Slate, a popular news site, seems to be openly violating the Digital Millennium Copyright Act.
That law, much hated in cyberrights and computer security circles, is a thorn in the side to many researchers. The interesting question that we must ask is: Will Hollywood let Slate's probable violation slide, or will they lawyer up and go after the site owned by The Washington Post Co.?
A few days ago, Slate released a video mashup of footage of Hillary Clinton and a few scenes from the movie Election, starring Reese Witherspoon. The video is mildly amusing, and did at least remind me that Election is a funny film that I should probably watch again soon.
Cynthia Brumfield over at IP Democracy discusses the video mashup and briefly explores the issue of fair use:
"It quite literally fits [NBC Universal lawyer Rick Cotton's] idea of what wouldn't be considered fair use under a redefinition. [Columbia Law Professor Tim Wu's ] definition, however, would permit this video under fair use because nothing about it is a substitute for the original 'Election' film. It also, I would argue, enhances the film's value for those who have not seen it."
While I think she brings up an interesting point, I'm fairly certain the issue of fair use, at least in this case, is going to be cut and dry: Slate is in the wrong, and is being pretty blatant in its open infringement of copyright.
The few clips of Election in the Slate video are very high quality. The video is crisp, the sound is clear. As a result, I'd be willing to bet a few bottles of La Fin Du Monde that Slate got the video clips from a DVD. It's almost certainly not from a video cassette tape, and I highly doubt that the Slate team made a digital copy from cable TV.
DVD ripping software is widely available. Personally, I'm a big fan of Handbrake, but there are many other free software solutions out there. These software packages allow people to make a local video copy of a DVD movie. This is not as simple as it sounds, given that all Hollywood DVD discs are encrypted with a once-secret algorithm. The MPAA and others have vigorously gone after anyone who reverse engineered (or even published information on) the inner workings of the CSS algorithm used to encrypt DVDs.
Which brings me to my "favorite" law: the Digital Millennium Copyright Act (DMCA). This law, among its many horrible features, makes DVD copying a crime. DVD-ripping software is classed as a circumvention device, the use of which is a big no-no. Section 1201(a)(1)(A) of the U.S. code makes this pretty clear:
No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
Ok, so we've now established that if Slate used DVD footage in its video mashup, then it is almost certainly violating the DMCA. What does that have to do with any possible fair-use defense to a copyright infringement claim? It turns out that to make a successful fair-use claim, you need to have a legitimate, licensed copy of the original work. As the courts wrote:
To invoke the fair use exception, an individual must possess an authorized copy of a literary work (Atari v. Nintendo 975 F.2d 832).
If Slate used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mashup) is in no way authorized. This means, unfortunately for Slate, that it would have no fair-use defense, and could thus face a copyright infringement lawsuit.
While I've spent the majority of this blog post describing potential illegal acts by Slate, the real criminal here is the U.S. Congress for passing the DMCA, and in one single act, putting hundreds of computer security and cyberrights activists at risk. As a Ph.D. student, the DMCA is a complete pain in my ass and makes my research extremely difficult. As a result, I routinely have to submit my projects to Indiana University's general counsel for a sign-off.
So why am I making this blog post? Most people have no idea that DVD ripping is illegal. Most artists, mashup creators, and video-bloggers are in the dark about the potential crimes they may be committing. Furthermore, the RIAA and MPAA have a long history in going after the little guy.
Slate (owned by The Washington Post Co.) has deep pockets. If the MPAA tries to make an issue out of this, it would create huge amounts of publicity, and perhaps lead to calls for an overhaul of the DMCA. (I can dream, right?) At the least, it would force the MPAA to burn through a few bucks.
Disclaimer: I am not a lawyer. This is neither legal advice nor real legal analysis. Don't make decisions based on my blog ramblings. However, this issue is essentially straight from the final exam in my copyright-law class from last year, so I'm fairly confident that I'm right.
Also, a tip o' the hat goes to Public Knowledge's Alex Curtis, whose offer of a T-shirt inspired this blog post.
Slate could not immediately be reached for comment.
While a class action lawsuit is definitely one way to get Comcast to behave, another perhaps more productive way to do so is to have politicians step in and regulate.
On Tuesday, I discussed the issue of Comcast's anti-BitTorrent "network management" with Rep. Rick Boucher, D-Va., who is a strong supporter of consumer rights and has led the battle to undo the damage caused by the Digital Millennium Copyright Act, or DMCA.
He was named Politician of the Year for 2006 by Library Journal, largely due to his efforts to protect the fair-use doctrine and expand Internet technologies to rural areas.
"Comcast has made a major mistake in attempting to hinder peer-to-peer file sharing as an aspect of its network management," Boucher said. "The inability of customers to (share files) significantly diminishes their ability to utilize the Internet for one of its most important applications, which is user-to-user content." He also noted that "file sharing is already being used for a wide variety of perfectly lawful and appropriate applications."
