for personal use. I've owned 3 MP3 players alone (and I'm not a guy who spends a lot of money on gadgets). I burn new mix CD-Rs (whatever I'm into at the time) whenever I plan an extended road trip. I sometimes make mix CDs with a sampling of music I think is cool for friends, just to turn them on to something new. And I'm hardly some sort of music power user.

You know, by the way, that I bought that music expecting it to be available to me for several more decades. You think the "burn track seven times" is all I'm going to need for those decades?

All this DRM will accomplish is to encourage people to bypass it, to download the inevitable DRM circumvention devices. They might be illegal, but they'll be available on the internet. Or, it will encourage people to use P2P programs to download the music they've already purchased. And, once they're on the filesharing network, why not download a few songs they haven't purchased? After all, if the record companies are going to make life hard for them with regard to music they've actually spent money on, they might rationalize that they've earned some free music.

In other words, record labels will only succeed in encouraging disrespect for copyright law. Thanks a lot, you bunch of short-sighted morons.

via EEJD

Comments (4) + TrackBacks (0) | Category: Digital Rights Management | File Sharing

Macrovision's Magical DRM that Drastically Reduces P2P Distribution

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Posted by Ernest Miller

Well, my last two posts have been about Macrovision's copy-protection, this one might as well be too. See, Macrovision Invokes DMCA for Analog Copy-Protection Technology and Mark Cuban Has Questions About the Macrovision DMCA Lawsuit.

Anyway, the copy-protection scheme that Macrovision provides for DVD players is called Analog Content Protection. Macrovision claims that,

Macrovision ACP prevents or distorts copies of DVDs made over an analog interface to DVD recorders, PCs, digital video recorders (like TiVo, ReplayTV and Media Center PCs), in addition to D-VHS recorders (DVRs) and VCRs. By preventing copying onto digital devices, Macrovision ACP dramatically reduces the digital sharing of this content, including sharing among PCs, DVRs, and over peer-to-peer networks.
When you don't want to call something a lie, you might use the phraseology, "it is, at best, highly misleading."

Well, the above claim by Macrovision is, at best, highly misleading. At best, Macrovision prevents some users from uploading new files onto filesharing networks. It reduces this initial dispersion of the files. Unfortunately, that is a pretty high cost for very low return: Speed Bumps on Your Car.

In this next paragraph, Macrovision demonstrates excellent use of qualifiers and half-truths. I shall annotate.

Macrovision ACP is the world’s leading device-to-device analog content protection system [Thank you, 17 USC 1201(k), which mandated use of the technology], protecting over 4.5 billion DVDs for Hollywood and other rights owners since the format’s introduction [Protecting them from what? The internet? Commercial infringers? It is interesting that they protect "DVDs" and not "copyrighted works"]. Macrovision ACP closes the analog hole on nearly every DVD player, DVD recorder, PC, and digital video recorder. [Nearly. In a world where reproduction is effortless, "nearly" doesn't count for much.] It is supported through a worldwide ecosystem which includes extensive licensing to PC, CE and IC manufacturers. [Why does Macrovision act as if legal mandates aren't the real reason for this extensive licensing, like they did it themselves or something?] In support of this worldwide content protection ecosystem, Macrovision has developed industry-accepted test and certification facilities used to support proper functioning of ACP on nearly all manufacturer’s DVD players, drives, and recorders prior to market release. [There's that "nearly" again.]
Gosh these guys are good. No wonder they got Congress to mandate their technology.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management | File Sharing

June 15, 2005

And They Get Well-Paid for Writing this Stuff

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Posted by Ernest Miller

Datamonitor is a "premium business information company specialising in industry analysis". They've recently released a report on DRM adoption that seems rather clueless, but will certainly please many of their clients (23 Million European Households to Share Rich Media Across Devices and with Friends, Says Datamonitor).

Today much of the work on DRM is focused upon copy protection, from the RIAA and MPAA trying to sue consumers and outlaw peer-to-peer (P2P) networks, to placing software onto music CDs which prevent unwitting consumers from legally copying songs to their PC. But basic copy protection solutions are only one part of a DRM solution.
Huh? What does suing consumers and outlawing P2P networks have to do with DRM, exactly? They might both be part of a comprehensive strategy, but DRM and fighting P2P aren't exactly connected at the hip, are they?
"At present, consumers are wary of copy protection solutions and phrases such as 'rights management'. Partly because of their interest in free content, and partly because they do not want to be unfairly limited in what they can and can't do with content they have bought," says Healey. "Such a system, in which a consumer is an end-user as well as a node of distribution, will require content owners and distributors to radically re-think their marketing plans. It will also offer the consumer more freedom to do what they want with their content, where to do it and when."
Yeah, it's going to take some marketing to convince people that taking away freedom is actually giving them freedom. It will also take some marketing to convince people that doing the distribution work for the publisher really makes sense.
Interoperability will be crucial.

Due to the immaturity of the DRM market, and the fact that almost everyone is offering DRM solutions, suggests that there will need to be consolidation, and perhaps more importantly, interoperability between competing systems.

Well, there is consolidation. Otherwise, interoperability is just a little problematic: A Perfectly Compatible Form of Incompatibility.

You can buy the report for $2295 here: Digital Rights Management: Selecting the Key Influencers of a Nascent Market.

via BillboardPostPlay

Comments (0) + TrackBacks (0) | Category: Digital Rights Management

June 13, 2005

McCullagh and Homsi on DRM Laws

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Posted by Ernest Miller

Declan McCullagh has co-authored a paper on DRM with Milana Homsi (New Article on Digital Rights Management: Survey of Laws and Their Problems).

Read the 12-page paper: Leave DRM Alone: A Survey of Legislative Proposals Relatingto Digital Rights Management Technology and Their Problems [PDF].

The article basically condemns any law that would mandate or inhibit DRM in favor of a DRM state of nature. The article does support DMCA reform to level the playing field for DRM.

For the government to remain truly neutral on DRM, of course, section 1201 of the DMCA would have to be modified to permit circumvention unless it is being done as part of an actual act of copyright infringement.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

June 10, 2005

DRM and Lock-In: Apple vs. Microsoft

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Posted by Ernest Miller

Yesterday, C|Net News ran a story I initially didn't pay much attention to about Microsoft potentially jumping into a subscription music service (Microsoft Planning Music Subscription Service). Yawn. Who isn't?

So, I didn't even read the story. Luckily for me, Good Morning Silicon Valley did (Psst, Kid, You Really Gotta Try Some of This WMA. First Taste is Free.). reports that Microsoft, long envious of Apple's iTunes storefront and its grip on the digital music market, is planning an iTunes exchange, a service that would enable us to download a Microsoft-formatted version of any song we've purchased from the iTunes Store.
Well, that would be quite a trick. This is where the DRM really hits the road.

Look at it from Microsoft's point of view. Every song you purchase from iTunes with Apple's proprietary, DMCA-protected DRM is one more bit of lock-in to Apple. When you've got a hundred or two hundred or more of your favorite (let's face it, you buy your favorites first) songs in iTunes format, you've got some significant lock-in in the form of very high switching costs. Just the way Steve Jobs likes it.

And that lock-in is growing at a rate of millions of songs every month.

What is a would-be player in the digital music distribution world to do? One option, of course, is to do what Microsoft apparently plans to do, which is pay an unknown sum (but likely rather substantial ) to let people download (again) music they've already purchased from Apple. There is the mechanical license, of course. And you don't think the artists and recording companies are going to let the music publishing companies make money and they don't, do you? This is going to be expensive. Microsoft can probably afford it, now, before digital downloading really takes off. Can you say "barrier to entry"? I knew you could.

Of course, it remains to be seen whether Apple will make it easy for Microsoft to pull such a switch or not. I imagine that, if they did, they would expect require Microsoft to do the same. Although Apple probably will cooperate with Microsoft as much as they did with Real (Apple Gets Real Serious About Harmony).

In any case, how many times do you think this game of downloading again, and again, and again can go on? We're going to see some consolidation pretty darn quick. At least for now, as the players try to capture market share at all costs, consumers will probably be okay. If one of the music services goes out of business, their customers will almost certainly be picked up with a generous transfer by one of the other services (most likely Microsoft, since they'll most likely be the ones behind the DRM).

One of the scary things is, of course, that we will no longer have the current oligopoly of the music industry, but a duopoly of DRM camps. And once you've settled into lock-in with one DRM provider for music, are you going to choose another for movies, or television? Ultimately, we are probably looking at a duopoly for all mass-produced multimedia content.

And this is supposed to be good for artists, right?

Comments (10) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

June 09, 2005

Why Not DRM and DMCA for Everything?

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Posted by Ernest Miller

Earlier this week I noted that the Supreme Court would not be hearing the Lexmark v. Static Control case (Supreme Court Rejects Lexmark's DMCA Appeal). Lexmark had been hoping to the use the Digital Millennium Copyright Act's anti-circumvention provisions to prevent third-parties from refilling used toner cartridges. A similar case, Chamberlain v. Skylink, involving third-party garage door opener remotes has also been rejected by the courts (this one on quite flimsy grounds - Judge Asserts Pseudo Distinction to Preserve DMCA).

Where is the outrage from DMCA proponents?

Many of the arguments for supporting the DMCA seem exceedingly applicable to the world of Lexmark and Chamberlain. So why isn't there a big movement on their behalf?

