NYT: Music Fans Turning to Each Other, Away From Traditional Gatekeepers

In an article covering Pandora, MusicStrands, and other novel recommendation tools, the NYT writes: “All told, music consumers are increasingly turning away from the
traditional gatekeepers and looking instead to one another — to fellow
fans, even those they’ve never met — to guide their choices.”

Nicely put. The paper on recommendation tools I co-authored is briefly mentioned.

MySpace Teams With Snocap for Music Store; Uses Fan-To-Fan Taste Sharing to Drive Sales

Congrats, Snocap – you finally matter, potentially in quite a significant way.  Apparently, Snocap will help 3 million unsigned on MySpace sell their songs in MP3 format.  The bands will be able to sell the songs from their own pages as well as on fan pages, using fan-to-fan recommendations to drive sales.

A month ago, I pointed out Snocap’s interesting new Linx/MyStore service, a move away from touting their vaporware P2P filtering.  The other (and the truly important) half of Snocap’s business model had always been their potential function as a rights clearinghouse.  I’ve briefly discussed the importance of efficient rights clearance on this blog before, and Snocap aimed to clear the rights thicket by creating a one stop shop for music distribution licensing. Their “digital registry” could help connect labels and artists — whether on major labels, indies or unsigned — with individuals and businesses that want to redistribute the music in myriad ways, beyond and including P2P.

Connecting unsigned bands and the millions of MySpace users is one potentially important use.  These bands have to go through an intermediary like cdbaby to get into iTunes (not so bad), they get no flexibility in price or DRM (much more problematic) and even then iTunes wouldn’t do a great job of feeding fans to them (more problematic still). MySpace provides a great alternative avenue, at least with the audience it happens to have at present.

Moreover, MySpace is a ready-made medium to take advantage of fan-to-fan taste sharing.  Jupiter’s recent research supports MySpace’s particular viability here.

Microsoft To Issue Patch For FairUse4WM; Apple FairPlay DRM Broken Again

Engadget has the Microsoft internal email.  Though many may end up claiming this as a victory for DRM, that’s the wrong lesson to take away.

Meanwhile, Engadget is also reporting that Apple’s FairPlay DRM has also been broken, which is similarly less of a big deal than it sounds.

Previewing Lessons Learned From FairUse4WM

On the one hand, I’ve said that most users won’t care about FairUse4WM
because they already could easily get unencrypted
copies. On the other hand, Janus DRM has discouraged music fans from subscribing and hurt online music businesses. 
In what sense can both these statements be true?  In short, music fans
would flock to a true all-you-can-eat mp3 subscription service, but, don’t be surprised if FairUse4WM has little impact on user adoption of subscription services.

Many users who currently rely on P2P
would put down money for a slick Rhapsody-like service that didn’t
restrict their uses, just like many online music users already flit
between iTunes and P2P depending on which happens to be more convenient
at a given moment.  And, in the long run, an all-you-can-eat mp3
service may be where we’re headed.

But in the short run, I don’t
think that’s how things will play out.  Most music fans still don’t
want anything that smells like a subscription “rental” service, and,
unless FairUse4WM gets integrated into Rhapsody in some form, it
doesn’t make the experience seamless enough. The iTunes Music Store has
dominated the market not just because of the price point, but because
it and the iPod work with no fuss.  In contrast,
Rhapsody-to-FairUse4WM-to-iPod still requires some energy, and, more to
the point, Rhapsody+P2P downloading will for many people be as or more
convenient than Rhapsody+FairUse4WM.  FairUse4WM may make some current
Rhapsody customers happy, but it won’t attract too many new ones. 

remember that this hack could be cut off, potentially by forced
upgrades or by the roll-out of new subscription services and devices
down the road.  That could prompt users to tune out the licensed
services even more, but it will give certain industry folks the sense
that this was a victory for DRM. After all, if the DRM can’t be broken
once and then run everywhere forever, it “works,” right?

