(9 votes, average: 8.11 out of 10)
Loading ...Does DRM and anti-circumvention legislation increase unauthorized P2P?
There is an all too common belief that putting a legal layer around “Digital Rights Management” (DRM) to encourage its usage will decrease copyright infringement. The USA, being the primary source of that thinking from their National Information Infrastructure Task Force work in the early 1990’s, was of course the first country to implement this thinking in their Digital Millennium Copyright Act (DMCA).
The USA DMCA was signed into law on Oct. 28, 1998, and nearly a decade later every report I see suggests that unauthorized P2P sharing of copyrighted files is on the rise in the United States. While this will come as a shock to people who thought the DMCA would (or think the Canadian Bill C-61 will) decrease copyright infringement, the increase seems very logical to me.
Citizens of both Canada and the USA want to access the content they have legally acquired over the years on all the devices that they currently own. As 8-tracks went out of style they made cassette tapes, and eventually as time goes on their media ends up as digital files in their computers and other digital media devices. They quite reasonably believe that once they have paid for the content that they shouldn’t have to pay for it over and over again with every new format or device.
In the past the technology to do this conversion was readily available and reasonably easy to use, so people were doing this conversion in the privacy of their own homes or at a friends house. When you introduce technical measures you introduce a level of complexity to this conversion which requires additional technical knowledge. When you add a legal layer on top, you push the tools necessary to do this conversion into an underground where the general public is not able to go to a store and purchase the tools required to do the conversion.
It will always be technologically possible to someone to circumvent these technical measures. Internationally renowned security technologist and author Bruce Schneier has said a few times that, “trying to make digital files uncopyable is like trying to make water not wet”. Most people are not computer security experts, so this doesn’t apply to most citizens.
Along side this perfectly legitimate conversion is a publicly available pool of already converted files on P2P networks. All it takes is one technically sophisticated person to circumvent any technical measure and share the results with others. P2P tools are easy to use, even easier to use than many of the tools used to time and format shift content.
People who previously did the time/format shifting themselves will be driven to P2P networks by DRM. They are told that time/format shifting of the DRM infected media is already illegal when they head to these sites to do something that replaces what was previously perfectly legal and which remains perfectly legitimate. If acquiring time/format shifted files of content they own is already illegal, they may feel that acquiring other content that they never had before isn’t any worse.
While I don’t personally use P2P to infringe copyright, I have to agree that it is perfectly logical that other people will be doing so. It also seems perfectly logical to me that the USA’s DMCA and (if passed) Canada’s Bill C-61 will only make the problem worse.
For greater certainty: I am not apologizing for the increasing number of people who infringe copyright, just helping to explain that it is a logical and understandable behaviour. Policy makers should be trying to understand this behaviour in order to reduce it, rather than increasing the behaviour by making more perfectly legitimate activities illegal.
Counter-proposals
If I were the government wanting to reduce copyright infringement, I would take a very different approach.
1) I would clearly carve time and device shifting out of copyright, as well as other perfectly legitimate private activities. This would be done in part by Canada adopting a US-style living Fair Use regime to allow what is considered legitimate private activities to more dynamically change to match the times.
Neither government nor copyright holders have any business in the bedrooms (or other private rooms) of our nation!
2) I would disallow the abuse of technical measures to attempt to make this shifting harder, including disallowing the locking of content to only be interoperable with specific brands of devices
3) I would ensure that no law (copyright or otherwise) disallowed the owner of a device from removing any foreign locks on their devices. I would use the law to discourage this harmful activity by device manufacturers and software authors, and clearly enable hardware owners to make their own software choices.
(These are all re-wordings of proposals that are part of the CLUE Policy Summary)
If activities which the majority of citizens consider perfectly reasonable were legal, and activities which the majority of us thought were inappropriate were illegal, then there would be far more respect for the law. The direction we are currently heading will only increase disrespect for the law and thus increase copyright infringement.
The stronger that inappropriate laws are enforced, the more we might see an increasing disrespect for other laws which could have a devastating effect on society.
Legality of time/device shifting
In the United States, time and device shifting was considered perfectly legal under their living Fair Use regime. This was a key part of their Sony Betamax Case in 1984 which said that Sony was not liable for contributing to copyright infringement because the VCR had substantial non-infringing uses. The uses that were considered non-infringing included time and device shifting.
In Canada people have been told that Canadian Copyright law is somehow “weaker” than US law. Canadians legitimately believe that if Americans are legally allowed to time and device shift without permission, then we must be able to as well. While Canadian copyright law is tilted more in favour of copyright holders than US law in a number of ways, copyright holders have not wanted to sue Canadians for this type of infringement as it would be a public relations nightmare. It is the same reason that music labels have not been suing for unauthorized P2P filesharing in Canada, even though this is clearly illegal under current Canadian law, open to massive statutory damages (maximum $20K per infringing file shared), and they only lost their case in 2004/2005 due to lack of evidence.