For example, one often hears the argument that DRM allows different business models to flourish, such as those based on price discrimination (This Summer's Horror Flick: "It's from the Federal Government, and It's Coming to Help Us"):

Imagine three customers. A wants a CD for his home stereo. B wants an extra copy to play in his car as well. C wants both of those uses, plus another copy on his iPod. A logical structure that would benefit all would be three different prices, say, $12 for A, $14 for B, and $16 for C.

Under the theory of H.R. 107, [an anti-DMCA bill] this structure is not possible. All three customers must receive the same package of rights, and all must be charged the same price. This means the price will wind up somewhere in the middle, probably around $14. A is not allowed to say: "Hey, I only want one use; how about giving me a price break?" C is happy, of course, since he gets subsidized by A, which may show that the constituents for this bill are rich yuppies who can afford $500 iPods and like being subsidized by those who are less well off.

Of course, as a result, some As will be priced out of the market, so the cost of the CD will rise further, which will price some Bs out, and so on. Price will reach an equilibrium, but at the cost of significant loss of consumer benefit.

Okay. Let's assume arguendo that this is a valid argument. Why isn't it valid for Lexmark as well? Wasn't this precisely what Lexmark was trying to achieve with its pricing structure for toner cartridge refills? Why isn't this argument valid for Chamberlain? Some people don't need to buy replacement garage door opener remotes. Without a DMCA that protects Chamberlain's business model, these people will have to pay more for their garage door openers.

How many business models are being squelched because the supporters of the DMCA don't seem to care about the Lexmarks and Chamberlains of the world?

Comments (1) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

June 08, 2005

June 07, 2005

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

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Posted by Ernest Miller

The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments

Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 – Spring 2005 [PDF].

Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)

However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.

Read on for a more detailed take on the report...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act

June 06, 2005

More on "Restricted Use" vs. "License"

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Posted by Ernest Miller

Earlier, I responded to Prof. Michael Madison's conjecture about the distinction between a "licensed" work and one with built-in DRM. Basically, I didn't get the distinction (DRM: Add On or Integral Part?). Madison has replied, trying to clarify his point (Tom Waits and Creative Commons).

There’s nothing in copyright law (even pre-DMCA copyright law) that says that the author can’t produce, and sell, a thing characterized as a “DRM-enabled-CD.” You can’t “license” a “book,” but so far as I know, and aside from vague prohibitions on equitable servitudes in chattels, there’s no clear rule holding that you can’t sell a “restricted use book.”
I still don't get it. What is the difference between a "restricted use book" and a licensed book as far as copyright is concerned? You can embed technical protections in a book, for example, using red print in order to thwart photocopiers. Does this, should this, change our copyright analysis if someone does photocopy a portion of the book? I would say, no, we're still looking at some sort of implied contract, covenant, negative easement, what have you and I don't think that flies with copyright, which should essentially exhaust all implied contracts regarding copyright.
Suppose the digital download service characterizes the product that you buy (not license) as a DRM-enabled-CD. Suppose further that the point of the DRM is to limit playback to you and you alone. You can move the file from device to device, but it will play only on your devices (say, your iPod) – set aside the technical reality that this won’t actually work. Now, run the DRM-enabled-CD through the Section 106 rights, with the Section 107, etc. limitations, and ask: What happens when you loan your iPod to a friend? Are you liable for copyright infringement?
What if the characterization (not license) for the DRM-enabled-CD is that the point of the DRM is to prevent quotation. You can do anything, except quote from the CD. Has this effectively vitiated fair use rights? What if the seller sold the one with the DRM for $1, characterizing it as the anti-fair-use-rights version and the one without the DRM for $10. Should this make a difference in the analysis if someone does manage to quote from the DRM-enabled-version? I don't think it should or how one could successfully make the legal argument for a distinction, absent a contract.
And before this sounds too fanciful and metaphysical, consider the Creative Commons license. No one assents to CC licenses – the “legal code” versions of the CC “deed” purport to constitute a sort of CC-wrap, but that language is so far removed from ordinary CC license notices that it really stretches the shrinkwrap fiction beyond the breaking point. I can’t imagine a court enforcing a CC license on a contract theory. So, suppose a user of a CC-licensed work violates the license. Does the author of the work have a remedy? I’d like to think so. But I suspect, also, that the only legitimate way to get there may be to argue that the user accessed a “CC-licensed work,” no assent to terms involved, rather than a “work.”
The question of Creative Commons license enforcement is a very involved one that I don't want to address right now. However, there is a distinction. Creative Commons licenses purport to give people rights above and beyond existing copyright law. For example, normally, reproduction and distribution would be infringement, but Creative Commons licenses frequently allow people to do this. On the contrary, DRM-enabled-CDs purport to take away rights that copyright law reserves to the public.


Madison responds (More on CC and Things). With regard to Creative Commons:

[T]hat depends on the relevant CC license and the relevant term. CC licenses give authors some rights that copyright doesn’t – most importantly, attribution/non-attribution rights. (Also, the commercial/non-commercial distinction maps only imperfectly to the “commercial” dimension of fair use.)
CC doesn't give authors any rights that copyright does not. If you want to make fair use of my works, there is nothing that CC can say on the matter. However, if you wish to infringe copyright, then CC provides the terms under which one may do so.

There seems to have been a misunderstanding on some of the other disagreements:

More generally, Ernie argues (I infer) that copyright law means that you can’t design information goods in ways that defeat statutory rights, so my “DRM-limited-CD” is no different, really, than a book wrapped with a “no fair use” label (my simplifying example, not his).
That's not what I'm arguing at all. It should be perfectly legal to sell DRM-encumbered books, CDs, what have you. However, it should be just as perfectly legal to circumvent these restrictions. There might be exceptions, antitrust is one possibility, copyright misuse another, but in general, I have nothing against DRM-encumbered items. I oppose legally enforcing that DRM.

Comments (2) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Digital Rights Management

June 05, 2005

June 01, 2005

May 30, 2005

May 27, 2005

May 24, 2005

MS to Lock Up Office Documents, Lock In Customers

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Posted by Ernest Miller

C|Net News reports on a couple of initiatives by Microsoft to bring more security into the workplace (Facing 'New World of Work,' Microsoft Locks Up Office). Apparently Microsoft will be adding new forms of DRM to their popular office suite so that companies have more control over where their internal documents can go. Strangely, the article never bothers to ask whether this technology will have an open protocol or will be used to lock in customers as it locks up documents.

The article also discusses a new, corporate form of IM that is subject to centralized control by the corporation:

"What happened is the dynamic of IM changed when people knew it was being logged," Greifeld said. But both Capossela and Greifeld said that the change is not necessarily a bad thing.

"For us, the value of instant messaging isn't the sideshow where people get to have private conversations," Capossela said. "The value of instant messaging is the ability to connect with somebody absolutely real-time and to have that quick burst back and forth."

Privacy is such an antiquated concept.

Comments (0) + TrackBacks (0) | Category: Digital Rights Management | Open Standards | Privacy | Security

May 23, 2005

May 22, 2005

May 13, 2005

May 12, 2005

May 11, 2005

Hilary Rosen Flashback

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Posted by Ernest Miller

A lot of folks have taken notice of the recent complaints by former RIAA head honcho Hilary Rosen regarding Apple's iPod DRM strategy (Hilary Rosen Laments Apple's DRM Strategy). For another example, see this post on Hit and Run: iRony.

Like my original post, however, many have concentrated on the fact that Rosen was decrying the very DRM that she had been such a strong proponent of. Let us not forget, however, that Rosen was an enemy of MP3 players all together. Indeed, let us go back to those halycon days of 1998 when the RIAA went after the Diamond Rio MP3 Player. See, RIAA Takes Stand to Protect Legitimate Online Marketplace.

If the RIAA had its way, there wouldn't be any portable MP3 players. The only portable players you would be able to buy would play only DRM restricted tunes. In her most recent article, Rosen claims that, "If you are really a geek, you can figure out how to strip the songs you might have bought from another on-line store of all identifying information so that they will go into the iPod." Not even that would be possible, legally, if she had won the lawsuit she launched against the Diamond Rio.

For a conspiratorial (though logical) take on Rosen's post, check GoldSounds (RIAA attempts to fragment online music business).

Comments (0) + TrackBacks (0) | Category: Digital Rights Management | File Sharing

May 10, 2005

May 09, 2005

August 30, 2004

Thierer Beats the Devil

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Posted by Ernest Miller

There is a new law, tech and policy blog in town with a distinctly libertarian pedigree, The Technology Liberation Front. Read their introduction (Welcome to the TLF !):

This is why this site is needed. We aim to report on, and hopefully help to reverse, this dangerous trend of over-regulation of the Internet, communications, media and high-technology in general. We will not hide our love of liberty on this site and we will take every opportunity to castigate those who call for expanding the reach of government into these fields.
They have twelve listed contributors (About Us). The more the merrier.

In any case, Adam Thierer asked a number of different people to comment on his recent post on the TLF concerning DRM (Is DRM the Devil? The Debate over Digital Rights Management, Trusted Computing and Fair Use in Copyright Law). It is a debate I've engaged in often, so read on for my response ...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

August 20, 2004

Apple vs. Real: The Debate Continues

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Posted by Ernest Miller

The repercussions of the Apple/Real conflict continue, and much can be learned from the various commentaries. Previous coverage here: What Real's Hacking of FairPlay Doesn't Do, Apple Gets Real Serious About Harmony and Will Real's DRM Strategy Succeed? Signs Point to "No".

