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On page 216 of the book, we joke that DMCA might stand for “Digital Millennium Competition Avoidance” rather than “‚Ķ Copyright Act.” The idea is that if a company puts a digital lock on any interface to its equipment, then the anti-circumvention provision of the DMCA makes it illegal for an maker of accessories to reverse-engineer the lock to figure out how to make a compatible accessory. Apple Computer has given us a classic example of this technique.

If you walk into any electronics store or any WalMarts, you’ll find lots of earphones that you can use with your iPod, in case you lose the ones it came with, or they don’t fit your ears, or whatever. The earphones are on the racks with slipcovers and lots of other non-Apple stuff that accessorizes iPods. Of course you can buy Apple earphones, but maybe you’d rather buy the ones that fit better.

Well, Apple wants you to buy Apple earphones. The way the capitalist world is supposed to work, Apple is supposed to achieve that by making better earphones, or by cutting its prices. Everyone else has the same incentives, and the consumer wins from the competition.

Oh, not in the America of the DMCA. Apple has engineered the new iPod Shuffle so that the replacement headphones won’t work unless they have built into them an “authentication chip” the headphone maker can get only from Apple. Now the headphone maker is prohibited by law from trying to figure out what the “authentication chip” does so it can make headphones you can just plug into the Shuffle without, in essence, asking Apple’s permission and paying Apple money. So Apple winds up controlling the headphone market.

A classic case of copyright law being put to a use that has nothing at all to do with the protection of books or music or images — just to kill competition, to the advantage of one company and to the plain disadvantage of the public.

Thanks to Fred von Lohmann of the Electronic Frontier Foundation for raising a stink.

This is the sole case of copyright infringement by downloading that had actually gone to trial, prior to the case of Joel Tenenbaum in which Professor Charles Nesson is active. The Thomas case, which we discuss on page 198, is being re-tried after the judge threw out the first decision. Today Thomas’s expert, Prof. Yongdae Kim of the University of Minnesota, filed his report, which includes a strong attack on the evidence against Thomas and also on the report of the opposing expert. The site “RIAA v. the People” has a good summary, and a hotlink to Kim’s full report. For me the killer sentence is this:

MediaSentry claims to have much experience in identifying individual committing copyright infringement. However, they insist that their methods are proprietary and thus cannot be subject to scrutiny by an impartial third party. No academic studies exist of their internal investigative techniques, methods, software, data collection practices, or even employee training in retaining collected data in a way that would allow for it to be used as evidence at a trial.

MediaSentry is the private police force of the RIAA, of which Nesson also complains. How on earth can one defend oneself against a private investigator who makes a claim about what you did but says that its methodology for gathering the evidence is proprietary and even the judge can’t review it?

A few days ago, Roy Blount, Jr., writing as president of the Authors Guild, wrote an opinion piece in the NYT complaining that Amazon, which produces the Kindle book reader, was screwing authors and publishers. The alleged rip-off was this: The new Kindle II has a “talk” button. Push it and it reads the book to you in a computer-generated voice. Pretty much every computer shipped today has the same feature built into its operating system. The intonation isn’t perfect, either on Kindles or on your Windows machine or Mac, but Blount, I would judge, can see much better voices coming, and wants to stop this reading aloud in its tracks. Or rather, stop it long enough to collect a toll.

Blount complains that pushing the talk button turns the written word, which was all you paid for, into a “public performance.” He is magnanimously prepared to make an exception for blind folks. But if your daughter curls up in bed with a Kindle and pushes the talk button, he wants to collect an additional fee¬†for the mechanical voice in your child’s darkened bedroom, beyond what you paid Amazon.

[N]o, the Authors Guild does not expect royalties from anybody doing non-commercial performances of “Goodnight Moon.” If parents want to send their children off to bed with the voice of Kindle 2, however, it’s another matter.

