The Good & Bad of DRM (Digital Rights Management) Technology on Future Video Formats (1 Viewer)

[Lew Crippen]

It is actually the government (FCC) that wants to do away with analog TV OTA broadcasts. This is so the bandwidth used by the analog TV channels can be released for other uses.

Hollywood’s desire (if they actually have a collective desire) is beside the point.

 

[FrancisP]

The government did originate it but Hollywood has jumped on the bandwagon. They heavily lobbies Congress to end analog broadcasts before the date that was agreed to. They realize
that digital gives them more control than analog. I see a digital future of fees and charges.

 

[Damin J Toell]

Is this disagreeing with something I've said?

You seem to be all over the map in your responses, and I'm sorry, but I have no desire to respond to challenges to things I've never said. I also have no desire to defend things I have said when you apply them to things to which they were not directed. If anyone would actually like to reply concerning the content and impact of Sony v. Universal, however, I'm happy to participate.

DJ

 

[Glenn Overholt]

Damin - Hey, who said he was talking to you?

Sorry, but I think you're getting a little bit too excited, shall we say? It is easy to misuse a word, and/or have it get misused again by a reader, and have the wrong reader reply to it.

When I scrape away the crud, all I end up with is "Fair Use." period. I am assuming the the studios are going to flag everything, and when that happens, we won't have any fair use at all.

Can you imagine returning home from a week-long business trip only to find nothing on your DVR because they couldn't record it anymore?

Now, will they tell us that they are going to flag everything before they do it, or will they just quietly sneek it in? I suspect the latter. How do you think the public will react to that? Would it be possible to file an abuse of the 'Fair Use Doctrine' class-action lawsuit? What would happen if 50 million people signed it? Would the studios still stand their ground?

Glenn

 

[Damin J Toell]

No. There is no affirmative fair use "right" for consumers to obtain software/hardware that allows said consumers to engage in practices that would consider non-infringing fair use.

As the Supreme Court has described it, "[f]air use was traditionally defined as 'a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.'" Harper & Row v. Nation, 471 U.S. 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944). The modern fair use statute was created to continue this traditional approach. Being a privilege, rather than a right, consumers may excercise said privilege when it is available to them; when the privilege may not be exercised to some extent because of technologically-imposed blocks, there is no affirmative right to have the ability to engage in fair use reinstated. It's just an affirmative defense to a copyright infringement suit, not a means to force copyright holders to allow fair usage.

An argument such as the one you'd want to make has been put before the 2d Circuit Court of Appeals, and it has failed. As a unanimous court summarized quite boldly: "Asserting that fair use 'is rooted in and required by both the Copyright Clause and the First Amendment,' the Appellants contend that the DMCA, as applied by the District Court, unconstitutionally 'eliminates fair use' of copyrighted materials. We reject this extravagant claim." Universal v. Reimerdes, 273 F.3d 429 (2d Cir. 2001) (citations omitted).

Another hightlight from the Universal opinion (I don't have a paginated version handy at the moment, so I can only provide the aforementioned 273 F.3d 429 cite):

"Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement."

And, most importantly:

"[T]he Appellants have provided no support for their premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format. Their examples of the fair uses that they believe others will be prevented from making all involve copying in a digital format those portions of a DVD movie amenable to fair use, a copying that would enable the fair user to manipulate the digitally copied portions. One example is that of a school child who wishes to copy images from a DVD movie to insert into the student's documentary film. We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a "horse and buggy" technique in making fair use of DVD movies, the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original." (citations omitted)

DJ

 

[Aaron_Brez]

Unfortunately, as Damin has been trying to point out, the "fair use doctrine" isn't something you could base a class-action lawsuit on, because the Sony Betamax decision doesn't assert that you have a right to be able to record or time-shift material: it asserts that people have the right to sell machinery which can do so. It never goes the extra step which says, "Copying must be permitted by the content owners", it just stops them from suing someone who has discovered a technological means of doing so.

"Fair use" is not about technology, "fair use" is a legal criterion by which citizens are immune to prosecution for copyright infringement if their use falls under the fair use category. It does not indemnify them from prosecution under other statutes, like the DMCA, as they could be found innocent of copyright infringement and still be found guilty of breaking encryption in order to do so.