The Conservative media spin around Bill C-61 claims that time and device shifting will be legal in Canada. Unlike the USA where this type of activity is taken out of requiring permission, it remains part of the permission culture with Bill C-61. All the Conservatives did was change the default for a few special cases from being denied unless granted to being granted unless denied. In the vast majority of situations these activities will continue to be denied in Canada under technical measures, contracts, or both.
In other words, those wishing to time and device shift in Canada will be less able to do so under Bill C-61 than the status-quo, given the Conservatives have turned the situation from one where lawsuits would be unlikely to where lawsuits will be considered reasonable.
Where the Conservatives are trying to spin C-61 as balancing the rights of users with those of copyright holders, I feel that even the provisions they have claimed will help copyright users will only cause harm.
July 29th, 2008 at 12:30 pm
I for one do not like that I can’t port my media on to other devices.
So..I would say the answer to your questions is most likely ‘YES’ DRM actually encourages P2P distribution.
Who wants physical media anymore? Not me.
Now…however I do like using Itunes to buy my music and video…but it is starting to frustrate me that I can’t access it through my Play Station 3.
Sometimes makes me wonder if I am doing the right thing buy paying for my media when illegal media has no restrictions.
July 29th, 2008 at 12:39 pm
DRM and other such “protections” only encourage piracy. Yahoo is only the latest in the string of DRM music stores to go under, leaving the consumers well…screwed. If I need to choose between downloading music from a DRM site or otherwise. Let’s just say uTorrent would be getting a few minutes of usage.
July 29th, 2008 at 1:39 pm
[...] post by Rusell McOrmond Share These icons link to social bookmarking sites where readers can share and discover new web [...]
July 29th, 2008 at 1:50 pm
I think people seem to be missing the bigger picture. Should C-61 be passed into law, at first nothing will happen, which supporters will spin into the law being win-win for everyone.
Given time though, as people stop caring about it (since initial backlash will be large, but directed at the government, not corporate entities) the larger companies will begin to pursue file sharing networks and large scale distributors (seeders, etc..). Of course this will have a negative PR impact, but with the law on their side, and most people’s interest in the topic more or less exhausted, it will have a much smaller impact than if the same scenario played through next week.
Step forward another couple of years and the big media makers, finished with prosecuting all the big players in the p2p game (need to recoup our losses some of these rappers are struggling to feed their families), they will set their sights on the smaller scale seeders, and the large scale downloaders, saying those people are cutting into their bottom lines (which they are, but probably far less than they let on, dont think so? the people downloading songs are statistically less likely to buy a cd with or without the download).
Basically it all looks like an elaborately designed plan to diffuse criticism as they squeeze even more out of the lower classes, so to speak.
I only leave on that last point because, as we all know, its not the big corporate execs who feel the hit everytime they need to spend 24.99 on a new cd at the store. Or 10.99 for a digital album you can only listen to in one device. Or for that matter, 200$ worth of drm songs from a supplier that has since folded.
(For the record, I downloaded digital copies of my entire cd collection in the late 90’s when it started costing upwards of 30$ to replace a damaged cd that was over 5 years old.)
July 29th, 2008 at 3:21 pm
Come to think of it, I have bought Led Zeppelin’s first album, 7 Times…twice on vinyl, once on 8 Track, twice on casettes, twice on CDs…it seems someone owes me money… ;-}
July 29th, 2008 at 4:12 pm
Welcome to serfdom! Thank the Conservatives/Neo Cons for yet another cinch tighter in your straight jacket.
Popcorn anyone?
July 29th, 2008 at 6:01 pm
I thought the tax, sorry, the levy on cd’s and mp3 players made it legit to download music. Am i wrong?
July 29th, 2008 at 6:27 pm
Bill hicks, you’re perfectly right. The levy on CDs and MP3 players makes it legal to download. It does not make it legal to upload.
The wording:
“[...] unauthorized P2P filesharing in Canada, even though this is clearly illegal under current Canadian law [...]”
Should be:
“[...] unauthorized P2P file uploading in Canada, even though this is clearly illegal under current Canadian law [...]”
Cheers,
July 29th, 2008 at 9:14 pm
The companies complaining about piracy have the ability to reduce piracy in Canada simply by offering better services!
My peers who download pirated video do so because:
1. The content is not readily available to Canadians (e.g. the British show “Top Gear” which does not air on Canadian television.)
2. The content is not available to Canadians in a timely manner (e.g. the show “South Park”, episodes of which air in Canada months after being shown in the U.S.)
3. The content is not available to Canadians in high definition (e.g. SciFi Network is in HD in the U.S. but Space Network is only standard definition in Canada.)
