Sony’s first class DMCA foulup and what it says about fair use in the modern era

TechDirt recently published an article about a Digital Millenium Copyright Act (DMCA) takedown of, oddly enough, a Harvard law professor’s lecture on copyright. That in itself is ironic enough.

What triggered the takedown were clips of different songs, used in the discussion of copyright. This, under copyright law, is called “fair use” and is not considered infringement. And this is where Sony Music Entertainment has screwed up.

Part of the blame has to go to Google (or would it technically be Alphabet now?), who owns YouTube, and who has decided to deploy an automatic music fingerprinting system allowing draconian enforcement of copyrights–and sometimes squashing fair use, possibly on purpose. This quote from the original story is quite telling:

In fact, considering how frequently we hear the RIAA and other copyright system supporters (especially within the recording industry) arguing that what the world really needs is better education on copyright issues so that the public better understands it, it seems particularly stupid to issue a takedown over a free lecture explaining music copyright. But, of course, no one ever suggested that the recording industry is particularly intelligent in how it goes about fighting its peculiar war.

The RIAA has gotten at least one thing right: they have quit suing music listeners for file sharing which infringes copyrights. Unfortunately the MPAA and other industry organizations have not followed suit. (Or maybe I should say, have not followed the distinct lack thereof.)

I, personally, believe the DMCA and other copyright-related laws which were passed during the rise of the Internet’s prominence were not strictly necessary. I despise the tactic of suggestive law names and acronyms which make implied statements subject to debate, such as the horribly named No Electronic Theft (NET) Act, named years before Nina Paley made her famous cartoon as featured on Especially given that such laws are, by their nature, anti-consumer and, ironically, seem to do the most damage to those who obey them.

Case in point: I want to include a 15-second clip from a movie, say, Ghostbusters (1984). Let’s say I have this movie on DVD. Now, DVD has been proven to be trivially crackable, due to restrictions in key size in effect at the time of the format’s introduction. However, the DMCA gives any technology restricting copying the force of law, no matter how effective, and has no fair use exemption. Worse, the anti-circumvention portion of the DMCA has criminal penalties. So despite the fact I could easily copy that 15-second clip for fair use purposes, it’s a violation of the DMCA to do so.

Were I to try to make that copy honestly, using, say, a USB analog video capture device and a DVD player, the USB analog video capture device probably would not let me, either giving a distorted picture, a blank picture, or possibly even shutting down completely. The same would apply if I were to use licensed, legal DVD playback software; the publishers of such software are required to play into Hollywood’s hands and restrict copying the same as a physical DVD player would.

Getting back to the case at hand, were Sony to use a copy-restriction technology on an album, our Harvard law professor could find himself facing criminal charges were he to want to make fair use of it in the same manner. If all this seems Kafkaesque or Orwellian to you, you’re not alone.

I suppose the only saving grace in this is that the FBI honestly has better things to do than prosecute every single violation of the DMCA out there. It doesn’t change the fact this is a dumb law that needs to be overhauled. There need to be real, decisive penalties for those who recklessly or knowingly infringe upon fair use, and any new copyright-related law going forward needs to acknowledge and make a blanket exception for any and all fair use–not leave it up to the Librarian of Congress to make the very few and narrow exceptions.

Growing up in school, I (and my classmates) thought it was outrageous that (based on the teachings of the time) photocopiers in the USSR were rare and locked down against unauthorized access. Three decades later, we’re dangerously close to having the modern-day equivalent of that across the world (not just in the USA).

Save the date: A Day Against DRM, 2010 May 04 recently published an article entitled “The decade of DRM.” Included among the events were four events prior to 2000 that would set the stage for the introduction and proliferation of DRM (digital restrictions management), arguably one of the biggest steps backward for computing freedom ever.

Even as far back as 2000, a lot of devices that we do not ordinarily think of as computers are in fact exactly that. Television sets, VCRs, CD players, DVD players, portable audio players, mobile phones, copiers, printers, scanners, fax machines, and the list goes on; all of these have computers (microprocessor-based logic) built into them somewhere. In 1980, this was unheard of, but now, it’s a fact of life. I still remember my late grandfather’s rants about these new cars with “all this computer [excrement]” that made them much more difficult to fix.

We have yet to change one thing, and it’s probably one thing that should not be changed. Computers are still, by themselves, incredibly dumb. One would think this, by itself, would discourage widespread adoption of DRM. Sadly, this is not the case.

The recording industry (RIAA) has realized DRM is not in their best interests. However movies, e-books, and cable television continue to be saddled with obnoxious restrictions. It’s often said that locks only keep honest people honest, and this is the same with DRM which is just a cyberspace equivalent of a fancy padlock. Those who do not respect copyright or draconian laws like the DMCA will crack the DRM and share anyway. CSS (not the stylesheet language, the DVD encryption method) was cracked very on in the lifespan of the DVD format. The Blu-Ray AACS key has been changed several times, and it just gets cracked again and again. Copies of these movies, as well as scans of books in PDF form, are easily obtainable on peer-to-peer file sharing networks and sites.

Meanwhile, people who have legitimately paid for video and audio recordings get unwelcome surprises when license servers disappear and they try to play recordings they “own” on a new computer. (The term “own” and “ownership” is kind of pointless with DRM, as even if one still has a copy of the recording, it can be rendered useless on an arbitrary basis. It’s like having a CD, DVD, or book that can just vanish or turn to dust without warning.) Don’t believe me? Ask these baseball fans who got bitten by MLB’s change in DRM licensing servers. Or the many people who bought into Microsoft’s PlaysForSure DRM scheme.

Perhaps the worst example, however, is when Amazon reached in to thousands of Kindle e-book readers it sold and erased copies of George Orwell’s book 1984, back in 2009 July. The content of the book itself makes the message even more chilling than it would otherwise have been.

DRM is an anti-social technology and I feel it is out of place in a world where “social media” is the new buzzword. The sooner it dies, the better.

Shining light on abuse of copyright for censorship

ReadWriteWeb recently reported on the EFF’s launching of its Takedown Hall of Shame. One of the most notable parts of this site-within-a-site is that there is a specific guide to YouTube video removals. (Aside: yes, I noticed the EFF is yet another organziation that insists upon using the loaded term “intellectual property” and maybe they are unaware of why it is so bad).

It’s sad that we even need something like this. Copyright is not inherently evil; as originally implemented, the Statute of Anne accomplished a quite noble goal when originally passed back in 1710. However, somehow, someway, we as a society (and it’s not just the US anymore, but most of the world) have gone from a reasonable, single 14-year term to what is a nominally limited term that in reality, may as well be perpetuity (70 years from the author’s death, 95 years from publication, 120 years from creation).

In addition, the entire concept of fair use has gone out the window. I wrote a bit about the NFL’s heavy-handed abuse of copyright back on 2009 January 15. (It’s been almost ten months, long enough for the next NFL season to have started, and nobody ever sent me a URL of a video of this play that is still online.) This is a clear example of fair use, about as clear as they get. And yet, YouTube yanks it because the NFL says “that’s copyrighted.”

I could go on and on. It’s time we move to restore copyright to some modicum of sanity: fourteen years, plus a fourteen year renewal, and then public domain. We also need more exceptions to allow for the preservation of works that would otherwise just disappear due to decay of the media onto which they are recorded.

Otherwise, we have something intended to encourage innovation, but which in fact discourages and destroy it. We don’t need that, and it’s time to wake up and realize that’s where we are headed. Don’t believe me? Patents are already being abused this way against computer software.