July 12, 2014

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Happy Endings

Cameron Wilson at the USACM Policy Blog writes about a Cato Institute event about copyright policy, which was held Wednesday. The panel on the DMCA was especially interesting. (audio download; audio stream; video stream)

Tim Lee, author of the recent Cato paper on the ill effects of the DMCA, spoke first.

The second speaker was Solveig Singleton of PFF, who offered some amazing arguments. Here is her response to the well-documented list of DMCA misuses:

Even if you set aside some of the errors in the Cato paper, you’re left with a set of examples, many of which have happy endings, without any change to the law. Ed Felten’s case, for example. There are other cases. There were lawsuits that were threatened but not brought. Lawsuits that were brought but ultimately failed. Lawsuits that succeeded but on grounds other than the DMCA.

(This is my transcription from the audio stream.)

To call the case of my colleagues and me a “happy ending” takes some real chutzpah. Let’s catalog the happy consequences of our case. One person lost his job, and another nearly did. Countless hours of pro bono lawyer time were consumed. Anonymous donors gave up large amounts of money to support our defense. I lost at least months of my professional life, and other colleagues did too. And after all this, the ending was that we were able to publish our work – something which, before the DMCA, we would have been able to do with no trouble at all.

In the end, yes, we were happy – in the same way one is happy to recover from food poisoning. Which is not really an argument in favor of food poisoning.

She goes on to argue for the efficacy of the DMCA, using the example of Apple’s FairPlay technology (which is used by the iTunes music store):

But … are they [Apple] going to be able to get music developers to the table to negotiate with them to help create this library [of music] if they can’t make some reasonable assurances that that content isn’t going to show up free everywhere else?

Never mind that all of the songs Apple sells are available for free on P2P networks, despite FairPlay and the DMCA. Never mind that FairPlay has a huge and widely known hole – the ability to burn songs to an unprotected CD – which Apple created deliberately.

It’s understandable that DMCA advocates don’t want to give a realistic, straightforward explanation of exactly why the DMCA is needed. If they tried to do so, it would become clear that the DMCA, as written, is poorly suited for their purpose. Instead, we get strawmen and arguments from counterfactual assumptions.

I’ll close with a quote from Emery Simon of the Business Software Alliance, another speaker on the same panel, making a claim so far off-base that I won’t even bother to rebut it:

[If not] for copy protection technologies, whether it’s Macrovision or CSS or Fairplay, my VCR and my television set would be devices no more useful to me than my car without gasoline.

Comments

  1. Bill Higgins-- Beam Jockey says:

    Solvieg Singleton:

    “But … are they [Apple] going to be able to get music developers to the table to negotiate with them to help create this library [of music] if they can’t make some reasonable assurances that that content isn’t going to show up free everywhere else?”

    This is the first time I have heard the phrase “music developers,” a logical consequence, I suppose, of the now-decades-old practice of referring to music, movies, and TV shows as “software.”

    The old phrase was “musicians,” but we don’t have an equivalent word like “softwareicians.”

  2. Ned Ulbricht says:

    It’s understandable that DMCA advocates don’t want to give a realistic, straightforward explanation of exactly why the DMCA is needed. If they tried to do so, it would become clear that the DMCA, as written, is poorly suited for their purpose.

    This doesn’t follow.

    If DMCA advocates have a goal and a set of requirements, then how do they benefit from covering up a clear problem when their legislative “software” solution doesn’t match those requirements?

  3. ratboy says:

    the title of this article is a synonym for oral sex.

  4. James Laver says:

    Because DRM is so infallible, it’s not like anyone cracked drm before is it? Not like you can bypass it by burning to a disc and reading it back in, is it? DRM isn’t DRM, it’s DIM (digital inconvenience management), and it’s just than, an inconvenience. Computers are here to make people’s lives less inconvenient.

    As for macrovision, it’s not like you can buy a Timebase Corrector, or anything. It’s ridiculous. There is always a weak spot, and there will always be cracks. Using DRM isn’t to stop piracy, it’s to control the market, to extract royalty payments, and to fleece customers to buy songs over and over again.

  5. V says:

    Actually, the thing about Apple making “music developers” negotiate is true, but for other reasons. It’s because the “music developers” aren’t sane, and they don’t understand their own business.