Of course not — as I said, most users who want
to get around the DRM already can easily do so through
non-circumvention means, and, as Engadget argued, the people who would
download the whole catalog and then cancel the subscription aren’t
going to be Rhapsody customers anyway. The DRM might get a few extra
pennies out of a few people, but that’s far less than the money
Rhapsody would attract with mp3s, and it certainly ain’t enough to
build an online music service business around.  The service providers like Yahoo already understand this, but the record labels don’t or have other interests in mind, and middlemen like Microsoft are indifferent.

my worry — one that in part motivated my initial analysis — is that the
music industry and others will take all the wrong lessons away from this, and none
of the right ones.  Stay tuned, and hope for the best. As both an Activist and a Rhapsody user, I’m keeping my fingers crossed.

FairUse4WM Benefits Music Fans *and* Online Music Services

My report on FairUse4WM, the Windows Media DRM evasion tool, focused on whether users would care. Again, I think most music fans won’t care about the tool, though the few subscribers who are unwilling or unable to use the readily-available alternative avenues for acquiring unencrypted content will be quite happy.

But the question remains: will online music subscription businesses be harmed by the tool? And will Microsoft block music fans’ ability to make fair use of legitimately acquired music and respond with DMCA threats or even lawsuits, perhaps at the record labels’ behest?

Engadget makes the case for why they shouldn’t in an open letter published today:

“We’re big fans of the subscription services [which currently use Microsoft DRM] … but let’s face facts: the damn things don’t work very well. It’s pretty easy to download tracks, but it’s a serious pain in the ass to successfully transfer them to a portable device…. [W]e get tons of emails from consumers complaining about how hard it is to get Napster, Rhapsody, Yahoo Music Unlimited, etc. tracks on to their players, or, god forbid, Macs.

“Are a lot of people going to pay $15 to sign up for a subscription service, download a ton of music, and then cancel a month later? Absolutely, but that’s not a big deal. Those people were never, ever going to sign up for a service that offers locked down music anyway, so be happy that you squeezed any money out of them at all. (Yeah, this does make it tougher to offer free, unlimited trials, but that’s not the end of the world.) Could those same people then put all the music they’ve just downloaded up on the P2P networks? Sure, but all that music is available there anyway, so it shouldn’t make a bit of difference in the grand scheme of things.”

Well said — the DRM doesn’t do anything to stop music “pirates,” but it does discourage potential customers from ever using licensed music services. In turn, the DRM hurts not only music fans, but also online music download and subscription businesses, as Yahoo! is quite willing to admit. Certainly, Microsoft and the record labels have some unique interests in perpetuating the Windows Media DRM and stifling start-up innovators. But let’s hope Microsoft and the major record labels lay off the lawsuits and, ultimately, the DRM.

(Cross-posted at DeepLinks)

Windows Media DRM Apparently Cracked, And No One Cares

Windows Media DRM has apparently been compromised. Reader Frank Payne pointed me towards a program called FairUse4WM that decrypts Windows Media files. I had heard of a similar program recently called drmdbg.  I cannot confirm how and the extent to which these function, including incompatibilities with certain software setups. I also can’t tell how new these tools are — I found posts about drmdbg from over a year ago, but only news in the last few months about FairUse4WM. Regardless, the tools apparently are ways around the DRM for WMA and WMV, including Janus DRM.

While interesting news, it’s rather irrelevant to online media services using WM DRM. Most users won’t care about these decryption tools, not because the DRM is “consumer-friendly,” but rather because there are already readily-accessible alternatives to acquire unencrypted copies and thus get around the DRM’s unfriendly limits.

About a year ago, I reported on the development of a work-around for pre-Janus WMA DRM. To my knowledge, this development never produced a working crack, and, given how readily other DRM systems like CSS have been circumvented, that may be surprising to some. One might wonder why it took so long for a decryption utility to become widely-available.

