by Mike Masnick
Tue, Mar 6th 2012 11:24am
by Mike Masnick
Wed, Feb 15th 2012 1:03pm
MPAA: Ripping DVDs Shouldn't Be Allowed Because It Takes Away Our Ability To Charge You Multiple Times For The Same Content
from the um,-wow dept
Effectively, the MPAA is arguing that there is no evidence that ripping a DVD itself is legal, and since anti-circumvention exemptions are only supposed to be for legal purposes, this exemption should not apply. Leaving aside the sheer ridiculousness of the fact that we need to apply for exemptions to make legal acts legal (I know, I know...), this is quite a statement by the MPAA. While it's true that there hasn't been an official ruling on the legality of ripping a DVD, the fact that CD ripping is considered legal seems to suggest that movie ripping is comparable.
But the bigger point is that the MPAA is arguing that because they offer limited, expensive and annoying ways for you to watch movies elsewhere, you shouldn't have the right to place shift on your own:
Copyright owners include with many DVD and Blu- Ray disc purchases digital copies of motion pictures that may be reproduced to mobile devices and computers pursuant to licenses. Blu-Ray disc purchasers can also take advantage of "Managed Copy" services that are scheduled to launch in the U.S. later this year. Movie distributors and technology companies are also making available services such as UltraViolet, which enables consumers to access motion pictures on a variety of devices through streaming and downloading. Many movies and television shows are also available online through services such as Comcast Xfinity, Hulu and Netflix, or websites operated by broadcasters or cable channels, which consumers can enjoy from any U.S. location with internet access. With all of these marketplace solutions to the alleged problem PK points to, it is unlikely that the presence of CSS on DVDs is going to have a substantial adverse impact on the ability of consumers to space shift in the coming three years.Notice that almost all of these "market solutions" mean you have to pay multiple times for the same content -- and they ignore the fact that these offerings are all very limited and may not have the content on the DVDs people have. Public Knowledge has a quick summary of how these "solutions" are not solutions at all:
The MPAA had two specific suggestions. First, consumers could re-purchase access to a subscription service such as Netflix of Hulu. They did not dwell on the fact that 1) this would require you to pay again to access a movie you already own; 2) these services require a high speed internet connection in order to work; 3) There is a reasonable chance that the movie you own is not available on any of those services at any given time; and 4) MPAA member studios regularly pull videos that were once available on those services off of those same services.When you think about it, this is really quite crazy. They're saying because they offer you an option to pay for a way too expensive, very limited option that might not really exist, you shouldn't have the right to rip your DVDs. This would be like the recording industry claiming you can no longer rip CDs because they offer a limited locked down selection of music in an online store. People would revolt at such a claim, and they should find the MPAA's ridiculous claims here equally as revolting.
The MPAA’s second suggestion was even less helpful. In their comments, they pointed to Warner Brothers’ DVD2Blu program. This program allows people to use their existing DVDs as a coupon towards the purchase of a handful of Warner Blu-Ray disks. They did not dwell on the fact that 1) this program is limited to Warner Brothers films; 2) the program is limited to 25 exchanges per household; 3) while some Blu-Ray disks include digital copies that can be moved to other devices, it is unclear how many of the disks in the DVD2Blu program include that option; 4) only 100 movies are included in the entire program; and 5) each exchange costs at least $4.95 plus shipping (which, for the record, is about as much as it would cost to buy the digital file from Amazon.).
If the MPAA stopped there, it would be crazy enough... but no, in the mind of Hollywood, they have to take it even further. They claim that because the ability to rip your DVD might take away their ability to keep charging you for the same content over and over again, that it goes against the purpose of copyright law. Seriously. They're actually claiming that their ridiculous "windows" are "new business models" that copyright law is designed to encourage:
In fact, granting PK’s proposed exemption would be directly counter to the purpose of this rulemaking. It would undermine emerging business models that increase access to creative works in precisely the manner Congress intended the DMCA to promote.But that's pure bullcrap. The business models in question do not "increase access." They increase the ways in which you can pay. If they want to increase access, they would let you rip your damn movie.
