DRM = Lost Sales

Today I had my first big hairy encounter with why Digital Rights Management software is the worst idea that has ever come out of the tech sector.

It’s a snow day here in DC, well, more like a slushy rain, and the fear of driving has closed everything down.  So, I’ve got the day off.  This leads me to start scrolling through Netflix looking for something good.  But Netflix has next  to nothing good right now, because none of the major film companies want to play with them.  So, I figured I’d look through iTunes and see what I could find in their movie selections.  I decided it was finally time for me to see Looper.  And streaming at $4.99 was reasonable.  So, I pay my money, and start the download to buffer and I get the sign that it’s ready.

Now this is where I tell you that I have my MacBook connected to my television.  I use it as a media console and I sometimes move windows over to the television and blow up things like YouTube videos or Netflix movies or anything else that would just generally look better on the bigger screen.  I’ve got the screen split between my laptop’s built in monitor and the television.

So, I move my iTunes window over to the television to play that movie for me and my partner and my roommate so we can all watch it together.  And then it stops playing.  It would hiccup for a second and then black screen. Then I got this popup window.

Image

The text of it reads “The selected movie won’t play on one of your selected displays. This movie can only be played on HDCP (High Bandwidth Digital Content Protection).  Try moving the iTunes window to a different display. Make sure the entire window is in the supported display.”

And it’s true.  When I would move the movie over to my desktop it would play, but even if it would be just a hairs breadth in the television display it would seize up.

This was not something that I knew before I paid my money, and had I known in advance that this was going to happen I wouldn’t have bought it at all.  The purpose of renting that movie was to have a nice little snow day in with my partner and to pass the time.  So, I reported this to iTunes and demanded my money back.

And then I went to Amazon.  And at least Amazon is up front about it.  They give you a giant list of all the compatible televisions on which you are allowed to watch their movie.

But seriously, I have to have a specific kind of television to watch a goddamn movie?

This is why piracy is rampant.  Artificial barriers to access result in people not getting the product they want the way that they want it.  Watching a movie on a television should be a no-brainer.  You stream your movie and you watch it on a television in your home.  You shouldn’t have to have a special television that is DRM compliant just to be “allowed” to watch a movie.  It’s completely stupid.

So, I didn’t get the movie on iTunes or Amazon.  I was perfectly willing to pay for it.  But I want to watch that movie on my television.  If I can’t do that, I’ll just keep my money.

To learn more about this kind of stupidity check out http://www.defectivebydesign.org/

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The Saga of MegaUpload

This is what you see when a website is seized by the federal government.

Several of my friends have posted today that they think that the Anonymous DDOS attack against the websites for the FBI, the DOJ, MPAA, RIAA and others was wrong.  I disagree with them and there is a lengthy reason why.  Let me walk you through the Saga of MegaUpload.

For those who don’t know, MegaUpload is a file sharing site.  People use this site because they tend to sometimes have files that exceed the capacity limits of regular email providers, and they need to send those files to other people. There are whole broad range of websites who perform this service including YouSendIt and DropBox.  But MegaUpload was extremely popular because they had great connection speeds and a lot of individuals and businesses used it for its intended purposes.  Well, with any file sharing service comes a crop of people who use that service to share copies of copyright protected material.  Some users had taken advantage of the unlimited file sizes and uploaded entire sets of television shows and DVD rips, CDs and more.  When you upload a file you get a link to somewhere on the MegaUpload server, that you can share with whomever, and some people shared those links with the entire world.

Now, as I said before, every website that allows users to upload content runs into this problem one way or another.  So, Congress when they were exploring legal options for the future of protecting copyright crafted the Digital Millennium Copyright Act.  In the DMCA there is a provision for businesses who run upload sites to be exempted from copyright lawsuits and to continue doing business so long as they investigate and take down infringing content when prompted by a copyright holder.  This is called the “Safe Harbor” provision.  Every site that hosts user uploads has to comply with this, for fear of losing their entire business.  YouTube provides one of the main examples of how this works.  Say someone saves an mp4 of Saturday Night Live, they clip a skit out from the show and upload that as a YouTube video.  NBC Universal owns the right to reproduce SNL videos and they find that clip on YouTube.  They tell YouTube to take down the video because it’s infringing on their copyright.  YouTube checks the video and takes it down if they believe that the copyright holder is in the right.  Though more often than not the link will get taken down first, the link uploader will write back to YouTube and tell them that this was wrong and that they do own the copyright for real and then the link gets restored.