    Yesterday I was flipping through an old magazine from 1983 and stumbled across an editorial entitled “Is the Record Industry Really Dying…” It looked really familiar. To summarize, the industry was crying about how the tape recorder was killing off their business by making copies of music. It mentioned how they tended to neglect stats that showed home-recorders tended to buy music too, and then went on about how RIAA wanted to ban the tape recorder. They made weird allusions to using encodings that would interfere with recording… essentially watermarks.

    The article also said the real problem with the industry was the prices. Go figure, some things never change.

    May we note, that nothing came of the “crisis.” The recording industry is still making millions through all of its “crisises.”

    The difference is, this time the Internet upped the scale. People aren’t buying less music, they’re just moving to digital. They may be possessing more music. They may be pirating in higher rates, but they still buy plenty of legit music.

    The only other difference is this time they got what they wanted: DRM. It doesn’t actually have anything to do with piracy, but since when did reality ever concern these people?

    Fair enough, something should be done to deter 12-year-olds who get ALL their music off P2P. Suing and/or imprisoning their parents is a wonderful solution that will really get these kids to respect copyright.

  6. Seth Finkelstein says:

    Bill: “developer” there is a business word, which means “one who commercializes” – as in “property developer” (who does not make property).

    Ned: I think the point is more that DMCA advocates don’t like to be very blunt about some implications. It’s very hard to outlaw DRM crackers without outlawing security researchers – sometimes they’re even the same people.

  7. Daruku says:

    Cars are usefull without gas if you have a horse pull it :) In the same manor TVs and VCRs would be usefull if you put small radios inside of them…

  8. the_zapkitty says:

    Happy Endings?

    Media insustry lawyer… (panting)….

    “Thank you for bending over so promptly, Mr. Doe.

    Now: on your knees please, and guess what? You won’t even need the vaseline for this! A Happy Ending indeed…”

  9. Seth Finkelstein says:

    By the way, my sympathies – I get people telling me that if I get sued, I will have a “happy ending”. I can never convince them otherwise :-(.

  10. Matthew Skala says:

    ratboy: not exactly – in the context you’re thinking of, it would usually refer to manual sex. But nobody over the age of thirteen thinks it refers to any kind of sex when it’s used in unrelated contexts. Just like the word “it” can refer to sex, but usually doesn’t.

  11. the_zapkitty says:

    Jokes aside, the point isn’t their corporate wish for legal sanction in fucking people over.

    The point is the implied threat:

    “These were happy endings for all of you… it could have been much worse for you.”

  12. Doug Lay says:

    Solveig Singleton was actually the third speaker on the panel. The second speaker was Carl Shapiro of the Consuper Electronics Association. Shapiro had the sound-bite of the day during the panel Q&A, in response to some hemming and hawing by Singleton:

    Singleton: “..again, this is a sort of rough and ready approximate solution to a very, very…..DIFFICULT enforcement problem and…….again it does seem to be working very roughly as intended with a relatively small number of problematic examples.”

    (sits back with a nod as Shapiro reaches for microphone.)

    Shapiro: “So when Sony Records put out a CD which corrupted your computer, under the DMCA you couldn’t reverse that to try to get rid of it, and that’s okay?”

    (looks at Singleton, who at first seems still to be savoring the completion of her last sentence, then gets a deer in the headlights look. Emery Simon of BSA jumps in, admitting that Sony could have litigated under the DMCA in such a situation, but that they likely would have lost. Happy endings again, I suppose.)

    Shapiro went on to explain to the theory-loving Cato libertarians that the copyright debate in Wshington is largely not substantive, but political – rooted in Congress’ deep coziness with the content industry. He is absolutely correct on this – how does one even begin to substantively engage a Congressman (committee head, no less) who states with a straight face that the DMCA is the foundation of or digital economy?

  13. enigma_foundry says:

    “The creation of a vast right-wing network (especially of “think-tanks”) using funds from ultra-conservative multi-millionaires to peddle (usually fraudulent or misleading) right-wing talking points in the form of “expert opinion” or “research” was another part of the long-time Republican game plan to takeover the media.”

    (see website: http://media.eriposte.com/4-4.htm for more info)

    The publishers of “IP Central” are just paid lackeys owned by the large -corporate-dominated Neo-con administrations, not publishing anything that contains a whiff of critical thinking.