Some buzz was starting to build around what legally constituted a public performance and whether pushing the talk button (on your computer or your Kindle) was really turning the bits from an ebook into an Audiobook. And then all of a sudden, under the cover of darkness of a 5pm Friday press release, Amazon flinched. It added one bit to all the bits that constitute an ebook download to the Kindle II. The one extra bit is set by the publisher, and it tells the Kindle whether the book can be read aloud. If Amazon sends your kindle the ebook with that bit off, pushing the Talk button will do nothing.

The publishing industry is retracing the steps of the music industry. Just as the recording industry is giving up on some of the more absurdly restrictive digital rights management schemes, book publishers are inventing new ones of their own.

Thanks to Chris Soghoian for pointing out the Amazon change of heart. The buzz is continuing about the legalities of this, and about whether the people who really got screwed were those who bought the Kindle expecting that the talk button would work the way it was initially advertised. But the common sense of it is unquestionable. It’s another reminder that when you “buy” a book or a song from a downloading service, you don’t own it. You are being allowed to use it only in ways the service dictates — and the service can even change its mind about that later.

You might think, with all the troubles the country has, that our elected representatives would have better things to do than to keep the results of publicly funded scientific research away from the eyes of the public. You’d be wrong. Represenatitive Conyers from Michigan (of all places where you might think the congresspeople might be frying other fish) has introduced the disingenuously named “Fair Copyright in Research Works Act.” It is awfully hard to understand what the bill says (I am including its text below), but the bottom line is that it would end NIH’s practice of placing the results of NIH funded research on the NIH web site so doctors, other scholars, and the general public can read the papers. Mr. Conyers is carrying the water of scientific publishers which charge extraordinarily high subscription prices which keep going higher as libraries cancel their subscriptions. This is the same practice that has led the Arts and Sciences and Law Faculties at Harvard to adopt “Open Access” rules, by which professors ordinarily retain the right to post copies of their papers on the Harvard open web site.

Why the publishers’ lobbyists are able to put the squeeze on Mr. Conyers I do not know, but would love to.

There is a good, clear explanation of the bill by Robin Peek, writing on Information Today. It goes way beyond the NIH site — it prohibits any other branch of the government from doing something similar.

Here is the text of the bill. The bottom line is that “No Federal agency may, in connection with a funding agreement, impose or cause the imposition of any term or condition that requires the transfer or license to or for a Federal agency of any right provided under copyright law.” That is, the NIH can’t ask, in return for providing millions of dollars of research grants, that it get to put the results of the research up on its web site. Madness. But thank goodness some watchdog group is keeping an eye on the implications of gibberish such as that reproduced below.

H. R. 801

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

IN THE HOUSE OF REPRESENTATIVES

February 3, 2009

Mr. CONYERS (for himself, Mr. ISSA, Mr. WEXLER, Mr. FRANKS of Arizona, and Mr. COHEN) introduced the following bill; which was referred to the Committee on the Judiciary

---

A BILL

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Fair Copyright in Research Works Act’.

SEC. 2. LIMITATIONS ON FEDERAL GOVERNMENT REGARDING EXTRINSIC WORKS.

(a) In General- Section 201 of title 17, United States Code, is amended by adding at the end the following new subsection:

`(f) Limitations on the Federal Government-

• `(1) LIMITATIONS REGARDING FUNDING AGREEMENTS- No Federal agency may, in connection with a funding agreement–

• • `(A) impose or cause the imposition of any term or condition that–

• • • `(i) requires the transfer or license to or for a Federal agency of–

• • • • `(I) any right provided under paragraph (3), (4), or (5) of section 106 in an extrinsic work; or

• • • • `(II) any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or

• • • `(ii) requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work;

• • `(B) impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A); or

• • `(C) assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work.

• Any term, condition, or assertion prohibited under subparagraph (A), (B), or (C) shall be given no effect under this title or otherwise.

• `(2) CONSTRUCTION-

• • `(A) CERTAIN OTHER RIGHTS NOT LIMITED- Nothing in paragraph (1)(A)(i)(II) shall be construed to limit the rights provided to the copyright owner under paragraphs (1) and (2) of section 106.

• • `(B) NO NEW COPYRIGHT PROTECTION CREATED- Nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102.

