Digital Media

The Electronic Frontier Foundation, an advocacy group for Internet users, is expected to argue in court on Tuesday that it's unconstitutional to prevent Americans from suing the telecom companies that allegedly helped the federal government unlawfully spy on them.

The FISA Amendments Act (FAA) gives telecommunications companies retroactive immunity for opening their networks to the National Security Agency. The telecoms can walk away from lawsuits as long as the government claims the request was "lawful" and authorized by the president. Before the law was passed, EFF had brought a lawsuit against AT&T that is before the 9th U.S. Circuit Court of Appeals in San Francisco.

"The flawed (statute) improperly attempts to take away Americans' claims arising out of the First and Fourth Amendments," EFF wrote on its Web site. "(The law) violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law."

Opponents have said that the law is an endorsement by both major political parties of illegal surveillance conducted by the Bush administration. Among the U.S. senators who supported the law was President-elect Barack Obama.

Under the law, no lawsuit may proceed against any "electronic communication service provider" if either one of two conditions is met. The first is that the company provided assistance "in connection with an intelligence activity" authorized by the president between September 11, 2001 and January 17, 2007, when the wiretap program was altered to include more judicial oversight.

The second condition involves a company that received a "written request" from the U.S. Justice Department saying the activity was lawful and authorized by the president.

The movie industry has finally responded to accusations that it filed suit to stop sales of RealDVD software as a means of maintaining control over technology companies.

The Electronic Frontier Foundation, a group that advocates for the rights of Internet users, last week called the lawsuit filed by the major movie studios against RealNetworks, the maker of the DVD-ripping software, an attempt at "controlling innovation."

On Monday, the Motion Picture Association of America responded in an open letter to the EFF titled: "Hollywood isn't Living in the Past, EFF Shouldn't Either." In the letter provided to CNET News, the MPAA calls EFF's claims "disingenuous and wrongheaded." The MPAA says RealDVD, which enables users to copy the contents on a DVD and save the digital file on a hard drive, is a pirate tool.

"Forgive us if we take offense when the EFF and other activist organizations that continually take the side of those who profit from widespread copyright infringement attack our industry," wrote Jim Williams, the MPAA's chief technology officer. "It's a desperate throw-back to the Napster days of old when (EFF would) pull out this tired and weathered playbook. It's not 2001 anymore. We've moved on. So should you."

The studios accused RealNetworks in their copyright suit of violating the Digital Millennium Copyright Act and breaching its contract with the DVD Copy Control Association, the group that oversees the licenses that manufacturers need to build DVD players. Two weeks ago, Hollywood told U.S. District Judge Marilyn Patel that RealDVD could cost the film industry billions and she agreed to force the software off the market until at least November 17.

Not only does the MPAA strongly deny being against innovation, but Williams wrote that Hollywood now works closely with the tech sector to deliver digital content to consumers.

"Movie makers and the technology community are working together to deliver to consumers a variety of legal choices," Williams wrote. "To the surprise of some skeptical Internet watchers, Hulu, the NewsCorp and NBC Universal backed video streaming site, has been both a popular and critical success. And, beyond what you can get through cable and satellite on-demand services, thousands of movies are now available for instant rental, download or ad-supported streaming via sites such as Apple's iTunes, Amazon, and NetFlix.

"The days of Hollywood being from Mars and Silicon Valley being from Venus are simply over," Williams wrote.

The EFF said in its initial letter that Hollywood's legal attack on RealDVD doesn't make any sense when the Internet is packed with similar (and better) DVD-copying software. But a film-industry source notes that RealDVD is very different. RealNetworks is a mainstream company and has the money to promote the software. This could lead consumers to believing that copying movies is always legal.

EFF and RealNetworks say copying is legal if the consumer owns the movies. The MPAA says it is absolutely illegal to copy rented films--and that's what the studios hope to prevent.

The other difference is that RealNetworks is a publicly traded U.S. company. Many other providers of ripping software are small and reside overseas and are beyond the reach of this country's system of justice, the source said.