    It is just part of a power-grab by big corporations, who are now tieing in with the big government movement of the present administration.

    What I find especially galling is the way they continue to frame their arguments around ‘freeedom’ and free markets when they clearly believe in coercion of the market by big government to come to the aid of big business.
    The DCMA is *just* one example.

    The speed with which the present administration suddenly starts its fake “investigation” of big oil for price fixing of petrol is another example.

    So why takes those who create fake “research so seriously?

    We have to, because they have been effective in penetrating the mass media…

  14. enigma_foundry says:

    PS:

    Note especially that IP Central does not allow comments to be made on their “discussion” forums. So it really becomes one long monologue,really.

  15. the_zapkitty says:

    Raunchy jokes, murky conspiracy rants, and serious issues…

    Ayup :)

  16. Larry says:

    Solveig Singleton:

    “Basing an exception on fair use, for example, I think, would not work
    especially well.”

    I think the above quote from Ms Singleton’s presentation is at the crux of the dispute.

    It seems as though Ms Singleton and the PFF hold the view that it is perfectly fine for the DMCA and DRM to trump fair use rights, and see no harm if legal fair use rights are denied to consumers in the process.

    Of course, the content providers would probably rather sell and re-sell the same rights that are allowed under fair use. DRM, with the anti-circumvention provisions of the DMCA, allows them to do this. In effect, allowing them to make an end-run-around fair use rights permissible by law.

    The end result is that all fair use rights allowed under law are voided, without ever having to go to the trouble of changing laws applicable to fair use. Under the umbrella of DRM, the content providers get to set use rights contrary to law – and this contradiction is somehow still all legal…

  17. the_zapkitty says:

    Larry did say:

    “Under the umbrella of DRM, the content providers get to set use rights contrary to law – and this contradiction is somehow still all legal…”

    It’s not a problem when the victims unknowingly sign their rights away via the EULA.

  18. enigma_foundry says:

    ” Solveig Singleton:

    “Basing an exception on fair use, for example, I think, would not work
    especially well.”

    I think the above quote from Ms Singleton’s presentation is at the crux of the dispute.”

    It is a good point, but for those concerned with the erosion of their First Amendment Rights, it is not the crux.

    The fact that Sloveig and the other corporate fascists at the PFF never even try to make a cogent argument as to exactly why property rights of large corporations should trump the First Amendment rights of a natural person belies the intellectual bankruptcy of their position.

    Since their postion is intellectually bankrupt, they cannot allow comments on IP Central, as the vacousness of their argument would become quickly apparent.

  19. the_zapkitty says:

    enigma_foundry semi-demurkified thusly:

    “the PFF never even try to make a cogent argument as to exactly why property rights of large corporations should trump the First Amendment rights of a natural person”

    Hmmm?

    How does Fair Use = First Amendment?

    Note: I am aware that they are also stomping on the First Amendment as well with their “Thou Shalt Not Speak Of Corporate Incompetence and Malfeasance” routine.

    “Since their postion is intellectually bankrupt, they cannot allow comments on IP Central”

    Ah. IP Central is a bloggish site associated with the PFF (not to be confused with the PLF).

    http://ipcentral.info/

    It is a blog where they apparently spend a lot of time making sonorous pronouncements on “IP” issues… announcements that blend equal amounts of duplicitous cupidity and amazing stupidity.

    The murkiness of your postings now clears a bit :)

    Hint: When referring to previously unreferenced web sites in a commentary a link to the site helps immensely.

    And no… of course they aren’t going to allow you to burst their rosy little delusions.

    And why should they? ;)

  20. Ned Ulbricht says:

    How does Fair Use = First Amendment?

    See, for instance, Eldred v Ashcroft:

    In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. [...]

    Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. [...]

    The fair-use doctrine helps accommodate inescapable tension between the grant of power in the Progress clause, and the denial of power in the First Amendment.

  21. bonapart says:

    In regard to Simon’s hooey that our VCRs would be useless without copy protection technology;

    If not for the lack of protection technology at the time of its introduction, and more importantly protection law, the consumer VCR would have never come to be. And it still was almost shot down in its infancy. One only has to imagine if Sony had to first seek approval from the content industry and licensing bodies to acquire the rights to make connections.

