A new paper by Niva Elkin-Koren, Making Room for Consumers Under the DMCA (SSRN.com), explores the interests of consumers of copyrighted works in an age of digital rights management and anti-circumvention statutes.
Link from Zohar Efroni at Stanford’s Center for Internet and Society.
Deven Desai writes at madisonian.net that Not Everyone Wants to Play Google’s Library Game. His concern is that “Google’s acts may foment a poorly written ruling or law that hinders other movements which seek to extend access to knowledge.”
Chris Soghoian writes for CNet News.com about Rep. Rick Boucher telling Comcast to stop limiting BitTorrent on its Internet service. “Comcast has made a major mistake in attempting to hinder peer-to-peer file sharing as an aspect of its network management,” Boucher said. The article also quotes Columbia Prof. Tim Wu on the historical parallels to the common-carrier rules applied to telegraph and telephone lines.
Reuters reports that Microsoft’s compliance with an EU antitrust decision is good for Samba, a non-profit, open-source competitor with Microsoft’s office server software. But Columbia Prof. Eben Moglen says, “There is still contested ground to win.”
RCR Wireless News has a detailed history of Skype’s petition to the FCC to impose Carterfone-like requirements on the upcoming spectrum auction, inspired by Prof. Tim Wu’s paper, Wireless Net Neutrality.
NYU Law School’s Journal of Legislation and Public Policy will hold a symposium, Leviathan’s Network: Municipal Wireless and Civil Liberties to “explore the unique legal questions raised by these new networks, with particular attention to users’ First Amendment and privacy rights.”
Friday, November 2, 2007; 1:00-4:15 p.m.; Vanderbilt Hall, Greenberg Lounge, 40 Washington Square South; free and open to the public.
After receiving much criticism for disallowing non-Apple developers to write software for the iPhone, Steve Jobs announced that Apple will release a software development kit for the iPhone and iPod touch (Ars Technica) in early 2008.
By Marc Friedenberg, Michael Nguyen, Ehi Oviasu, Zen Zhang and Sarah Calvert, from the Columbia Science and Technology Law Review
Everyone has heard of Amazon and iTunes. Chances are, you have also heard about the controversies surrounding file sharing and MP3s. But another three-letter acronym that is controversial these days is DRM – Digital Rights Management.
With much fanfare, Amazon entered into the online music distribution business on September 25, 2007. Its major selling points? DRM-free music that is cheaper than Amazon’s biggest online competitor – iTunes. What is DRM, and why does it even exist? How else is Amazon’s new store different from iTunes? And what will the competition likely do to the music industry?
To understand why DRM exists, a bit of history is in order. Precursors of modern day file sharers have been quietly sharing digital files for decades – first through bulletin board systems and later through Internet relay chat. Then Napster debuted in 1999 and blew the doors off of a previously low-key file sharing scene. Utilizing a clean graphical interface as well as a centralized server, Napster brought file sharing to the masses.
Unfortunately, Napster also enabled massive copyright infringement, and this infringement did not go unnoticed by the major record labels. The Recording Industry Association of America (RIAA) blamed digital file sharing and mass copyright infringement for plunging sales. Court battles ensued, and Napster was shut down in July of 2001.
Napster left a void in the online music distribution market, and other music software as well as large corporations rushed to fill it. Apple, leveraging the iPod’s popularity, debuted its iTunes Online Music Store in April of 2003. Using the iTunes software, one can browse the catalog and buy singles or whole albums with only one click of the mouse. The songs are then downloaded to a computer and can be uploaded to an iPod.
iTunes is wildly successful, selling, to date, over three billion songs. It is now the third largest music retailer in the country. Unlike Napster, Apple negotiated with the record labels for licenses to distribute music and agreed to cut them a share of iTunes’ revenue.
The RIAA, however, had not forgotten what file sharing programs like Napster can do. It feared that copies of music purchased on iTunes would still be illegally distributed. Thus, the RIAA continued to pursue a two-fold strategy of continued legal action against file sharers as well as development of technologies to discourage and prevent file sharing. Collectively, these technologies are called Digital Rights Management, or DRM. While the name ostensibly implies increased freedom on the part of purchasers of products incorporating DRM, in practice, DRM has served to restrict consumer usage of digital music in order to prevent or discourage file sharing.
