Posted on 05/12/2007 1:03:26 AM PDT by Swordmaker
A California company that makes technology designed to prevent ripping of digital audio streams has accused Apple, Microsoft, RealNetworks and Adobe Systems of violating federal copyright law by "actively avoiding" use of its products.
Media Rights Technologies and its digital radio subsidiary BlueBeat.com said in a press release Thursday that it had issued cease and desist letters to the high-tech titans. It argues that the companies have manufactured billions of copies of Windows Vista, Adobe Flash Player, Real Player and Apple's iTunes and iPod "without regard for the DMCA or the rights of American intellectual property owners."
DMCA refers to the Digital Millennium Copyright Act, a controversial 1998 law that generally makes it illegal to circumvent technological protection measures that control access to copyrighted works. The law says circumvent means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate or impair a technological measure, without the authority of the copyright owner."
MRT, based in Santa Cruz, Calif., argues that its X1 SeCure Recording Control technology has been "proven effective" as such a protective measure by plugging the "digital hole" that allows even copy-protected music streams, when played back, to be captured and potentially copied. The company says that because the companies are avoiding use of its purportedly effective product, they are violating the DMCA.
"We've given these four companies 10 days to talk to us and work out a solution, or we will go into federal court and file action and seek an injunction to remove the infringing products from the marketplace," CEO Hank Risan said in a phone interview Friday. According to the MRT, the companies in question are responsible for 98 percent of the market's media players, which are in turn used by CNN, National Public Radio, Clear Channel, MySpace, Yahoo, YouTube and others.
RealNetworks spokesman Matt Graves said he hadn't yet seen the letter, but it appeared to be a ploy by a "desperate company" to get its product licensed. "That's a rather novel approach to business development," he said in an e-mail interview Friday.
A Microsoft representative said Friday that the company had not yet seen the letter and could not comment. Representatives from Apple and Adobe did not immediately respond to requests for comment.
A cease and desist letter is just a preliminary step that could precede a formal lawsuit. Recipients aren't legally required to respond to them. They can also choose to petition a judge for a declaratory judgment, which effectively says the companies are not violating the claims made by the letter.
Some lawyers said they believed MRT had offered a creative, at best, interpretation of the law that would likely not stand up in court.
"It looks to me like a play for publicity," Jessica Litman, a University of Michigan Law School professor who specializes in digital copyright issues, said in an e-mail interview. "I'm no fan of the DMCA, but it doesn't impose liability simply because some product could be redesigned to implement a technological protection scheme but its makers decline to do so."
She also said the targeted companies would likely not be liable because a section of the DMCA says that consumer electronics, telecommunications or computing products are not required to be designed so as to "provide for a response to any particular technological measure."
Randy Lipsitz, a partner in the intellectual property and technology group at Kramer Levin in New York, said the most reasonable way to interpret the word "avoid" in the DMCA is that it would cover "a technical, logical measure that's present in the work," as opposed to forcing companies to buy a third-party product.
"This one's out there," he said of the arguments in a telephone interview. "I don't know how far it's going to go."
Except the plaintiff in this case is not the developer of the DRM scheme iTunes store uses.
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"Wait a minute! I could sue folks for not buying Apple products! Score!" |
Sounds like a plan...
As the artile says, that sill depend on how broadly the court interprets the term "bypass." Suppose, by way of analogy, an FM radio station decides one day that it should only be available to subscribers. It still transmits in the open on the FM band, so instead of encrypting it, the company decides to sue the manufacturers for not adopting its protective measures and building its encryption and subscription product into their receivers.
If the audio streams are in a format that Windows Media, Quicktime, Real, etc. can play, but with added data from this company's proprietary protection scheme -- if it isn't part of the published standard -- the companies aren'y bypassing it, they're just not implementing it.
You are absolutely right. Maybe you shouldn't give their lawyers anymore ideas ^_^ And remember this is going to cost them (us) a ton.
If the audio streams are in a format that Windows Media, Quicktime, Real, etc. can play, but with added data from this company's proprietary protection scheme -- if it isn't part of the published standard -- the companies aren'y bypassing it, they're just not implementing it.
I don't think I completely follow you, but I think the purpose in this law suit is to force them to implement it (and pay for it of course).
Exactly. As far as not following me, I have another analogy. Macrovision -- the most popular method of preventing folks from copying movies by simply plugging a player into a recorder. Macrovision works by blinking the first line of video -- which is behind the bezel and not visible on any consumer TV -- between white and black. That messes with the automatic gain control on the VCR, and tapes copied by amateurs have wild fluctuations between light and dark, as well as color shifts.
If a VCR manufacturer (or the makers of the "black box" things in the back of Popular Science) simply chop off the top line, they're acting in a way that is only useful for the purpose of bypassing copy protection -- and altering the long-standing NTSC spec. The beauty of Macrovision is that it worked within the existing spec, and did not require anyone to add anything. It worked with the vast majority of consumer video equipment in use.
If Media Rights Technologies' copy protection scheme, on the other hand, has not been adopted by the makers of 98% of streaming audio players. My assumption, based on that, is hat it requires added code, and does not use any existing widely-used spec. Ruling that not-buying is the same as bypassing would require everyone to adopt every harebrained DRM idea from anyone who can afford a lawyer. I'll bet a lot of that code would be buggy as hell, essentially making streaming audio unusable.
My guess (just a guess) is that MRT set out with what it thought was a great idea, one they could sell to the big content providers, who could then muscle the software developers into supporting it. Nobody bought. So this is the Hail-Mary as the clock runs out on their financing.
The DMCA has been dubbed by many the "Mickey Mouse Copyright Act," because it was passed a few years before "Steamboat Willie" was about to pass into the Public Domain.
Copyright protections in the US are well beyond those in the Berne Convention and adopted by the rest of the world.
A little primer on this stuff — at least based on this article, the suit is only about DRM on streaming audio. A lot of companies use streaming audio to listen from their site. Anyone can listen, but only as long as they decide to host it, and no one can copy it, pass it around or host it on their own site.
Problem number one is the way OS software works. That stream in your audio player has to pass through the OS audio driver before to goes to sound card, to the speaker and thence to your years. Clever programmers have figured out to intercept those data at that step — Audio Hijack is a popular program for Mac, and Audacity is one available for Mac, Windows, Linux, and I think other *ix platforms.
Problem number two is the more fundamental one. You simply cannot make audio possible to hear and impossible to copy. That’s why God made microphones. And without even resorting to that, just plug into a recorder instead of speakers, and you’re home free.
Most people won’t go to that hassle, and that’s what the industry is missing — make DRM easy enough to use, and protected files cheap and easy enough to use, and most people won’t bother to work around it. Instead, they’re digging in their heels and pushing technology that makes their content so difficult to copy that it’s also difficult to use (Sony’s infamous rootkit was the one that finally set off alarm bells). How’s that supposed to help sales?
If they get traction, I’m writing a DRM scheme really quick and suing too.
That's not a bad idea : ) Does anyone know what their patent or copyright actually does?
Turns out the company suing was previously under another name, making statements about its wonder-DRM that had many experts, including Ed Felten, thinking it was snake oil. I think their stuff didn't work as advertised, so they decided that jackpot justice was a better way to make money.
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