Copyright shaman and law professor James Boyle has a commentary in the Financial Times attacking Apple's metaphor that Real "broke into" the iPod (The Apple of forbidden knowledge).

Derek Slater continues his excellent analysis of the issues (Real's Freedom of Choice Campaign and Price Cuts). He expresses as much surprise as I do that Public Knowledge is supporting Real's campaign for "freedom of music choice" (Public Knowledge Supports RealNetworks Campaign for Freedom of Choice). Slater points out that the real problem isn't that Apple won't license its DRM, but that the DMCA prevents Real from fully interoperating with the iPod without Apple's permission. Of course, you won't hear Real complaining about the DMCA.

I disagree with Slater that Real's pricing ($0.49/download) might be a turning point. I don't think there is a chance in hell that'll happen. The problem is that Real is losing money to the copyright holders with each sale at that price. Even if it attracts customers, I doubt they will be impressed when the price goes up later. The real question is what incentive this gives the copyright holders to reduce their licensing fees. The answer, I'm afraid, is none. The copyright holders will be happy with the additional increase in revenue, but they won't bat an eye when Real has to raise prices and lose customers. Real would have done better to spend the money on buying the contracts of some popular bands and giving the music away. This is simply a sign of desperation on Real's part.

Interestingly, Real's "Freedom of Music Choice" campaign links to EFF's complaints about Apple's FairPlay DRM (EFF: FairPlay: Another Anticompetitive Use of DRM) (FoMC: EFF on "FairPlay"). However, there is no link to EFF's take on Real's faux grassroots effort (Hypocrite, Thy Name Is Real). Maybe it is because of quotes like this:

If Real actually cared about "Freedom of Music Choice," it would be telling its customers to burn the downloaded music they purchase to CD, then rip to any DRM-free format they like (including MP3, WAV, or AAC, all of which play just fine on the iPod). That's a much better option than being dragged into a feud between Apple and Real.
Finally, a couple of other posts on the Apple/Real imbroglio that have been getting quite a bit of attention. Druken Blog's Convergence Kills, and Daring Fireball's 2004 Won't Be Like 1984. Both are lengthy, but well-worth the time if you are interested in the issues.

Comments (2) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

August 03, 2004

Department of Ooops: Apple FairPlay Edition

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Posted by Ernest Miller

According to a report from a German Macintosh news site ( via the Mac News Network, Apple's own iMovie software will strip FairPlay DRM from iTunes music (Report: iMovie strips FairPlay DRM from iTunes songs):

The site reports that Apple's own video tool can be used to create unprotected song files that be played on any computer without recompression, circumventing iTunes' DRM protection. iMovie users can use the "Share" feature of iMovie to export any imported (protected) song from the iTunes Music Store. The exported songs can either be stored in the un-protected AAC file format (used by Apple at the iTMS) or in the raw WAV file format; both of these formats are supported by iTunes.
If true, this would certainly be an embarrasment to Apple. I'm not sure what all the legal implications are. For example, would this be an excuse for Real to sue Apple for DMCA violations? What about the copyright holders, both those who encoded their music through iTunes (probably a contractual issue) and those who used Real's Helix DRM (why not the DMCA)? See, Can Real Sue Apple Under the DMCA?.

Comments (2) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

August 02, 2004

Will Real's DRM Strategy Succeed? Signs Point to "No"

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Posted by Ernest Miller

Cleaning up after last week's coverage of the extensive Apple/Real DRM debate (Apple Gets Real Serious About Harmony), a few more links for the reader's delectation.

The Your Tech Weblog has a report from the field that the conversion from Real's Helix DRM to Apple's FairPlay DRM either doesn't work or is already broken (Real, iPod: Hair-pulling time) [via engadget]

Derek Slater continues his excellent work on the Real/Apple imbroglio by analyzing what possible defenses Real has to charges of hypocrisy with regard to complaining about Apple's decision to investigate DMCA charges against Real (Real's Potential Legal Arguments and Principles).

Dana Blankenhorn says the real question, is "Does copyright mean interoperability is impossible without the prior written consent of the copyright holder, not to mention everyone else in their value chain?" (Apple vs. Real). There is also an interesting debate in the comments section of his blog.

Daring Fireball consults a true guru in order to get the down low on the controversy (Magic 8-Ball Answers Your Questions Regarding RealNetworks’ Harmony).

Paid Content sees Apple losing its sheen due to the controversy (The Real-Apple Spat--The PR Case Study). Nah. Those who don't care about DRM aren't going to really care. Those who don't like DRM don't like either Apple or Real.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

July 30, 2004

Optimal Level of DRM for Music Downloads = 0

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Posted by Ernest Miller

Jeevan Jaisingh is an assistant professors in the Dept. of Information and Systems Management at HKUST Business School in Hong Kong. He has recently published a very interesting paper on SSRN. Link to the 24-page paper here: Piracy on File Sharing Networks: Strategies for Recording Companies.

Here's the abstract:

In this paper we study the impact of selling music as downloads, on piracy, and the strategies recording companies should adopt to increase profits. We find that total music sales and profit of firm is higher, and total piracy (demand on file sharing network) is lower, when the firm sells a downloadable version. We look at the firm's optimal choice of Digital Rights Management (DRM) protection, and find that revenue decreases with increased protection, and so it is optimal for the firm not to employ any DRM, in the absence of network effects. Listening to music or watching video protected by DRM is cumbersome to users. They have to download license files, there are restrictions on the number of times the file can be copied, and restrictions on the type of devices that can play the file. As a result there is a disutility to the legal consumer, because of which the firm charges lower prices. Loss in revenue due to decreased prices cannot be compensated by the increase in demand, and hence revenue decreases with higher protection. When network effects (NE) is high, and a nominal search cost is above a certain threshold, then non-zero protection becomes optimal. This result is exactly the opposite of what was found in previous research (Conner and Rumelt 1991), where protection was found to be optimal in the absence of NE, and zero protection was optimal if NE is high enough.
Having read the paper, there are a number of questions I have about some of the assumptions and models, but overall it is a very engrossing paper.

There are also some interesting asides as well. For example,

The German media conglomerate Bertelsmann has announced recently that it is to begin offering “nofrills” and luxury versions of CDs in a bid to combat piracy. Bertelsmann will offer three versions of its CDs, a €=9.99 version, with only the title printed on the disc and nothing else; a €=12.99 version, which will look like a regular CD, with a cover and liner notes; and a deluxe version costing €=17.99, which will include video clips and other additional material (Philips 2004). This provides anecdotal evidence which supports our result that versioning is an appropriate strategy to fight piracy. The versioning we considered was providing a no-frills version through downloads, while the strategy Bertelsmann is adopting is providing a "no-frills" version of the CD, however the intuition for both is the same. Bertelsmann’s record label, BMG, hopes that the move will boost sales by up to 25 per cent (Philips 2004).
Definitely a paper I'd like to see some responses and extensions to. A highly recommended copyfighter read.

via Legal Theory Blog

Comments (2) + TrackBacks (0) | Category: Digital Rights Management | File Sharing

July 29, 2004

Apple Gets Real Serious About Harmony

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Posted by Ernest Miller

I've been writing a lot recently about the Real / Apple imbroglio (What Real's Hacking of FairPlay Doesn't Do, Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM?, and Can Real Sue Apple Under the DMCA?). Short story, Real has developed a technology, Harmony, that will convert files encrypted with Real's Helix DRM into files that mimic Apple's FairPlay DRM, but not the reverse. Interesting legal questions are raised.

Today, Apple has issued a press release with a legal threat (Apple Statement):

We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod(R), and we are investigating the implications of their actions under the DMCA and other laws. We strongly caution Real and their customers that when we update our iPod software from time to time it is highly likely that Real's Harmony technology will cease to work with current and future iPods.
As if being a hacker is a bad thing. What do you call those two guys who built a computer in their garage and started a little computer company named after a fruit?

Derek Slater has a good selection of links and analysis (Apple Threatens Real). CNN has an article that quotes yours truly (Apple: RealNetworks hacked iPod). Slashdot comments (Apple Not Too Harmonious with Real).

Will Apple sue? I think they may, in order to set a precedent and warn Microsoft off. A lawsuit would also create further FUD about Real's ability to survive in this cutthroat market.

It isn't clear what issues will actually come to the legal forefront. If Real's software was a clear violation of the DMCA, Apple would have said so (and Real probably wouldn't have tried this). There are also various state law possibilities, such as unfair competition and whatnot. This will certainly be a case to watch.


Over on engadget, Siva Vaidhyanathan, copyfighter, has a guest editorial on DRM lock-in that starts with coffee machines and ends up with Apple/Real (The Trouble with Tethering). See also, Derek Slater (The Practical Impact of Lock-in). Concludes Vaidhyanathan,

If Apple is smart (as it occasionally is, but rarely in this domain) it will welcome Rhapsody users. Tethering may be the hot corporate move of the moment. It may be what all the consultants are pushing (corporate consultants are basically anti-competitive). But it’s ultimately bad business and - when backed up by law - bad public policy.