Williams' letter in its entirety:

Recently, the Electronic Frontier Foundation published an article entitled, "Why Hollywood Hates RealDVD," whose basic claim is that Hollywood is anti-technology and innovation. It is disingenuous and wrongheaded to equate Hollywood's efforts to prevent piracy with being against innovation. The market is full of high-tech, legal examples of Hollywood and the technology industry partnering to bring movies and television to consumers in new innovative ways.

When companies go beyond the bounds of the lawful marketplace and profit from pilfering copyrighted content, the result is damage to those who make movies, high-tech companies that are part of the legitimate ecosystem of movie distribution, and ultimately to consumers. The major film studios have made every effort to focus on a strategy that takes advantage of the new avenues offered by the Internet and innovative consumer electronics. They've done this because they know that in an age of immediacy and ubiquity of content, they have to do everything possible to provide consumers with as much choice and convenience as possible. The studios have worked hard to enable legitimate business models that are more compelling to movie fans than shady, virus-laden tools that distribute pirated films.

The results? Consumers now have a multitude of ways to enjoy great video content. To the surprise of some skeptical Internet watchers, Hulu, the NewsCorp and NBC Universal backed video streaming site, has been both a popular and critical success. And, beyond what you can get through cable and satellite on-demand services, thousands of movies are now available for instant rental, download or ad-supported streaming via sites such as Apple's iTunes, Amazon, and NetFlix. In fact, there are more than 275 legal Web sites worldwide that provide high quality, digital content to consumers.

And those are just some of the more high-profile, well-known collaborations that the studios have made in the Internet arena. Every day, in efforts to provide consumers with even more and better ways to enjoy content, the film studios are working hand and hand with some of the biggest names in technology and also some of the smallest start-ups that haven't even publicly launched yet.

The days of Hollywood being from Mars and Silicon Valley being from Venus are simply over. So forgive us if we take offense when the EFF and other activist organizations that continually take the side of those who profit from widespread copyright infringement attack our industry as one that stifles innovation. It's a desperate throw-back to the Napster days of old when they pull out this tired and weathered playbook. It's not 2001 anymore. We've moved on. So should you. Isn't it also just a little insincere to cast the studios as "anti-innovation" simply because they have filed a lawsuit against a technology company for introducing a product to market that effectively creates a profit mechanism for themselves built on the back of our members' copyrighted content?

Movie makers and the technology community are working together to deliver to consumers a variety of legal choices for enjoying movies in innovative and flexible ways. Whether it's from downloading and streaming films legally, renting them online for one-time viewing or buying a DVD with a bonus digital copy, important progress is being made that allows consumers to enjoy movies legally in new and exciting ways. Our goal is to continue to increase these offerings as new legal technologies become available. It is important to note, however, that these innovations are only possible because the studios are able to protect their content--content protection is essential to the industry's ability to provide this vast array of options.

The industry is moving fast on these initiatives because we realize that media consumption is changing rapidly, and we must stay ahead of these significant shifts. To do so means that the movie industry has to be successful at every step of the distribution chain--from movie theaters to DVDs to downloads.

And, this success generates the profits that fund the creation of movies that consumers want (and that cost $100 million to make and market, on average). Which, in turn, go to real jobs, real tax revenues, and real economic growth in uncertain economic times. Yet, without the protection of intellectual property, the economic calculus would quickly begin to work against the film companies and technology firms working to provide content to consumers.

It is disappointing that in 2008, the studios are still fending off the tired old "Hollywood vs. Silicon Valley" stories. While others wish to hold on to the nostalgia of that fading era, the motion picture and technology industries are collaborating to bring consumers both the content and the products they want in a legal and therefore sustainable manner.

Hollywood isn't suing RealNetworks over piracy--that's just a smokescreen, according to the Electronic Frontier Foundation.

