It’s a legitimate fear as it’s happened multiple times – a music service shutters its DMR music service and servers, rendering all legally purchased tracks useless. For those who do the more honest thing of purchasing music, the very idea that a corporate entity could render legally purchased material useless seems like a betrayal to consumer confidence. It’s not a realistic situation for those that spent 10’s of thousands of dollars on vinyl copies of music (that one day, the content themselves all fail at the same time) but it can technically happen with DRM encoded music.

It’s partly why it makes Steven J. Metalitz’s comments regarding authentification servers during a Q&A session of a copyright hearing so outrageous.

“we reject the view,” Metalitz writes (PDF), “that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards.”

He then explains the reasoning behind it, “No one expects computers or other electronic devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so.”

For many, this would mean that back-ups are illegal – especially in the event of a failure either on the user end or the retailers side of it. That would mean that people would be asked to pay for their legally purchased content again – so much for fair use.

“To recognize the proposed exemption would surely discourage any content provider from entering the marketplace for online distribution or offering consumers the convenience of online authentication of disc-based content unless it was committed to do so — or to guarantee the ability of a third -party service to do so — forever.” He continues, “This would not be good for consumers, who would find a marketplace with less innovation and fewer choices and options. Any argument that such barriers to entry are needed to protect consumers in some way is more appropriately addressed to the Federal Trade Commission, rather than to the Register and the Librarian in this proceeding.”

It’s comments like this that re-enforces what many have known for a very long time already – when you “purchase” content with DRM, you don’t own it, you merely rent it. With thinking like this, it’s no surprise when users turn to piracy. It’s not like they simply want to get content for free, it’s just that they want to be able to have the option to create a way to recover their content in the event something goes wrong – something the industry doesn’t seem to keen on allowing. It’s a mystery how preventing back-ups would be discouraging users and innovation when plenty of innovation revolves around re-using the works in unique ways – something DRM prevents.

“I’ve got 78RPM records from my grandparents’ basement that play just fine today — and I’ve got Logo programs I wrote in 1979 that I can run today. I own a piano roll from 1903 that I can play back if I can clear the space for a player piano. I’ve got books printed in the 17th century that can still be read” Cory Doctorow wrote in response, “and if they can’t be read, they can be scanned and the scans can be read. This is what an open format means.”

“It’s hilarious that the same yahoos who argue for perpetual copyright (implying that copyrighted works have value forever) also argue for time-limited ownership (implying that people who buy copyrighted works should be content to enjoy them for a few weeks or years until the DRM stops working).” Doctorow said.

There’s plenty out there who would easily recognize that given that the computer is effectively a copying machine for the most part, it’s not surprising that many would see this latest argument from the industry as backwards at best.

[Via Arstechnica]

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There’s plenty of places to find this story now. One way is to find it on BoingBoing. What’s causing the stir is the MPAAs demonstration video on how an educational fair use – showing a video clip for educational purposes – can be obtained by the teachers. “In 2006,” the video description says, “film and media professors were granted an exemption in order to break copy protection on DVDs so that they could utilize high quality video clips in classroom teaching. Up for consideration during the 2009 exemption hearings is whether this exemption should be extended to apply to faculty teaching in all disciplines, and whether the exemption should apply to students.”

For our readers who are still stuck on 56k modems thanks to, say, a local duopoly of ISPs who deem your area not profitable enough to extend their networks to your home even though the local government gave them money and/or the resources to do so, here’s a description of what goes on in the video. An MPAA official narrates a demonstration video on how teachers can extract a required 18 second video clip from a movie. The video shows a woman, presumably your average teacher, hooking up a chord to a camcorder that’s already hooked up to a DVD player. The narrator describes how this method can be used to obtain multiple clips from multiple discs by simply recording and playing and stopping the camera’s recording. The woman then, as described by the narrator, frames the television set with the camera, making sure that the TV set sides, a large wide screen plat panel TV, is not showing while none of the picture is actually cut off. Not wanting to bore the audience, he stops the clip so he can go over the results of the practise, also revealing he was using VLC in his presentation. He then goes over a series of short clips, trying to show that it’s still high quality. At the end, comparing the actual clip from the DVD to the camcorded version. What is also emphasized is that this is using a standard DVD.