Real has also issued a countervailing press release:

RealNetworks Statement about Harmony Technology and Creating Consumer Choice

Real is delighted by initial consumer and music industry support for Harmony. Compatibility, choice and quality are critically important to consumers and Harmony provides all of these to users of the iPod and over 70 other music devices including those from Creative, Rio, iRiver, and others. RealPlayer Music Store provides the highest sound quality of any download music service. That's why so many consumers have welcomed news of Harmony. Consumers, and not Apple, should be the ones choosing what music goes on their iPod.

Harmony follows in a well established tradition of fully legal, independently developed paths to achieve compatibility. There is ample and clear precedent for this activity, for instance the first IBM compatible PCs from Compaq. Harmony creates a way to lock content from Real's music store in a way that is compatible with the iPod, Windows Media DRM devices, and Helix DRM devices. Harmony technology does not remove or disable any digital rights management system. Apple has suggested that new laws such as the DMCA are relevant to this dispute. In fact, the DMCA is not designed to prevent the creation of new methods of locking content and explicitly allows the creation of interoperable software.

We remain fully committed to Harmony and to giving millions of consumers who own portable music devices, including the Apple iPod, choice and compatibility.

UPDATE 2 1205 PT

Ed Felten weighs in (Apple Threatens Real) via Copyfight

Okay, so Apple was mighty ticked off that Real had made Apple's product better, without even getting permission or anything. So Apple cried foul. Apple was shocked 'n' saddened that Real was trying to improve Apple's product, like those hacker guys are always doing. So Apple drew a line in the sand, and swore to make its own product worse again.

I don't know about you, but I find this all very confusing. I guess I just don't have a head for business.

UPDATE 3 1225 PT
Derek Slater has even more (Real Responds; Pot Persists In Calling Kettle Black).

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

July 26, 2004

What Real's Hacking of FairPlay Doesn't Do

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Posted by Ernest Miller

The New York Times reports that Real has reverse-engineered Apple's proprietary FairPlay DRM so that music in Real's proprietary DRM format can be converted to FairPlay and played on the iPod (RealNetworks Plans to Sell Songs to Be Played on iPods). Strangely, there is no mention of Hymn (Hear Your Music aNywhere), which has also reverse-engineered FairPlay. I wonder if any Real engineers looked there for some hints (well, actually the whole thing), given that they wouldn't want to violate any of Apple's click-wrap contracts. Hmmmm. For more information, Frank Field has a good roundup of press coverage and the press release on Furdlog (Mousetrapped?).

Of course, the NY Times gets the reporting wrong. "This will be the first time any company other than Apple has sold songs for the iPod." Ummm, no. Any company that sells songs in the non-DRM'd encumbered MP3 format is selling songs for the iPod, given that the iPod supports MP3 playback. Check out Magnatune for example.

One question, of course, is whether Real's efforts here violate the DMCA, which prohibits the distribution of anti-circumvention devices. Such an analysis is very fact-dependent, and there isn't enough known about Real's program to say for sure, but I suspect that it doesn't. Real's software is apparently converting songs from one format into the FairPlay DRM'd format. This would not seem, without more information, to be an anti-circumvention function.

Note, however, what Real is not doing (and strangely, the news reports don't seem to mention either). You can convert Real files into FairPlay files, but you can't convert FairPlay files into Real files. Real is not allowing people to copy their iTunes into Real's DRM'd format. Why? Because it would likely be a clear violation of the DMCA. You may be able to play Real's DRM'd music on an iPod, but you still won't be able to play iTunes on a portable music player other than an iPod.

So, this isn't quite the breakthrough the analysts and whatnot seem to be claiming. If you buy anything from iTunes, you're still locked into Apple. If you buy an iPod, you can buy from Real's music store, but what real advantage does that provide? A DRM connoisseur might say that you will have the option of using other players in the future, but so what? Anyone who knows anything about DRM knows that you can't trust any of these competing formats. Perhaps in a few years one might want to buy another brand of portable music player, but what happens if Real's DRM fails in the marketplace and is squeezed out? What good did the flexibility do?

If people really care about DRM and its potential costs in the future, then they probably are avoiding DRM all together and sticking with non-DRM formats such as MP3 or Ogg Vorbis. Let me know when there is some important news here, such as Apple licensing FairPlay for use on other players.

Comments (12) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

July 14, 2004

New DRM Coalition to Raise Barriers to Entry for Competitors

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Posted by Ernest Miller

Oh, wait, that isn't the spin they're putting on their organization.

C|Net News brings us news of this new DRM coalition (Tech, Hollywood heavyweights create content coalition). Note that it is the big companies that are pushing this, not the small, innovative companies. Coincidence? I don't think so.

Several high-profile technology companies and movie studios are expected to announce Wednesday that they have formed a coalition to ensure that high-definition video and other content cannot be pirated in home networks.
The article talks about protecting "content" and movies. However, there is no mention of protecting audio. Hmmm ... why might that be? Whatever happened to SDMI?

Same old story. Piracy will continue. Large corporations will be protected from innovative upstarts. Isn't that how capitalism in the 21st century is supposed to work?

Comments (9) + TrackBacks (0) | Category: Digital Rights Management

July 07, 2004

TiVo vs. Media Center Edition vs. INDUCE Act (IICA) vs. Broadcast Flag

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Posted by Ernest Miller

A couple of weeks ago Eric Harrison wrote a head-to-head comparison of Windows Media Center Edition and TiVo. (TiVo versus Media Center Edition PC's - finally!). TiVo won, partly because the original Windows machine had all sorts of defects, but mostly because TiVo is a more solid performer. Paul Robichaux's comparison goes into more depth about the MCE (Media Center Eye for the TiVo Guy).

Jupiter Research analyst Michael Gartenberg looks at Harrison's comparison and adds some thoughts of his own, as JR is working on a report on standalone DVRs (Tivo comparison to Windows Media Center):

First, the PC is more flexible. If I want to store and view my pictures, music and other video content, burn to DVD, copy to a portable media player and stream that content to other devices in my home, I can do that with the PC and not with the TiVo. The MCE EPG is also more flexible. Try and record the West Wing on TiVO, just the 7pm episodes shown on channel 44, not the other boradcasts. You can't do it. It's a snap on MCE. (why would you want to? to record a series according to airdates so you can watch the episodes in order). On the other hand, my TiVO never crashed, locked up, missed a scheduled record or any other annoying issue. Clearly the dedicated funcitonality makes for a more stable platform. Part of the MCE experience issue is that it's still a PC. You still need to exit to the shell to get some things done. You need to re-boot from time to time. If MCE is going to make inroads in the next year it needs to be able to shed the PC experience and live 24/7 as a consume electronics device.
Here are my thoughts. I already have a TiVo. I already have a PC. Most of the people who are considering buying a TiVo already have a PC as well. If the TiVo could simply talk to the PC, then they (and I) could get the benefits of consumer electronics reliability and the flexibility of a PC without having to buy a whole new, rather expensive PC.

So why don't DVRs offer this flexibility? They get sued into oblivion: EFF Archives: Newmark v. Turner Broadcasting System. Need I mention that the IICA (née INDUCE Act) will make bringing such company-resource-draining lawsuits easier? Or that, in a little less than a year, the government will burden such capability with mandatory DRM: Digital Television Liberation Front?

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting | Copyright | Digital Rights Management | INDUCE Act

July 06, 2004

Why I Support New DRM Standard for Oscar Screeners

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Posted by Ernest Miller

Over the holiday weekend, the AP reported that the Academy of Motion Picture Arts and Sciences (the people who bring you the Oscars) were considering a new anti-piracy technology that would include giving Academy voters special hardware to play DVDs keyed for a single player in order to thwart screener piracy (Studios Eye New Anti-Piracy Technology). Ed Felten explains why this might work as a security tchnology for Academy screeners, but not for mass-market DVDs (Fancy DRM For Academy Screeners?).

I must say, I applaud these efforts by the MPAA to act consistently (Props for Jack Valenti). It may not keep their films from getting onto the internet, but it demonstrates that they aren't hypocrites. Read on for some other reasons (in no particular order) I applaud this move:

...continue reading.

Comments (3) + TrackBacks (0) | Category: Digital Rights Management

Quote of the Day: Telecom and DRM Edition

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Posted by Ernest Miller

Telepocalypse discusses why DRM is bad for communication networks (DRM - enemy of telecom):

Ultimately, telecom is about communications, not media. DRM inhibits communications. That’s the opposite of what you’re after. If we’d had DRM before the Internet became widely available, telcos would have sold a lot less dial-up and broadband, and the industry would have even more unlit fiber than it does today.

Comments (0) + TrackBacks (0) | Category: Digital Rights Management | Open Standards | Telecomm

June 28, 2004

Prove DRM Works - Eliminate the DMCA

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Posted by Ernest Miller

For some reason, some people refuse to understand that no DRM system will do anything more than delay determined attackers (there is no way you can provide cyphertext, algorithm and key and not expect your system to be cracked). Once broken, whatever content the DRM was intended to protect will become available on the filesharing networks. The logic is pretty simple and compelling. Yet, there remain people who insist that DRM still works. I argue that it isn't DRM that works but, rather, the anti-circumvention provisions of the DMCA that are doing the work (Potemkin Village - What Secrets DRM Encryption is Really Hiding).