Of all the piracy among my peers, I don’t know anyone who pirates video that is shown on Canadian television in HD day&date with the U.S. release, unless it is to catch up on an episode they missed. But bittorrent is slow and inconvenient, we’d prefer to get our content through legal methods if only there was a decent legal alternative!
The MAJORITY of piracy I see is a direct result of deficiencies in Canadian television services. Much of that piracy would be eliminated if Canadians were offered a legal video download offering the content we want (U.S. and international shows, not “Canadian content”), when we want it (within a day of their U.S. broadcast, not months later), and without a lot of DRM restrictions!
July 29th, 2008 at 10:13 pm
The last time I tried to buy legitimate music, I had to order the CD from overseas. It was expected to take two weeks. That was march 2007, it has yet to arrive… I downloaded the album after a month :). If people are expected to pay for all music, files etc… companies need to do a better job providing it.
July 29th, 2008 at 10:14 pm
To SnakeDiver:
Filesharing implies that there is both downloading and uploading taking place. Bittorrent, eMule, and other true filesharing apps have you share your content. Which is illegal.
On the other hand, downloading content from web depositories like Rapidshare, or downloading files from Usenet, are not illegal. They are not ‘filesharing’ either, unless you were the original uploader.
July 29th, 2008 at 10:19 pm
Proposed business model:
- Sell new music online, DRM-free
- Get it out fast (released quickly)
- Get it out fast (high bandwidth)
- forget about residuals
Basically the Hollywood movie model - get the bodies into theatres before the buzz says it’s not worth watching.
July 29th, 2008 at 11:29 pm
[...] Source [...]
July 29th, 2008 at 11:41 pm
http://www.bandweblogs.com/blog/2007/07/13/free-prince-planet-earth-cd-in-the-mail-on-sunday-guitar-video/
To add to Andrew’s business model. This guy ‘Prince’ seems to understand where things are going. It’s about time the music industry, tv, and movie industry embrace the future and develop their business models accordingly. Long story short, you will NOT stop the engine that is the internet and people will increase their file sharing of media. These industries need to tap back into the basics:
-High quality bands, making people ACTUALLY want to buy shirts, tickets, cds, etc…
-High quality shows etc…..
Here’s my argument i have with my family all the time, (there are lawyers at the table on the music industry side…) can I hear the song on the radio for free? yes. Well then I can record it and listen to it later, and maybe, just maybe get into the artist enough to want some stuff from that artist, or purchase a ‘high quality’ cd of the music because i like them that much. But i can hear it on the radio, quit charging for it on a medium like mp3’s.
….by the way, I’m a musician, and though i dont expect to make any money doing what i do, as i have a day job, if i were to make a living being a musician, i would want it to be off of shows and gear, not my songs… I would want those to be available to all to spread the word and the love.
Peace.
July 30th, 2008 at 1:43 am
I did try purchasing a song from a Canadian online music store and what a bad experience that was! I am an audiophile and appreciate good quality audio. So I thought I would do my bit and try buying a song from the service. I thought well they are charging me for the song and it is from a professional company not some P2P site file some kid uploaded so the quality will be great. Boy was I wrong!
I downloaded a Madonna song and played it on my high end Linn system and it sounded like garbage. It was only 128 bit, hardly audiophile quality. Whats worse, I have three computers in my place and I went to put the file on my bedroom computer and it did not work! I could not figure out why until I realized it was the DRM.
How stupid can the music industry be?? Forget P2P downloaders, they are their worst enemies. But I learned my lesson and it will be a cold day in hell before I purchase another song online.
July 30th, 2008 at 10:05 am
I purchased a bunch of music from a Canadian music site as my first experiment with DRM protected mp3. A few months later I upgraded my computer (as I tend to do every 6-12 months). The mp3 no longer work, the music site no longer supports the mp3; now I am out the money, out the music, and have a hard drive full of data that does nothing but take up space.
If this is the average result of DRM protection, I can see why most would go to a P2P site. I expected DRM to sit quietly in the background, instead it created issues, made a legitimate user upset, and plain did not work.
July 30th, 2008 at 10:11 am
I, for one, have stopped purchasing or downloading music. Most of it is crap and/or infested with DRM…
I am fed up with the entire issue, with the corporations treating us like mentally challenged criminals, aided and abeted by the government.
I used to spend a few hundred dollars per year on music. Now, it will be ZERO!
The aggravation factor is now larger than my need for current music.
My cable TV and Cell phone services are next on the chopping block. I have had enough of being abused by greedy corporations…
Simplify your life! Tell these greedy SOBs to get out of your life!
July 30th, 2008 at 10:23 am
I recently saw statistics that for popular tv shows there are as many viewers as there are downloads. I agree with the previous comments by EVAN saying If the content was available to Canadians. Currently you can watch full episodes for free but only If you are in the US. I for one would gladly pay $10 to legally download the latest movies. For family of 6 it could cost up to $100 to go one movie.(Tickets + conscession)
I have observed some movies that did not do well at the box office did well on DVD.