The most obvious ironic thing about this is the fact that the MPAA has been waging a war against people who take cameras into theatres and record the movie. The comparable practise that was demonstrated here is known as a telesync which is known to be the method to getting a higher quality cam in the theatre.

Another thing that’s ironic about the clip is the use of VLC. While we weren’t able to find any verifiable reference on what the MPAA thinks of VLC, we do know that the MPAA has been pounding RealNetworks over alleged ease of bi-passing encryption through RealDVD – thus leading to a very simple conclusion that technology such as VLC wouldn’t be allowed to flourish on US soil given that it’s known to read so many codecs.

Another ironic part about this is the use of the camera itself. Why this is significant, one would have to really dig around a news archive from 2002. The example we came up with comes from the EFF at Lawyerpoint which has the following:

The Motion Picture Association of America (MPAA) filed the “Content Protection Status Report” with the Senate Judiciary Committee last month, laying out its plan to remake the technology world to suit its own ends. The report calls for regulation of analog-to-digital converters (ADCs), generic computing components found in scientific, medical and entertainment devices. Under its proposal, every ADC will be controlled by a “cop-chip” that will shut it down if it is asked to assist in converting copyrighted material — your cellphone would refuse to transmit your voice if you wandered too close to the copyrighted music coming from your stereo.

One final thing that we can safely note that’s ironic about this is the portrayal of what is suppose to be an average teacher exercising fair use rights. The equipment itself, given the common budget of a school like high schools, how realistic is it that the average teacher would just happen to have a nice expensive spare big screen television set, a high quality camera that is suppose to pick up on the video in a reasonably clear scenario, an assistant to watch their every move, a large open space to work with and that much free time to sit and figure out how to put together such a supposedly simple set-up? Particularly when there are a number of teachers out there that just bring DVDs into the class, skip to the scene and just show the scene in question in the first place? It’s likely that the MPAA just wants to prevent any more exceptions from happening and make the act of fair use as difficult to accomplish as possible.

What isn’t shown in the video is how to convert the footage on a camera (many of which uses tapes like the MiniDV tape) and converting that footage over to a format that is recognized by the player in the classroom. There’s two possible methods of accomplishing this, neither of which is easy (as easy as just playing the DVDs in the classroom that is).

One way is to hook up an IEEE fire wire cable to the camera, hook it up to a computer that hopefully recognizes the signal. Transfer the footage over, hoping there’ll be enough room on that hard drive. Then editing the footage through video editing software like Adobe Premier or Sony Vegas (both of which are, of course, cheap and easy to use pieces of software for such a task), then encoding the finished video into, preferably, an MPEG2/broadcast ready format, making sure to have specific scenes in the footage that the DVD players CSS would recognize for ease of use naturally, burning the footage onto a DVD and then playing that footage to your class. These are just minor details of course.

The other possible method is to take the camera into the classroom, having studied whatever entertainment system that classroom has available of course. Next is bringing compatible audio and video cords, properly routing the signals to the equipment like a television set, setting up the television set or viewing screen so it will properly read the signals and display what you want (a step teachers, of course, universally accept is such a pain free step) then playing the footage via the camera. Again, just minor details.

Let’s just hope that teachers would just be granted the exception so they can exercise their fair use rights.

Further reading:

Michael Geist’s observations on this

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It may be a small setback to advocates who want to broaden their rights when they copy a CD. According to 01net (Google Translated), a French court has ruled that if a company puts Digital Rights Management (DRM) on their CD and a consumer can’t play it, the company did not break any laws and cannot be held liable for damages. Naturally, proponents for DRM applauded the decision (Google Translation)

While many users of content may feel that copying is a right, the ruling seems to just reinforce what has been generally set in stone in many other countries, that, legally speaking, private copying is an exception, not a right. If a company chooses to put DRM on their CD, then they are entitled to do so.