It is clear that access controls have increased consumers’ options with respect to motion pictures in digital formats. The Register should not interfere with that progress. Instead, she should endorse it.Up is down, black is white, day is night. Controls have increased consumer options? No freaking way. Controls have limited options... but have allowed the MPAA studios to set up tollbooths and charge people multiple times for content they legally had purchased the rights to.
by Mike Masnick
Wed, Feb 1st 2012 7:01am
from the sign-up-now dept
Mon, Dec 5th 2011 10:06pm
from the please-sir,-may-I-have-some-rights dept
In response to public concerns over this portion of the DMCA, Congress added a process to the DMCA that allows citizens to petition the Copyright Office to seek an exemption. Every three years the Library of Congress and the Copyright Office team up to request, review and grant exemptions to the DMCA's anti-circumvention clause. Every three years, the American citizens get the chance to beg the government to re-grant rights they should have if it had not been for that clause in the DMCA. Every three years the Copyright Office gets to tell American citizens just what rights they are allowed to exercise and which they can't. We have already expressed why we think this process is completely bogus. So this year isn't really any different. But it is important to take a look at just what exemptions are being requested this year.
One of the most active consumer groups in this process is the EFF. They have requested exemptions all but one year in the process. The year it didn't submit a request was spent in protest over the insanity of the process. However, it has since won some important exemptions, specifically the right to jailbreak a legally purchased iPhone. This year, the EFF has decided to take it up a notch and request an exemption to jailbreak not only the iPhone, but also other smartphones, tablet computers and game consoles. It also seeks to have exemptions made for the breaking of DVD's CSS encryption for the purpose of extracting clips to be used in non-commercial videos.
Following suit on the idea of bypassing CSS encryption, we have both Public Knowledge requesting an exemption for space shifting of DVDs for home use and the Association of Research Libraries requesting an exemption for educational use of copied DVDs. Three requests for bypassing CSS encryption. Perhaps there is something there. The ability to bypass CSS encryption and copy DVDs to computers has existed for pretty much the entire life of DVDs, yet it is still illegal to do so.
Now remember, just because these requests are being made, it does not mean we are guaranteed to get these exceptions. Companies interested in blocking these requests can still add their own submissions in response. We can certainly expect the MPAA to object to any kind of exemption for bypassing CSS encryption that doesn't involve a video camera recording the TV. We can also expect objections from Sony and Nintendo who both hate the idea of people jailbreaking their consoles even for fair uses.
Regardless of what happens in the next few months (or two years if the last process was anything to go by), US citizens will be thrown a bone and given the semblance of fair use rights again, at least for the following three years when this whole process starts over. That is the biggest problem with this whole process. If something is worth making a temporary exemption, is it not also worth making that exemption permanent?
by Mike Masnick
Thu, Aug 5th 2010 6:32am
from the issuing-a-takedown-for-the-dmca-itself dept
A lot of folks have written up some pretty thoughtful analysis of the exemptions and the exemption process, and I wanted to highlight three of them here. The first two are similar. Peter Jaszi wrote a very detailed piece (and it's only part one!) highlighting some of the subtext of the exemptions this time around, including a subtle, but extremely important point, that the Copyright Office and the Librarian of Congress may be moving away from the problematic "four factors" fair use analysis (with the most emphasis on the fourth factor, "market impact") towards one where the key factor is whether or not a work is "transformative."
What are the most important take-aways from this passage? In my mind, there are three: First, the Copyright has subscribed fully to the proposition that in today's dominant jurisprudential approach to fair use, "transformativeness" rules. The four statutory factors remain important, of course, but the inquiry into whether and how borrowed material has been repurposed by the user tends to inflect, if not to determine, the analysis of each. And that's true across the board -- even with respect to the famed and feared factor four (market effect), where transformativeness can trump even a showing of lost licensing revenue. This enlightened understand of fair use helps not only to explain why the Recommendation came out as it did this time, but contains a strong suggestion about the kind of reasoning we can expect in future rulemakings.This is actually a pretty big deal, as many of us have long believed that a transformative use should be a clear cut case of fair use, since it is a new creation (what copyright law is supposed to encourage). The second piece I wanted to highlight is by Larry Downes, which discusses the exact same part of the rulemaking, and how it ever so slightly moves the fair use needle, by noting that the fourth factor (the market impact) should be narrowly focused on the market for the specific work copied, not a larger product. That is, the reason the Copyright Office found jailbreaking a smartphone to be fair use was because it said the copying was only of the firmware, and the proper "market" to measure was not the overall iPhone market, but the market for the firmware alone. And, in that market, jailbreaking does not harm the market for the iPhone's firmware.
In granting the exemption, the Copyright Office rejected Apple's claim that jailbreaking harmed the market for the iPhone. The fair use analysis, the Register said, focuses on the market for the protected work, which in this case is the iPhone's firmware. Since the modifications needed to jailbreak the firmware don't harm the market for the firmware itself, the infringing use is fair and legally excused. It doesn't matter, in other words, that jailbreaking has a potentially big commercial impact on the iPhone service.While somewhat different in approach, it feels like Downes and Jaszi are each seeing the same basic thing -- the Copyright Office and the Librarian of Congress (along with a series of recent court rulings) have realized that the pure four factor test hasn't always been useful or applied properly. This does move the needle ever so slightly in a much better direction.