Still, you have arguments such as those from science-fiction author Jerry Pournelle (DRM: The Issues). His basic argument is that DRM can work "good enough." He analogizes DRM to copyright law. Sure, copyright law won't stop all infringers, but it stops enough that he can make money. Funny that he uses law as an example. Precisely. The technology of DRM isn't what is stopping people, it is the legal impediments to sharing DRM cracks (DMCA) that prevent some people from breaking DRM.

Jupiter Research analyst Michael Gartenberg's argument is a bit more perfunctory (I'd have to disagree with Cory Doctrow's position on DRM):

DRM does work and it can be good for business and acceptable to consumers. While most folks might prefer no DRM, that's just not viable in today's world and most consumers will accept DRM solutions. That's not just my assertion, data driven research backs it up. That's a difference between opinion and analysis.[emphasis in original]
Well, glad we have that cleared up! Just trust Gartenberg. Again, why does DRM work here? Is it because DRM is a technical marvel defeating all who attempt to break it? No, DRM works only because the law says it does. Why not simply say:
The DMCA does work and it can be good for business and acceptable to consumers. While most folks might prefer no DMCA, that's just not viable in today's world and most consumers will accept DMCA solutions because the law gives them no choice.
There is a simple way to prove whether DRM works: get rid of the DMCA. If DRM actually worked as a technical matter, there would be no reason for there to be a law making the distribution of circumvention devices illegal, since there would be no circumvention devices.

Oh, wait, it is the companies that sell and use DRM that are the biggest supporters of the DMCA. What does that tell you about the technical effectiveness of DRM?

Comments (50) + TrackBacks (0) | Category: Digital Rights Management

June 23, 2004

A Logical DRM Speedbumps Strategy

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Posted by Ernest Miller

Everyone who is reasonable about the DRM debate agrees that DRM is not going to keep protected content off the filesharing networks forever. All DRM will eventually be broken and, at the very least, the analog hole will for the forseeable future remain an open path for copyright infringement. However, let's assume for the nonce that DRM can significantly delay the spread of protected content onto filesharing networks.

This leads to one of the problems with DRM that I've noted before (Speed Bumps on Your Car). DRM typically outlives its usefulness:

Long after DRM has provided whatever "speed bump" effect it can, consumers are still inhibited from many perfectly legitimate uses of a work. Indeed, many of the costs of DRM are backloaded. DRM likely doesn't create much of an initial issue for many. However, down the line, when people purchase new PCs or devices, DRM is likely to make transfers from old to new devices more difficult or impossible. Looked at from a long term perspective, DRM seems an extremely poor choice if all you're interested in is short term benefit.

I stand by my analysis. But recent DRM debates here and on Copyfight have given me an idea. Read on...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Digital Rights Management

DRM and Darknets: A Response to Brad Hutchings

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Posted by Ernest Miller

I'm not really sure who Brad Hutchings is, but he is a frequent pro-DRM, pro-extensive-copyright commentator on Copyfight. Anyway, in response to my post on Cory Doctorow's Microsoft Research DRM talk, he had a number of comments (Cory on DRM @ Microsoft). Actually, his last comments had portions that I agree with (and, in fact, have said previously). However, I post here to distinguish where he and I disagree. Read on...

...continue reading.

Comments (1) + TrackBacks (0) | Category: Digital Rights Management

June 22, 2004

Potemkin Village - What Secrets DRM Encryption is Really Hiding

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Posted by Ernest Miller

Cory Doctorow is not the first person to say it, nor will he be the last, but he certainly said it well in his popular talk on DRM he gave at Microsoft (Microsoft Research DRM talk):

DRM systems are broken in minutes, sometimes days. Rarely, months. It's not because the people who think them up are stupid. It's not because the people who break them are smart. It's not because there's a flaw in the algorithms. At the end of the day, all DRM systems share a common vulnerability: they provide their attackers with ciphertext, the cipher and the key. At this point, the secret isn't a secret anymore.

However, DRM does hide (sort of) secrets, they just have nothing to do with the plaintext. Read on...

...continue reading.

Comments (7) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

Metaphors Gone Wild: On Pies, Ships, Regressive Taxes, DRM and Microsoft

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Posted by Ernest Miller

First, I just want to be clear when that I'm talking about "DRM" here, I mean DRM backed by force of law, that is, the DMCA's anti-circumvention provisions. It would hardly be important to discuss DRM at all except that the law makes it illegal for companies to provide circumvention devices. All DRM will be cracked, and without law prohibiting the distribution of circumvention devices, there would be hardly any sense in spending money on DRM at all.

Last week, on Copyfight, I wrote up a short piece on Cory Doctorow's rightfully popular piece on DRM (Cory on DRM @ Microsoft). In my piece, I agreed with four of Doctorow's five theses. I disagreed with his ultimate conclusion that DRM is bad business for Microsoft. Fellow copyfighter Wendy Seltzer disagreed with me (DRM Is Bad for Monopolists, Too). Read on for more of my thoughts on the issue...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Digital Rights Management

June 21, 2004

Who is Bullying Who?

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Posted by Ernest Miller

Robert Heverly has been blogging up a storm on Displacement of Concepts recently and he has several good posts on Cory Doctorow's recent speech at Microsoft on DRM including, I wish I had said that and Still More on Cory's Talk. In a slightly longer post, Heverly disagrees (Not Wanting to Bully, but Not Having That Choice) with a posting by Microsoft evangelical blogger Robert Scoble defending MS's use of DRM (Cory wants Microsoft to be a bully with the RIAA).

Scoble argues that:

Cory wants us to bully the RIAA and push a format that is easily copyable (for music, at least). He says that's exactly what the VCR industry did (yes, he says, they got sued, and won, and were repaid hansomely in the marketplace). Interesting argument. I don't agree with Cory that that'd be a good thing for Microsoft to do. I want to see us avoid the courtroom if at all possible and avoid situations where we're bullying anyone.

Heverly responds:
But Scoble's take is just plain wrong. Microsoft, by including DRM in its technology and not providing the option to operate without it, is bullying consumers. Even in Scoble's own framework, it's not really a "bully or not bully" choice; it's a "who to bully" choice. Put (hopefully) a bit more articulately, it's a question of where Microsoft's own interests lie, and it seems in the eyes of most people, that they lie with the consumers (remember, the customer is always right). [italics in original]

However, I'm not sure that Microsoft is the one doing the bullying in either case. Why, if the RIAA and MPAA are the ones threatening lawsuits over technology, they aren't the bullies? When Scoble is saying that Microsoft should avoid the courtroom in such a case, he is merely saying that Microsoft should accede to the bullying. Of course, one would think that if any company could stand up to litigious bullies, it would be Microsoft. Thus, the real reason must be that Microsoft sees supporting DRM as in its interest. So, I guess Heverly is right after all, Microsoft is on the side of the RIAA and MPAA in bullying consumers.

For more of my thoughts on Cory's speech, see:
my comments here: DRM Is Bad for Monopolists, Too
Cory on DRM @ Microsoft

Comments (1) + TrackBacks (0) | Category: Digital Rights Management

April 07, 2004

The Broadcast Flag Treaty - Draft Available

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Posted by Ernest Miller

Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].

This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.

Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.

Read on for a look at this monstrosity...

...continue reading.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | Internet | Telecomm

March 22, 2004

Copyfight - The Remix

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Posted by Ernest Miller

Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:

Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

I'll continue to post here, of course, especially my longer pieces.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | Civil Liberties | Copyright | Digital Millennium Copyright Act | Digital Rights Management | Internet | News | Trademark

March 09, 2004

Intel on the "Server in the Closet"

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Posted by Ernest Miller

Well, just after I posted the last article on "Technology Advances for 'Server in the Closet'," I came across a recent speech by an Intel honcho on the subject. Louis Burns is Vice President, General Manager, Desktop Platforms Group for Intel and he goes into some depth about where Intel thinks these things are going (Intel Developer Forum, Spring 2004 - Louis Burns Keynote).

Surprisingly, the speech is really quite good at describing the potential for such devices and Burns seems to almost get it. I highly recommend reading the full article.

The basic concept is straightforward: "It's simply giving users what they want, any content on any device, anywhere in their home. Simple to say, difficult to do, but exactly what they're asking us for." Unfortunately, implementation is not straightforward, especially when you try to accomplish two opposed things at the same time, such as implementing DRM and making things easy and transparent to connect to each other. For example, Intel is sucking up to the MPAA:

We talked earlier, it really has to deliver on what we call premium movie content. Doing your own personal pictures or videos is cool, but we need premium movie content.
So with that in mind, we've been working very closely with Movielink. Movielink is one of the first movers, the fast movers on delivering premium movie content through the IP network.

Yeah, integrated DRM, that is what consumers want. That will make it easy to get content on any device, anywhere.

The other problem is that Burns shorts the potential for content creation and sharing outside the home. Near the end of the speech he devotes two whole paragraphs to the idea of consumers creating content. The example he uses, organizing and manipulating your digital photos, is pretty lame given the incredible possibilities. There is also little talk about how one would then share their creations in an effective, efficient way.

