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

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#1 of 268 OFFLINE   Nils Luehrmann

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Posted November 29 2005 - 04:47 PM

DRM is likely going to be the most discussed and debated topic regarding future video formats so I thought it might be a good idea to have a dedicated thread to discuss these issues. For the vast majority of consumers, most had no clue what DRM even meant, let alone how it might effect them until Sony's fiasco with their RootKit CD's and the huge fallout from angry consumers and wide spread press coverage. While this situation with Sony BMG is a very serious issue, with many consumers and businesses severely inconvenienced; in many ways it is good that this happened now. Just imagine the disaster that would have occurred if something like this happened with early adopters of Blu-ray. It could have caused Blu-ray to go DOA. Instead, this public relations disaster is causing Sony and the Blu-ray Disc Association members to take a very serious look at their anti-piracy methods, and hopefully make sure that nothing like this ever happens to this new HD format. In order to get the ball rolling on this topic I'd like to share an excellent article recently written by Paul Taylor and Aline van Duyn of Financial Times:

#2 of 268 OFFLINE   Damin J Toell

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Posted November 29 2005 - 06:29 PM

To the extent that a differing opinion and a quick and dirty map of the legal landscape might help this discussion, I'll extract and comment upon this quote from Gary Shapiro:

This is a little silly. Anyone who took Sony v. Universal, 464 U.S. 417 (1984) (the "Betamax decision"), to create a bright-line rule with no possible exceptions only did themselves (and, if they're lawyers, possibly also their clients) a disservice. To be sure, the Grokster decision set forth something that was particularized enough that it had not theretofore been chiseled into Supreme Court Stone. However, it should not have come as a suprise to anyone who had had their finger in the air to test the wind during the last decade, at least. From the modern revitalization of secondary copyright infringement liability in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996) as a potential force with which to be reckoned in the digital age, through its direct progeny, A&M Records v. Napster, 293 F.3d 1004 (9th Cir. 2001), it should have been clear that purposeful encouragement of others to infringe would not be rendered meaningless simply because "innovation" is involved.

Secondary copyright liability has been with us at least since the landmark rulings by the 2d Circuit Court of Appeals in Shapiro Bernstein and Co. v. H. L. Green Co., 316 F.2d 304 (2d Cir. 1963) (finding vicarious liability) and Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971) (finding contributory liability). Indeed, the Supreme Court legitimized these theories of liability as viable under the newer (and still applicable) 1976 Copyright Act (despite the fact that they are not actually written into the statute, just as they had not been written into the prior 1909 Act) in Sony v. Universal itself. 464 U.S at 434-5. It simply found in Sony that, on the facts of that case, in which the only possible theory of secondary liability that could succeed was to impute knowledge of others' infringements where no such knowledge was actually proven, the "substantial non-infringing uses" doctrine overcame any liability created by solely imputed knowledge. As the Sony Court notes, "if vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material." Id. at 439. Thus, the Court is rather explicit that the exception they found for products with substantial non-infringing uses acts as insulation solely, for the purposes of that decision, from secondary liability resting upon imputed knowledge (it may also have the same effect elsewhere, but Sony is silent as to other uses).

As the Court in MGM v. Grokster described the argument that Sony created a bright-line rule: "This view of Sony, however, was error, converting the case from one about liability resting on imputed intent to one about liability on any theory." 125 S. Ct. 2764, 2778 (2005). In sum, "Sony did not displace other theories of secondary liability" Id. at 2778.

And, really, there isn't all that much ambiguity now in the law, even if we take an extreme position that the Grokster decision was some kind of unforeseeable deus ex machina. As the Grokster Court puts it, "show[ing] statements or actions directed to promoting infringement" is what overcomes the insulation provided by Sony and thus can lead to liability. Id. at 2779. If innovators don't make statements or engage in actions that promote infringement, and their product has substantial non-infringing uses, the protection of Sony will still apply. That is, if a copyright infringement lawsuit rests solely on imputing knowledge of infringing activity by others to an innovator where none is actually shown, nor is such infringement actively promoted by said innovator, and said innovator can show substantial non-infringing uses of its product, Sony still prevents such a lawsuit from succeeding.

