A Copyfighter’s Musings

FvL posted a concise, insightful analysis of the Family Entertainment and Copyrights Act.  Cathy Kirkman (via JP) discusses the bill’s relationship to copyright’s distribution right.  Susan Crawford also picked up on this thread.

Filed by Derek Slater at 7:51 pm under General news
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Patrick Ross and Donna had an interesting exchange on DRM earlier this week, and I want to jot down some rough thoughts on the issues involved.

Let’s start where Patrick does. Would we be better off if Napster
could not use DRM to offer a rental service?  Would we be better
off if Napster could not even attempt to price discriminate
between To Go and Premium users using DRM?

In general, I think we can say the answer is no. Donna suggests
that many will not be interested in offers so restricted by DRM, but
that’s really beside the point.  Hopefully, consumers can
choose to purchase alternatives instead.

But the real question isn’t whether or not to allow
DRM.  The question is whether to protect DRM
with the DMCA.  Assuming that some of the offerings DRM
enables are beneficial, is securing that benefit worth the cost of the
DMCA?

The tiresome debate about DRM and piracy prevention has often masked this issue. FvL rightly points out
that DRM and the DMCA have been a total failure with respect to piracy, for it
only takes one unencrypted copy on P2P to allow such
infringement. However, the same logic does not apply to the
effectiveness of DRM in the context of controlling
consumer uses.  A Napster Premium user is still affected by
the DRM regardless of the fact that others are acquiring unencrypted
files on P2P; his usage is limited to the extent he can not easily
acquire a circumvention tool.  If DRM were not impacting such
users, you wouldn’t hear anyone complaining about not being able to use
Napster music on the iPod.  So regardless of “public
justification[s]” for the DMCA, enabling these sorts of services can be
an independent justification.

Is it a sufficient one?  That cuts to deeper issues about how
one views copyright.  The DMCA reformulated copyright,
granting an additional right of access beyond the exclusive rights in
section 106.  It grants copyright holders a far more extensive
right to control use.  

As I’ve written about before, some are quite comfortable with this shift.   If fair use is justified by nothing more than market failure, DRM restriction on fair use may appear far less severe.  But others
see fair use as securing important public rights and the market failure
justification as insufficient.  Moreover, the DMCA can also be
wielded to impede technological innovation and interoperability. 

Another relevant issue: without the DMCA, would offerings like
Napster 2.0 really not exist? Jane Ginsburg said we would not get
“cars on the information superhighway” without sufficient protections;
the MPAA argued that they would not use DTV without the broadcast flag
mandate.  But, in the end, is that a legitimate argument? 
Would rights holders not license Napster Premium without a DMCA? Would
everyone circumvent to get around the time-limit restrictions?

So I don’t mean this to be exhaustive – I’m more interested in
framing the issue. First, again and again, people in this arena end up
discussing banning DRM when the issue is the DMCA.  Take the
digital music interoperability hearing. Few are seriously
suggesting that we ban certain DRM and mandate interoperability.  Those who worry about the social welfare decreasing effects
of the iPod-iTMS tie see the DMCA, rightly, as the culprit.  The
usefulness of the DMCA, not DRM, is what we should be questioning.

Second, along with the costs in terms of fair use, innovation, et.
al resulting from DRM and the DMCA, we have to take seriously the benefits the DMCA
might provide in terms of enabling certain business models and certain
consumer choices.  To do so, we have to focus more on whether
structuring copyright around this “right of access” is really what we
want – if we’re, for instance, going to view fair use through the lens
of market failure.

Filed by Derek Slater at 11:40 am under General news
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Lawrence Solum has written a thoughtful, critical review of Free Culture. Solum focuses on the power of Lessig’s stories and the lack of academic rigor in some of his arguments. Highly recommended. See also David Post’s review in Reason, and Julia Mahoney’s review in the Virginia Law Review.

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Update, 10/07/2006: Those interested in this story might be interested in the release of FairUse4WM, a Janus DRM evasion tool

Cody Brocious was kind enough to respond to my post below, and then chat with me on AIM about the crack.  Here’s the scoop:

Cody and co. are apparently very near an implementation of a utility
that will allow people to turn songs acquired through Napster Light
(the a la carte service) and Premium (the non-portable subscription
service) into unencrypted files. You have to have paid for the songs
first to do this circumvention, because the keys have to be retrieved
from Napster.  This tool will actually circumvent and remove the
DRM, rather than recording from the sound card or employing other
similar workarounds to create unencrypted files.

The tool will not circumvent Napster To Go songs using Janus DRM, which
is WMA DRM v10 and different from the DRM applied to Light and Premium
songs.  Their utility is indeed based on the Beale Screamer code
document and only works with the WMA DRM
code pre-v10.  After the Beale Screamer code’s release, a tool called Freeme
was released that decrypted WMA files, but MS updated WMA to account
for this problem and secure the keys held client-side. Since the
utility “requests the license from the Napster license server just like
the official client does,” this issue is inapplicable. 
Technically, this is distinct from the PyMusique crack for iTMS.