In early December MegaUpload released a promotional video on YouTube made by a number of high profile recording artists like Kanye West, Snoop Dogg, Alicia Keys, and Will.i.am to promote the use of MegaUpload.  Universal Music Group promptly filed a DMCA takedown request with YouTube to have the video suppressed, because UMG, the parent company for many of these artists, believes that MegaUpload is a threat to their business model, and the Recording Industry Association of America has deemed MegaUpload a “rogue site.”  So, even though all of the artists have contracts on file with MegaUpload to perform and distribute the song, UMG filed this takedown notice claiming that there were some people on there who didn’t in fact actually agree to it.  It went back and forth for a while at YouTube and eventually it just got taken down entirely.  On December 13 MegaUpload announced that it was going to directly sue UMG for filing false DMCA takedown requests.  The thing that was even more interesting is that UMG filed a DMCA take down notice for a local news program who played the video in the background of a report about the UMG MegaUpload controversy, and YouTube took that down too.

Now all of this was happening while in the background there was a slowly simmering online opposition to the impending SOPA and PIPA legislation that I wrote about previously.  As many people pointed out SOPA would eradicate the safe harbor provisions inherent in the DMCA, making sites like YouTube, DropBox, and MegaUpload vulnerable to DNS seizure by the federal government.  As the internet began to rally against SOPA the entire conversation about MegaUpload began falling by the wayside.

On January 18th, a host of prominent and powerful websites participated in an internet blackout in response to SOPA.  The effect was tremendous, and number of legislators who had originally been backing SOPA and PIPA in Congress pulled their support, many who were undecided declared their opposition, and ultimately Patrick Leahy and Lamar Smith tabled both bills.  No one is under any delusion that there won’t be new versions of these bills coming out sometime in the near future, but the legislation as it was originally drafted is not coming back.

The very next day Federal agents shut down MegaUpload, raided the homes of their founder and staff and seized data centers in three different countries. It’s kind of hard to say that it wasn’t an attack of vengeance, or a strike back against the derailment of SOPA.  In fact former Senator Chris Dodd, who is now the public face of the Motion Picture Association of America, basically said that Obama could just forget about Hollywood financing if he doesn’t get tough on piracy.  Sure, correlation is not causation, but it sometimes is just a lot of correlation.  To threaten the campaign funding of an incumbent President to get your way, well, that sure looks a lot like blackmail for favors.

Anonymous flag via WikiMedia Commons

The hacker community swiftly responded with a coordinated DDOS attack against the public websites for the Department of Justice, the FBI, Universal Music Group, the RIAA, and MPAA.  Where people have been losing their minds is when irresponsible journalists like those at the Washington Post use headlines that say that the Department of Justice was “hacked.”  No, the DOJ was not “hacked.”  Nothing was broken into.  No files were stolen or compromised.  These sites were hit with a distributed denial of service attack against their public websites.  DDOS is basically when a website is hit all at once with a huge number of requests to send the content to a browser.  The volume of requests can’t be handled by the web servers and it slows to a crawl.  This renders the website inaccessible during the timeframe of the attack.  In this case the DDOS lasted 70 minutes.

As a former federal employee, I can tell you that I used my agency’s publicly facing website 0% of the time.  All of my activities for my work happened entirely on intranet systems or external vendor services that would not be effected by something of this nature.  I imagine the same is true of any company, government agency, or non-profit institution.  DDOSing a public website just means that someone from the public can’t go to that website until the DDOS is over.  Given the length of time that Anonymous ran this attack, the sites that were targeted, and the irrelevance to business operational functions, my opinion of this DDOS attack is that it served simply as a statement.  Hackers were pissed that a popular site was taken down, so they sought to “take down” those responsible.  Is it juvenile?  Sure.  Does it make a point?  Absolutely.

Putting the activities of Anonymous aside, there are a ton of reasons why the MegaUpload raid was uncalled for, and that the DOJ may have an extremely difficult time pushing this to conviction.  TechDirt did some really great analysis of how the indictment is not only problematic, but attempts to prosecute the case in a method that is inconsistent with previous cases of its type.  It’s definitely worth taking a look.