    How will we be able to count the future technology that will never exist because of protection law? When analog outputs are gone, the content industry gets veto power over all new media technology. They should be careful what they wish for, as if they had vetoed the VCR – which they must assuredly would have, it can be argued that DVD wouldn’t have made it either.

  22. Doug says:

    I watched all four parts of the event, which took some work since I refuse to install the crappy real video player.

    I especially liked the philosophical discussion by the second panel. All of this will be probably be lost on congress, unfortunately. What’s even more sad is Zoe Lofgren’s remarks that she could only think of a few members of congress who share her position.

  23. enigma_foundry says:

    I was pointing out that, for me the trammelling of my First Amendment Rights is more important than the Fair Use Issue. Both Fair Use and First Amendment rights are important to me, but the First Amendment, comes, well, FIRST.

    PFF never makes any argument as to why First Amendment rights should take a backseat to poerty rights, do they? It’s because for them profits of a few large corporations are more important than the First Amendment.

    They are different issues. My First Amendment rights are violated when I can not post source code to defeat DCSS. Or when Dmitry Skylarov was arested for presneting his paper.

  24. Doug says:

    Good point. It is currently more legal to talk about reverse engineering of nuclear wepons than it is to talk about the DRM on an apple i-tunes track. Why? Only because of the commerical corporate interest of Apple.

  25. Andy says:

    Another article from today about the Canadian Music Creators Coalition:

    http://www.canada.com/nationalpost/news/issuesideas/story.html?id=3367a219-f395-4161-a9b9-95256c613824

    The CMCC is anti-sue and anti-DRM. The highlights:

    - First, we believe that suing our fans is destructive and hypocritical. We do not want to sue music fans, and we do not want to distort the law to coerce fans into conforming to a rigid digital market artificially constructed by the major labels.

    - Second, we believe that the use of digital locks, frequently referred to as technological protection measures, are risky and counterproductive. We do not support using digital locks to increase the labels’ control over the distribution, use and enjoyment of music, nor do we support laws that prohibit circumvention of such technological measures, including Canadian accession to the World Intellectual Property Organization’s Internet Treaties. These treaties are designed to give control to major labels and take choices away from artists and consumers. Laws should protect artists and consumers, not restrictive technologies.

    - Third, we strongly believe that cultural policy should support actual Canadian artists. We call on the Canadian government to firmly commit to programs that support Canadian music talent. The government should make a long-term commitment to grow support mechanisms such as the Canada Music Fund and FACTOR, invest in music training and education, create limited tax shelters for copyright royalties, protect artists from inequalities in bargaining power and make collecting societies more transparent.

  26. Sarah Lai Stirland says:

    Hi there,

    I didn’t have time to get into this on the CATO panel, but there is a book called “The Big Picture,” by Edward Jay Epstein that gives context to the logic of mechanisms like the broadcast flag. The justification given by a movie studio executive in this book for these technologies to control their content is to “retain control over their content even after they sold it” apparently.

    It’s a very interesting read.

  27. Ed Felten says:

    I’m a fan of Epstein’s book, too.

    It’s very plausible that at least some people in the movie industry see DRM as a way to control consumers’ personal use of legally purchased content. My sense is that Congress might not have passed the DMCA if it had believed that it purpose was to give copyright owners more control over personal use. It’s telling that almost all DMCA advocates refuse to debate it on that basis.

    (Note to readers: Sarah Lai Stirland was the moderator of the Cato panel.)

  28. Andy says:

    Senator Ted Stevens introduced a bill on Monday which includes the broadcast flag, again. The bill also has some nonsense which would outlaw the camouflage of VOIP packets.

    Probably not any lobbyist efforts behind these bills…

    http://www.extremevoip.com/article/Senate+Bill+Attacks+Content+VOIP+Analog+TVs/177196_1.aspx

  29. johnT says:

    Contrary to what you write in the article, I think DRM is perfectly suited for their purpose. As I’ve said before, its obvious preventing copyright infringement is not its purpose. It doesn’t work for that, and they know it. Stopping “pirates” is the excuse they can sell to the public and congress. As long as opponents of DRM continue to play the game on the piracy issue (where the RIAA and MPAA want it), we’ll lose.

