James Gannon Presentation – Copyright Viewed By A Lawyer – Correct Legally But Wrong – Part 2

So back to James Gannon. I stopped at the end of discussing Content Scramble System, the incompetent and anti-consumer Technical Protection Measure used on Digital Versatile Discs (and yes, that is the correct term). Now we’ll take a look at further parts of his presentation.

The next page included a chart which covered use of Technical Protection Measures for various products. The first is music, where he mentions music players that use TPMS, specifically the Microsoft Zune, and the ‘Plays for Sure‘ products that several manufacturers make to Microsoft specifications. What he doesn’t mention, is that the most popular music players, the various IPod models from Apple, don’t use TPMS for music any more. So success in the market could be argued to be tied to a lack of TPMS, and indeed the largest retailers of Digital Music, Apple and Amazon sell music that isn’t locked up by TPMS. Indeed the Consumerist quotes The Chicago Sun-Times as declaring the Zune a humiliating failure (the original Sun-Times article is no longer on their website). And then of course there’s the issue of DRM Server Shutdown, where companies like Wal-Mart have decided that it’s no longer in their interest to keep their DRM servers online, and when they take the servers down, it limits your ability to do things with the music you’ve legally purchased. Most people consider this wrong, however a lawyer who works for the RIAA states that:

We reject the view 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. No one expects computers or other electronics 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.”

This was in a letter to the U.S. Copyright Office. Curiously he doesn’t mention that when I buy a book, it may last for 50 or more years (I have a library of over 10,000 books here), while Wal-Mart ran it’s failed digital music store for only a couple of years, and didn’t tell the customers that they would close it down if sales weren’t good enough. OK, sales were lousy, and I can’t blame Wal-Mart for deciding to get out of the digital music business, but by getting into it in the first place they were implying that their customers would receive a certain level of support.

The point being that Technical Protection Measures for digital music have been an abject failure.

And then there’s ringtones. The Open Mobile Alliance has designed a standard for ringtones. From their website:

The OMA DRM enables content providers to grant permission for media objects that define how they should be consumed. The DRM system is independent of the media object formats and the given operating system or run-time environment. The media objects controlled by the DRM can be a variety of things: games, ring tones, photos, music clips, video clips, streaming media, etc. A content provider can grant appropriate permissions to the user for each of these media objects. The content is distributed with cryptographic protection; hence, the Protected Content is not usable without the associated Rights Object on a Device. Given this fact, fundamentally, the users are purchasing permissions embodied in Rights Objects and the Rights Objects need to be handled in a secure and un-compromising manner.

The OMA DRM 2.0 Enabler Release defines the protocols, messages and mechanisms necessary to implement the DRM system in the mobile environment. It builds upon the OMA DRM 1.0 Enabler Release with significantly improved security and functionality for a robust, end-to-end DRM system that takes into account the need for secure distribution, authentication of Devices, revocation and other aspectsof the OMA DRM 1.0.

Note how the OMA calls this DRM, while James calls it TPM. This is an attempt by James to avoid using the term DRM, since he knows it has negative connotations. As to the ringtones, this is another failed ‘get rich quick’ scheme. Oh, it’s neat having a special ring tone, but who is going to pay for one, when the phone comes with good ringtones from the factory? Not many people. There was a big splash when this was originally announced, and then deafening silence. If you check the media coverage section you will find that it hasn’t been updated since February of 2004. Six years of no media coverage. Hell, I get more media coverage than that!

And of course the OMA doesn’t even consider letting you make your own ringtones, and loading them on your own phone. After all, just because you paid for it doesn’t mean that you own it (just ask Sony). Me, I’d prefer to record my own, or my wife’s music, and use that as a ringtone. It make the phone more personal. Wikipedia also has an explanation of OMA DRM which looks like it was written by an industry insider, and claims over 550 different phone models use it. The only major phone vendor who is not a member is Apple, however this does not mean that OMA DRM is used on all of a manufacturers phones.

Then he gets into Digital Music Downloads. I covered part of this under players, but here’s the absolutely fantastic, incredibly successful music vendors he lists:

Helix and Harmony (RealNetworks), Windows Media DRM, Wal-Mart Music Downloads, OpenMG(Sony)

Let me see – Wal-Mart shut down their DRM servers in 2009, and his presentation was in 2010. Does anyone see the disconnect here? RealNetworks is has been struggling, Sony’s music sales aren’t work breaking out in their year end reports (at least I couldn’t find them), and Microsoft doesn’t break out music sales on their year end reports (probably too embarrassed to do so). As I stated above, the two giants of digital music sales don’t use TPM/DRM on their music. From that you can guess how essential it is to running a successful Digital Music Store.

A last shot at James on this subject. James, did you know that The British Recorded Music Industry (BPI) issued a report claiming that Internet Service Providers could reduce customer churn by selling music with DRM? After the Internet Service Providers stopped laughing, one of them commented to TorrentFreak:

“TalkTalk thanks the BPI for its strategic business advice. Though some may question the value of such insight from an industry which has failed to acknowledge the impact of new technology on its own business models and is pressing the Government to criminalise its biggest customers,” a spokesperson told TorrentFreak.

“Perhaps there is a goldmine for ISPs in legal downloads but that will not alter the fact that the copyright protection proposals being proposed threaten human rights,” their spokesperson told us. “They will penalise innocent broadband customers. They are expensive, unwieldy and utterly futile.”

I’ll finish this off, by pointing every at the Electronic Frontier Foundation’s excellent article ‘The Customer Is Always Wrong: A User’s Guide to DRM in Online Music‘ and the Free Software Foundations excellent website ‘Defective by Design‘ which states:

These products have been intentionally crippled from the users’ perspective, and are therefore “defective by design”

For further articles about DRM please see posts under the DRM sub heading at TechRights, a bunch of great articles at BoingBoing, and a nice list of legal complications at Groklaw.

Something has come up here, so I’m cutting this off at this point, Part 3 will be published later.

Wayne Borean

Wednesday April 7, 2010

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3 Responses to James Gannon Presentation – Copyright Viewed By A Lawyer – Correct Legally But Wrong – Part 2

  1. Pingback: Tweets that mention James Gannon Presentation – Copyright Viewed By A Lawyer – Correct Legally But Wrong – Part 2 « Through the Looking Glass -- Topsy.com

  2. Bob Guest says:

    DRM on ringtones…. I wasn’t aware that you could not use your own ringtones on newer phones until I upgraded last year. The ringtones I created for my old phone are now useless…. so are the few that I legitimately downloaded, since they cannot be transferred to the new phone. (Stupid money grab forcing me to buy the tone again!!)

    Whatever reason they have for putting DRM devices on their products and media may seem right on the surface… but it is wrong to restrict my use of copyrights that I legally own.

    Their greed will someday usher in a new technology that favours Creative Commons media. That technology, of course, will be open source.

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