The most plausible answer is that the online music DRM is so easy to get around that essentially no one gives a damn about actually circumventing it. If iTunes or Napster Light users want to make a use that the DRM prohibits, he or she can burn the song to CD and rip, use the analog hole, or get on a P2P network.  All three are trivially easy ways to get an unencrypted copy and make circumvention practically unnecessary. The subset of users unable or unwilling to perform these steps is, I suspect, an incredibly low percentage of the whole userbase. (Which is not to say that the DRM causes no outrage or damage among users. That small subset of users is unfortunately prevented from making many non-infringing uses of purchased music, while the DRM does nothing to prevent “Internet piracy.”)

This answer is a lot more compelling, I think, than believing that the online music DRM was particularly well-designed and difficult to beat in the face of the DMCA. But my answer prompts another question: why would these WM tools come out at all, and why now?

I can think of two main responses.  First, people might still have wanted to create these tools for fun. Sure, few would have a practical use for them, but that discourage everyone. The alternative avenues for DRM evasion merely meant there was less incentive to work on a decryption tool and thus less people developing one — less, but not zero.

Second, the recent though meager growth of Movielink, Cinemanow, Rhapsody Unlimited, Rhapsody-to-Go, and similar services created a matching recent though proportionately meager increase in incentives to create decryption tools. All the content on those services remains readily-accessible on P2P. But burning and re-ripping is not possible, and, for movies, using the analog hole is a little bit more difficult. So, with those alternative avenues slightly cut off, that was enough to kickstart a little renewed interest in creating an actual decryption tool.

That’s my speculation. Again, this doesn’t really affect the argument over whether DRM+DMCA can achieve their intended purpose of stopping “Internet piracy” — they don’t and can’t, as I addressed at length in recent posts. But that would have been true had these tools never been created.

Update, 11:23 AM Friday: Endadget has screenshots and apparently successfully tried this tool. See:  * Filed by Derek Slater at 1:04 am under General news
* 1 Comment

IP Scholars Conference Drafts

The IP Scholars Conference recently took place at Berkeley — many papers are just early drafts, but plenty of food for thought.

And while we’re on the topic:
* This paper was forwarded to me, haven’t read it but looks interesting:
David Choi, “Online Piracy and The Emergence of New Business Models.” From the abstract: “This explorative paper examines the impact of online piracy on the emergence of innovative, legitimate business models. While often dismissed by academics and professionals alike, online piracy has shown to be a valuable source of innovation to both industry incumbents and entrepreneurs.”  See also, this blog thread from a year ago.

* Previously mentioned on this blog, now published in the Georgetown Law Review – Dotan Oliar’s “Making Sense of the IP Clause: Promotion of Progress as a Limitation on Congress’ IP Power.”  See also, Oren Bracha, “Owning Ideas: A History of Anglo-American IP.”

Bring On the PRM Wars

Felten’s put together a fine series on evolving defenses of DRM and related anti-circumvention laws. He’s right that the entertainment industry has begun more frequently offering alternative arguments to defend the DMCA+DRM, but I wouldn’t go so far as to say that they are “replacing” the DRM as speed bump to “Internet piracy” myth.  Yet if this were the case, I would welcome the switch. Indeed, if the DMCA’s existence hinged on these issues, I bet it would be wholly reformed.

Hollywood certainly can’t sell the public on these arguments, as Felten also suggests. They can’t convince consumers that restricting compatible devices is a good thing — heck, the record labels won’t even defend the iPod-iTunes tie, though they reluctantly go along with it.  And if the major entertainment companies’ best argument for price discrimination is that they’ll get to take away your ability to freely burn CD copies of purchased music, then they’ll be doing my job for me. Consumers don’t want fair use taken away so that it can be sold back to them bit by bit.

This isn’t to say no one can make a coherent argument defending these practices.  Rather, I think consumers are generally — and rightly — suspicious of them. Policymakers and judges might be similarly wary — remember, even as many legislators ignored the DMCA’s broad harms, the issue of music player incompatibility got a hearing relatively soon after its effects began to be felt. But, at present, the fear of “Internet piracy” blinds many of them to DMCA+DRM’s actual impact.