For example, Fairplay is the form of DRM that can be found on the majority of music sold through iTunes. Fairplay imposes several restrictions on usage: it allows a track to be played on up to five computers simultaneously and permits a particular music playlist containing a protected track to be copied onto a CD up to seven times. Most significantly, Fairplay-protected tracks cannot be copied onto the vast majority of rival digital audio players including models produced by Microsoft and Creative. Other popular DRM methods include audio track watermarking or copy protection software bundled with audio CDs.
The new Amazon music store is different from iTunes in three important respects. First, the two stores are structured differently. Second, Amazon’s songs are not protected by DRM. The final major difference is a difference of price.
In terms of structure, Amazon demands only a web browser – unlike Apple’s music shop, which requires the iTunes software. Buying a track on Amazon, however, is more complicated – a three-step process that requires selecting the song, confirming a credit card and then confirming a “shipping address,” even though the song is delivered online. Although Amazon permits one-click purchases of an entire album, there is no equivalent to another convenient Apple feature: check boxes next to individual tracks. Amazon’s downloader, however, downloads faster than any similar utility available, and its songs are generally higher in quality than its competitors’. Better yet, Amazon will automatically add newly purchased songs to one’s iTunes or Windows Media Player library – which means they are available to your player immediately.
The second major difference is that all of Amazon’s songs are DRM-free, so they can be uploaded onto a device of a user’s choosing, including an iPod. Songs from iTunes, on the other hand, are protected by Apple’s DRM so that they can only be played on Apple devices. DRM-free songs can also be purchased on iTunes, but the price for such songs is higher than that of protected songs. While this difference in versatility may make Amazon songs seem like the better option, there is a trade-off. Because Amazon does not protect the songs it sells through DRM, many record companies are hesitant to sell their music through the Amazon store. Only two of the four major labels, EMI and Universal Music, are participating. The other two, Sony BMG and Warner, appear reluctant to offer music without DRM protection. As a result, Amazon has a much narrower song selection than iTunes.
It should be noted, however, that while Amazon’s songs are DRM-free, customers are still limited in how they can use the music. Instead of using software for protection, the restrictions are in the user agreement, a contract you automatically agree to when you buy the songs. Amazon’s agreement states that you “agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-license or otherwise transfer or use the Digital Content.” This is clearly not as protective or easily enforceable as DRM methods of protection.
The final major difference between Amazon and iTunes is price. Amazon is currently selling its DRM-free songs at $0.89 each; iTunes, on the other hand, sells DRM-protected songs at $0.99 each and DRM-free songs at $1.29. The $0.40 difference gives Amazon a competitive advantage that should not be underestimated.
Once Apple announced in April of this year that it would make DRM-free tracks available through the iTunes Store, it seemed likely that other DRM-free stores would open. The logic is that if you are going to put your music out there in a way that can be infinitely duplicated, you might as well offer near-infinite ways of collecting money for it. So, the announcement of the Amazon store is not much of a surprise (particularly since rumors had been circulating since at least April of 2007).
Many reviewers have commented that the Amazon store, with its low-cost, DRM-free, higher-quality tracks, presents a compelling alternative to the iTunes Store. Moreover, Amazon already has many customers’ credit cards stored on its servers, and owns a powerful recommendation engine technology, which will recommend tracks that you might like based on what you have downloaded in the past. The only major drawback, as previously discussed, is that Amazon offers only about one-third of the tracks available on iTunes.
There seems little doubt that Amazon is a serious competitor to iTunes, and it seems that, as always, customers will ultimately benefit from this competition. If Amazon sells billions of MP3s, the two major labels that have so far resisted selling DRM-free tracks will likely feel pressure to join Amazon. But Apple will benefit from a successful Amazon store, too. The more digital tracks available in the marketplace, the greater the need for digital music players like iPods and iPhones, where Apple makes its real profit; neither device, nor the iTunes jukebox software itself, has faced a serious competitor.[1]
[1] The profitability of the iTunes Store has been a subject of some controversy. There seems little doubt, however, that the iPod and iPhone lines are far more profitable.