In countries like Canada and the United States, there are systems where if one buys a blank CD, they also pay into a levy system which makes it’s way back to rights holders. Whether or not the system is fair has been a topic for debate for years. Still, there are many examples of this system reinforcing the fact that private copying is an exception under law, not technically a right.

The real battle has been fought on whether a user has a right to make a copy of, say, an album, and burn it onto an additional CD or any other device. In short, it has been a war between the “I bought it, it’s, therefore, my property, I can do whatever I want with it” perspective and, “We need to stop piracy and enforce our intellectual property rights” perspective.

This ruling, judging by the reports, doesn’t seem to be that big of a departure.

Yesterday, we reported on the growing movement against copyright reform every time there is even mention of changing copyright laws in Canada. Now we have learned that there is a call for people to submit mugshots of themselves.

It is not necessarily a contest, but if you care about the copyright laws in Canada and have a camera, this may be for you. How do people qualify? If you copy anything in any way, if you remix something, if you share something, if you back up DVDs, if you ever partaken in iPod parties, if you watch DVDs through a Linux machine, if you time shift, if you mix music, if you DJ your own web radio show, if you remix and photoshop pictures, if you make fun of something, etc. You too may become a “Copyright Criminal” in Canada under new laws.

More from the site:

So – are you a copyright criminal? We’ll edit together these photo mug shots into the movie.

Download and print the photo plate below, take a picture with it, then upload it back here using the image submit form.

While new copyright laws haven’t been tabled yet in Canada, as we already noted, this won’t be stopping this from being put together now.

Just register on the site and submit your photo when you have your photo ready.

About Open Source Cinema:

Welcome to OpenSourceCinema.org, a collaborative documentary project to create a feature film about copyright in the digital age.

Several years ago, I began researching the intersection of culture and creativity – exploring how in the digital age, everything we know about copyright has been turned upside down. From mash-ups to filesharing, creation to distribution, everything is in flux.

This all came in to sharp relief when I attended the MGM vs Grokster oral argument in 2005. Outside, the music industry and file-sharing supporters alike protested in large numbers. One music industry veteran declared “music is like a donut. Pay for the donut, you get to eat it”. Meanwhile, a 16 kid told me “I don’t think you can own music – its just feelings. How can you own that?” So who’s right? Is culture a product? Will the next generation ever settle for anything less than free? Thats what I want to explore in this documentary, which is tentatively titled Basement Tapes.

My name is Brett Gaylor, and the feature documentary I’m creating needs your help to be made – thats why Open Source Cinema exists – to faciliate online collaboration – to create a participatory way to discuss these issues.

Via BoingBoing

digg_url = ‘http://digg.com/tech_news/Take_a_Picture_of_Yourself_Help_Protest_Copyright_Reform’;

Many may point to Michael Geist’s well-known Copyright Myths presentation that made its debut in the Public Policy Forum symposium on copyright. One of the points Geist made during his panel speech was that there has been limited consultation and substantial action. He notes the last consultation that occurred in 2001 and, in contrast, notes the actions of the government through ‘phase one’ with respect to new rights in 1987, rental rights in 1992, private copying and statutory damages in 2002, and last year’s anti-camcording law. The talk was posted shortly afterwards for all to watch and listen.

While likely highly motivating and inspiring for many, it could easily be said that the movement towards more debates like this was sparked by James Rajotte, a Conservative Member of the Alberta Parliament and Chair of the Standing Committee of Industry suggesting that the copyright bill may be weeks away. As noted by Russell McOrmond, the copyright reform bill has been on the order paper for some time now – meaning it could be tabled at any time. It may lead some to wonder if there ever will be copyright reform since it’s been promised numerous times in the Conservative government, but never tabled thus far.