So I say: bring on the Property Rights Management wars and a fair evaluation of the DMCA+DRM’s impact.  Of course, because they don’t want such an honest look at the DMCA, the RIAA and MPAA will continue to focus on the DRM-as-speed-bump myth, and too many policymakers will continue to buy it.  But, hopefully, with enough convincing, the latter will one day change their tune.

Were You Exposed by AOL’s Data Leak?

If you are an AOL member, use EFF’s Action Center to contact AOL and find out whether you were one of the AOL customers whose search data was publicly disclosed. By voicing your concerns now, you can make sure AOL works to prevent another damaging data leak from happening again.

Regardless of whether you’re an AOL user, send a link to the Action Center (http://action.eff.org/aolsearch) to friends and family who use AOL. You can grab sample letter text as well as blog buttons here.

(Cross-posted at DeepLinks)

New Berkman WP: Educational Uses of Copyrighted Material

Bill McGeveran sez, “I am delighted to report that the Berkman Center has released the white paper on which I have been working, along with Professor Terry Fisher and a terrific team of Berkman fellows and Harvard Law students, for the last year. The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age explores the ways in which copyright-related restrictions impede innovative educational uses of digital content.”

Get the paper here.  Congrats to Bill and the whole team on the release!

[update: whoops, seems my post led to Cory to think I was an author.  Love the paper, but I didn’t work on it and can’t take any credit for it.]

All DRM Under the DMCA is Bad DRM

Tim responds to me here.

The principal — practically the sole — reason to use DRM is to restrict lawful uses and get a veto over innovation by third parties.  Certainly, Hollywood and content intermediaries today only use DRM for this purpose, but I cannot imagine what other purposes they would seriously seek to use it for.  It doesn’t stop the only illegal use that matters — “Internet piracy”; all the other illegal uses it could stop are so marginal, and I don’t think DRM would fair much worse at stopping them in a non-DMCA world.

So when Tim poses this as a choice between “bad” and “good” DRM, I think that’s completely wrongheaded.  The reason to use DRM is to use “bad” DRM and exploit the DMCA. A DRM system that “permitted the full range of” lawful use wouldn’t be worth implementing — it would have few if any practical uses. 

The DMCA only (or at least almost exclusively) supports ill purposes — that’s why it’s objectionable. A law of that sort ought not be on the books. Calling it “technology agnostic” is beside the point.  (Again, you can try to defend the DMCA as price discrimination and platform monopoly enabler, but I don’t see those as purposes we should support insofar as they depend on depriving the public of its rights in copyright, and I think Tim agrees on this point.)

Apparently, Tim thinks it’s useful to “shift the focus” from this bad statute to bad media company choices.  But, again, there is no reason for them to use this hypothetical “good” DRM.  Using “bad” DRM may be a rational choice for them (at least, but for other forces e.g. P2P), even though they’re bad choices for society as a whole.  The problem is giving those bad choices the protection of the law.

Tim thinks that attacking the DMCA wrongly deflects the blame. To the contrary, I think discussing the merits of hypothetical “good” DRM wrongly deflects attacks on the DMCA. Many people seem to think that we can just throw enough geeks at this issue, then DRM and lawful use will co-exist in harmony, just like DRM will stop piracy some day.  Surely, there are better and worse implementations of DRM, but all DRM under the DMCA is bad DRM.  The focus should remain squarely on that point.

[note: edited on aug 1 to make the opening to third paragraph follow first paragraph’s qualifications).

OMG Licensed P2P!!!

This week, Mashboxx announced a licensing deal with EMI. Over a year ago, it announced its first licensing deal with Sony.  The service is still not even in its first beta.  After many laudatory articles and nearly a year after a Snocap rep contacted me because I had called the P2P filtering and payment service “vapor” over at Paidcontent, Snocap’s announced its new Linx retail service. Yet, so far as I know, the P2P system still has not been implemented in a live service.

Meanwhile, Kazaa settled and will open up a new licensed service at a later time.  Given the above, I bet Licensed Kazaa will launch some time in 2009.

