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).

“Library of future” initiative becomes corporate battleground

Wired reports on Sony’s decision to side with Google in a highly contentious lawsuit between Google and rivals Microsoft, Yahoo, and Amazon.

The lawsuit centers around privacy concerns and the fact it would give Google monopoly-like status on book rights that would be impossible for other companies to acquire without their own lawsuit.

Worse for Google, the Department of Justice is also investigating the settlement–a rather ominous and foreboding development.

I have never been all that positiviely impressed with Sony; they are probably the only company with a hand in consumer electronics and entertainment (the latter through their acquisition of Columbia Tri-Star in 1989 and CBS Records in 1987). The second DVD player my mom ever bought was a Sony, and it was the first to fail; the RCA player purchased a few months before still works today as far as I know. It has always seemed to me that Sony built up a good reputation in its early days, and somehow managed to keep it afloat enough to justify some kind of premium pricing even though the reputation it has is probably less deserved today.

Still, today, I’d really like to give Sony the benefit of the doubt. Yes, even though this is the same Sony known for the doomed Betamax and Digital 8 videotape formats, and the XCP and MediaMax copy protection scandal of 2005.

I don’t know much of the details and motivation behind why Sony would back Google. I do know that it’s Very Bad to let any one company grow to an effective monopoly; there is a reason we have the Sherman Anti-Trust act in the US and why similar legislation and oversight exists in the EU and elsewhere. And this does smell like something Sony would do not out of concern for its customers, but for its own corporate interests. I also believe we, as a society, should not reward a company that puts shareholders above customers when filing amicus briefs in these legal chess games.

Maybe my instinct is off the mark yet again, but it is what it is.

Hopping off the proprietary game console train, revisited

Ars Technica reports on Sony’s new release of the PSP Go, and once again I’m glad I quit doing proprietary game consoles.

This one is particularly disheartening, as I felt like Sony was the one decent console manufacturer remaining. Sony’s apparent plan, with the release of the PSP Go, becomes more obvious: take yet another option away from the customer.

The move comes as a consequence of moving to a digital delivery model. Instead of buying a disc (UMD) with the game on it, Sony will soon be making titles available only as a download, DRM-locked to the individual console. In other words, something you can’t just sell back to GameStop when you’re done playing with it.

The article, as written, states that right now, titles will continue to be made available as both physical media and downloads. Put another way, Sony knows how fast to turn up the heat to boil the frog. Don’t be surprised when the option to buy some new titles as UMD simply does not exist.