• `(3) DEFINITIONS- In this subsection:

• • `(A) EXTRINSIC WORK- The term `extrinsic work’ means any work, other than a work of the United States Government, that is based upon, derived from, or related to, a funding agreement and–

• • • `(i) is also funded in substantial part by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party; or

• • • `(ii) represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party.

• • `(B) FEDERAL AGENCY- The term `Federal agency’ means any department, agency, or instrumentality of the United States Government.

• • `(C) FUNDING AGREEMENT- The term `funding agreement’ means any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities.’.

(b) Applicability- The amendment made by subsection (a) applies to any funding agreement that is entered into on or after the date of the enactment of this Act.

(c) Report to Congressional Committees- Not later than the date that is 5 years after the date of the enactment of this Act, the Register of Copyrights shall, after consulting with the Comptroller General and with Federal agencies that provide funding under funding agreements and with publishers in the private sector, review and submit to the appropriate congressional committees a report on the Register’s views on section 201(f) of title 17, United States Code, as added by subsection (a) of this section, taking into account the development of and access to extrinsic works and materials developed under funding agreements, including the role played by publishers in the private sector and others.

(d) Definitions- In this section:

• (1) EXTRINSIC WORK; FEDERAL AGENCY; FUNDING AGREEMENT- The terms `extrinsic work’, `Federal agency’, and `funding agreement’ have the meanings given those terms in section 201(f)(3) of title 17, United States Code, as added by subsection (a) of this section.

• (2) APPROPRIATE CONGRESSIONAL COMMITTEES- The term `appropriate congressional committees’ means the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives and the Committee on the Judiciary and the Committee on Appropriations of the Senate.

It’s always sobering to read those “I agree” documents you have to click on to register for a Web service. Almost no one ever does.

Facebook’s has always given it blanket rights to do what it wishes with the stuff you post on your Facebook page, including

to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

There’s more, about how Facebook can transfer those rights, and so on. What’s new today is that the agreement used to say that you could take back ownership of the data if you closed your account. No more. Now they own it forever, even if you decide you want to take it back.

So if you are, say, a college student foolish enough to post a stupid picture of yourself drunk or half-naked, and then you think better of it, and in fact think better of the whole Facebook idea and close your account, and in ten years you are running for Congress, Facebook will be perfectly within its rights to scan its records of dead accounts and sell the rights to that photo to the Associated Press, or People Magazine.

Would they do that? No way to be sure. Rationally we might choose to think that would be a stupid thing to do from a business standpoint, as it would discourage others from using the site. But such decisions are not always made rationally. And why would they be changing their policy now if they don’t anticipate doing exactly this in the future?

Added 8:30 PM 2/16: Mark Zuckerberg has blogged about this. He defends Facebook’s “philosophy” and what it would do “in reality” (as opposed, I guess, to what it has the legal right to do):

In reality, we wouldn’t share your information in a way you wouldn’t want.

Indeed, in reality, Facebook would probably realize what a losing long-term business proposition it would be to sell your drunken photos of yourself to the media.

Which is why, when Facebook did “in reality” launch Beacon and shared information in a way many Facebook users did NOT want, it quickly did an about-face. There seems to be push-back assembling again, though in the case of this change, no one can right now detect any difference.

Is there really no way to draft the legal language so it matches the reality of Facebook’s presumably good intentions?

iPhones are prisons: iPhones have software locks to ensure that the only applications that run on them are applications you get from Apple.  The Trusted Platform Module (TPM) technology for constructing such locks is explained in chapter 6 of Blown to Bits, illustrated there with the fictitious example of Fortress Publishers.   Now Apple is playing the role of Fortress, and the example is anything but fictitious.

The process of removing those TPM locks, a process called jailbreaking, violates the anticircumvention provision of the Digital Millennium Copyright Act (DMCA).  Apple wants to keep it that way.