That distinction is the notable feature of this decision in terms of copyright law. Courts, and now the Copyright Office, are well aware that technology companies try to leverage the monopoly rights granted by copyright to create legal monopolies on uses of their products or services. In essence, they build technical controls into the copyrighted work that limits who and how the product or service can be used, than claim their intentional incompatibilities are protected by law.
And, for that, we should be happy.
That said, it is worth noting that both of Jaszi and Downes' write-ups have to pick out these details through the legal minutiae. Taking a big step back to look at the forest, rather than counting the rings on a single downed tree, is Tom Lee, who wrote up an excellent analysis for The American Prospect, pointing out that the very fact that we have this slow and unwieldy exemption rule-making process should actually demonstrate the massive problems of the DMCA itself. Specifically, we should all be quite troubled that the government effectively gets to weigh in every three years on how you can use electronic equipment that you purchased:
It might seem strange for the government to attempt to regulate consumers' use of their electronics, then turn a blind eye toward violations. For that matter, the exemptions themselves might seem a bit arbitrary. Isn't it a little silly to permit jailbreaking an iPhone but not an iPod? Might any of the 25 other suggested exemptions have had merit? Doesn't this all reek of selective enforcement (albeit executed at a glacial pace)? And isn't it a bit ridiculous to rely on the librarian of Congress to mediate the tensions between rights holders, device manufacturers, and the IP-buying public?While there is the general progression (at a snail's pace) of smarter implementation of fair use, Lee's point is a really important one that gets lost in the shuffle. The very fact that we need a triennial exemption rule-making suggests that the law is ridiculously broken. It is, as Lee notes, a sort of charade. We all are supposed to pretend DRM works, and when it doesn't, we start playing by different rules. And since those rules sometimes get confusing, we need a referee to step in and issue specific exemptions? It's a game of regulatory theater, where people pretend that copyright law actually does something (i.e., protect content) that it does not do.
The answer to all of these questions is yes. But it's worse than that. Proscribing circumvention technologies is a bad idea. This is true even if we immediately carve out reprieves from that restriction, and regardless of whether those reprieves are narrow in principle or wide in practice.
It's true that asking people not to violate copyright doesn't work very well, so it's understandable that rights holders invented DRM. But DRM doesn't work very well, either. Now we've invented a law to force people to pretend that DRM works. That law doesn't work, either, of course -- and it couldn't. The exemptions are a recognition of the fact that if the DMCA functioned perfectly, it would be intolerable. DRM is a lock that can be opened by software, and software is little more than an idea -- certainly the circumvention techniques, the substance of that software, are nothing more than ideas.
by Mike Masnick
Thu, May 7th 2009 12:11pm
from the ok-then... dept
But, of course, the process also has some requests in the other direction as well... The entertainment industry, for example, would like fewer examples. Kevin alerts us to some video of a recent hearing, where the MPAA actually (you have to see it to believe it) demonstrates how to use a camcorder to videotape a movie off a TV:
by Mike Masnick
Tue, Apr 1st 2008 10:17am
from the still-wondering... dept
However, no matter how ridiculous this particular "exception" is, Tom Giovanetti's latest article complaining about it has numerous problems. First, he starts off by suggesting that traditional property and patents are similar, and that they're there to "protect the little guy." Unfortunately, patents and property are quite different, and patents were never designed to "protect the little guy," but to promote the progress, which again is entirely different. Giovanetti then claims that: "there is something heroic, even romantic, about the small inventor who comes up with a breakthrough idea." Yes, there is something romantic about it -- but perhaps that's why it's generally a myth. There are very few stories of small inventors coming up with breakthrough ideas. Most of the stories you can think of are actually revisionist history of those who actually copied the ideas of others, and were better marketers (and able to abuse the patent system to their own advantage).
So, yes, this particular exception is bad, even if it's for the right reasons. The patent itself is quite questionable and covers a broad and obvious topic. The company has done little to commercialize the offering itself and has been looking to sit back and cash in. But, the idea that this is an affront to "small inventors" making "breakthrough inventions" is a myth that's better left by the wayside. This is merely yet another example of a broken patent system and Congress' unwillingness to fix the root causes of the problem, preferring instead to treat the symptoms.