Though likely to be tabled or not, that won’t (and shouldn’t) slow the debates any whenever the government makes documented moves outside of the order-paper to say that Copyright Reform is to be tabled soon. This has been a consistent thing in the copyright reform process – when the Liberal government tabled Bill C-60 which ultimately died in November of 2005, the move was quickly followed up by Russell McOrmond’s Bill C-60 petition, then there was the formation of Online Rights Canada the following month in December (it was started as a joint project between CIPPIC and the EFF), then there was the formation of the Canadian Music Creators Coalition part way through into 2006. This, of course, is by far not a complete list (in fact, it is a very small sample), but it is a few of the notable movements that seems to have appeared following the copyright reform bill back in 2005.

Fast-forward to 2007, when the current Conservative governing party nearly tabled copyright reform, Michael Geists Facebook group quickly grew and sparked online and offline protests. The governing party panicked and pulled the legislation before it was tabled. During all of this was formation of the Business Coalition for Balanced Copyright. Again, a small, but significant, sample of movements.

Now more recently, a chair-person comments that copyright reform is going to be tabled before the break during the Public Policy Forum Copyright symposium. This happend during a time when the Canadian Federation of Students renewed calls for fair copyright. Two very different consultation processes spring up. The first is offline and has numerous corporate people along with Graham Henderson, president of the Canadian Recording Industry Association (CRIA) to name a few in a subsequent consultation some are saying is going to be unbalanced debate. The second occurrence, again, being followed by Michael Geist, is calm copyright which is online and can very easily feature consumers and people who feel that copyright reform should respect all stakeholders involved.

The interesting thing about Calm Copyright (asside from the debates themselves) is their about page which states the following:

Copyright is an important subject in Canada right now. Despite appearances, there are dozens of stakeholders trying to be heard in the heated debate happening across the country. In the melee, subtleties are lost, and many groups that might otherwise be in agreement are pitted against each other over issues that they consider peripheral to their core values.

On this site, we are going to try to decipher everyone’s true positions on copyright, and see how close we are to a consensus. There may be some issues that we’ll never conquer, but with any luck, we’ll know exactly WHY they’re insurmountable.

The key to this process is civility. Take a deep breath, organize your thoughts, and engage in a conversation, not a shouting match. If we get all worked up, we see nothing but catastrophe. We need to stay calm and figure it out.

It may be a concept that should be employed more often in these crucial debates, inviting everyone to the table. It certainly is a welcoming change considering there has been a number of instances in the past during copyright debates of private meetings, backroom deals, closed door talks as seen in the SPP in Canada, street rallies, fund-raisers (AKA copyright “celebrations”), on-the-spot intense questionings, and name-calling to name a few things that have happened in the last three years of the copyright reform process.

Certainly an important aspect in all of this is the fact that whenever copyright reform is suggested to be tabled, Canadians on both sides of the table are, at least, ready. One can hope the pressure keeps up even if copyright reform isn’t tabled because how can everyone win when only one side is present and represented at the table?

digg_url = ‘http://digg.com/tech_news/Canada_Gets_More_Copyright_Consultations’;

The posting by Patry suggests that the Music Business Group (MBG) is saying how a copy made by a customer who legitimately bought music is added value for the customer and value lost for the music industry. The theory known as the ‘reverse value’ theory appears to be headed into the direction of demanding royalties for format shifting, etc.

We here at ZeroPaid decided to ask Becky Hogge about all of this. Hogge told ZeroPaid, “Patry is right to caution UKIPO not to accept the MBG’s arguments: if UKIPO buy the argument that value to consumers means value lost to the recorded music industries then all exceptions to copyright law are threatened.”

