catch up :: media, copyright, control, fair use

Proviso: This catch up post has lots of legal related comment and although I believe the comments are considered, these are not being made by a legal professional (IANAL).

Content at all costs

The latest Sony Audio CD DRM ugliness is yet another reminder of the distorted views that some content owners have regarding their rights versus their consumers’ rights. These are not limited to large content cartels either as I have observed extremely niche players in NZ ignoring the basic economic principles on which copyright is based on.

The fundamental problem is that some content owners seem to believe that they are morally entitled to complete-absolute-total control over every aspect of their content indefinitely.

Therefore they should have the right to crack your computer with copy protection schemes such as XCP. They should also have access to your all email and records of where and what you do on the Internet, as access would be an “effective instrument in the fight against piracy”. Thankfully the EU has turned down that particular request, for now. [The bad news from a privacy standpoint is that data retention of communications has been mandated by the EU]

I see that BoingBoing has posted the list of rules associated with a DRMed Cold Play CD. You can’t see the list until you have purchased it, as it’s an insert – which to me is thinking totally inline with the music industries logic concerning the threats and opportunities they face. DRM CDs do not prevent piracy, they simply break the product for Mr and Ms Av Punter.

Perversely the CD DRM may increase the duplication of material, from DRM CD to CD, to enable the normal use of the CD. Strangely enough I recently explained to an acquaintance how he could create a DRM free copy of a Cold Play album he had purchased which he could not play as normal on his Windows PC. At the end of this process he possessed two copies of the album – and he was still extremely annoyed that he had unknowingly purchased what he considered to be faulty product. For a comprehensive analysis of CD DRM Ed Felten’sFreedom to Tinker is a great resource.

Meanwhile in the US there is effort afoot to close the ‘analog hole’ with the Digital Transition Content Security Act of 2005 a.ka. the Sensenbrenner bill. This would require all analog to digital video processing products, hardware or software, to enforce the technological copy protection schemes mandated by the Act. A mix of the existing Copy Generation Management System Analogue (CGMS-A) a.k.a. Broadcast flag and the stronger Video Encoded Invisible Light (VAIL) method are currently being proposed.

Technically CGMS-A is encoded within the vertical blanking interval (VBI), separate from the video proper. This is same place where teletext and captioning data are found. Therefore it is easily defeated either as a consequence of the normal video processing that occurs within a broadcasting environment or intentionally stripped out. VAIL uses stenography to store information within the luminance of the signal and therefore is effectively mixed into the video. As it’s name suggests the Video Encoded Invisible Light is not detectable by human eye, and is considerably more difficult to defeat than CGMS-A.

You’re going to hear this described as the Bat signal due to the technology first being deployed to trigger Batman toys through them watching Batman television shows.

From a manufacturers point of view the bill is interesting. VAIL is a patented technology and the Sensenbrenner bill will force them to use the tech, presumably forcing them to license the technology from VAIL Interactive, or will they provide VAIL to manufacturers free of charge? The second option seems unlikely and although it’s possible some sort of umbrella deal with VAIL Interactive could be entered into – there would still be a cost of use for VAIL and it will be the manufacturers and consumers who will pay for it.

As The Technology Liberation Front point out professional devices are excluded from the Sensenbrenner bill but who gets to decide what is ‘professional’?

“Professional” devices, you see, are exempt from the restrictions that apply to all other audiovisual products. This raises some obvious questions: is it the responsibility of a “professional device” maker to ensure that too many “non-professionals” don’t purchase their product? If a company lowers its price too much, thereby allowing too many of the riffraff to buy it, does the company become guilty of distributing a piracy device? Perhaps the government needs to start issueing “video professional” licenses so we know who’s allowed to be part of this elite class?

Here in NZ the independent production community, which produces a significant amount of the material seen on prime time free to air television, depends on relatively low cost video acquisition and editing tools therefore if VAIL is mandated within the US will NZ professional users be adversely affected through increased equipment prices and/or by VEIL interfering in their production processes?

Internet Control

Meanwhile the ongoing debate within WIPO regarding the creation of a new intellectual property right for webcasters continues and we have US telecommunications companies openly suggesting that they be allowed to control the network performance of video content depending on business relationships with the site’s owners. This would allow a telecom to effectively degrade the performance of competitors for those using it’s networks or to offer a higher performance to web sites that had paid a premium to the telecom.

The incredible potential of broadband will be severely compromised if network operators are permitted to be the gatekeepers of the Internet, deciding what content, applications and services succeed or fail on the Internet. Indeed, users must be free to use broadband connections as they so choose; to read, search, buy, assemble and innovate. That is the very essence of the Internet. – Letter from Amazon.com, eBay, Google & IAC/Interactive Corp. to the US Committee on Energy and Commerce 8/11/2005

Unsurprisingly both major content sites, such as Google and Amazon, and consumer groups are strongly opposing this lobbying in regard to the network neutrality scope of US 2005 Telecom Bill.

Balancing IP

The Royal Society for the Encouragement of Arts, Manufactures & Commerce (RSA) have recently produced the Adelphi Charter on creativity, innovation and intellectual property that describes a more balanced approach to IP.

Creativity and investment should be recognised and rewarded. The purpose of intellectual property law (such as copyright and patents) should be, now as it was in the past, to ensure both the sharing of knowledge and the rewarding of innovation.

The ability to use and copy copyright material legally without permission is known as fair use or as fair trading in NZ and Commonwealth countries. It helps provides balance to copyright law however as Donna Wentworth notes:

...copyright mythology sounds a lot more like the truth than the truth. For instance, many people believe that copyright law gives the copyright holder absolute, immutable control over a work, lasting into perpetuity. The truth—that copyright has built-in limits to protect free speech, scholarship, research, and innovation (the “progress of science and useful arts”)—sounds like a lie. Surely all of that stuff is just bleeding-heart liberal, mushy-minded nonsense?

Therefore it’s useful to read two recent papers on fair use. One from the Brennan Center for Justice at the NYU School of Law, which describes the risk of fair use’s survival. Amongst other issues it notes the how the clearance culture of film and broadcasting affects the ability to use material in a fair use manner. For a different take on clearance culture and licensing hurdles this piece by the Hollywood Reporter explains why we’ll probably never see WKRP in Cincinnati on DVD. Larry Lessig cites this an example of how the anticommons prevents innovation and economic benefit.

The other recent guide is from the Center for Social Media outlining fair use principals to using material in their work in the report Documentary Filmmakers’ Statement of Best Practices in Fair Use.

The recently introduced Digital Media Consumers’ Rights Act of 2005 (US Congress) seeks to further clarify consumer’s fair use rights when DRM is concerned, stating that “is not a violation … to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work”.

Here in NZ we still await amendments to the Copyright Bill that are expected to propose the ability for individuals to format shift content, e.g. ripping your CD collection onto your iPod. It will be interesting to see if similar rights of circumvention to enable time or format shifting being proposed in the US will be adopted by NZ. Without these copying DRMed CDs, such as the Cold Play album, will remain outside statutory law.