Cody suggests that Napster Light and Premium songs do not use the Janus
DRM because of backwards compatibility issues.  If Napster Light
were to sell songs using Janus, the pre-Janus portable players (that
is, most players on the market) would not be able to play the content.
This issue does not apply to the non-portable Napster Premium; however,
since Napster To Go only works with WinXP, I imagine that all Win2k
users may have problems if Premium were to use Janus DRM. 

So Napster could respond to this crack simply by updating all DRM to
Janus, but it would come at great cost.  Cody acknowledged other
ways they could change the way they encrypt the content, but he
believes these changes would be trivial to circumvent, assuming they do
successfully implement the utility they are currently working on. He
also expects that Janus will be cracked, but stated that he is not
attempting to do so.

The tool will only work with Napster, but Cody expects that this scheme can be applied to other music stores in the future.

Cody sees his actions as “ethical,” irrespective of legality, and he is
willing to “fight the DMCA.”  He wants to be able to play his
lawfully acquired Napster music on Linux.

Further technical details will be available shortly.

Update, noon 12/15: Alex Goodwin, one of Cody’s fellow coders, offers additional details in this comment.

Filed by Derek Slater at 11:43 pm under General news
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Update, 10/07/2006: Those interested in this story might also be interested in the release of FairUse4WM, a Janus DRM evasion tool.

Shortly after Napster-To-Go’s launch about two months ago, word spread
that Napster’s DRM had been “hacked.” Nothing of the sort had happened,
but that didn’t stop Steve Jobs from pushing the rumor forward. Really, someone had posted instructions
on how to take the unencrypted output from the sound card and turn it into
a new wav file.  The spin got so out of control that Napster responded publicly on its website.  

Well, Neowin (via Digital Music News)
reports that the DRM itself may be compromised now.  The details
are sketchy, and the article’s suggestion that the crack is built on
the 2001 Beale Screamer code makes me a little suspicious.  Slyck has a vague article up as well.  Check out coder Cody Brocious’ blog for more details.

Filed by Derek Slater at 6:53 pm under General news
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Apropos of my post earlier this week: Postplay reports that Real is planning a major announcement
for later this month, likely about a new version of Rhapsody and/or the launch of a
portable subscription service. If it’s anything less than that, the
press release hype will appear even more ridiculous. From what I had
read earlier, Real was looking to get a portable subscription service
out by the end of the year, viewing that market as really a year away,
but perhaps they’re pushing harder now that Napster is getting some
uptake.  It will be interesting to see if they adopt Janus DRM as
well.  Though it went largely unnoticed amidst the introduction of Harmony, Real also chose to allow
transcoding to WMA from the Helix-DRM-locked AAC files sold by the Real
Music Store  It also started selling songs in WMA format.  So offering a portable subscription via WMA would be
another interesting step away from using their own proprietary formats.

Updated, 5/20: I stand corrected by Bill Rosenblatt of DRMWatch.  This post originally said that “they didn’t outright sell the songs in WMA
format.” Apparently, Real does sell tracks in WMA. Thanks, Bill.

Filed by Derek Slater at 6:00 pm under General news
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Do check out Ed Felten’s analysis of the news. 
Here’s another angle on why going after i2hub users may be important
from the RIAA’s perspective.  As Felten points out, we don’t know
how the RIAA got access to i2hub, but let’s assume that, in general,
it’s more difficult for them to access this P2P system.  If that’s
the case, perhaps they’ve had more trouble employing “speed bumps”
like spoofing and interdiction to impede infringement.  And
following from that, though the 400 mbit Internet2 connections are
fairly unnecessary for downloading music, perhaps downloading on i2hub
has been substantially easier because the system is less
polluted.  Don’t have strong evidence to back that up, but, if
it’s the case, then going after i2hub users would be more pressing from
the RIAA’s perspective.

Maybe the lawsuits were filed to put more pressure on university
administrators to work out agreements with Napster, Rhapsody, et al a la Penn St. (Frank appears to see it that way.) However, students at Rochester, which has signed up with Cdigix, as well as students at UCB, which signed a deal with Rhapsody, were also sued.  I wonder if the universities feel any differently about those deals now.

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So my brother’s been gracious enough to give me an early graduation
gift, and I’ve been looking into signing up for a music subscription
service. My craving for music has been going up lately, and relying on
iTunes, used CDs, Amazon, Internet radio, and what friends (not strangers)
pass along to me hasn’t quite been cutting it.  A subscription
service seems like a nice complement to purchasing. As good as other
music discovery sources are, sometimes I really need to hear the album
first, and there are some albums I don’t need to own but would like some limited
access to (e.g., I love Bowie, but am not going to buy all of his 20+
albums in the near future).  None of the subscription services are
even close to perfect, but I’m interested in exactly how
satisfied/frustrated I’ll be.  And hell, even without the gift
money, I spend so much per week on coffee these days that I have little
justification to not give these services a whirl for a few months.