If the DMCA had a clause in it which said "defeating encryption for the purposes of fair use of copyrighted materials is permisssible", it would be a different story, but no such clause was included. Purposely (by Hollywood), since it would have rendered the DMCA toothless and people would still be selling "DVD time-shifting and backup" software (like the now-"banned" DVD XCopy) and customers would be using it to "backup" rental discs instead of purchasing them.

"Fair use" is still alive and well as a doctrine; the problem is that a great many people misunderstand what it means as a legal concept and, therefore, what rights they have, as opposed to what rights they think they have.

Current law says: You have the right to make a copy, if you can do it without violating other laws. You don't have the right to legally demand Hollywood let you make a copy. That would take new Digital Rights legislation to install.

 

[Glenn Overholt]

My question on 'Fair Use' was aimed more towards TV. This is all DRM, and hopefully we will know what their standards are going to be next month, but TV is another matter.

TV is a few more years down the road, but when digital is IT, and all of the Tivo's and DVR's are rendered useles, what will happen? I can see thousands of people that only have VCR's now, and after hearing that we are 'going digital' in 2009, upgrading to DVR's between now and then, and then finding out that all they have is a huge paperweight.

'Fair Use' may not be a law, but if what we have had for the last 20 years is taken away, why couldn't that still be considered an infringement on fair use?

Glenn

 

[Cees Alons]

To put it differently: just suppose (yes, I know, the example is ridiculous, but it clarifies the point) the first DVD-players were rugged enough to allow you to hammer a nail into a wall with it. For you to do that, that would be fair use, in the sense that no manufacturer or studio can sue you for using your player that way.

(Of course it would probably be rather stupid to use a player for that, but that's another point. )

However, even when over the years you got accustomed to that specific use, no manufacturer is under any obligation to produce DVD-players (and certainly not forever) that will continue to allow that. You're use is rightfully, but not a right.

They didn't sell it for your specific purpose, just like no studio will sell you a DVD for the sole or main purpose of copying it.


Cees

 

[Aaron_Brez]

Cees' analogy is very good. I'd add in there that perhaps now the DVD-players are built such that pounding nails into a wall with them, if done improperly, will cause likely damage to the player. While you could argue that this should be covered under warranty, or that "they don't build them like they used to; I'm not buying", you can't really argue that your rights to pound nails with DVD players have been violated: just that they made it harder to do so.

('course, then they put the stupid Digital Millenium Nail Act in place, which makes it illegal to put shock absorbers in the DVD player to prevent this damage...)

 

[Damin J Toell]

Because of all the reasons I said in my last post. You can't infringe a right that doesn't exist, whether you were doing something for 20 years or not. Technologies are made obsolete everyday; you don't have right against obsolescence by virtue of fair use.

Obviously, there's something about my last post that you didn't understand. How can I help make it more clear to you?

BTW, the nail analogy is OK, except that it's not really related to copyright (that is, using a DVD player to put a nail in a wall isn't a violation of anyone's copyrights). Most other areas of law outside of copyright don't have something that operates like a fair use defense, so going outside of copyright to look for analogies can lead to legal fudging that could make the entire endeavor unravel. Then again, since fair use doesn't actually operate in the way Glenn would like it to, perhaps it doesn't matter, after all.

DJ

 

[Aaron_Brez]

Because, according the the court decision Damin cites, you can still point a video camera at the TV screen and get your "fair use" that way. "Fair use" is about being able to do minor non-infringing things without the wrath of the court falling down on you. It doesn't require anything of the copyright holders/owners. Nothing.

There is no way to "infringe" fair use unless someone tries to sue you for making copies of content when you are violating no other law. As we have seen in the past several years, Hollywood is getting around this by trying to make sure that every method you use to make copies of content is against the law in and of itself.

DMCA delendam est.

 

[Kevin M]

Of course there is the consumer aspect, if enough voices are heard at a loud enough volume (and in concert with the money loss) they would have to offer the ability to timeshift as a convenience "necessity" of the faster modern life....it may not have anything to do with law or "rights" but it speaks louder than mere words I would like to think....of course such rumblings have not curtailed TIVO (or the studios who pressured them) from augmenting the whole commercial skip thing.

