p2p news / p2pnet: DRM technologies are “clumsy and ineffective” and they, “inconvenience legitimate users but do little to stop pirates.”

That’s the view of Timothy B. Lee, a policy analyst at St Louis’ Show-Me Institute, who also says:

“The Founding Fathers gave Congress the right to recognize copyrights in order to ‘promote the Progress of Science and the useful Arts.’ It hardly promotes progress to give a handful of companies the ability to tightly control how consumers use copyrighted content. Rather, progress is promoted in a technological marketplace of interoperable products, consumer choice, and fierce competition.

“The anti-circumvention provisions of the DMCA betray the constitutional vision. They impede rather than promote the progress of science and the useful arts.”

US courts had a proven track record of fashioning balanced remedies for the copyright challenges created by new technologies, says Lee in Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act. But when congress passed the 1998 Digital Millennium Copyright Act, “it cut the courts out of this role and instead banned any devices that ‘circumvent’ digital rights management (DRM) technologies, which control access to copyrighted content,” he state. “The result has been a legal regime that reduces options and competition in how consumers enjoy media and entertainment.

“Today, the copyright industry is exerting increasing control over playback devices, cable media offerings, and even Internet streaming. Some firms have used the DMCA to thwart competition by preventing research and reverse engineering. Others have brought the weight of criminal sanctions to bear against critics, competitors, and researchers.”

The anti-competitive DMCA gives copyright holders, as well as the technology companies who distribute their content, the legal power to create closed technology platforms and exclude competitors from inter-operating with them, says Lee.

“The DMCA puts its thumb on the scales of justice on the side of copyright holders. Digital rights management technologies give copyright holders complete control over every aspect of how their products are used. And the DMCA gives DRM technologies the force of law. As a result, when the next VCR or iPod is invented, the content industry may use its powers under the DMCA to refuse to allow its content to be used on the new device.

“If new inventions are prevented from even entering the marketplace, there will never be an opportunity for a public debate about their benefits. Most consumers will not even know what they are missing.”

Later in his report, under The War on Piracy, “In their fight against piracy, Hollywood and the music industry employ three principal weapons,” Lee points out. “The first weapon is the lawsuit … the Recording Industry Association of America targeted companies that facilitated copyright infringement, including Napster, Grokster, and StreamCast. In 2003 the RIAA began suing individuals as well. It has filed hundreds of lawsuits a month, settling most cases for a few thousand dollars each.”

In this, Lee is incorrect. In fact, the majority of cases remain ‘unsettled’ and the results of the first of the 18,000 law suits to reach a civil court will have a large impact on future attempts to sue victims into becoming compliant ‘consumers’.

Meanwhile, “The second weapon is a PR offensive designed to raise public awareness of the costs of piracy,” the report cintinues. The industry seems to recognize that it can’t sue everyone who uses a peer-to-peer network, so it hopes to persuade ordinary consumers that downloading copyrighted materials without paying for them isn’t just illegal, it’s also wrong.

“The movie industry has begun running a series of ‘respect copyright’ commercials in movie theaters across the country” and, the third industry weapon is DRM (digital rights management) technology.

In his conclusions, Lee emphasises that former MPAA (Motion Picture Association of America boss Jack Valenti warned Congress in 1982 that the, “[VCR] is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Earlier in that same testimony, he said:

The permission of the copyright owner is required for the use of [movies] in all markets. Those markets include theaters, cable, pay cable, pay television, prerecorded cassettes, network television, syndicated television, video discs.

Every one of those markets is going to be competing for Mr. Eastwood’s new film Firefox. They are going to license that film at a negotiated price.

You simply cannot live in a marketplace where there is one unleashed animal in that marketplace, unlicensed. It would no longer be a marketplace; it would be a kind of a jungle, where this one unlicensed instrument is capable of devouring all that people had invested in and labored over and brought forth as a film or a television program, and, in short, laying waste to the orderly distribution of this product.