The group that advocates for the rights of Internet users said in a blog post Friday night that the the primary reason the Motion Picture Association of America (MPAA) filed a copyright suit against RealNetworks and is trying to halt the sale of the RealDVD software is to make sure the company, and anyone else wishing to build movie players, gets Hollywood's permission first.

"It has nothing to do with piracy and everything to do with controlling innovation," said Fred von Lohmann, EFF's senior attorney.

The studios accused RealNetworks in a copyright suit of violating the Digital Millennium Copyright Act and breaching its contract with the DVD Copy Control Association, the group that oversees the licenses that manufacturers need to build DVD players. On Tuesday, Hollywood convinced U.S. District Judge Marilyn Patel to keep RealDVD off the market until November 17 at the earliest.

The studios told the judge that RealDVD enables consumers to build huge film libraries without paying a cent. They just need to rent a movie and use RealDVD to copy and store the material to their hard drives. Lawyers for the MPAA described the "rent, rip and return" scenario and told the judge this could cost the film industry billions. But in his post, von Lohmann points out what many others have already noted: there is software readily available on the Internet that copies and stores films on hard drives. Most of it is unencumbered with any of the copy protections found on RealDVD.

"Hollywood can't possibly believe that the $30, DRM-hobbled RealDVD software represents a piracy threat," von Lohmann wrote. The studios are using the lawsuit to "send a message about what happens to those who innovate without permission in a post-DMCA world."

The licensing agreements tech firms are required to sign before making movie players are a means of control, said von Lohmann. The licenses "define what the devices can and can't do thereby protecting Hollywood business models from disruptive innovation," he said. Representatives from RealNetworks and the MPAA could not be reached Friday.

Watermarks and DRM
The licenses also give Hollywood the power to ask a that tech companies help in the fight against piracy, says von Lohmann.

"In the course of these years-long negotiations, Hollywood has managed to wrest several important concessions from technology vendors," von Lohmann wrote. They "include requiring that computers do watermark detection to spot pirated copies when reading data from Blu-ray discs, and imposing DRM on resulting copies."

Why RealDVD is so threatening to the studios is that RealNetworks has the potential to start a rebellion among gadget makers. The company is thumbing its nose at Hollywood's licensing deals and telling the courts that it only needs to protect the DVD's contents, which RealDVD does. If RealNetworks is allowed to build a player without a license, then others will follow. Hollywood wants to avoid that at all costs, according to von Lohmann.

"By reading the existing CSS license carefully," von Lohmann wrote, "Real found a way to create a new product category without first getting permission from the Hollywood studios."

He suggests that Hollywood isn't against allowing people to back up their DVDs. He said we might see products that enable people to make copies. It's just that the studios want to share in the profits made by such products.

RealNetworks and the MPAA aren't due in court against until mid-November.

Victor Rook, an indy filmmaker who was once wrongly accused by Viacom of copyright violations, is happy a judge has reminded media companies to think twice before calling someone a pirate.

In February 2007, Viacom demanded that YouTube remove Rook's documentary about a professional wrestler, accusing him of using some of the company's copyright material. The conglomerate was mistaken. None of the video or music Rook included in his film belonged to Viacom. Executives at the company apologized but the filmmaker still had to wait three weeks before the clip was reposted to YouTube, which he says hurt his efforts to market the film.

The entire episode would have never occurred had "Viacom ever looked at the video," Rook claims.

Copyright owners, such as NBC Universal, Warner Bros., and Viacom, were put on notice Wednesday when U.S. District Judge Jeremy Fogel ruled that they must not order video be removed from Web sites indiscriminately. Before taking action against a clip, copyright owners, must form a "good-faith belief " that a video is infringing, according to Corynne McSherry, an attorney with the Electronic Frontier Foundation.

EFF represents the Pennsylvania woman who sued Universal Music Group for demanding that YouTube remove her clip, which featured her infant son dancing to 30 seconds of the Prince song "Let's Go Crazy." EFF has always argued that the video was a "textbook" example of fair use and Universal Music should have recognized that.

