Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @Listen to the weekly audio edition on IT Conversations:
The Importance Of ... Law and IT.
Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com
BalkinizationCheck out IdeaFlow by Renee Hopkins Callahan for the latest on innovation trends and practices. On her radar screen: the creativity of bipolar children, Democrats' call for an "Innovation Agenda", grocery store innovations, creating a culture of business experimentation, and more.
Spend less time traveling and more time selling with GoToMeeting. Hold instant Web conferences in just a few clicks.
Free 30-day trial.
Derek Slater has some further thoughts on Real's announcement that they will be able to convert their Helix DRM files into Apple's FairPlay DRM format, but not the other way around (Real's Harmony Hype).
Reading his article made me consider again the question, Who Can Sue Who Under the DMCA? In my first post on Real's announcement, I doubted that Apple could use the DMCA against Real (What Real's Hacking of FairPlay Doesn't Do). In my second post, I asked Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM? The answer was unclear. I would hope not, but there are reasonable arguments on the other side.
Having thought about the issue a bit more, I begin to wonder whether Real can sue Apple under the DMCA if Apple changes the restrictions on FairPlay (for example, permitting more CD burning or limited filesharing). As I've noted in my previous posts about who can sue under the DMCA, current case law doesn't restrict it solely to those who control the DRM system but to anyone who is harmed by circumvention of the DRM system. If Apple changes their FairPlay restrictions, might that not harm copyright holders who have encoded their works under FairPlay through Real?
The anti-circumvention provisions of the DMCA (17 USC 1201) state that "to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." [emphasis added]
If I sign a contract with Apple to encode my music with FairPlay, then, as a copyright holder, I've probably given my authority to Apple to change FairPlay on their initiative. However, if I use Real's Helix DRM to encode my music, then shift the DRM to FairPlay with Real's new software, I now have a FairPlay-encoded file without having signed a contract with Apple giving them authority to change FairPlay. If Apple now changes FairPlay restrictions, they would be doing so without the authority of the copyright holder, that is, me. So, I should, theoretically, be able to sue Apple for changing FairPlay restrictions under the DMCA.
Absurd? Yes, but that is what you get when you pass a crappy, poorly-drafted and complicated law. Perhaps, as I've argued, you can interpret the DMCA such that only the DRM holder gets to sue under it. However, that would mean that the movie studios never had the authority to sue over DeCSS in the MPAA DeCSS cases.
In related news, eMusic was also upset with Real's misleading claims (RealNetwork's "Harmony" Release Creates Discord and Misinformation). Indeed, even the New York Times was confused. However, I pointed out the error of their ways and they ran a correction today (Corrections):
An article in Business Day on Monday about plans by RealNetworks to give away software that will let people download songs from its online music store and play them on Apple's iPod referred imprecisely to other sources of songs for the player. While RealNetworks will be the first besides Apple to sell them in the protected iPod format, other companies sell them in the MP3 format, which the player can also use. (Go to Article)Of course, this correction is also a bit misleading. Real is not selling FairPlay-encrypted songs, they are selling Helix-encrypted songs and then providing software to convert them into FairPlay-encrypted songs. Close enough for the New York Times I guess.
I'm not sure I follow. I would imagine that Apple can only change the FairPlay restrictions on songs sold through iTMS. From what I've read, it seem unlikely that that same control would extend to Harmony-created FairPlay files. There's no circumvention there, and thus the possible harm to Harmony users is irrelevant.
If Apple could alter the DRM of a non-iTMS song, then I think there are a world of legal problems other than the DMCA that might arise.
If a song is encoded in FairPlay, then any changes Apple makes to FairPlay will affect that song. To the FairPlay DRM mechanism a Harmony-created FairPlay song looks just like a regular FairPlay song.
Hm, okay - I haven't seen any specs to that effect. If that is the case: I suppose it would have to take some kind of circumvention to undo and then rewrite the FairPlay ruleset. Maybe there'd be some sort of implied license here.... If Apple can't tell the difference between iTMS FairPlay songs and Harmony FairPlay songs, we'll almost definitely see some action between Apple and Real. Apple needs to, as part of its relationship with the labels, and retains, as part of its customer licensing agreement, the ability to change the DRM ruleset. If Real is impairing that, that's going to be a huge issue. If Apple accidentally changes the ruleset of people who aren't iTMS customers, that's a huge issue. Where the DMCA fits in will be intriguing.
I'm sorry, did I miss something? Who says Apple is planning on changing the terms of its Fairplay DRM? That speculation seems to be the foundation for any argument that someone would sue Apple... and if anyone sued, it would be the original copyright holder, not Real.
Apple has changed the terms of FairPlay in the past (increasing the number of computers you could have a song on from 3 to five, for example) and it is likely they will do it again sometime in the future. Real likely owns copyrighted material or has certain rights to copyrighted material licensed for use with Helix.