Update October 18, 2007:
By Marc Friedenberg From the Columbia Science and Technology Law Review
On October 16, Apple announced that it has lowered the price of its iTunes Plus songs, which are not DRM-protected, from $1.29 to $0.99. In addition to songs from the EMI library, tracks from a number of independent record labels are also available as iTunes Plus downloads. Clearly, this move eliminates some of the allure of the Amazon offering; nevertheless, many of Amazon’s songs are still cheaper, costing only $0.89.
Although iTunes Plus songs now cost the same amount as DRM-protected iTunes songs, Apple is charging $0.30 cents per song to upgrade previously-purchased songs to DRM-free status.
The authors of these articles are law students, not licensed attorneys. This information is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. The law may vary from state to state, and the information contained in this article is not guaranteed to be up to date. Therefore, the information contained in this article cannot replace the advice of competent legal counsel licensed in your state.
By Hailey DeKraker, Shawn Oakley, Luis Villa and Sarah Calvert, from the Columbia Science & Technology Law Review.
In recent years, file-sharing has spurred a bitter battle between proponents of free media and enforcers of intellectual property rights. After the Napster file-sharing model collapsed under numerous lawsuits, a new file-sharing method known as torrent websites emerged to fill the void. Now these immensely popular torrent websites are facing legal problems of their own.
In 2001, Bram Cohen developed the BitTorrent protocol. The BitTorrent protocol transfers information by breaking it up, encrypting it and disbursing it to multiple computers. To be usable, the information is then reassembled from the multiple source computers at a single workstation.
This technique sets the BitTorrent protocol apart from previous peer-to-peer technologies. In most other peer-to-peer technologies, such as Kazaa, a single file is downloaded in its entirety from a single source on the network. The BitTorrent protocol – and similarly designed programs – differ in that every instance of the program can download sections of any file from multiple peers simultaneously. Once obtained, the file is then reconstructed on the downloading computer and shared in a similar manner on the network.
Seizing upon this new file-sharing method, a number of search engines quickly developed to utilize the BitTorrent protocol. These search engines index torrent files and make them searchable by users. Thus, people can easily search and share media, including movies, music and televisions shows, over the Internet using these websites. Two of the most popular torrent websites are isoHunt and TorrentSpy.
While these torrent websites provide an efficient method of file-sharing, they also face copyright problems similar to those that plagued previous generations of peer-to-peer technologies. Using the BitTorrent protocol and other similar programs, users can easily distribute illegal copies of copyrighted works. Such illegal sharing can mean trouble for the torrent websites and their users.
One potential “safe harbor” that might save these torrent websites from being shut down for copyright infringement is the Digital Millennium Copyright Act (PDF link), which was passed by Congress in 1998. Under the DMCA, websites that perform services such as database searches that might turn up copyrighted material can be exempt from liability if they take down the copyrighted material once it is properly identified through certain takedown procedures.3
On February 26, 2006, The Motion Picture Association of America (MPAA), acting on the behalf of major movie studios, sued a number of torrent websites including isoHunt and TorrentSpy. In its press release (PDF link), the MPAA stated that these websites “encourage” copyright infringement. By accusing the websites of “encouraging” infringement, the MPAA is making the case that the torrent websites knowingly link to copyrighted work and are thus ineligible for protection under the safe harbor provision of the DMCA.
But the torrent websites themselves are not the only ones who should be worried about these lawsuits. During the early phases of the lawsuit against TorrentSpy, a federal judge ordered TorrentSpy to start keeping a log of all users who connect to the server (PDF link). Obviously, this could mean trouble for the millions of users of these websites.