Keys, keys, keys.....what will the final product hold I wonder, and will people care enough to complain about it at any meaningful level...apathy is "their" biggest ally...OOPS...I better keep quiet before the black helicopters come and take me away..

 

[AaronMK]

Premature submit. Sorry. :frowning:

 

[Lew Crippen]

Whether or not Hollywood is lobbying Congress (and no doubt the industry does lobby, as just about all special interest groups do), does not mean that it will be Hollywood that makes the decision.

Since most observers don’t think that the December 31, 2006 (the original) date for conversion to digital OTA telecasts will be met, I expect that ‘Hollywood’ is not trying to get Congress to move the date up. I’d be interested in the source of your information, the more so as it is contrary to current, informed expectations.

Thinking about it, if Hollywood actually is lobbying for this date to be changed, they have been remarkably unsuccessful.

Leaving one to conclude that they have not nearly so much power as you imply.

 

[Aaron_Brez]

Actually, it's a pity Tivo didn't go toe-to-toe with the content owners on this one; I think judges would have found that because it's the "public" spectrum, that the broadcasters are already feeding at the public trough by being granted exclusive spectrum license for what is essentially a pittance, and that any cash they make from advertising over and above this benefit is an agreement between them and advertisers, not between them and viewers. The viewers never signed any contract, express or implied, to watch the commercials; the TV business model is built on the inherent laziness of the viewer, who they assume will not budge from their seat until the program resumes. The fact that technology has made that business model obsolete is not a valid excuse to legally bind technologists to that old model. Basically, if broadcasters are upset by the use of technology to skip the commercials they provide, they are free to stop broadcasting: their license fee is for the right to broadcast whatever they want*, not for the right to demand eyeballs stay fixed on their programming once engaged.

I can see why they (Tivo) didn't, since it makes better business sense for them to make a mutually beneficial agreement than to waste time and money in a courthouse for an uncertain result, but it would have been an excellent test case and may have resolved many of these questions in the legal sense: including the legal validity of the MPAA's "commercial-skip is stealing" assertion. Hollywood doesn't want to go to court on this one right now, either, because if they do and lose (as has been pointed out by Damin, the Betamax decision did not restrict itself to analog), Tivo and any other DVR manufacturers will give them the finger next time they try to suggest (or threaten) any sort of timeout or recording restriction, and their chance to stop digital copying will go away.

I was thinking about this last night, and I think the reason Hollywood has not yet gone to Congress with a "digital flag bill" is that they know they would have to make some kind of copy-once concession or it wouldn't pass (because the consumer electronics lobby would fight them tooth and nail, and rally public support), and once "copy once" is in place, it is impossible or next-to-impossible to control the number of copies beyond that. Whereas in the current legal landscape, they can make business agreements with Tivo and others and get their way without worrying about even permitting the single copy (past a couple of days, anyway).

I suspect that Hollywood's next step, after observing what happens with HD-DVD and/or BD, will be to propose legislation which enshrines AACS or something similar into law, requiring that all new devices which can make digital copies of video be AACS(or whatever)-compliant. This will enable them to permit "copy once" and make it stick reasonably well. They tried this several years ago and the tech companies (notably computer companies, who stood the most to lose from this since they don't and didn't want to be forced by governmental bodies to include something) successfully squelched it. Times have changed, and as the internet bubble has burst, Silicon Valley doesn't wield the same clout in Washington it did in the late 90s; also, many of the same tech companies which opposed it last time are AACS-members, and might not be as averse to having their tech the mandated one. Hypocritical, of course, but when government and industry start to mingle, it tends to corrupt both of them...

That law, when eventually proposed, will be the real "fair use killer", because politicians would be able to say with a straight face that copies are not prohibited (they're just controlled), and it must be opposed with all the strength we have. Right now the landscape is uncertain and a web of corporate agreements-- that could change tomorrow if Tivo grew a pair, or if a Tivo-competitor stepped up to the plate and refused to play ball with Hollywood. Once something's put into law, however, it's very difficult to get it taken out again, regardless of which regime controls Congress and the White House.