The music label, the largest of the country's four top recording companies, has indeed acknowledged that the clip doesn't violate their copyright and the clip has been reposted to YouTube. But Universal Music also argued before Fogel that it's not up to copyright owners to determine fair use.

Fogel disagreed. In his 10-page decision, he reminds Universal Music that the Digital Millennium Copyright Act already requires copyright owners to make a determination about fair use prior to sending take-down notices. "A consideration of the applicability of the fair use doctrine simply is part of that initial review," Fogel wrote.

But for copyright owners, Fogel's decision may further complicate an already arduous process of tracking and removing pirated clips.

A Viacom spokesman said Thursday that the company has sent 350,000 take-down notices to YouTube. Each of the offending videos is first reviewed by Viacom staff before the notices are sent. The media power has acknowledged making mistakes but less than 1 percent of the time.

Perhaps Viacom's position on handling take-down notices was best explained in the company's letter to Rook.

Mark Morril, Viacom's deputy general counsel, wrote to Rook: "Having reviewed the video, we acknowledge that its inclusion in the take-down notice was an error and the error however was completely unintentional. We sincerely regret that this error affected your video. We note that YouTube and Google have adopted a policy that forces copyright owners like Viacom or yourself to shoulder the entire burden of monitoring for copyright infringement on the YouTube site.

"Viacom has no alternative accept to repeatedly search the entire YouTube library," the letter continued, "and send take-down notices...This is a massive effort. We have manually reviewed over 1.7 million clips on YouTube and have identified more than 187,000 pirated clips of our copyrighted content. In an effort of this scale, some inadvertent error is inevitable."

Rook has little sympathy for the big media companies. He's skeptical about their review process and whether Viacom employees eyeball all the videos. He said that had anyone actually seen his video, there could have been no way they would have accused him of copyright infringement. Rook also said that a year before Viacom sent the take-down notice, one of Viacom's companies, MTV, had requested a viewing copy of his documentary.

"If that doesn't prove that Viacom knew my film wasn't their material I don't know what can," Rook said.

Mark Litvack, an entertainment lawyer with the Los Angeles law firm of Reed Smith, says that while it's good for the judge to remind media companies to take a hard look at material before making accusations, he doesn't think the lawsuit brought by the Pennsylvania woman is necessary.

"The DMCA absolutely anticipated this very scenario," Litvack said. "Universal said she infringed on her copyright and sent a take-down notice. She then has an opportunity to appeal to YouTube (counter-notification remedy), which is what she sought and the video was restored."

But McSherry of EFF argues that the counter-notification remedy doesn't protect people from unfounded claims and puts the onus on them to prove their innocence. She remembers that before the DMCA, a media company that wanted someone to remove allegedly infringing material would first have to convince a judge and then obtain a temporary restraining order.

"The DMCA streamlined the process but the law also tried to balance it," she said. What she is referring to is the DMCA's requirement that companies first form a good-faith belief that material is infringing before trying to remove videos.

Fogel agreed and the wrote: "The unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms."

Yahoo Music earned kudos from one of the Web's most outspoken advocacy groups on Monday.

The music service, which has opted to get out of music retail and subscription services, is offering to reimburse customers who bought music from Yahoo Music Unlimited. The decision follows the company's controversial announcement last week that it will no longer authorize keys that allow users to transfer music to new PCs or devices starting October 1.

Last week, the Electronic Frontier Foundation called on Yahoo to offer customers refunds. Now that the company has, EFF is happy. "EFF applauds Yahoo's decision," said Corynne McSherry, an attorney for the group.

And surprisingly, EFF doesn't necessarily want Microsoft to also offer refunds. After Microsoft shuttered MSN Music, the company announced last spring that it would stop issuing DRM keys. After being criticized, Microsoft decided to continue supporting its music for three more years. McSherry said that Microsoft's decision ensures that customers get what they paid for. That's all EFF wanted.