Still, this is an important vision statement from Intel.

via PVR Blog

Comments (0) + TrackBacks (0) | Category: Digital Rights Management | Tools

February 18, 2004

Speed Bumps on Your Car

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Posted by Ernest Miller

One frequent justification you see for the use of DRM with copyrighted files is the so-called "Speed Bump scenario", which Derek Slater discusses here (Technology as Speed Bump). The basic idea is that, although DRM won't stop filesharing, it is useful in slowing the initial dispersion of copyrighted files as the number of initial uploaders will be reduced. The idea seems to make a lot of sense initially, but ultimately is not such a good idea.

First, for DRM to be at all effective, it will have to be backed up with something like the DMCA anti-circumvention provisions. Suffice to say that the DMCA is extremely problematic. Odd that such a draconian law is needed to justify a mere "speed bump." The words "sledgehammer" and "fly" come to mind.

Second, there is a serious issue regarding how effective the speed bump will be. Yes, you might reduce the number of initial uploaders. However, the spread of a file through P2P filesharing is exponential. What this means is that you have to think of effectiveness in terms of exponential generations. Let's say, for example, that without DRM there will be 256 initial filesharers. With DRM you manage to reduce the number of initial filesharers to 8. This would be an amazing reduction in the number of initial filesharers, only 1/32 of the number without DRM. However, assuming that the exponent of distribution is 2, you've only delayed the spread of the file by 6 generations. Even if the length of time for each generation is 4 hours, you've only slowed the distribution a single day. Whoop-de-do.

Once you are past the "speed bump" delay, you'd better have other ways to deal with files already in distribution. If you don't you might as well give up. In any case, you have to really wonder if all the DRM effort is really worth such short delays.

Third, there is another issue that creates serious cost/benefit issue. The problem with DRM as a speed bump is that it doesn't go away. Even if DRM is effective in the short term (which I think unlikely), its costs are long term. Long after DRM has provided whatever "speed bump" effect it can, consumers are still inhibited from many perfectly legitimate uses of a work. Indeed, many of the costs of DRM are backloaded. DRM likely doesn't create much of an initial issue for many. However, down the line, when people purchase new PCs or devices, DRM is likely to make transfers from old to new devices more difficult or impossible. Looked at from a long term perspective, DRM seems an extremely poor choice if all you're interested in is short term benefit.

Speed bumps make sense on some streets and parking lots. It doesn't make sense to attach them to your car.

Comments (0) + TrackBacks (0) | Category: Digital Rights Management

February 12, 2004

DRM Dystopias on Parade

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Posted by Ernest Miller

Mary Hodder has some excellent reporting from the Digital Media Summit in New York this week (Digital Media Summit Day 1). Below is a sample. Read the whole thing:

Media people still assume they are in control, and the case in point is the title of one of the first panels: The Broadcast Advantage or the Network Dominance Niche: Why the programming and advertising giants continue to deliver and maintain mass audience loyalty. I attended the first 10 minutes [that] this was debated. But still they assumed there was still control. They are arrogant, and it is a big part of the reason the public is so angry with media companies, and the press for that matter, and will keep wanting more ability to rip, mix and burn their media and to design their own experiences, and talk about it with both their friends and the makers of the content they buy.

Comments (1) | Category: Digital Rights Management

February 09, 2004

P2P and Pornography: Cheap is More Convenient

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Posted by Ernest Miller

The New York Times (reg. req.) has written an article on the different approaches that pornography companies are taking with regard to P2P (The Pornography Industry vs. Digital Pirates). The responses range from "It's direct marketing at its finest" to tactics similar to those used by the RIAA. This is not surprising, however, due to the fact that music and pornography industries are structured very differently. After all, no one would be surprised that book publishers aren't going after filesharers, since ebook sharing isn't nearly as big a threat to book publishers as music sharing is to music publishers.

On of the key paragraphs for me was near the end of the article:

Pornography merchants say that they have the advantage over free file-sharing networks, at least for now. They say the networks are not well suited to the needs of their consumers, who like images and movies that push their very specific buttons for, say, blondes or cheerleaders.

Basically, you can still sell porn despite free P2P versions because there are other barriers to access that a legitimate site can easily overcome. Unlike MP3s, for example, images and many pornographic videos on P2P networks have atrocious metadata. Because MP3s are relatively metadata rich, it is easy for someone to search for particular artists or songs. If you had to rely solely on filename (as much pornography must), it would be much more difficult to find the music you want.

As the paragraph notes, people are often interested in particular types of pornography (i.e., foot fetish, smoking fetish). Finding such images would be as difficult as searching music only by genre. You can find it, but the search is much more burdensome than searching for specific artists. I think radio, for example, helps reduce search costs for music. There is no equivalent of radio for pornography.

Anyway, pornography and music are different markets and their responses to filesharing will be different. However, there are lessons for the music market. Number one, convenience is worth money. A site that can make it easy for me to find music I will like and get that music for me when I want it is more valuable than an inconvenient, hit-or-miss P2P experience. As a porn entreprenuer says:

"Free is very anarchistic and hard to deal with, and you don't know what you're getting," said a pornography entrepreneur who goes by the online pseudonym T. Lassiter Jones. "Cheap is more convenient."

The formula for the record companies to survive is simple: raise the cost of using P2P networks (through lawsuits, bogus tracks, etc.) and provide convenient, inexpensive legitmate access to music. Once the cost of the legitimate source is less than the costs associated with P2P, then P2P will no longer be a major threat. Percentages might fall, but the overall market will likely grow.

In this model, DRM is a mistake. DRM does not significantly raise the cost of P2P (the music gets on the network anyway), but does decrease the value of access to authorized music files.

It works for pornography.

Comments (4) | Category: Copyright | Digital Rights Management | File Sharing

February 06, 2004

P2P Industry Association is Not Your Friend

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Posted by Ernest Miller

C|Net News reports that the Distributed Computing Industry Association (the P2P industry group), has proposed a third business model for legally sharing music via P2P (Trade group proposes new P2P music model). You can read the details of all three models in a Power Point presentation (ever hear of open formats DCIA?): P2P Music Models [PPT].

Like their other models, this model has a snowball's chance in H-E-Double-Hockey-Sticks chance of succeeding, but then the DCIA isn't really interested in success, they are just interested in acting as if they want a solution. However, to the extent that they are proposing solutions that give the music industry a chance to control the market, the DCIA is essentially fronting for the RIAA. So let's take a look at this "new" model:

...continue reading.

Comments (3) | Category: Copyright | Digital Rights Management | File Sharing

February 04, 2004

DRM - False Privacy Savior

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Posted by Ernest Miller

On the Moore's Lore blog Dana Blankenhorn makes the provocative claim that DRM will be useful as a privacy protection measure (Mobile DRM Argument Misses The Point). Dana points out a major issue the world of "always on" raises, that of privacy. When almost everything we do is generating wireless data, such as our blood sugar levels, refrigerator contents, and garden soil moisture levels, we will certainly want to protect much of that information from prying eyes. Dana's response is to promote the use of DRM as a privacy protection measure.

This is not such a good idea for a variety of reasons.

First, it would essentially propertize our privacy. There are a number of major concerns regarding propertizing privacy, especially the fact that it is unlikely to solve many of our problems. Without going into a major critique here, Pam Samuelson has written a good introduction to many of the issues involved: Privacy as Intellectual Property? [PDF].

Second, enabling DRM in everything is far more likely to be privacy corroding. Anonymity would be very difficult to assure when everything is digitally signed and encrypted.

Third, DRM is a technical solution, not a policy or social solution. Dana claims that,

Under DRM the holder of the content has the absolute right to control where it goes, and the conditions under which it is used. Right? Isn't that what you want, when the content is personal, even intimate, knowledge about you, your body, your possessions? Isn't that the very basis of privacy?

But this isn't true. My ability to control information about me has far more to do with my ability to negotiate with those who will have access to information about me then the technical protections I choose. For example, people can choose not to use a grocery store card that tracks their purchases, but that is going to have a significant impact on their wallets (which leaves no choice for many people). I can choose not to enable cookies on my browser (yeah, right). Each of these privacy-protection solutions is technologically impeccable and completely within my theoretical power, but their ability to protect practically non-existent. DRM will not change this.

There is also a strange dissonance in Dana's position. Dana says that, "Once you buy something, whether it's a can of peaches, a microwave, or a song by Nelly, it's yours." However, why wouldn't the same apply when the grocery store "buys" my grocery-shopping habits in return for everyday lower prices? Why wouldn't the grocery store "own" that data? After all, that data was generated with the grocery store, they are partially responsible for generating that data in the first place.

Privacy is an important issue in the "always on" world, and DRM may play some role in the solution with regard to particular problems and specific threat concerns. However, there is simply no reason to believe that DRM should be "baked into the World of Always-On" in order to protect privacy.

Comments (2) | Category: Digital Rights Management | Privacy

January 15, 2004

HP's Corporate Schizophrenia

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Posted by Ernest Miller

Late last week Hewlett Packard Chief Executive Carly Fiorina declared that starting this year all HP digital entertainment products will use software that respects the copyrights of artists. In other words, HP would become one of the leading proponents of DRM (HP Goes Off the Rails).

This week, Fiorina is celebrating the fact that HP raked in the bucks selling Linux-related products and services in 2003, according to a C|Net News article (Linux brings in $2.5 billion for HP). HP is selling Linux-based collections of hardware and software, as well as thin clients that plug into central Linux servers. Revenues for Linux-related products and services in 2003 increased $500 million or 25% over 2002. Sounds like a nice, healthy, growing business to be in.