As chapter 6 of B2B explains, Congress in the DMCA charged the Librarian of Congress with conducting hearings every three years on proposed exemptions.¬† In 2006, Americans got the right to undo the lock-in on their mobile phones for the purpose of shifting to a new service provider.¬† Last October, the Electronic Frontier Foundation requested a new exemption to let smart-phone owners undo the locks for the purpose of letting the phones run legally-acquired software of their choosing.¬† In the words of EFF, this would “foster competition in the software market, thereby encouraging innovation and expanding consumer choice.”

When we we buy computers, we’re used to the idea that we can use them to run whatever software we like, and that for someone to create new successful software requires only talent and ideas, not permission from Apple or MIcrosoft.¬†¬† Jonathan Zittrain’s highly recommended book The Future of the Internet and How to Stop It (see my review of Zittrain’s book in American Scientist) argues that this “openness” in the personal computer is has been a critical enabler for the digital explosion’s enormous outpouring of innovation.

Not so for the smart phone, if Apple has its way.

Yesterday Apple filed an objection to the proposed exemption, on the grounds the letting users run unauthorized software could result in “potential damage to the device and other potential harmful physical effects.”¬† More to the point, Apple says that the lock-in is necessary for their business model for the iPhone (Apple gets 30% of the proceeds from applications sold through the iPhone Store) and argues that the DMCA doesn’t give the Copyright Office the power to make decisions based on business models.

This is another example, like the ones in chapter 6, of why the DMCA’s anticircumvention provision might be better described as an anticompetition provision.¬†¬† Congress passed this in 1998 in an attempt to crack down on music file sharing.¬† It didn’t work; and as I blogged last September, the recording industry itself is largely abandoning DRM for software distribution. Yet anticircumvention remains as a legal club that enables technology lock-in and prevents competition in areas having little connection to the original motivation for the law.

Robert Darnton, a historian and head of Harvard’s library system, has an important article in the New York Review of Books, called Google and the Future of Books. It lays the utopian Enlightenment vision of a “Republic of Letters” side by side with the development of the Internet. Darnton explains beautifully how the Enlightenment ideal failed to come about (through professionalization and commercialization of knowledge), and warns that we are about to miss another opportunity because of the settlement hammered out between the publishing industry and Google about copyright issues with the Google Books project. The most poignant passage is the following:

Looking back over the course of digitization from the 1990s, we now can see that we missed a great opportunity. Action by Congress and the Library of Congress or a grand alliance of research libraries supported by a coalition of foundations could have done the job [of digitizing the world’s books and making them available over the Internet] at a feasible cost and designed it in a manner that would have put the public interest first.¬†‚Ķ¬†We could have created a National Digital Library‚Äîthe twenty-first-century equivalent of the Library of Alexandria. It is too late now. Not only have we failed to realize that possibility, but, even worse, we are allowing a question of public policy‚Äîthe control of access to information‚Äîto be determined by private lawsuit.

IANAL (I am not a lawyer) and I have no idea if Professor Charles Nesson is going to prevail in his defense of Joel Tenenbaum and his counterclaims that the Digital Millennium Copyright Act is unconstitutional. But the recording industry sure is taking him seriously. When Nesson asked for a hearing in the case to be webcast, the RIAA reacted with horror — rather oddly, as the judge noted in granting Nesson’s request, given that the RIAA claims that it wants publicity of its anti-piracy campaign. Now the judge has delayed the hearing so the RIAA can appeal to a higher court her ruling about webcasting the proceedings.

Meanwhile, the RIAA sent Nesson a letter (pdf) demanding that he drop a request for a deposition by one of the RIAA’s former lawyers, stating that it would ask the court to sanction him if he didn’t comply. Nesson’s classic reply, quoted verbatim:

our motion stands

we welcome your opposition

And the next day the RIAA went ahead and filed court papers stating that “Defendant‚Äôs Motion has no factual or legal basis whatsoever” and asking Nesson to pay for their costs in opposing it (as apparently the law provides in the case of certain patently gratuitous motions).

There are serious and important issues at stake here, as we discuss in Chapter 6 of Blown to Bits. But on top of that, the lawyers’ duel makes good theatre.