"In both cases, each of the companies has been forced to acknowledge they must do right by their customers," McSherry said. "I do hope that any other vendor (selling DRM-protected media), learns a lesson. They all must live up to the conditions that they set when they sold their music."

McSherry pointed out the differences in Yahoo's and Microsoft's approaches. Yahoo has decided to "tear off the band-aid." Yahoo's approach allows the company "to break free of DRM much faster," McSherry said.

Yahoo Music is offering refunds to anyone who bought songs from the service. Is it time for MSN Music follow Yahoo's lead?

Yahoo announced last week that it would no longer issue authorization keys for the digital rights management, or DRM, software on its songs. This meant that anyone who bought songs from the service would still be able to hear their songs through its service but would be unable to move them to other devices or computers.

This did not play well with Web users. Now Yahoo Music plans to issue refunds and is trying to go one step further. If a customer would prefer music over a refund, Yahoo is looking for a way to give the customer copies of the purchased songs in the DRM-free MP3 format, according to a Yahoo representative.

Yahoo Music is transferring customers of Yahoo Music Unlimited to RealNetworks' Rhapsody service. These are both subscription music services, so Yahoo users who choose to make the move are unaffected. But those who purchased songs would be out of luck after September 30.

The question now is, has Yahoo Music raised the bar? Is it time for Microsoft to pony up with a refund for MSN users?

MSN Music shut down and announced that it would stop issuing DRM keys, only to change its mind last month and say it would continue issuing keys for another three years. As noted by Michael Spiegelman, Yahoo's senior director of music, Microsoft just delayed the withdrawing of support for songs.

A Microsoft representative could not be immediately reached.

The Electronic Frontier Foundation, an advocacy group for Internet users, has called on both Yahoo and MSN to issue refunds.

Yahoo Music is telling customers that it won't allow users who bought songs from the service to transfer them to new devices or PCs after September 30.

The announcement on Thursday has stunned the Electronic Frontier Foundation, a watchdog group for Internet users. Surely, Yahoo should have learned something from the MSN debacle. Just a month ago, Microsoft reversed a decision to stop releasing authorization keys for the copy protections it placed on songs, and will issue keys for three more years.

"Some people think they can use music wrapped in digital rights management just like they do a CD," Corynne McSherry, an attorney with EFF, told CNET News. "This should teach everyone that you can't."

To those opposed to DRM, this is but the latest example of how buying copy-protected music means that a label or music service can come in and snatch it away. Without the DRM keys, an owner is helpless to transfer songs to new devices. An owner can burn songs to a CD, as Yahoo has been telling customers to do for six months, but they then risk losing some sound quality when they rerip the music.

In explaining how Yahoo came to its decision, Michael Spiegelman, Yahoo's senior director of music, argued many of the same points that Microsoft made.

•  Microsoft said consumers would benefit by being moved to a new, superior service: Zune's Marketplace. Yahoo is suggesting customers move to RealNetworks' Rhapsody.

•  Microsoft said that the issue affects a small number of people. Spiegelman used the term "small percentage." (Neither company disclosed exactly how many people would be affected.)

•  Microsoft said that copy-protection schemes were forced down its throat by the major recording companies. Yahoo's Spiegelman says the company has realized "the time for DRM-protected tracks has passed."

But here's what is different about Yahoo's decision. While Microsoft chose to delay the eventual withdrawing of support, Yahoo says it decided to deal with it sooner rather than later.

"We definitely tracked the (MSN) situation closely," Spiegelman said. "We found (the decision to continue supporting DRM keys for three more years) just prolongs the pain. It keeps the DRM question going for years. We want to help people make the transition now."

Fine, says EFF. Yahoo has admitted that it made a mistake with DRM. But why is the company making customers pay for its error in judgment?

"This isn't just about withdrawing support," McSherry said. "It's about not compensating customers. This is pretty outrageous."

She called on Yahoo to apologize to customers and either replace their music with open MP3s or issue refunds.