As for Mr. Shapiro's mention of the "shadow of litigation," this always existed. For example, the record industry successfully sued Napster in the post-Sony/pre-Grokster days. If Sony created a bright-line rule as Mr. Shapiro claims, and if such a rule dissolves the shadow of litigation, then the 9th Circuit Court of Appeals would never have ruled against Napster. See A&M Records v. Napster, 239 F.3d 1004 at 1019. Indeed, the 9th Circuit applied what became a basic element in the theory behind the later Grokster decision, and for some of the same reasons. Surely a 9th Circuit decision can give pause to consider the possibility of being sued under a theory of liability therein (especially since, at the time, EFF acted as if the decision was more or less the end of the world). Further, the threat of litigation always exists when big money is at stake. Even crystal-clear and utterly on-point Supreme Court precedent doesn't prevent such lawsuits.

The sky wasn't falling when EFF said it was after Napster, and it isn't now after Grokster, either.

Anyway, all of the above is offered with the standard caveats: IMH(but well-cited)O and FWIW.


#3 of 268 OFFLINE   Scott Kimball

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Posted November 30 2005 - 12:47 AM

Beside's the act of installing a flawed rootkit, Sony and their DRM agent, First4Internet, are guilty of stealing GPL code (an act which they are trying to prevent consumers from doing) and invading privacy (by "phoning home" your listening habits). Further, the patch has security issues of its own. Further still, Sony's EULA (end user license agreement) is more restrictive than anything I've ever seen. It's 3000 words long, absolves Sony of damages in excess of $5 (not even the cost of the CD), and requires you to delete ripped music in the event that the original CD is lost or damaged due to theft, fire or other accident. I understand content provider's desire to protect property - but every DRM is flawed. There isn't a DRM scheme in existence that hasn't been broken. Sony's scheme can be defeated in seconds, by disabling the CD's second session (there are many methods to do that, that require nothing more than a magic marker, a piece of tape, or a knife or file. Since the "technology" has been recalled, it should be safe to reveal that here). Given that DRM is so easily cracked, only honest people are inconvenienced by it. Those who wish to circumvent any DRM need only do a Google search to find out how to do it. It is my belief that these abuses by Sony (and others) make more "honest" people seek circumvention procedures, and actually results in more illegal copying than if the content was available in the formats that consumers want and at a reasonable price. Some movie studios and TV networks are figuring this out. Take the availability of ABC / Disney product on the iTunes music store. For $1.99, you can download legal copies of content that will play on multiple computers and on an iPod. There is still DRM, but the price is nearing the right ballpark, the conversion is done for you, and the ads are removed. Other content providers are making deals with cable companies and internet companies to provide easy access to content in digital form. While not free of DRM, these formats are often far less restrictive than what we've seen from Sony - and the content provider does the work of "ripping" the content for you. This is a big step in the right direction. Now, if we in the U.S. could adopt Canada's copyright law to replace the DMCA, it would no longer be illegal to circumvent copy and access restrictions if the copying use is, itself, legal. -Scott

#4 of 268 OFFLINE   Frank@N



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Posted November 30 2005 - 03:39 AM

Not sure if this is the same issue, but a manager at my local DVD hangout was telling me that Blu-ray discs may have a small writable area which will be used to encode (mate) the disc to the player it's used in first. Apparently, the disc would not play in any other players from that point (or perhaps two players if we're lucky). This would effectively eliminate the second-hand (used) market and presumably boost new software sales. With this kind of 'protection' along with the potential ability to eliminate players and discs retroactively from the active (working) list, I'm glad I bought what I wanted on DVD.

#5 of 268 OFFLINE   Ed St. Clair

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Posted November 30 2005 - 04:42 AM

They know that households have more than, one or two, DVD (or VHS) players! So, this is the thread for "The Digital Bill of Rights"! Thanks to all you learned people for posting.
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HD should be for EVERYONE!

#6 of 268 OFFLINE   Jesse Skeen

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Posted November 30 2005 - 06:29 AM

Treat all your customers like criminals, and they'll soon start thinking and acting like criminals.
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#7 of 268 OFFLINE   Aaron_Brez


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Posted November 30 2005 - 06:57 AM

Not seeing that happen anytime soon. I've been involved on the hardware side, and neither BD nor HD-DVD players have a writing instrument. Seriously, that manager was distributing FUD, though he may not have known it.

#8 of 268 OFFLINE   Frank@N



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Posted November 30 2005 - 07:19 AM

Thanks for clearing that up.