A few random observations:

* The catalogs are dramatically better than they were a year ago, but
the gaps are still startling.  I’d love iTunes to throw their hat
into the subscription arena not just because of the iPod compatibility,
but because their catalog is by far superior. Right now, Rhapsody seems
like the best subscription bet in this regard. In particular, they pay
much greater attention to electronic music than Napster 2.0, both in
terms of back catalog and new releases.  As far as the more
obscure/indie label stuff I’m looking for, they’re both completely
insufficient, but Napster fails to deliver even mainstream albums, like
Basement Jaxx’s Grammy-winning “Kish Kash” or Dizzee Rascal’s acclaimed
“Showtime.”

*  Many note that those who own an iPod today don’t want to switch
portable players just to get Napster To Go. The broader problem is that
many/I don’t want to start basing my decisions on an entire system of
products. Who knows what superior service with a different set of
players will come out 6-12 months from now. It’s not worth my time to
invest in Janus-based products now. And did I mention the extra cost
and the DRM and the fact that I can’t even use To Go on my main
computer, which runs Win2k?  Rather save the money and spend it on
purchasing more albums for permanent, unencrypted ownership.

* Say one wanted to use Napster To Go with an iPod on Win2k by evading the DRM and converting to MP3. 
Though one would have to violate Napster’s ToS to do this, I doubt
Napster’d mind, so long as you deleted all the MP3s afterwards – that
is, you’d still only use the music during the subscription period, and
you’d pay the 15 bucks for Napster To Go even though you could do the
conversion using Napster Premium for 10/month.  Napster wouldn’t
mind because they want interop with Apple.  Doubt Microsoft would
mind.  More money for rights holders, so they probably wouldn’t
mind.  But here’s the catch: afaik, the Janus-enabled portable
players count your plays and report that back to the Napster mothership
for royalties accounting.  So, even in your attempt to ensure that
rights holders are compensated for your uses, you’d fail.

* A main problem with Rhapsody is that, unlike Napster, you can only
stream and can’t download – that may become an issue for me over the
summer when my Internet access becomes spottier.  The only reason
I can imagine Rhapsody does this is for licensing issues.  When Rhapsody was originally created, I bet
it was easier to only license performances,
given all the hassle about mechanical licensing. 
The various parties seem to have worked this issue out, as
demonstrated by Napster 2.0, but Rhapsody’s licensing agreements
probably haven’t folded the change in yet.  Thoughts?

I wonder how long I’ll stick with these services – most I can say is
that they’ve finally gotten good enough for me to try out, but I’m
still not convinced they’re good enough for me to stick with.

Filed by Derek Slater at 12:55 pm under General news
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The Challenge of P2P blog has posted the Grokster oral argument transcript.

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See Tim Marman‘s
notes from the Fordham IP conference (via INDUCE blog).  He describes a talk given
by FvL about fair use as innovation policy – the paper can be found here.  It’s a nice restatement of sections 1B and 1C of his earlier fair use and DRM paper, with discussion of the relevance to secondary liability.

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At least for now – who knows if Sony will “fix” the PSP to eliminate the features that coders are adding to the PSP. (via Challenge of P2P blog)

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So Glenn Otis Brown has announced that he is leaving Creative Commons, and, in his last days there, he is writing a wonderful series of posts about his experience. In particular, he’s providing deserved praise for his fellow fantastic Commoners.  Glenn deserves plenty of praise, too, and, though I only worked briefly with him, let me say the following.

I have always found it a bit strange, or at least incomplete, to hear Creative Commons described as Larry Lessig’s – his baby, his brainchild.  Whether you knew it or not, Glenn was on the ground, 36 hours a day, putting the vision into effect. He gave himself up completely to this project, and witnessing that was inspirational for me.  Not to take anything away from Lessig or the other amazing CC team members, but Creative Commons would not be where it is today without Glenn.

He’s also quite generous and funny and a terrific boss.  Sad to see him leave CC, but I’m glad that, as he said, he’ll still be part of the CC effort in some form.

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Five years on, Berkman is hosting another Signal or Noise – if you’re in the neighborhood, come join us.

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Samuelson Clinic Fellow Jack Lerner forwarded me a colleague’s quotable message, originally posted to the lawfuluse listserv:

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There’s much to write about Grokster and thankfully much has already been written – Copyfight‘s and the INDUCE Act
blog’s coverage has been outstanding.  I’m still catching
up.  The photos alone are amazing.

The case is a unique opportunity to bring the copyfight to the general
public’s attention, and it would be unfortunate if, from the dueling
picket signs,
people got the impression that we had to choose between saving Betamax
and feeding musicians. We should and, I believe, can do both. 
Too often people on our side are derided as not caring about music and
musicians.  If that were the case, I wouldn’t have driven 31
hours straight, featuring one tornado warning, to go to a concert.  This case must not be looked at as a referendum on whether artists should be paid to create.

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