Apple already changed the DRM rules in the last go 'round making them more restrictive for playlist burning (or is this an iTunes feature?). Therefore Apple must already have some kind of agreement with labels that, at least, allows Apple to make DRM rules more restrictive.
I noticed that Real lets you burn a playlist 5 times, and iTunes lets you burn a list 7 times (I think). It could be interesting in how Real handles the change in burning number. Does the Real license change on the switch to FairPlay, or do you now have two different burning restrictions on your Fairplay songs? (which implies three restrictions in your library: iTMS-purchased Fairplay, Real-purchased Fairplay, and CD-ripped unlimited) Do the licensors that Real has contracted with know this?
more appropriately than Real suing Apple is Apple suing Real for offering an unapproved product/code to the public that is specifically designed to compromise the security of a well established and licensed contract service to the public that was designed to be a Apple controlled closed loop.
Harmony generates a new user key which is added to the key store on the iPod. If you copy the Harmony FairPlay files from the iPod to your computer, iTunes won't be able to use them since that user key won't be present in the iTunes key store.
PS: While iTunes can't use Harmony FairPlay files, VLC/hymn should work just fine :-)
"Harmony generates a new user key which is added to the key store on the iPod"
Are you sure of that? Could it be that there is no key store on an iPod? Perhaps the key that is on the computer allows iTunes to load an untethered copy of the song onto the iPod. Since the songs loaded on the iPod cannot be removed, do they really need DRM?
Even if there is a key store on the iPod, Real could be simply loading untethered AAC files onto the iPod. They sell AAC files as it is.
I think the more interesting question is how do they get the files onto .wma players. Those players don't support AAC. This means that Real must be doing something similar to Sony, where they reformat the files into .wma or mp3 as they load them onto the player.
Isn't the FairPlay DRM just a part of the "technological measure" which Real may be circumventing in a fashion giving rise to liability under the DMCA? FairPlay through iTunes to iPod may be a "closed loop" as ochta suggests and that entire loop (maybe each of the parts as well as the sum of those parts) can be the "technological measure" protecting files distributed through Apple. Using a method to fake an iPod's filter for Fairplay songs into thinking that a Real song is an Apple song would seem to "avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner" - - that is, a measure consisting of both the closed loop of the Apple world and the specific component in the iPod that in effect limits its use to an Apple, FairPlay encrypted, file. As a copyright owner licensing material to Appple, I would have a vested interest in preserving the exclusivity of the iPod to iTunes generated DRM files because to some extent it incentivises Apple to do a good job and perhaps pay me better rates since they make good revenue pushing their hardware. I know, MP3's play on iPods. But that is beside the point of whether other competing DRM's should function on the iPod. You as an iPod owner may have an interest in iPods ubiquity. But that interest may not be shared by a copyright owner interested in selling the same thing sometimes to the same person as many times as possible. Also, as I ramble on, is a licensor of music to Real in agreement, overt or implied, with Real's conversion of its DRM into Apple's? Is that done with specific authority of the copyright owner?
Fascinating questions and facts. It certainly would be interesting to watch the litigation.
"Are you sure of that? Could it be that there is no key store on an iPod?"
As the person who reverse engineered FairPlay and wrote the source code that RealNetworks most likely studied to create Harmony, I'm quite sure of that :-)
"Since the songs loaded on the iPod cannot be removed, do they really need DRM?"
The songs on the iPod can be copied to your harddrive, just not using iTunes.
"This means that Real must be doing something similar to Sony, where they reformat the files into .wma or mp3 as they load them onto the player."
Yes, the songs are transcoded to a format supported by the player.
Tracked on July 29, 2004 06:20 AM
Why Who Can Sue Under the DMCA is Important from The Importance of... Seth Finkelstein responds to my post yesterday (Can Real Sue Apple Under the DMCA?) regarding who can sue under the DMCA by claiming it is a "convoluted version of an old 'argument' sometimes put forth that purported to show that... [Read More]Tracked on July 29, 2004 01:29 PM
Apple Threatens Real from A Copyfighter's Musings Apple has released a statement in response to Harmony : "We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod(R), and we are investigating the implications of their actions under the DMCA and other laws. [Read More]Tracked on July 29, 2004 05:50 PM
Apple Gets Real Serious About Harmony from The Importance of... I've been writing a lot recently about the Real / Apple imbroglio (What Real's Hacking of FairPlay Doesn't Do, Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM?, and Can Real Sue Apple Under the... [Read More]Tracked on July 29, 2004 06:50 PM
Department of Ooops: Apple FairPlay Edition from The Importance of... According to a report from a German Macintosh news site (Macnews.de) via the Mac News Network, Apple's own iMovie software will strip FairPlay DRM from iTunes music (Report: iMovie strips FairPlay DRM from iTunes songs):The site reports that Apple's ow... [Read More]Tracked on August 3, 2004 05:54 PM
About Us |
Contact Us |
RSS |
Advertise |
© Copyright 2000-2006 Corante. All rights reserved.