Both TorrentSpy and isoHunt have changed their tactics in response to the judge’s order. TorrentSpy has started identifying and blocking users from the US, such that American users cannot do searches on the site. Instead, US users are forwarded to a page titled TorrentSpy Acts To Protect Privacy. Ironically, part of TorrentSpy’s stated reasoning for this is that as an EU-based entity they must follow EU privacy laws and hence cannot link identifying information to activities on the website.
isoHunt’s approach is in some ways similar to TorrentSpy’s: first and foremost, isoHunt moved its servers to Canada in an attempt to escape US jurisdiction. However, unlike TorrentSpy, isoHunt has also created a takedown process, which allows content owners to remove content from the site. isoHunt also started blocking access to torrent trackers operated by isoHunt itself. isoHunt’s strategy is clearly to cease to become a distributor (at least to US citizens), and instead to become ‘only’ a specialized search engine – much like Google or YouTube. As such, isoHunt might then be able to seek protection from the DMCA’s safe harbor provision.
It remains to be seen whether or not isoHunt’s approach will fly in court. Taken at face value, the language of the DMCA’s safe harbor provision applies only to Internet Service Providers (PDF link) doing things like transmitting email, rather than search engines like isoHunt or even Google. While a court might be willing to give a critical piece of infrastructure like Google the benefit of the doubt when interpreting this language, it seems unlikely that a court would give isoHunt similar leeway. As a result, TorrentSpy’s approach – disassociate yourself altogether from US users – may prove the more reliable one.
It is worth noting that the technology both sites use to block US users is imperfect. The article Guide for Canadians Wanting To Use Demonoid points out a number of mechanisms which allow Americans to sneak around these blocks.13 Any court looking at the problem will face an interesting and apparently unprecedented question: if a website makes a good-faith effort to block Americans from using the service, but they get access anyway, is the website liable in the US, or does liability shift primarily to the people trying to get access? At this time, the answer looks academic, as operations of both groups have shifted outside the US, but whatever the court decides may have interesting implications for future cases involving organizations (like Google) that can’t just get up and move when they are sued.
The authors of these articles are law students, not licensed attorneys. This information is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. The law may vary from state to state, and the information contained in this article is not guaranteed to be up to date. Therefore, the information contained in this article cannot replace the advice of competent legal counsel licensed in your state.
Columbia Prof. Tim Wu has released the first article in a series for Slate magazine, American Lawbreaking. “American law is underenforced,” Wu writes, “and we like it that way. Full enforcement of every last law on the books would put all of us in prison…. No enforcement of our laws, on the other hand, would mean anarchy. Somehow, officials must choose what laws really matter.”
Frontline Wireless, which endeavors to create a ubiquitous wireless broadband network, has tapped Columbia Prof. Tim Wu for its Open Access Advisory Panel. Further coverage at Wired News.
Columbia Law School will host the Software Freedom Law Center’s Legal Summit for Software Freedom this Friday, October 12, 2007. Columbia Prof. Eben Moglen and others will speak on copyright, patent, and other legal issues surrounding free software.
India’s Frontline magazine interviewed Columbia Law Prof. Eben Moglen on The spectre of free information. Moglen discusses the status of Free Software around the world, its relationship to Free Culture, and the impact on capital markets.
Columbia Law Prof. Tim Wu writes for Slate magazine, The iPhone Freedom Fighters. While successfully unlocking his own recently-purchased iPhone to work with T-Mobile, Wu considers the legal and ethical implications of doing so.
Meanwhile, a class action suit has been filed over Apple’s treatment of unlocked iPhones (Ars Technica).
For the first time during the RIAA’s spree of 20,000 lawsuits against Internet filesharers, one of those suits went to trial. Coverage at Wired: the initial report, and after testimony was completed.
Two news sites have given KeepYourCopyrights.org its first public airing after the initial press release. Thanks, Boing Boing and Ars Technica!
The GNU General Public License is going to court for the first time (CNET). The GPL “copyleft” license is the foundation for much open-source software. The new lawsuit accuses Monsoon Multimedia of using GPL software without following the terms of the license.
Columbia Law Prof. Eben Moglen was one of the founders of the Free Software Foundation that created the GPL.