Apparently, not a business HP really wants to see take off, however. Someone at HP should inform Fiorina that DRM and Linux don't work too well together.

Here's an idea Fiorina: the heck with sucking up to Hollywood; start selling Linux-based digital entertainment products to consumers. Who wouldn't want a central Linux server that sends multimedia to a bunch of thin clients throughout the house?

Comments (2) + TrackBacks (0) | Category: Digital Rights Management | News | Open Source

January 13, 2004

DRM as Protectionism

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Posted by Ernest Miller

One of the main reasons that Hollywood has been such a proponent of DRM (such as fighting to protect CSS) is not simply to protect against internet movie piracy (which remains a minor irritation at best), but to protect region coding, which allows movie studios to release the same DVD in different markets at different times, or slightly different DVDs in different markets. This form of price discrimination is a traditional means for copyright holders to maximize revenue, but in the digital age requires major restrictions on consumers to make it work. So, for example, if someone from the US buys a DVD while on vacation in Europe, they won't be able to play it back in the US.

Hollywood, of course, would love to have region coding even further mandated by law and international treaty, but if they are successful, they may not like the ultimate results.

The Competitive Enterprise Institute has a brief article on efforts by some ministers of culture to have cultural goods exempted from free trade agreements (The New Protectionism). The organization in question, International Network on Cultural Policy (INCP), seeks to help countries "develop strategies to promote cultural diversity," which generally means excluding US cultural products to some degree.

How interesting it would be for the INCP to take up the banner of region coding in order to enforce restrictions on the flow of cultural goods. This is really not that far fetched. DRM is a wonderful tool that governments can use to enforce all variety of censorship.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Rights Management | Freedom of Expression

November 10, 2003

Sony's CD DRM Makes a Comeback

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Posted by Ernest Miller

WIRED publishes a Reuters wirestory on Sony re-launching its ConnecteD CD Extras format as a new type of DRM (Sony's User-Friendly Copy Block). Love the title for the piece - where did it come from? The press release? Simply more evidence of Sony's consumer electronics schizophrenia. How long before someone like Alex Halderman writes a critique of Sony's DRM as devastating as Halderman's analysis of SunnComm's (Analysis of the MediaMax CD3 Copy-Prevention System).

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Rights Management | File Sharing

November 06, 2003

The Problem with Incompatible DRM

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Posted by Ernest Miller

C|Net News has an interesting piece on the incompatibilities created by the use of DRM (Stalemate on digital content?). The underlying video might be standard MPEG, but the differing DRM used by two different systems makes the formats incompatible. You can't listen to Windows Media Audio (WMA) on iPod, and you can't listen to Advanced Audio Coding (AAC) iTunes on anything but iTunes.

This is sort of like the war between Beta and VHS, except here you have un-DRM-encumbered formats such as MP3 and Ogg Vorbis. Are Microsoft and Apple secretly trying to reduce the market success of their licensed music downloads?

Comments (0) + TrackBacks (0) | Category: Digital Rights Management | File Sharing | Open Standards

November 05, 2003

Broadcast Flag Loophole Watch - Manufacture for Export

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Posted by Ernest Miller

Okay, so I've been reading the FCC's Broadcast Flag requirements and I've noticed what appear to be a couple of potential loopholes for those interested in maintaining consumer rights past the July 1, 2005 deadline (Report and Order and Further Notice of Proposed Rulemaking). According to the FCC's new report, it is illegal for manufacturers and distributers in the US to provide non-DRM'd equipment (effective July 1, 2005) to US citizens, but perfectly legal to manufacture the devices here and sell or distribute them overseas:

§ 73.9009 Manufacture for Exportation.
The requirements of this subpart do not apply to Demodulators, Covered Demodulator Products or Peripheral TSP Products manufactured in the United States solely for export.

The FCC, apparently, believes that foreigners won't be pirates, but US citizens and residents will. Either that, or the FCC believes that foreign residents deserve to have media functionality that US citzens don't.


This reminds me of the old cryptographic requirements, only in reverse. In the earlier days of the web, there were a number of websites that provided cryptographic programs for download, as long as the downloaders were in the US, since it was illegal to export the programs, but not to distribute them domestically. The websites offering the programs for download made some attempt to block people from downloading the programs overseas.

Here, the situation is reversed. It is illegal to distribute domestically, but not to export. Thus, you can write an open source demodulator without DRM, as long as it is solely for export. I imagine you can make the program downloadable, as long as you make some effort to ensure people can't download the program from within the US.

This is a significant improvement over the DMCA, which prohibits virtually all distribution. Under the DMCA, you can't distribute DeCSS at all. Under this regulation, you could distribute the equivalent of DeCSS, as long as you distributed it only to those outside the US. Thus, for open source software developers in the US, they can distribute their work overseas (which will then be redistributed right back to the US).

Caveat: This is based on a quick reading of the regulation. I may be missing something that closes this loophole.

Comments (2) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Source

November 04, 2003

FCC Mandates Broadcast Flag

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Posted by Ernest Miller

Salon reports that the FCC has approved the Broadcast Flag (FCC approves Internet anti-piracy tool):

While all five commissioners supported the order, Jonathan Adelstein, one of two Democrats on the five-member panel, said the decision did not safeguard viewers' privacy.


...continue reading.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management

November 03, 2003

Introducing Beloved Comrade Palladium

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Posted by Ernest Miller

DocBug has a nice short commentary on "Trusted" computing (Trusted Computing). He uses an analogy I haven't heard before, that trusted computing is similar to the political officer in Soviet military units. Apparently, communist political officers "were great as long as you believed in what the Communist Party stood for." Trusted computing is the same, as long as you agree with the rules, having them be enforced is great. Bonus distinction, however, "you won't get shot for refusing to use TC on your computer."

Comments (2) + TrackBacks (0) | Category: Digital Rights Management

October 31, 2003

Pumpkin Carving DRM

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Posted by Ernest Miller

SpookMaster is one of the leading websites for those interested in advanced jack-o-lantern patterns. The website is a commercial enterprise, and though they have some free designs, they make money by selling the pumpking carving patterns. They have somewhat traditional designs such as "Frankie" and "The Bewitching Hour," as well as more contemporary designs, such as "Arnold Schwarzenegger." You might think that it would be relatively easy to copy the patterns which are shown on the site, and thus avoid paying for the patterns, but you would be wrong. Be sure to pay attention to the copyright notice:

If you try to copy an example pumpkin from the website you get the message These sample patterns look just like the real thing but they are NOT CARVEABLE. The sample patterns have been designed to look exactly like the carved patterns but with a few minor (unnoticeable) changes that make them impossible to carve. We don't do this to be mean, we do it to protect our business. [emphasis in original]

For added fun, try to copy and paste from their website and see what happens.

Readers may also be interested in the copyright notice on this Jack-o-Lantern Bookmark Crochet Pattern:

This pattern is COPYRIGHT © Jackie Karp 2002
Do NOT post on other web sites, crochet groups etc or copy illegally. It is free for personal use ONLY! Do not pass it on to other people via email or by copying it as you are taking traffic away from this site by doing so

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Rights Management | Halloween | Oddities

October 28, 2003

Next Gen DVD - Now Even Less Useful!

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Posted by Ernest Miller

What is this? 1997? The Register reports that the DVD Forum has decided not to create a standard for a higher storage capacity DVD, but rather to offer a standard for "Enhanced DVDs" that will permit users to connect to password protected internet sites for more data (Next DVD spec. to offer Net access not more capacity). This makes sense, why?

Call me crazy, but I'm thinking that greater capacity on DVD disks would permit you to put all that additional web content right on the disk itself, and not require an internet connection to access the data. Storing the data on the disk has other advantages as well ... such as reducing the need for bandwidth and servers. Do you really trust Hollywood studios to maintain these servers indefinitely? Is this data going to be updated and changed on a regular basis? I highly doubt it. If it is not going to be updated, why not put it on the disk?

This might be interesting, if the studios were going for a community play, and allowing consumers to upload/download content they've helped to create, such as alternative playback menus ala MovieMask. I kind of doubt it, however.

One thing this will likely do is reduce the resale value of used DVDs. Essentially, each DVD will have a unique key (why else use keyed data). If access to the information available through this key is at all useful or desirable, a couple of things will happen. Hackers will rip the DVD, copy the key, and then sell the DVD. The key will likely be promulgated to many other users and will eventually be banned by the motion picture studio servers, much as compromised activation keys for software titles are banned. Used DVDs then, will have less value than new DVDs, just as used software (which is tied to servers, ala Blizzard) is much less valuable.

The same thing will happen to rental DVDs. If you are really interested in the extras, using Netflix or Blockbuster might not be such a good idea, since the keys their disks use may have been compromised.

A networked DVD player, that would be useful. A networked DVD player with a hard drive that could interface with the DVD, that would be innovative. A higher capacity DVD player, that would be worth paying for. "Enhanced DVDs"? DVDs are already "enhanced." Connecting to some website won't make them better.