The main problem that I have with the MegaUpload take down is that thousands millions of innocent, non-infringing people are being screwed out of content that they legitimately own.  MegaUpload had over 150 million users, and nearly 50 million hits per day.  All of that can’t be infringing material.  A personal friend of mine had all of his music backed up on MegaUpload.  He didn’t make his links available to anyone but himself, and as a storage solution this was great.  The same is true of a number of companies and non-profits, like Public Knowledge.  Software developers would use MegaUpload to host code they were working on to build new apps.  And this is exactly why the DMCA has a safe harbor protection.  The fallout for taking down a website like this is so much greater than just the people who are committing acts that violate copyright.  It means that people who use this service for legitimate purposes have no recourse to regain their data.  Even if Kim Dotcom and his staff are acquitted, the servers and their data will remain as evidence in a warehouse somewhere throughout the course of the trial.

Opposition to SOPA and PIPA was based around provisions in those bills that would make practices like what is currently happening to MegaUpload the norm.  Any website that was accused of being non-compliant would be raided, shutdown and prosecuted.  There didn’t even have to be a finding of fact, or a trial, just an accusation.  As Matthew Inman from The Oatmeal said in his hilarious and brilliant animation it’s like dealing with a lion who escaped from the zoo by using a flame thrower on a basket of kittens.  Yes.  Copyright violation is bad.  But so is deleting the files of thousands of innocent people who use a service for legitimate means.  While the DMCA may not be perfect, they did get one thing absolutely right and that was that prosecution for copyright violations should target the offenders, not the service they use.

Copy Pasters Saved My Bibliography

It’s no big secret that I’m Pagan.  I talk to people about it all the time, and there was a period in my life when I was much more actively writing articles for Pagan websites.  I kind of got out of the habit of it around 2005/2006 when I began doing some occasional work for White Crane, a Journal of Gay Men’s Spirituality.  Those occasional pieces eventually winnowed down as well and now I just write for my own blogs.

But I had taken for granted that the sites to which I’d originally submitted my work would maintain those articles.  Boy was I wrong!

In the early 2000’s I had contributed a couple of articles to The Witch’s Voice website.  This is a long running site that has been providing a platform for Pagan voices who wish to share their own discoveries within their faith traditions.  Three of the articles I had written there were linked on my web resume as part of my personal bibliography.

For whatever reason, I wanted to share the article I wrote on the ecstatic, spiritual experience in dance music with someone recently.  However, when I went to pull that link I was greeted with this page.

Sorry, we only keep your work as long as you keep chatting.

Now, I don’t mean to pick on WitchVox. They’re a great site, and they do a lot of good things.  And sure, they probably had to dump some content.  I can understand that.  Well, maybe not, given that you can just go to BestBuy and get a terabyte server or that you can pay for unlimited bandwidth for next to nothing a month.  But whatever.  They had to make a decision, and they chose to bump articles from people who didn’t have active profiles.

So, how was I going to get my articles back?  My first shot was to check the Internet Archive.  Sadly, they didn’t index the entire site, and the caches that they had for my articles only turned up one of them.  Incidentally it was my favorite article I wrote on WitchVox, about how the Passion of the Christ can be viewed through the lens of Roman ritual sacrifice.  That piece got more hits than anything I’ve ever written, mostly because it got picked up by MetaFilter and reblogged hundreds of times, with ALL kinds of back and forth about it.  I even remember getting some feedback from Fritz at WV that it was one of the most hit articles that they had ever hosted.  I was shocked and proud.  And now it lives on via the WayBack machine.  But the other two I had to go elsewhere.

Both of the articles found homes on other sites that had similar interests to mine.  My article Holy Rave: Sacred Ecstatic Dance Music was picked up four years after it had originally been published and republished on the Gay Witch Network, buried somewhere in their blog pages.  I don’t even know who reshared it.  But they faithfully copied the entire article word for word.  Similarly Rin Daemoko at OccultForum.org copied and pasted my article Secrecy as Power/Proclamation as Power within days of my having written it.  Now, I don’t remember ever giving Rin permission, but without his having copied that article over I would have lost it to the ether.

If it hadn’t been for these two people who copied and repasted my article on their forums, and the Internet Archive caching my page I would have lost these pieces of my bibliography forever.  I’ve reblogged all my articles over at my LiveJournal just to have another backup of the text.  But its original home is gone.

A lot of people I know get bent out of shape over people “stealing their content” by reblogging it somewhere else.  But let this be a cautionary tale.  If you’ve got your content in one place, you’re at risk.  There’s no guarantee that your publisher will keep your work alive.  But fans, people who love your work and want to share it with their circles of friends will want to keep it alive.  They will do what they can to keep copies of your work in the hands of the people who need it.