#9 of 268 OFFLINE   Cees Alons

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Posted November 30 2005 - 09:26 AM

And if they had, it would be relatively easy to disable it (or make it's effect non-lasting). Cees

#10 of 268 OFFLINE   FrancisP



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Posted December 01 2005 - 04:02 AM

Apparently Sony does have the capability to require a disc to play in only one machine. Why you would want to do that doesn't make any sense but then why would they develop it if they didn't have a use for it? This war over DRM is going on with all formats. Some tivo users have run into restrictions on copying analog formats. A bill in Congress would require the same firmware Hollywood wants to put into hi-def dvd players and recorders be added by electronics manufacturers. This would presumably apply to analog dvd recorders and vcrs. This would give Hollywood complete control over all devices to potentially include home computers. What would they do with this control? Video ipod users can download episodes of Lost and Desperate Housewives for $1.99. The competition is on-air taping. You do get commercials but they can be fast forwarded through. This would allow them to eliminate ompetition by not allowing on air taping and offering to allow them to tape or download for $1.99. That's if they don't raise prices since they now have an effective monopoly.

#11 of 268 OFFLINE   ChristopherDAC



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Posted December 01 2005 - 04:30 AM

Sony holds a patent on a method of locking down discs to players. This is vastly different from saying that they have the capability to do so. There is a whole vast underworld of patents which do not represent anything which anyone intends to do, or there is any likelihood of anyone ever doing, but were filed simply to keep anyone else from patenting the idea, or because they have some peripheral bearing on a different line of development. Put bluntly, while the inclusion of a writable area on an otherwise read-only disc is not impossible -- has in fact been deomnstrated -- the inclusion of such an area, perhaps pre-encoded with unique data, on every disc which ships to the consumer market, and its alteration by a writing instrument to be included within each playback unit before any playback is allowed to take place, and the checking of that area every time the disc is inserted into a player, is unlikely. The combined rates of defect and damage in shipment, for instance, would probably be quite high. Then, since such a disc, once played, could not be transferred, the used market would die and retailers would have to limit returns to defects only, so that blind buys would cease except on the part of those consumers temerarious enough to return a disliked disc and simply lie and say that the disc was defective; and there would be no way of checking the truth of such a statement! Really, this is one eventuality which I do not anticipate coming to pass.

#12 of 268 OFFLINE   Jesse Blacklow

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Posted December 01 2005 - 04:33 AM

Oh look, someone with concise, well-thought reasoning, and plentiful evidence to back his statements up. Time to put on the hip waders...

Or, people would be pissed off enough to, oh, I don't know...not watch or record those programs. If a small group of people like ourselves have gotten the industries to back down once, and then the public as a whole is exposed to the detrimental effects of DRM-enabled copy protection, then I'm guessing it's not going to be so easy to make your OMGZ0R WERE GOINGS TO DIIIIIIIIE!11!! bills magically pass.

From your statements, it seems as if you figure we're all brainwashed zombies no longer capable of free will. From statements I've read from actual reports, rather than fevered dreams of paranoia, these guys are aware that they can (and have) overstepped their bounds.

ETA: I just wanted to add that all of your suppositions also fail to take into account the human propensity towards creativity, and most certainly those technologically adept enough to create workarounds or patchwork solutions. If there's anything that the past has taught us, it's that there's no walls put up that someone is not trying damn hard to bring down, especially when it comes to copy protection.
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#13 of 268 OFFLINE   Nils Luehrmann

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Posted December 01 2005 - 05:51 AM

Taken from Jessica Wolf's article A Blu Light at the End of the Tunnel on Home Media Retailing:

(CLICK HERE to read the entire article)

#14 of 268 OFFLINE   FrancisP



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Posted December 01 2005 - 08:58 AM

I think that's illegal. Better not let Hollywood know about it or they may shut your player down because its been hacked. But then remember, KEEP SMILING. Posted Image

#15 of 268 OFFLINE   Aaron_Brez


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Posted December 01 2005 - 11:23 AM

I don't buy movies on the release date. If Batman 12 comes out and it is altering the firmware of everyone's Panasonic BD player to no longer operate, it's going to be all over the net. Yes, in that case, I won't be buying movies, no matter how "ridiculous" you think it is.