    The purpose of DRM is to prevent Fair Use or the use of content in any way the “content creator” does not control. Therefor, any type of “Fair Use” clause in the law is anethema for their cause. As an example of preventing legal behavior, an increasing number of DVDs force the user to watch the previews before being able to watch the movie. I’ve even been met with an “Operation Not Permitted” from my home DVD player when hitting the “Stop” button.

    Preventing the user from stopping a DVD at any time has _absolutely nothing_ to do with preventing illicit copying. It is the media industry preventing what is otherwise perfectly legal activity done by consumers within their own homes.

    As an aside, its quite simple (though time consuming) for me to take that same DVD, put it in my computer, rip it thereby removing the protections, and burn it to a different DVD for viewing. I’ve even joked that I’m going to start a business similar to the ones that remove “objectionable material” from movies. Only in my case, the objectionable material is all the trailers, warnings, etc. the user is forced to sit through if they want to watch the movie.

  30. Joe says:

    “Never mind that all of the songs Apple sells are available for free on P2P networks, despite FairPlay and the DMCA.”

    Such songs are not exactly free, since users of those networks are also generally servers of bootlegged material, their machine address hanging out in the wind, and subject to litigation if caught. So the enforcement provision of the DMCA has an effect there–and indeed that’s why there’s so much caterwauling about the enforcement aspects. There will always be scofflaws of course, in any area of law. Their presence does not make the corresponding law absurd. Just the fact that an activity is illegal keeps most people from engaging in it–sure, someone can download some p2p program and hoist the jolly roger, but a little bit of their soul dies in the process.

  31. Ed Felten says:

    Joe,

    The DMCA doesn’t ban sharing copyrighted material online. That has always been covered by traditional copyright law.

    Traditional copyright law clearly does some good. The question is what the DMCA adds on top of what copyright law already does.

  32. Neo says:

    “There will always be scofflaws of course, in any area of law. Their presence does not make the corresponding law absurd.”

    Even when they amount to 1/6 of a nation’s population? That kind of widespread civil disobedience is usually a sign that something, somewhere, is quite absurd.

  33. Grant says:

    “The DMCA doesn’t ban sharing copyrighted material online. That has always been covered by traditional copyright law.”

    This is a key point. Traditional copyright law does provide adequate legal protection. What the DCMA protects is not the copyrighted material, but the techologies used to restrict the use of the copyrighted material.

    The really offensive thing is that the DCMA prevents what may not otherwise be a crime. And in doing so it inhibits clearly legitimate and valuable research.

    And, in doing an already bad thing, the content distributors get to rewrite the deal by which their products have been sold for years. Note that I say “content distributors” not “music developers”. This is not about the creative process of development. Its about distribution, nothing more.

  34. MikeT says:

    DRM or not, the fact of the matter is that trading songs on a P2P network is illegal. We don’t need the DMCA to protect copyright holders’ legitimate interests. If anything, it has caused them to rely too much on technology, and not enough on good old fashion basic police work to protect their works from people who indiscriminately share them.

  35. bonapart says:

    Solveig Singleton expresses sympathy to Ed in her report The DMCA Dialectic: Towards Constructive Criticism.”

    Solveig has mentioned in numerous public talks, and in this report, that a “slimmer version of her former self” held a more critical view of the DMCA.
    If anyone witnessed the transformation of Solveig, I would be interested in hearing any details which might give insight to her current position.

  36. bonapart says:

    Also, Solveig’s blog posts in which she criticizes Tim Lee’s Cato paper (here and here ) come across fairly mean spirited and nasty for someone claiming to offer construcive criticism.

  37. Neo says:

    MikeT blithered something about cartels needing to “protect their works”.

    The only thing “works” need “protecting” against is the gratuitous blocking of access and erecting of toll roads around our culture by greedy corporations out to make a profit at the expense of making culture into a commercialized morass of read-only crap locked away from contributions by mere mortals and even mere access by the poor.

  38. AP says:

    Corporations see “Fair Use” as you paying them a fee to use something you already paid for, if you don’t pay the fee up to 10 years in jail will suffice. Consumers will be better off stealing another copy of their purchase if they want to back it up or transfer it to another device as making copies of flimsy media prone to scratching could land them in more trouble.