Consider that.

Copyright Musings

This week I’ve had copyright law on the brain.  Nancy Sims, librarian and copyright lawyer was interviewed for a piece in the Chronicle of Higher Education on some things folks need to know about copyright law but don’t. But mostly this is on my mind because I was poking around through Andy Woodworth’s blog over on WordPress and found this vehement post against CD ripping at libraries.  This came from a longer debate that was raging on another library listserve that I just didn’t bother to read, because if it ran anything like the comments in the post then I didn’t want to bother.  Lots of people weighed in on different sides of the debate: yes, we should allow people to rip CDs but only their own; no, we shouldn’t allow anyone to rip CDs because they could be infringing copyright.  blah blah blah.

Andy, I’m sorry, but I’m not with you on this one.  And here’s why.

First off, we’re not the copyright police.  We’re often lucky that we have enough staff to open the doors, much less monitor what’s going on at people’s public computers.  No one is going to sit there any monitor patron behavior to find out if they’re illegally ripping CDs.  It’s just not going to happen.  If you actually have the time to monitor all of the activities in a computer lab you are doing your job wrong.  There are people who are the copyright police and those are the folks who hold those copyrights.  If they want to visit every public library in the United States I dare them to do so.  When our public computers log out after each session, whatever content may have been put on that machine is erased.  There is no transaction history logged.  It’s as if no one was ever there.  Which makes this issue unenforceable and untraceable.

Secondly, we offer legitimate services that for all intents and purposes approximate the same practice.  With certain downloadable media, there is no real way to monitor the DRM status of materials downloaded to an external device, be it desktop, laptop, MP3 player or iPod.  They just trust that you will delete that content from your drive when the time period has expired.  Let’s be real about this.  Who is really going to do that?  When someone discovers that their content hasn’t been wiped off their machine, they’re just going to keep it, cause really, why not?  Now you tell me, what is the difference between allowing the person who downloads an MP3 via a legitimate file sharing service that we operate, and the person who rips a Library CD?  The only difference is the legal arrangement for these different formats, and the fact that they differ at all is totally stupid.

But lets get to the more important question here.  Because this isn’t about the legality of ripping CDs at all.  This is about the state of current copyright law and rights enforcement in an era where supply has basically become infinite and demand can always be met at a moment’s notice.

This whole situation really blew things out of the water with Napster. Does anyone remember Napster?  Oh, wait, it still exists…  Just as a recap, this was one of the file sharing services that exploded in 1999, and became so amazingly popular (especially on college campuses) that the RIAA sued them for massive amounts of copyright infringement, and won, leading to the eventual shutdown and sale of the service (or really it’s name) to BMG, and then having it shuffled off to one lower level retailer after another.  Did that stop file sharing?  No.  After Napster there was Grokster, Kazaa, Limewire, etc. etc. etc. It’s just never really going to stop.

In eBook land let’s talk about the Harper Collins fiasco that came out earlier this year.  Harper Collins basically said that they would only provide an eBook DRM license allowing public libraries to share an eBook 26 times before they would kill that eBook.  This led to some hilarious YouTube videos where librarians examined the number of times physical copies of books were checked out (upwards of 40 checkouts and still in good condition on a shelf) and that some Harper Collins books even had lifetime guarantees on them.  It was a laughable moment.  Why?  Why would you treat an eBook worse than you would a physical book?  It makes no sense.  Especially since the DRM on those items from our vendor restrict the number of times it can be “checked out” for download at any given time.

Then there are television shows and movies.  I’m just going to link to this cartoon to explain my opinion on that. Oh, but let me include this video from the IT Crowd as well.  But let me just make one comment here about air time and web time.  The internet makes the original air date, the date of air for the entire world.  Over the latest memorial day weekend BBC America did not air the new episode of Doctor Who, which means that they are now out of lock stop with BBC1, where Doctor Who airs in Britain.  Yes, Memorial Day is a big holiday in the U.S., but given that people have DVRs and that Doctor Who fans in the U.S. are absolutely rabid about this show does anyone think it would make a difference?  No.  Because the lead up to this last Saturday’s mid-season finale was so intense that I will guarantee you that damn near everyone who watches Doctor Who in America went and downloaded that content from somewhere.  Will they watch it again on BBC America.  Absolutely.  But they’re going to watch it as fast as they can, because they can’t get it fast enough.

