The Web's Bushiest Site

If you happened to visit my blog on the 18th you know that I participated in the SOPA/PIPA black out. I was firmly on the opposition side because those bills are are simply bad policy. They are vague, burdensome of distributors, cruel in punishment, and lack judicial oversight. In fact, had they passed, I’m sure the resulting law would have been struck down in a fairly quick court challenge of constitutionality.

As a 25 year old that is socialized to Internet culture, there are a few generational/cultural divides that I observed during the public debate on SOPA/PIPA. These divides have come up in the past, they will come up again, and understanding them will be key to developing online intellectual property policy:

1.) Remix vs Hollywood – The backlash to SOPA was so strong because, in part, a whole culture felt threatened by a powerful industry from a different culture. Internet culture, and by extension the culture of Millennials, lives and breathes on remixing existing IP as a form of expression. Thus, many saw this bill as an attack on their form of expression.

2.) Market of Ease – Netflix and iTunes have done more this decade to curtail piracy than law or the RIAA/MPAA because they developed a business model from the consumer perspective. They knew that consumers wanted and expected easy and cheap access to media in the Internet age, and have been wildly successful because they are selling this ease of access to consumers. What happens when the industry does not sell easy access but instead dictates obstacles that a consumer must overcome? The consumer becomes a customer of pirates, because the ease of access offering of pirates is superior to anything else on the market. In the wake of the MegaUpload takedown it has been astonishing to see how many people outside of the US relied on pirating sites for access to American media because, in many international markets, there is no other provider of easy access to media.

Last semester the students in the Humphrey Institute’s Science and State class were assigned to write a pseudo letter to the editor on a current issue in science or technology from the perspective of a sitting policy maker. I choose to put on my Senator cap and write about the ridiculousness of damages being awarded in piracy trails, with a particular emphasis on the trial of Minnesota resident Jammie Thomas-Rasset. Given the recent activity that has occurred in that case (Ars coverage here,) I figured now is as good a time as any to throw it up on the Internet.

I’ve begun following a few blogs and tech sites this week and there is one thing that I have already noticed: law can hurt innovation. To be honest, I knew this before reading these blogs. Still, as a techie, it is frustrating to see events such as the following play out.

RealDVD – Permission Denied

I first noticed this story at Ars Technica: RealNetworks (the company that has been in search of a meaning since RealPlayer stopped being relevant) decided it was going to produce and sell a product called RealDVD that would allow a user to easily rip DVDs to his or her hard drive. Along with RealDVD, the company also planned on selling some hardware that would include RealDVD and would serve as a household media server. Sounds cool right? Well the MPAA took issue with the products, stating that they violate the DMCA’s anti-circumvention rules, and Judge Patel granted a temporary injunction to prevent the sale of the products.

This case is frustrating for two reasons: it features an inane copy protection argument and it stems the natural evolution of technology. Lets start with the later: as much as the Blu-Ray gods don’t want to acknowledge it, optical media is dieing technology. We live in the age of broadband access, high capacity drives, and mature multimedia devices in our living rooms, in our cars, and in our pockets. We have everything we need to begin distributing and storing movies as data on our devices instead of discs on a shelf, and thanks to services such as iTunes we have already started. And those who already store their movies on devices know how convenient it is: immediate access to all your movies, ability to sample movies and view related information, access to your movies from across your network, and easy transfer to your favorite on the go media player. When you consider these advantages, along with optical media’s short comings (easily damaged, cost of physical production) you can see that, all things being equal, movies-as-data is a superior technology. RealNetworks recognized this and saw a chance to advance technology while getting in on a budding market.

Unfortunately the MPAA stepped in with its inane argument. RealNetworks went out of their way to make RealDVD kosher. The software does not remove any encryption from the movie it rips, and the company went as far as to obtain a license from the DVD CCA (the guys responsible for DVD copy protection) for the program. This is much more than most similar programs do. So you can imagine how astonishing it is to hear the MPAA argue that RealDVD circumvents copy protection. The MPAA claims this because RealDVD takes the disc out of the movie watching process and that the disc itself is a copy protection mechanism. The problem with this argument, and its codified basis in the DMCA, is that the disc is not a mechanism for copy protection. It is a mechanism for distribution. It is nothing more than a physical means of transporting data from a source to a destination. The data that is found on a disc can be a means of copy protection if, for example, it has been encrypted in a way that only certain applications or devices can understand. However, the data is independent of the disc, and the disc can not contribute to the copy protection of the data.

Now the kicker: the MPAA’s copy protection schemes don’t work. The technically inclined have been cracking encryption for years, and pretty much any one can download pretty much any movie. The MPAA’s efforts have not had their desired effect, yet they continue to press on, all the while undermining the experience of the average user. So lets step back for a minute and look at the practical results: an organization’s fruitless attempts at copy protection have prevented a piece of useful technology from entering the market. Great job guys, society is clearly better thanks to your efforts.