#16 of 268 OFFLINE   Kyle_D


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Posted December 01 2005 - 12:15 PM

You know, I'm starting to suspect Francis might be a long lost relative of Rambo Rick...Posted Image

#17 of 268 OFFLINE   CraigF



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Posted December 01 2005 - 01:00 PM

Nobody here has any influence on whatever technology will be implemented. Now. If you don't like what those who make the decisions choose, for whatever misguided (and often hypocritical) reasons, just don't buy their products. This has worked for all products for as long as I know of in an "open" market. Just friggin don't buy it. Simple...it will go away, it always has. There's nothing else you can do or say that has a hope in hell of working. Sure it's nice to discuss the points and opinions of these things, but it's all about money, and witholding it is the only real argument that gets a reaction. I suppose, for me, the real disappointment is the corruption of the original intentions of patents and copyrights. They were originally intended to encourage dissemination (albeit in a different framework than now exists), but instead they are now being used primarily to restrict dissemination. The reason is of course money, and especially the big money possible in a consuming society. Perfectly understandable. If the money was removed from the equation, we could perhaps come to more reasonable and logical solutions. Won't happen in our lifetimes. It seems impossible to remove money from the discussion of anything these days, nothing is arguable strictly on its merits, we can't just decide to "do the right thing", or at least a good thing, because somebody with money is arguing from the side of "money", to other people with money. I know this sounds airy-fairy, which I'm really not (techy), but sometimes you just have to step way back and look at things in general. How they're going overall. This biz is no different from the others in how they operate, and that's because we buy into it. Don't buy in, and something else will happen, in a "free" market. At least we're lucky that way.

#18 of 268 OFFLINE   AaronMK


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Posted December 01 2005 - 01:38 PM

Damin, If I am not mistaken, it is safe to conclude that the real implication of the cases you cited is the INDUCE act was already a part of copyright law via precedent, and that Hollywood* was really wasting their efforts lobbying to get it passed. While it is refreshing to see a well referenced and supported point, I don't think it addresses the real issues DRM. I think the real issues are the changes Hollywood is lobbying to have made to copyright law, the attempts to undermine fair use through contracts and the abuse of DMCA, and their attitudes towards people's property. *I will continue to use the term Hollywood to mean the RIAA, MPAA, and other groups that regularly lobby on behalf of copyright holders.

#19 of 268 OFFLINE   ChristopherDAC



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Posted December 01 2005 - 02:50 PM

Came across a very interesting article (reproduced here, under one of those EFF anti-copyrights) while doing a Web search for something unrelated. Quite interesting, as an argument that DRM technologies are fundamentally bad for business. Unfortunately it suffers by a glaring factual misunderstanding of what "DiscoVision" was -- in fact it's a very permanent medium, roughly equivalent in quality to a 16mm film print and superior in price, without any usage restrictions at all. Even CED didn't "disintegrate after a few plays"; I can only think of the Cartrivision rental tapes which could not be rewound except by the dealer, or the Disney VHS tapes with the razor blade in them meant to cut the tape after a certain number of plays.

And for those who think that "businesses don't develop technologies with the idea of not using them", I can say positively that such is not the case. Large corporations have patent attorneys on staff, and it's actually cheaper for them to patent every hare-brained idea their researchers come up with than not to do so. Some companies will have a policy of "patent poaching", encouraging their researchers to aniticpate the competition's next idea and filing patents it in order to stop them from using whatever it is [or, more often, get a better bargaining position on something else]. It's much the same phenomenon which generates the bulk of the lawsuits out there [contrary to popular belief, personal injury attorneys and so forth have little to do with it]. If you've ever wondered why the RIAA members' lawyers sue mom-and-pop record stores for selling Japanese LPs [not illegal], or the deceased for downloading music from the Web [hard to recover damages], it's because they need something to do, to kill time in between negotiationg record deals!

#20 of 268 OFFLINE   FrancisP



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Posted December 01 2005 - 05:00 PM

That comes from the Bill Clinton school of what does "is" mean. If you do not have full use of your player then it is controlled. If Hollywood determines what conditions you use it then they control it. The player is your property since you bought it. If you are breaking any relevant laws then you get your day in court. In this instance Hollywood acts as judge, jury, and executioner. There's no doubt that copyright laws discourage dissemination. I look at Dark Shadows. The movies are Warner and the series is with MPI. Were the series owned by Warner, they would never had seen the light of day. If MPI had the movie rights, they would likely have been released. It also leads to inferior products. Several years before Image Ent aproached Universal about licensing Night Gallery. They were willing to pay for the remastering and one would assume for extras. instead we get a featureless dvd complete with the usual corner cutting Universal usually engages in.

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