Since its conception in the early 1990's as part of the US National Information Infrastructure Task Force, and as included in the 1996 WIPO treaties, the concept behind legal protection for technical measures used by copyright holders was simple. If private citizens could abuse new communication technology to infringe copyright, then the law would revoke the right of non-professionals to own and control these new technologies. This was implemented through legally protecting the ability of copyright holders to impose software choices on hardware owners through legally protecting technologies which revoke interoperability. The theory was that it should be the copyright holder that effectively "controls" any communications technology that touches "their content".
It was thought that this removal of choice would only be circumventing the rights of technology owners. A series of Cease and Desist demand from Media Rights Technologies (MRT) against Microsoft, Apple, Adobe and Real Networks demonstrates that this might also be used to circumvent basic contracting right of software vendors as well. While some US lawyers suggest that the DMCA doesn't go as far as to restrict software vendors like this, the logic behind these demands is entirely consistent with the underlying intent of the law: if software vendors don't do enough to protect copyright, then software choices should be forced upon them. If the DMCA doesn't adequately circumvent the rights of software vendors, there will likely be a call to further modify US law to adequately protect copyright holders in the digital age.
I will have a hard time taking seriously anything that proponents of anti-circumvention legislation like Microsoft or Apple would have to say against these demands. They will be hypocrites if they don't follow the demand and include the MRT technology in future upgrades of their software. Are these vendors happy to impose software choices on customers, largely forcing them to become customers of Microsoft or Apple, but will claim something is wrong when yet another third party imposes software choices on them?
Either you support interoperability and software choice, or you don't. Microsoft, Apple, and other similar software vendors have spent large sums of money lobbying governments against software choice (in support of 1996 WIPO treaty ratification or otherwise for anti-circumvention legislation) for more than a decade. If they don't believe software choices should be imposed on them, then they should join our growing community which opposes anti-circumvention legislation and supports software choice and interoperability.
See also: CNet news.com, Forbes (AFX News), SlashDot.
There was an article in DRMWatch in July 2004 that featured newly relaunched Media Rights Technologies (MRT). See what Hank Risan, CEO of Media Rights Technologies, wrote about imposing DRM as part of The Internet Radio Equality Act.
Macrovision.
For those who think this legal threat is frivilous, please remember Macrovision (See some notes on SlashDot) who has threatened lawsuits for not adequately detecting Macrovision on analog outputs of infected devices. In order to detect Macrovision you have to "license" the technology from them. In other words, if you create devices with video imputs you are forced to use their "technology".
The difference between Macrovision and Media Rights Technologies (MRT)? Macrovision is an incumbent company with a large installed base of infected content and devices, while MRT is a newcomer. Otherwise there really is no difference in the legitimacy of these companies, their "technology", and their legal threats.
Free/Libre and Open Source Software (FLOSS) consultant.
Related
The licensing/formatting of the US political debates are an issue - unfortunately. Anyone who supports democracy must understand that the freedom to participate as a citizen using free software is extremely important. This was a comment I recently made on Lessig's blog...
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three blind mice says:
If the debate requires proprietary software in order to view/make changes to it, democracy is weakened and human rights violated as participation, privacy, and freedom of speech lose their best defense. Youtube is not enough. The nature (aka “content”) of the work is not just useful but vital social information. So much so that Youtube actually falls tremendously short of what we need in this situation. Anyone thinking that the debates on “Youtube” means a win for democracy is extremely short-sighted. Sure, they can appear on Youtube - that’s not a problem. But if that’s the only place they are, citizens are at risk. The debates’ copyright status could stll take a variety of forms (care to discuss?) but the following must be true…
The debates must,
A) Be licensed appropriately so that sharing, changing and distributing the debates (or any new user-generated works thereafter) is not in violation of copyright law.
and
B) If not public domain, be encoded and released in a free file format. OGG would be an example of one. FLASH (what Youtube currently implements) would be in contrast to this.
If the company producing the files refuses these demands, they should be replaced with a company that will meet the demands (or if all else fails, the people should do it themselves). Anything less falls short of democracy.
Separating DRM from software patents on codecs..
While the tendency is often to want to talk about all barriers together, this confuses the general audience -- and most importantly policy makers. The problem I have with suggesting that this is related is that DRM (using crypto/etc to reduce interoperability to software imposed by someone else -- in theory a copyright holder) and software patents on codecs need to be treated as different.
Politically we don't want to get these ideas confused, and have people get confused and have their blind/religious support for patentability of "anything under the sun made by man" (Ignore for the moment that the controversial information/mental processes aren't 'made by man', and don't involve manipulations of nature) end up blinding them to the circumvention of basic property rights (and from there, many other rights that derive from communications rights) represented by allowing third parties to impose software choices on hardware owners.
I know there is a lot of support for OGG, but for me the MPEG family of formats are encumbered by a set of known software patents while the OGG family is encumbered by a set of unknown software patents. While the US Supreme Court has sent an indication to lower courts that they need to get better on software patent quality (specifically unobviousness this time), I don't think this will solve the underlying harm to innovation and interoperability caused by information/mental process patents.
I have always suggested that we need a good measure of patent quality, and that governments should deny patentability for subject matter where quality can't be measured above at least 90%. Currently (and we'll see if the recent court improved this) software patent quality in the US is estimated between 5% and 40% depending on whose study you believe. I have a lot of ideas on why quality is so much worse for information/mental process patents than patentability on real inventions (tangible manipulations of nature), and relate to why I don't think this subject matter should be patentable, but for political reasons I think the quality test is easier to justify.
The other possibility is to have a Fair Use regime for patents, and clearly state that it is not an infringement of a patent to follow its instructions for the sole purpose of interoperability, suggesting that codec patents could no longer be infringed. A related suggestion is a compulsory licensing regime for these types of patents, with rates indexed to a percentage of royalties collected (Meaning, FLOSS developers pay a $0 compulsory license, but proprietary vendors pay a fee).
Regardless, I believe we need to separate DRM issues from software patent issues in order to work towards fixes to these critical problems.
Free/Libre and Open Source Software (FLOSS) consultant.
Oops
Sorry I didn't follow the thread correctly. There is a response belonging to this thread outside the scope. :)
To be clear,
it is related in that citizens (in the US at the very least) are having their "choice" of software (free or non-free) violated in an especially critical context. Whether we like it or not, the entertainment industry (aka anti-circumvention policy supporters) has its finger in the pie of democracy by limiting systems choice. That's all.
Are you suggesting that software patents are OK if they are done in a certain way (i.e. this "% quality" system)? That's trying to measure the immeasurable.
A patent is a monopoly. Sure, reducing the number of monopolies can't be a bad thing, but all it takes is one monopoly to impair an entire world of software developers/cybercitizens.
OK, so we agree. "[Software should not]" be patentable. How sure are you that we are not playing with matches when we endorse a "quality test" (implying that we're OK with software idea patents in general)? Do we see it is realistic to reach an acceptable percentile? Because unless we see that we likely can, we're playing a game of reform that the corporations we speak of would love to play against us, no?