The RIAA & MPAA have been trying to pull downloadable content off the web, and sue people for millions of dollars for years.  And they’ve gotten away with it so far.  But the reality is that file sharing sites crop up all the time. And no matter how many times people pull them down, they will continue to come up again and again.  There are so many places to go that it’s impossible to even begin to try to fight it unless you have the money of these lobbyists or the backing of a federal agency.

But again, we’re asking the wrong question.  It’s not, how can I crack down on things that are violating my copyright, but  how can I profit in an era where everything is available practically all the time?  How do I change my business model to take advantage of this new behavior that is on the web?

Let’s start with CDs, since that’s where this conversation began.  Just ignore ripping CDs.  People share CDs and rip them all the time.  There is nothing that’s ever going to stop that.  We fought that battle when it came to audio cassette tapes.  Thankfully the music industry has finally gotten to the point where they can provide content online through things like iTunes or Amazon MP3 so that people can legitimately download their content for a reasonable price.  But people are still downloading music and sharing music over file sharing websites.  But then there are some bands who just give their content away for free through sites like Magnatune and Jamendo.  Before that bands were putting their tracks on MySpace and DMusic.  It’s a way to get your name out there, to spread your content and promote yourself.  Even megastars are exploring new methods of content delivery like Amanda Palmer and Radiohead giving people the option to download their music through their website at a price that they name (including nothing), and Lady Gaga releasing her new album on Amazon MP3 for $.99 and demand being so crazy that it crashed Amazon’s servers DDOS style. These are forward thinking bands.  They understand the internet and are experimenting with different sales and delivery methods, and it’s working.

Over in eBook land we have similar things going on.  Cory Doctorow has been releasing his books for free in eBook format for a long time, but he has had to negotiate and wrangle with his publishers to make that happen.  And sales of physical printed copies, as well as sales of eBooks are still good.  Seth Godin in an interview at BoingBoing discussed his new eBook venture, where they will be giving away free copies of eBooks via his publishing imprint, and selling physical copies.  And this is not just a route for famous people either.  Amanda Hocking has become the poster child for new media success, by making millions selling her books for $.99 on Kindle.

Movies and television are slowly getting there through sites like Netflix and Hulu.  Through Netflix people were able to watch the series Spartacus: Blood and Sand and its companion piece Spartacus: Gods of the Arena on the same air date.  Hulu gives you the content the day following broadcast, with commercials at certain intervals with a limited number of back episodes.  Though the Hulu Plus the low monthly fee service gives you access to a much broader backlog of shows.  These are not perfect by any means, but they are still legitimate methods of content delivery that are changing the way we deal with television and films on the internet.

We are at a point where we need to rethink the value of existing copyright laws, experiment with these new delivery methods, and find a place where artists and authors can prosper through the new media.  We are wasting our time with enforcing a system that was developed centuries ago to protect the value of a supply line.  The supply line no longer exists.  The value is on the value of the content, not the physical or virtual product.  People will pay for content that is delivered in a timely fashion at a price that makes sense to them, and when it exceeds realistic expectations they will turn to pirated media.  This is not a devaluing of an artist’s work, it is a recalibration of the market to meet a new publishing medium.  Publishers, broadcasters and other content providers need to find a way to make their content available to people legitimately or face media piracy.  If they cannot step up and deliver their content to eager users, others will do so for them and then they lose.

As a librarian am I going to show someone how to download something from a bit-torrent client?  Even if bit torrent sites weren’t blocked by our firewall, I probably wouldn’t.  I would, however, have a conversation with them about legitimate download sites, like Overdrive, and how they work.  Am I going to show someone how to rip a CD?  Absolutely, because that is a skill that is a part of every day life now.  There is no reason why I cannot instruct someone on how to convert their content to a new medium for their own personal enjoyment and turn around to load that on their phone, mp3 player, or iPod.  It is a technical skill, agnostic of the legality of the content being used for the process. It’s like teaching someone how to build a website, fill out a web based job application, create a blog, establish an email address or get on Facebook.  It’s yet another skill that we need to have in order to live in our society.  By not teaching someone who comes to the library about it we create a knowledge divide between people who have home computers and those who don’t.  People want to get media, we want to provide media.  We need to figure out how to make it happen and not how to create another digital divide.