She also pointed us to the Open Rights Group response (PDF) to the consultation process. Here are some of the highlights:

As the UK IPO notes, there is a distinct lack of evidence that current consumer practice around format shifting has a negative impact on sales of recorded music. This is in contrast to the evidence presented by the recorded music industry about the negative impact on sales of illicit sharing of copyrighted materials across peertopeer
networks (although we note in passing that this evidence is not uncontested). We note reports of evidence recently commissioned from the University of Hertfordshire by British Music Rights, which state that “the online problem is potentially dwarfed by ‘offline copying’” and that “[t]wothirds of people… surveyed copy five CDs a month from friends”. Notwithstanding the fact that we can expect the relationship between this activity and music sales to be nontrivial, such activity clearly lies beyond the scope of the proposed exception.

we note that the consultation is silent on backup copies. Given the centrality of backup to this model of practice, we believe this is a mistake. We recommend that the UK IPO consider framing the exception in terms of transferring content from one supporting medium to another, rather than in terms of transferring content from one format to another.

We do not think that an exception for “personal, private use” fully reflects the reality of consumers’ lives, and would prefer to see the exception framed in terms of domestic use, so as to incorporate the realities of format shifting in the context of familyowned computers, media centres, and car stereos. We would prefer to see terminology such as that adopted in the Culture, Media and Sport Select Committee’s 2007 report New media and the creative industries which recommends “a new [exception] permitting copying within domestic premises for domestic use (including portable devices such as MP3 players, and vehicles owned or used regularly by the household)”

With respect to rightsholders, we are concerned by statements put forward in the consultation paper with regards to technical protection measures (TPMs). Paragraph 114 of the consultation paper states that “The exception would not affect right holders’ ability to incorporate DRM or technical protection measures into their work”. It seems odd that, after extensive consultation on the exception, not to mention democratic debate in Parliament during the legislative process, the UK IPO would be happy to see this exception overridden by technical fiat.

The paper is a recommended read, especially for those living in Britain, and contains many other important issues raised by the Open Rights Group. The group notes many important studies including one study held in the US that suggests that “Fair Use” exceptions pumped $4.5 trillion into the US economy (PDF). Of course, this is just one of many studies that were conducted to back up Open Rights Group’s arguments that private copying with respect to things like format shifting and time shifting should be legal.

The Open Rights Group also agreed with the UK IPO’s assessment of the “Berne three step” test. The three step test can be found in the TRIPs agreement. WikiPedia shows what it is exactly:

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

In closing, The Open Rights Group notes that the UK IPO didn’t address recommendation 11 which says “propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test” They say that they regret how the UK IPO didn’t address this given the potential of transformative works for the creative community in the digital age.

All in all, an excellent and recommended read.

digg_url = ‘http://digg.com/tech_news/Open_Rights_Group_Echo_s_Patry_s_Concerns’;

The British government launched a public consultation which, while closed now, will be followed up by a 3 month consultation period on how to go forward with legislation. The question being brought up is exceptions to the copyright laws. One specific thing in particular that was rolled up with a number of other things being considered is private copying. According to the consultation paper which is still available in PDF and DOC formats on the consultation page, the following is currently being considered:

• Educational exceptions
• Libraries and archives
• Parody
• Format shifting
• Research and private study

Among the recommendations, there were:

Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers.

Recommendation 10b: Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete.

Recommendation 12: Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008.

In terms of private copying, Bill Patry made particular note to the following paragraph found on page 2, paragraph 6:

It is proposed to create a new exception that would allow consumers to make a copy of a work that they legally own, so that they can make it accessible in another format for playback on a device in their lawful possession. The exception would apply to personal or private use. The owner would not be permitted to share it more widely (for example in a file sharing system or on the internet). Multiple copying would not be allowed.

Patry comments, “The proposed exception is very narrow. The consumer would have to own a legal copy. The format (and perhaps space)-shifting would have to a one-off and for personal use, and the copy would have to made for a device the consumer legally possesses. There are certainly more liberal approaches to format-shifting one could propose, but as approaches go, if personal use means anything it has to fall within this modest proposal.”

The MBG (Music Business Group) offers this contained within their response starting on paragraph 44:

The exception would then be qualified by additional provisions to enable the licensing of device manufacturers and distributors. This will be the mechanism for providing the compensation which the European Parliament and Council have clearly mandated in
the Copyright Directive of 2001 that creators and right holders should be paid in
exchange for such an exception.