In a precedent-breaking ruling, Federal Judge Nancy Gertner will allow next week’s hearing in the case of Joel Tenebaum to be webcast. You’ll be able to view it via the website of the Berkman Center. This is the case (previously blogged here) in which Harvard Professor Charles Nesson is arguing that the copyright statute is unconstitutional because it is excessively punitive, — essentially a criminal statute in the garb of civil law. The decision includes some perspectives not usually penned by federal judges:

In many ways, this case is about the so-called Internet Generation — the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if almost exclusively, over the Internet.

The recording industry was not amused by Nesson’s request, stating that he made it “to influence the proceedings themselves and to increase the Defendant’s and his counsel’s notoriety.” Judge Gertner takes up the RIAA’s objections:

While the Plaintiffs object to the narrowcasting of this proceeding, … their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material.  Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities.  Their strategy effectively relies on the publicity resulting from this litigation.

This case is going to be interesting to watch — the stakes are very high for the industry, and rulings like this will be scrutinized for patterns in the tea leaves.

We passed another milestone on the road to digital copyright sanity yesterday when Apple announced that it would be removing Digital Rights Management (DRM) from the music in the iTunes Music Store catalog by the end of the first quarter. Along with that, Apple backed off its insistence that all tracks should cost the same: big hits will cost more in the new pricing scheme.

So in a couple of months, there will be 10 million iTunes songs available for purchase on line, songs that can be freely copied from one player to another. This plays out the scenario that began two years ago with Steve Jobs’s public letter to the recording industry proposing that they relax the licensing restrictions that required iTunes to implement DRM. We’ve come a long way since February 2007, when the recording industry’s response was to flat-out reject Jobs’s proposal was ‚Äúcompletely without logic or merit,‚Äù in the words of Warner Music CEO Edgar Bronfman.

Yesterday’s announcement was welcome news, but not a big surprise. Apple had already been offering a limited number of DRM-free tracks; consumers had shown a preference for them and were even willing to pay a premium for them. And of course, the big breakthrough, as documented in Blown to Bits, came in the fall of 2007 when Amazon began selling DRM-free tracks.

I’ve never bought any music from the iTunes store. I didn’t want to include tracks in my music library where I have to worry about whether I can move them between my iMac and my PC and my GNU/Linux box, copy them to my portable MP3 player or my cell phone, or extract a few seconds of music for a sound effect or background to a video. But once Apple switches over, I’ll happily become an iTunes Music Store customer.

I bet I’m not alone in this reaction. The New York Times article that reported the announcement included:

The music companies are hoping that their eagerly awaited compromise with Apple will give a lift to digital downloads. They will be able to make more money on their best-selling songs and increase the appeal of older ones.

Hallelujah! After a decade of fighting the Internet and Internet users, the recording industry is finally getting the message: Letting go of restrictions on the use of your product can make your product more valuable and more popular, to the degree that you’ll end of making more money, even allowing for an increase in ‚Äúleakage‚Äù when the restrictions are lifted. Hopefully, we’ll see that scenario play out with on-line music.

The next group that needs to get the ‚ÄúDRM is dumb‚Äù message is the movie industry. And despite the encouraging developments in music, this will still be a long haul. As we explained in B2B, DRM is the muscle behind the studios effective control over digital video consumer technology, letting them veto new features that they don’t like. Weaning them away from that privileged position will be tough.

As always, the group that most needs to get the message is Congress, whose Digital Millennium Copyright Act, with its anti-circumvention provision, is the lynch-pin of the entire anti-technology, anti-competitive contraption. That damper on innovation is precisely what we don’t need at a time when it’s more important than ever to to foster competitiveness. As we wrote in B2B, the Internet does not have to become your enemy ‚Äì unless you make it your enemy. We’re seeing a truce emerge around music. Video is still a ways away, but we can expect that the realities of the marketplace will let rationality emerge there, too. But Congress has never been a paragon of rationality, and laws passed in the grip of copyright hysteria and not easily overturned.