Lee continues:

Contrary to Valenti’s predictions, the VCR turned out to be a great boon to the movie industry. Although some sales probably were lost to customers who chose to build libraries of movies recorded from TV, many consumers found the process too cumbersome and time-consuming and opted to purchase them instead. Meanwhile, within a few years, the ‘prerecorded cassette’ market became a major revenue source in its own right. If this was Hollywood’s Boston Strangler, every woman home alone should hope for a visit.

Yet, as Valenti’s words reveal, the movie industry was fixated exclusively on the potential downside. Movie studios, like all large corporations, are conservative institutions. They have a strong interest in ensuring that the ‘orderly distribution’ of their product continues undisturbed. If the marketplace becomes too dynamic and unpredictable, there is a real threat that some other company will find a way to sell the same products cheaper or more efficiently.

When faced with a new industry innovation, they are especially likely to decide that the potential reward just is not worth the risk.

So it should concern us that the DMCA gives industry incumbents broad new powers to erect legal barriers to the introduction of new technologies. Given the industry’s track record, there is little reason to think that incumbents will use those powers wisely or with restraint. More likely, they will view any

consumer electronics product they do not fully control as a threat and refuse to allow such devices access to any of their content.

They are likely to demand the removal of any feature that might threaten industry profits, no matter how much it might benefit consumers and even if it might hold out the possibility of new industry revenues.

Unfortunately, that take-no-prisoners approach to copyright protection will cause a lot of collateral damage. The ‘record’ feature on a VCR really does have ’substantial noninfringing uses,’ and they are not restricted to time shifting. In the Sony decision the Supreme Court noted that ‘representatives

of professional baseball, football, basketball, and hockey testified that they had no objection to the recording of their televised events for home use.’

There is no good reason for the leagues to prevent sports fans from building a library of their favorite games, given that the leagues are unlikely to ever broadcast those events again. But that didn’t stop the movie industry from trying to outlaw the ‘record’ function on every VCR, regardless of the program being recorded.

By the same token, the consumer video marketplace of the future will be impoverished by the restrictions imposed by the OpenCable specifications. For example, a blogger commenting on the 2008 presidential race might want to include a video clip of a crucial exchange in one of the presidential debates. Or

a sixth grader might want to include a short clip from the latest Harry Potter movie in a book report. The bandwidth and computing power to do such things are rapidly coming within the reach of the average consumer, and, under traditional copyright doctrine, such uses would likely be considered fair.

But the restrictions of OpenCable will likely make those uses impossible without violating the law. Converting copyrighted content into a format suitable for redistribution to the Internet is verboten by the OpenCable specification, regardless of whether doing so would constitute fair use.

The DMCA errs because it focuses on a technological means - circumvention - rather than a criminal end - piracy. People who circumvent DRM schemes to pirate content should be punished, but people should be free to circumvent copy protection for purposes that are otherwise lawful. Sports fans should be free to record sports programs if the programs’ owners do not object. Political junkies should be free to record public-interest programming that is in the public domain and redistribute it freely. Amateur movie buffs should be free to include short video clips in movie reviews, just as book reviewers include brief excerpts in book reviews.

In short, consumers should not be punished if they circumvent copy protection for lawful purposes.

When the next breakthrough media device is invented, its inventor should not face a legal system in which the deck is stacked against him, as Streambox and DeCSS did. He should be free to focus on hiring the best programmers, designers, and marketers, rather than on shopping for a good law firm. If industry incumbents attempt to prevent his product from working with theirs, he should be allowed to circumvent the restrictions as Accolade did in the Sega case. And if the device has a substantial non-infringing use’ and is developed and marketed for such use, Congress and the courts should uphold its legality, even if it threatens the business model of can established industry.

Also See:
compliant ‘consumers’ - Patti Santangelo fund nears $11.5K, March 5, 2006

This entry was posted on Wednesday, March 22nd, 2006 at 10:49 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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