The DMCA set the stage, the analog hole act controls the digitization process (while leaving analog intact, for the time being-- Hollywood knows it's only a matter of waiting while the old HDTV tuners die over the next ten to fifteen years), and the last step-- unannounced yet, but you can smell it in the wind-- would be DMCA, part 2. We can fight the last one when it shows its face, but the first two have been carefully crafted to be as inoffensive as possible, or bundled with legislation largely viewed as positive. It's not a pretty landscape.



* To a significant extent, FCC issues in recent years not withstanding.

 

[John Whittle]

Well actually it's a plea after you've admitted to breaking the copyright act.

Time shifting is a concept and practice that dates to the 1930s. Included in the Copyright Act of 1934 as etherial recordings, it was necessary for radio networks (CBS, RED & BLUE) to be able to supply programs to their affiliates at the same time. If anyone is old enough they will remember radio shows that began with "transcribed" (recorded was considered poor quality) or "transscribed from an earlier broadcast for this time zone".

These recordings were supposed to be destroyed after 24 hours--since they would have served their purpose by then. Many stations did not and KIRO-AM in Seattle (the CBS station) delayed the nightly news during WWII and the transcriptions were all found stored at the transmitter back in the late 1960s and provided the only record of the daily CBS news of the period.

Also as for analog video, there has been in place since 1995 the CGMS flag system that allows either open copy, don't copy or copy once. This was upgraded in 2003 to CGMS-A Plus RC for redistribution control.

Earlier this year HBO started using CGMS-A on their broadcasts. You could have tapes that contain the signal (which you'll discover if you try to dub them to a DVD recorder) or if you have a DVD recorder, it'll obey the flags (the Sony model 715 does this and carries warning in the manual).

CGMA-A is used on:
DVD-Video
--CSS licensed CE players
D-VHS
DVD Recorders
--CPRM CE licensed recorders
-- +R/+RW
Blue-ray Recorders
Japan Digital Broadcasts
--Receivers STB, TV, Tuner integrated recorders for Satellite and in near future Terrestrial broadcasting (mandated by conditional access system adopters agreement).

The HBO position on CGMA-A can be found on their website under FAQ section.

 

[ChristopherDAC]

I was in a used bookstore recently, and ran across a whole crate of sixteen-inch transcription records. I would have considered buying them, if only for the historical interest, but I haven't any suitable equipment.
In any case, though, the radio stations which did broadcast-dubbing already had the explicit right to possess, transmit, and retransmit the programmes involved. The rights of the radio owner were not determined by any kind of contract or license; it was the broadcaster who was bound to observe certain rules, and the reciever was allowed to do as he wished as long as he did not start transmitting. Putting up a televisions in a bar could be considered "public performance" and thereby infringing, but bars have been installing TVs since they first came out.

 

[FrancisP]

Cable tv uses public land and must get franchises from local
governments so it is not entirely private. I do believe that legislatures have considerable power over cable.

 

[John Whittle]

They were worried enough about it to have it sanctioned in the 1934 Copyright bill. You might not remember it, but there were home acetate recorders, pre-groved home alumnium discs, and wire recorders back in the 1930s and 1940s.

When television sets were installed in bars, it was in the best interests of the tv set makers and networks to allow programming so that people would buy the sets for their homes. You might not remember, but the movie studios did not supply early programming to television and advertising agencies and sponsors owned much of the radio programming. Early sponsors and networks owned early television programs up to the early 1970s when Congress passes laws on ownership of programming and the Prime Time Access Hour to allow independents to get programming on tv stations.

It's also interesting that there were no program producers involved in complaining about recording in the Betamax case, it was the machine at issue and not a single charge of a single show that had been recorded. Again under the existing law time shifting was not against the law and was ennumerated.

John

 

[Aaron_Brez]

As I said, "more difficult". Not impossible.

Airwaves: easy, well established precedents for control

cable: more difficult but possible (due to local governmental franchise)

satellite: more difficult yet (no local governmental franchise)

Subscription-only (over internet or some other means) or hard media: nearly impossible

Note that Congress can do dang near anything that's not explicitly unconstitutional when it gets its dander up (and sometimes don't even balk at the unconstitutional!); I'm speaking of tendencies in lawmaking to not enter space they haven't treaded before. They could pass laws tomorrow that do what you ask for all media: it just probably won't happen. I'm advocating we play a game we can definitively win based on history and precedent and don't waste our time on something which is less likely to succeed.