Net neutrality nightmare ad
(Credit: Rikomatic / Flickr)Discussing the realities of limited resources that the company faces, Boucher said, "Comcast obviously needs to engage in some aspect of network management. The company has limited bandwidth, and there are times when there is more demand for service than the infrastructure can support." However, the congressman stressed that "(the) management needs to occur in a more evenhanded way" and that "(Comcast) should not engage in a blanket disqualification of any category of lawful applications."
Until last month, the opponents of Net neutrality were doing just great. The issue, which had become one of national importance in 2006, had shrunk to a mere footnote in the annals of tech policy history.
CNET News.com's Declan McCullagh wrote about the death of Net neutrality last month, stating that "(the issue) went from being the political equivalent of a first-run Broadway show, with accompanying street protests and high-profile votes in Congress, to a third-rate performance with no budget and slumping attendance."
Luckily for fans of a free Internet, the telecommunications companies are extremely shortsighted. Thanks to a number of their boneheaded moves, Net neutrality has gone from being all but dead to a major news story--all in just a matter of weeks.
Respect BitTorrent
(Credit: Hetemeel.com)The first company to breathe life back into was Verizon Wireless, which decided in late September to block a SMS text message campaign by a pro-choice group.
Within one day (and after having its censorship techniques compared to those of the Chinese government in a New York Times article), Verizon quickly flip-flopped.
While Verizon should be commended for realizing that it needed to do the right thing, and quickly, the damage was already done. Net neutrality was back on the tech policy radar.
In mid-August, user reports began to surface alleging that Comcast was filtering the BitTorrent connections of its broadband cable customers.
While the story got a bit of press in some tech news outlets, it was ignored by the national media, primarily due to the flat-out denials issued by Comcast.
Fast-forward one month. This past Friday, the Associated Press and the Electronic Frontier Foundation both released investigative reports, documenting the fact that Comcast is actively engaged in anti-BitTorrent behavior.
In spite of Comcast's best efforts to yet again spin the story, the truth seems to have come out, and major news outlets have picked it up: Comcast is actively sending out false data onto its network, which impersonates its customers' computers and deceitfully convinces them to terminate BitTorrent connections. Not only does the company have a major PR disaster on its hands, but it has in a matter of days become the poster child for Net neutrality.
Comcast's name is surely to come up in any future discussion of Net neutrality - which has gone from a theoretical "what if companies did this kind of thing" debate to something more akin to "do you want every Internet company to start acting like Comcast?"
In my blog post on the subject this past Tuesday, I explored some of the potential legal risks that Comcast faces. I spoke to the Electronic Frontier Foundation's Fred von Lohmann, who revealed that "(the EFF has) already been contacted by attorneys, who are considering legal action against Comcast."
I asked Boucher what he would do if Comcast stuck to its guns and kept discriminating against BitTorrent. In particular, I asked him if he would propose legislation compelling the company to treat all traffic fairly.
Unfortunately for fans of Net neutrality, the congressman said he was not ready to go down this path and instead stressed market-based methods of fixing the problems. Instead of tinkering with packets, the congressman said that in the short term, Comcast should "simply tier their offerings and engage in a pricing structure that allocates more bandwidth to those who pay more, and less to those who pay less."
However, he said "the long-term answer is to deploy more capacity. That is what municipal broadband and other telecom companies are doing. Ultimately, the cable companies will have to deploy fiber to the house."
Columbia University cyberlaw professor Tim Wu recently pointed to a historical analogy regarding Verizon's SMS fiasco. He told The New York Times that in the 19th century, the telegraph company Western Union engaged in discrimination based on the political views of people who sought to send telegrams.
"One of the eventual reactions was the common-carrier rule," Wu said, which required telegraph and then phone companies to accept communications from all speakers on all topics.
Someone who believes in a market-based solution to this problem is Jim Harper, director of information policy studies at the Cato Institute. In a phone interview on Tuesday, Harper noted that one of the main problems is Comcast's lack of transparency--something that can be seen through the fact that no one yet knows, exactly, what Comcast is doing. He said "Comcast seems to lack the capacity to communicate terribly well. They should fix that."
Harper believes that competition is the key to fixing the problem and that if customers truly care about the issue, they will choose another Internet service provider that is more BitTorrent-friendly. He did, however, note that without transparency, "consumers cannot make smart choices."
He also rejected calls for Net neutrality regulation, stating that he believes that the problem can be fixed by promoting competition. While acknowledging that the state of the market is far from competitive for many rural consumers, he noted that customers in bigger markets often have the choice between multiple phone, cable and wireless companies.
Harper said that instead of "dividing the current pie through regulation, it is far better to grow the pie" by encouraging new companies to offer service. One example of this, he said, was allocations of additional spectrum to broadband, such as the upcoming 700MHz auction.
Finally, Harper was somewhat skeptical of the importance of this issue to most consumers. He noted that Comcast is not blocking BitTorrent downloads but rather only the sharing of files--something that is not viable to most users. "If customers don't care enough to vote with their feet" he asked, "then how important is it, anyway?"
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