Comments (0) + TrackBacks (0) | Category: Digital Rights Management

October 27, 2003

Copy Protection Robs the Future Deja Vu

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Posted by Ernest Miller

Dan Bricklin, co-author of the seminal VisiCalc among many other accompishments, notes on his blog that in a demo of the upcoming Windows OS "Longhorn" - Bill Gates demonstrated backwards compatibility by running a 20-year old version of VisiCalc (VisiCalc, Longhorn, DRM, and Larry Magid's weblog). Backwards compatibility is cool. But, where did that copy of VisiCalc come from? According to Bricklin, "the only reason I have a copy that can still work is that someone kept a 'bootleg' uncopyprotected copy around." [emphasis in original]

Except for the fact that someone ignored copy protection, Gates might not have had a copy of VisiCalc to show off. And that copy was only 20-years old! No book degrades that quickly and there is no reason bits have to degrade. However, with copy protection, bet on decay. For more information, see Bricklin's famous essay, Copy Protection Robs the Future.

via Dan Gillmor

Comments (0) + TrackBacks (0) | Category: Digital Rights Management

FCC to Regulate Whole Internet?

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Posted by Ernest Miller

I wrote about this earlier today (FCC to Regulate Routers - Critics of Broadcast Flag Get Mainstream Press) but it bears emphasis and should be very worrisome if true, as Ed Felten notes on Freedom to Tinker (Broadcast Flag Confusion). There is a downright scary quote in today's New York Times' (reg. req.) article on the Broadcast Flag (Critics Press Case on TV Piracy Rules):

An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.

Felten is right when he says,

Somebody is really confused here about how the Internet works. Maybe it's the reporter, or maybe it's the FCC source, or maybe (God forbid) both.

If this statement bears any connection to reality, it's cause for serious worry. I can't think of any way of translating the statement into a technically coherent form that doesn't involve the FCC redesigning the basic workings of the Internet.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Access

Microsoft DRM - Headaches to Come?

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Posted by Ernest Miller

Vnunet has an interesting article on the likely problems Microsoft's new digital rights management tools in MS Office 2003 and MS Windows 2003 will cause (Rights tools could bite back). While it might seem great to some that they will be able to set a time limit on emails (so they "self-delete" after a particular period) or to make sure that some emails will only be read by certain groups, the problems such systems will cause may outweigh any potential benefits. Lawyers are already familiar with the problems their clients have run into by putting certain things into emails; DRM might encourage a potentially false feeling of security for email once again. Imagine the difficulties careless use of such features can create: co-workers having to jump through loops to get information they should be able to easily obtain. How long before someone in a company adopting MS's new tools causes vital information to be deleted due to inadvertently setting a "self-delete" date?

DRM tools can be useful if managed carefully to meet specific needs. They just create headaches (or worse) if not.

Comments (0) + TrackBacks (0) | Category: Digital Rights Management

DRM Companies Fund Felten's Attacks on DRM

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Posted by Ernest Miller

Famed computer science professor Ed Felten runs the Freedom to Tinker blog, where his discussions of cryptography, security, copyright and freedom and technology generally are deservedly popular. Popularity comes with a price, however. In this case, the cost is the expense of bandwidth. In order to offset some of his costs Felten decided to try Google AdSense (ADS). The system puts AdWords on the bottom of the individual entry pages for Freedom to Tinker. The ads are supposed to be "relevant to what your readers see on your pages."

Interestingly, the ads on Felten's site are almost all for copyright/patent enforcement and digital rights management - topics upon which Felten has strong opinions, most of which would not be viewed favorably by the advertisers. I'm not sure which is more ironic - Felten advertising DRM systems - or DRM companies funding Felten through advertisements.

Be sure to read the comments on Felten's site.

Comments (1) + TrackBacks (0) | Category: Cryptography | Digital Rights Management | Oddities

FCC to Regulate Routers - Critics of Broadcast Flag Get Mainstream Press

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Posted by Ernest Miller

After a week in which it seemed that only the proponents of the Broadcast Flag were getting their voice heard, two articles in the mainstream press provide more of the critics' perspective. WIRED extensively quotes Broadcast Flag foe Fred von Lohmann of EFF (A Case of Piracy Overkill?). Nevertheless, it seems that the FCC is determined to make the terrible mistake of implementing a Broadcast Flag. The mistake might be worse than previously thought, according to the New York Times (reg. req.) article (Critics Press Case on TV Privacy Rules):

An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.

That's right. The FCC is thinking about regulating email routers so that they scan and filter emails for the Broadcast Flag. That is such a stupid idea I don't know what to say.

And what does "three" routers have to do with it? Is it okay to send email with television shows if it only goes through one router? These officials are unbelievably clueless. Really.


Salon has an excellent article on this as well (Hollywood to the computer industry: We don't need no stinking Napsters!).

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Rights Management | File Sharing

October 23, 2003

The Fragility of Data

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Posted by Ernest Miller

The Shifted Librarian reminds us how fragile modern data storage devices are by pointing to a librarian and archivists guide to preserving CDs and DVDs (Please Do Not Feed the DVDs). The HTML guide can be found here (Care and Handling of CDs and DVDs: A Guide for Librarians and Archivists) or in ([PDF]). Jenny reports from a recent librarian's conference A/V panel:

One person in the audience said his library gets only a dozen or so circs out of their DVDs because they are used so heavily and they don't hold up well. Judy from Schaumburg said her library gets a much higher circ rate, with some lasting as long as 120 circs.

One of the reasons I oppose DRM so strongly is because data storage is really quite fragile. Without the ability to freely copy, it is easy for information to be lost.

Comments (0) + TrackBacks (0) | Category: Culture | Digital Rights Management

October 20, 2003

Future of Digital TV Threatened By More Than Broadcast Flag

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Posted by Ernest Miller

The Broadcast Flag issue is incredibly important, see, among many others Copyfight (What's the Deal?). Then let your Reps, Senators and the FCC Commissioners know how you feel, either through EFF or

However, the Broadcast Flag isn't the only issue that puts the future of unrestricted digital television in doubt. Case in point, the New York Times (reg. req.) reports on what may be the coming death of stand alone personal media recorders, such as TiVo (Can Cable Fast-Forward Past TiVo?). A couple of quotes to consider:

"This really is the last stand for the stand-alone boxes; this is a dying product," Aditya Kishore, an analyst for the Yankee Group, a technology consulting research firm in Boston, said in a telephone interview. "This is the last Christmas for the stand-alone TiVo box, or any stand-alone DVR box. By next year, the DVR functionality will be widely available in a wide range of other devices, including the set-top boxes."
"We believe that over time, DVR technology is going to be the standard," said Mark W. Jackson, an EchoStar senior vice president. "Everyone is going to have it. It's just a question of when - and who they get it from, of course."

I certainly hope that the Yankee Group analyst is wrong, because otherwise the question asked by Mr. Jackson becomes much more important. What the NY Times is reporting is that the cable and satellite companies are bundling personal media recorder capabilities with their services and this will eliminate the market for independent devices. The problem with this is that it also gives the cable and satellite companies control over the function of such devices. Skipping commercials, recording anything you want, and networking the device with other devices will almost certainly be restricted. Sounds an awful lot like the broadcast flag.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Access | Telecomm

October 17, 2003

Microsoft on iTunes for Windows

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Posted by Ernest Miller

Everybody's been talking about the advent of iTunes for Windows, but what does Microsoft have to say? Nothing good, apparently, (Q&A: Choosing a Digital Music Service for Windows Users):

iTunes captured some early media interest with their store on the Mac, but I think the Windows platform will be a significant challenge for them. Unless Apple decides to make radical changes to their service model, a Windows-based version of iTunes will still remain a closed system, where iPod owners cannot access content from other services. Additionally, users of iTunes are limited to music from Apple's Music Store.

What I find interesting is that the Windows spokesperson (Dave Fester, General Manager, Windows Digital Media Division), goes on to talk about how bad iTunes is because it is a closed system:
As I mentioned earlier, this [iTunes' closed system] is a drawback for Windows users, who expect choice in music services, choice in devices, and choice in music from a wide-variety of music services to burn to a CD or put on a portable device. Lastly, if you use Apple's music store along with iTunes, you don't have the ability of using the over 40 different Windows Media-compatible portable music devices.

Apparently, Windows users don't want choice in their operating system or media formats, but really care about it with regard to music. In any case, how long will this choice last, do you think? My guess is just long enough to smoke Apple once again. Microsoft doesn't mind supporting a variety of hardware vendors, but how long will any middleware service built solely on a foundation of MS technology survive?

I especially like the last sentence:

When I'm paying for music, I want to know that I have choices today and in the future.

Precisely. Which is why I'm avoiding all these closed services like the plague. Ogg Vorbis Rules!

Comments (0) + TrackBacks (0) | Category: Digital Rights Management | File Sharing

October 15, 2003

SunnComm Brouhaha Continues

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Posted by Ernest Miller

As I noted on LawMeme (SunnComm to Sue Halderman Over Critical Academic Report and SunnComm Backs Off on Threat to Sue), SunnComm first threatened to sue, then retracted the threat of lawsuit for Alex Halderman's report on their MediaMax CD3 DRM technology. Read the report here (Analysis of the MediaMax CD3 Copy-Prevention System).

However, the fact that SunnComm won't sue hasn't stopped SunnComm from continuing to say very foolish things. You can read Ed Felton's note (SunnComm's Latest), a fisking of some of SunnComm's comments on GrepLaw (Right. Uh-huh.), or Derek Slater's comments (Thanks But No Thanks for the License, SunnComm).

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