July 30th, 2008 at 11:32 am
I currently am avoiding buying any and all media until there is no DRM. I will listen to the Radio, download music illegally and sometimes rent movies. (DVDs, not bluerays ).
I am sick of having my rights and freedoms thrown out the window to poorly address piracy.
Once media is available on free( as in freedom) formats, I will gladly pay for it.
I currently use Linux and don’t even use the closed source binary drivers.
July 30th, 2008 at 12:21 pm
Oh ho, what do we have here? More like a bunch of butthurt elitists BAWWWWWWWWWWWWWWWWWWWW over nothing. Troof a little harder next time.
July 30th, 2008 at 12:58 pm
I’d pay for music once it’s offered at its real value, which is about 1$ an album or so.
July 30th, 2008 at 3:30 pm
perhaps you should review your copyright law. Under Part VII:
“…the act of reproducing all or any substantial part of
(a) a musical work embodied in a sound recording,
(b) a performer’s performance of a musical work embodied in a sound recording, or
(c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied
onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.”
So what this means is that when I go to my friend’s house, browse through his CD collection and make a mix tape for myself, I am not breaking any laws. Period.
Now, if I use an electronic index to search that same catalogue of music and then use my computer to make me a copy of a song, it remains a perfectly legal activity under the Canadian Copyright Act. This has been defended in the highest courts of our country and upheld.
So it is not a matter of Copyright holders not wanting to sue Canadians. It is a matter of Copyright holders not having any grounds to sue because there are no “massive statutory damages.”
July 30th, 2008 at 5:03 pm
The best way to get DRM free music that will play on any device is to buy the CD and rip it. You then are also protected if your computer gets bakes as well, CD’s are covered on your home/apartment/condo insurance. I don’t know where some of you purchase CD’s at $30.00 each. I would have to try hard to find prices that high. $10-$15… then even better deals at Pawn Shops or e-bay. BTW.. for anyone that actually likes to hear a good recording, iTunes and other digital distributors don’t use a high enough bit rate for anyone with sensitive ears. Again.. but the CD and rip it yourself is the only way to get the best quality digital.
August 5th, 2008 at 10:48 am
Pete,
While most CDs are free of DRM, not all are. While you can’t use encryption on CDs as the format doesn’t allow it, you can introduce deliberate media defects. We all know from the Sony Rootkit fiasco just how bad that can be.
I have been wanting to purchase recent Rush albums since I recently saw them in concert. I have sent multiple messages to their label to find out if the CDs are infected with DRM, and received no reply. This means that I’m doing without as I’m not going to pay for these CDs until I know they are in proper RedBook Audio Format without any deliberate defects.
markham,
You seem to have forgotten that location matters, and that there is both you and your friend you need to consider.
My full reply to you is my latest blog posting: Unauthorized music filesharing is already infringing in Canada, clarified under C-61.
SnakeDiver,
Don’t get us all started on the words “filesharing” and “uploading”. As a technical person I see “uploading” as synonymous with “sending via a communications network” and “downloading” as synonymous with “receiving via a communications network”. For every “download” there needed to have been a companion “upload” — they represent what the two ends of the same computer conversation are doing.
Lawyers haven’t always seen it this way, and they believe you can “upload” something to “The Internet” which can then be later “downloaded” without there needing to be a computer on the other end. To them, the Internet is some sort of magic genie bottle or cloud that can, without the aid of a computer to send the file or a disk that stored the file, allow people to “download” from it.
Good grief!
To avoid that mess of people thinking we live in a Harry Potter book, I use the phrase “filesharing” to talk about when people are sharing files from their own computer to other people “out there”.
Jeff,
Using NNTP (usenet newsgroups) or other such system doesn’t make liability go away. It just changes who might be considered liable.
The final transation would be from the NNTP server to your computer. In the USA the person running the NNTP server would likely be immune to infringement claims as long as they deleted the file upon being notified (notice and take-down). In Canada the situation is uncertain whether the host would be considered an intermediary (like they would be in the case of P2P involving customer owned computers) or whether they will be liable for the infringement.
For better or for worse, NNTP servers are increasingly being closed, so will not likely be a target of litigation. But I wouldn’t bet on the side of them not being held liable if they were taken to court.
As someone who hosts websites for customers I have to pay attention to this closely. If a file on one of my servers is infringing, then I may rely on the “notice and notice” regime being proposed to avoid liability. This presumes that the person I sent the notice to would be liable.
But what about ‘anonymous’ postings? Something being anonymous doesn’t mean that there is no liability. I believe the courts will rule that in the case of an anonymous file that I, as the owner of the computer, am taking on full liability myself.
September 24th, 2008 at 3:23 pm
I wanted to research this subject and write a paper. Your post what a thousand words would not. Nice job.