Now that’s what I call progress.

(To be fair, the implementation of Linx here is actually kinda neat, and I’m all for rights aggregation of this sort.  But it’s sad (and predictable) how slowly these licensed distribution services are being rolled out.)

The DMCA’s Deserved Rap

In the comments of a post about Urs Gasser’s new paper on anti-circumvention laws, Tim Armstrong made this rather peculiar statement: “[M]y
paper on fair use and digital rights management (linked from the blog
) is in some measure an attempt to show that the DMCA has gotten
a bum rap — the statute has been blamed, incorrectly in my view, for
some problems that in reality stem from particular choices among
competing technological designs.”

What is the rap that Tim is referring to?

The main rap on the DMCA is that it has been completely and utterly ineffective in serving its chief aim: preventing “Internet piracy.”  This rap is wholly deserved. A cleartext copy of any given DRMed song or movie will be practically as readily accessible if there were no DRM at all.  The DMCA has done nothing to keep unencrypted media off P2P networks and other darknet sources.  This all holds true in what I like to refer to as “reality” – not to be confused with the pre-Napster time warp that too much scholarship still resides in.

The DMCA has also stifled fair use and innovation.  It greatly expanded copyright holders’ rights.  I don’t see how that’s a bum rap simply because one can imagine DRM that does less damage.

Moreover, given the first rap, why do alternative technological designs even matter? If the DMCA isn’t creating its intended benefit, then any damage is a net loss for society.  Tim has done a lot of careful thinking about alternative designs for DRM that better accomodate fair use and his paper is a nice extension of scholarship on this subject, starting roughly 5 years ago with a paper by Dan Burk and Julie Cohen and many papers on so called “rights expression languages.” But before weighing whether and how to accomodate fair use, it seems appropriate to examine whether DMCA+DRM can achieve their intended goals. If they can’t, then “better” DRM is a moot subject.

Now, there may be some other illegal uses DMCA+DRM could limit. For those who are unwilling or unable to find and acquire unencrypted content from alternative sources (e.g. P2P) *and* are unwilling or unable to use circumvention devices *and* are unwilling or unable to use the analog hole to make an unencrypted copy, perhaps DMCA+DRM could have an effect.  If someone would like to try justifying all the damage the DMCA+DRM have done to fair use and innovation based on limiting these other unlawful uses, please go ahead. 

A more likely tact, taken by Randy Picker among others, is to defend how the DMCA+DRM can limit *lawful* uses in order to enable platform monopolies and price discrimination.  Note that it seems Tim would be very much against this line of thought, since he’s saying the DMCA would be fine if only DRM accomodated fair use.

Tim Lee has recently spent a lot of time considering this issue, and it’s also worth checking out Pam Samuelson and Suzanne Scotchmer’s article related to this subject from 5 years ago. While I’m in Lee’s camp here, there are some decent arguments on the other side. For the moment, all I’d like to say is this: I would love it if the policy discussion around the DMCA merely focused on this point.  Enough about whether the DMCA prevents piracy (it doesn’t) or limits fair use (it does).  Please defend the DMCA openly as an abrogation of fair use and celebrate a world in which upstarts can’t come along and create new
cool tools that help you get more from your music and movies.  Please defend it as a reversal of established caselaw, and explain why that caselaw got it wrong in the first place.

Ars: “Activism makes a difference in California copyright fight”

As a former California public school student, working to improve this bill was especially fulfilling and fun.  Here’s hoping that the curriculum turns out alright. Stay tuned….

Keep DOPA Out of Schools

SethF sets the Deleting Online Predators Act in historical context.  Like CIPA, this bill would condition certain government funding for schools and libraries on the adoption of censorware — but this bill goes even further, targeting myriad communication tools including but not exclusively social networking. In its recent testimony, the ALA concisely explains the bill’s many problems.  The comments to this post are also instructive.  As the ALA points out, there are many reasons for kids to use online communication tools in the classroom or library, and here’s a heart-string pulling anecdote to cement the point (via Sivacracy).

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