The licence fee would be determined by commercial negotiations between creators
and right holders and manufacturers and distributors of devices substantially used or
marketed for making copies of music.

Collecting societies are and have been operating equivalent licensing schemes to
collect and distribute the licence fee to creators and right holders in a transparent and
efficient manner.

While this does seem rather straight forward, basically making Apple and other company that offers a device that is said to be able to copy music to pay rights holders royalties, Patry details something more sinister. In the third page of the report, there is an allusion to so-called “value” being brought to the consumer.

“What is the value produced by consumers? Aren’t those who use copyrighted works without permission or payment usually described as parasites, pirates, or thieves,” Patry asks, “and hardly as value-creators? And haven’t we been told for years that it is consumers, especially via P2P file sharing, that is the cause of the record industry’s decline?”

Patry answers that question: Behind the MBG’s new approach is a plan to pervert language in order to achieve an otherwise politically unacceptable result. The plan began in the summer of 2007, with what was called the Value Recognition Strategy (referred to in MBG’s submission to the UKIPO). The strategy was prepared by Capgemini consultants (no surprise there: copyright, like political campaigns, is now the province of focus group generated slogans and messaging), and is designed to examine the “value gap,” which is defined as the amount of decline in UK record sales since 2004.

He then points to an article on The Register which suggests that the record industry will take out their losses from piracy out on online digital music stores like iTunes.

So what is the Value Recognition Strategy, then? To go after iTunes as the Register article notes, but that means not shutting it down – since the site is licensed — but instead getting a cut of the revenue iTunes generates. There have been efforts to do this in the past, under the same value approach. For example, there have been efforts to obtain a cut of the profits from the sale of iPods. One head of a U.S. music company was quoted as saying with respect to this effort, “We felt that any business that’s built on the bedrock of music we should share in.”

This statement is indicative of why the corporate music industry is on its death bed: after the industry insisted in preserving a business model that consumers didn’t want (album sales), it fought the business model consumers do want (per song downloads) resulting in a flight to unauthorized services that gave consumers what they wanted (P2P), and then when someone else came along and saved the industry from itself by creating an authorized way to get consumers to pay (iTunes), the industry now insists that it is being ripped off, that it is being deprived of “value” that belongs to it.

He goes on to argue that the music industry is actually after getting a license fee for the making of a copy for personal use. Using a theory that suggests that making a copy provides “value” for the customer means that it’s “value” the industry should be compensated for to make up for alleged piracy going on in an iPod among any other music devices. It’s not really an attack on itunes as it is an attack on consumers who actually pay for music. Patry is hopeful that the British government rejects this theory.

digg_url = ‘http://digg.com/tech_news/British_Copyright_Industry_s_New_Perverse_Copyright_Theory’;

The author of the Harry Potter series, J.K. Rowling, didn’t mind fan sites that featured fan art and critiquing, but when a manager of a fan site wanted to publish a “companion” book for the hugely successful book series, the author stepped in and filed a lawsuit.

“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” Rowling said in a court document.

Also from the NYTimes, Neil Blair, rowlings lawyer had this to say:

“There have been a huge number of companion books that have been published,” Mr. Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But, he added: “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.”

The comment, “They fall in line” has had the companion book author Anthony Falzone fighting the lawsuit, saying this is nothing more than exercising control on free speech.

The question in this case is whether or not one can make a profit over critiquing and describing – among other things. It could be something that the educational community might want to keep an eye on because scholarly sources frequently make money off of critiquing and discussing many things including fictional and non-fictional pieces – all of which fall under the ever present, yet complicated term “intellectual property”. While it is usually standard practice to gain permission from the original creators, it is typical to take bits and pieces of information from other sources and cite the sources later on without seeking approval and assuming that an educational exception is in place – at least, among students. Where this case goes from here will be of interest to many given that it questions where free speech can go.