Fair Use: 1, RIAA: 0

While I am pleased with this decision to allow a lawsuit against Universal to continue, we’re really not that much closer to achieving clarity about Fair Use in the 21st century.

The saga of the copyright-infringing toddler continues as a California court refused to dismiss a lawsuit claiming that Universal Music had filed an improper takedown notice under the Digital Millennium Copyright Act. The DMCA provides a mechanism for copyright holders to demand the removal of infringing material on the web, but it also allows lawsuits against those who abuse that authority. Universal claims that it has no obligation to take fair use into account before sending its takedown notices, but Judge Jeremy Fogel rejected this argument—and with it, Universal’s request to dismiss the lawsuit.

[From Fair use gets a fair shake: YouTube tot to get day in court]

More concerning to me is the way that content owners, aka studios, are pressuring cable and satellite companies to impose use restrictions on video on demand content that effectively locks down content to a single device. Directv is doing this with their set top boxes, which don’t allow you to move content to other boxes in your own home, much less alternative devices for viewing.

The bottom line is that Fair Use is being rewritten not by the Congress or the courts but rather by content owners who are forcing their distribution partners to adhere to far more restrictive usage terms and to do it at the hardware level.

Never before in the history of technology has so much money been spent on developing a technology, DRM, who’s sole purpose it is to restrict consumer behaviors, choices, and ultimately the experience.

More on this topic (What's this?) Read more on Cheung Kong (HLDGS), Century at Wikinvest

Depends on the Meaning of “DRM”

When I first read that Sony was going to give up their DRM ways I was skeptical… after all this is the company that brought us a rootkit. After learning more about how their system works, well it makes perfect sense (for Sony, it doesn’t make sense for anyone else).

Kid #2: So to recap, what you’ve got here is a system that makes people leave their house in order to download music at their house, and makes them go to a store to get music that they could get at the store, somewhere else [From Why It Won’t Work]

This system will fail as all DRM systems have failed. Apple’s FairPlay has been the most successful in terms of market adoption, but it’s not difficult to strip out FairPlay from tracks you download from iTunes, in fact it is ridiculously easy. Apple was successful with FairPlay because their customers were getting something out of iTunes beyond music, they were getting convenience. It was a “truth between two parties” that as long as iTunes continued to give me easy access and hassle free downloading of reasonably priced music, well I’d put up with their DRM as long as it didn’t get in the way.

To support my argument that all DRM fails, I submit into evidence the fact that despite an abundance of DRM in commercial music for several years now there is no shortage of free downloadable illegal music. Of the 37 albums that Sony puts up on their “DRM free” scheme, I would bet that by the end of the day I could download all 37 albums and not pay one cent for any track. The vast majority of consumers will pay for their downloaded music if you give them a reasonably convenient mechanism for doing so.

As usual, Sony misses the boat on this concept and continues to insist that I come to them on their terms. This will fail and Sony will continue to fail in portable media players, online distribution, and customer satisfaction.

The Day the Music Stopped

This post could also be called “the day DRM jumped the shark”. The momentum has definitely turned in favor of getting rid of DRM altogether, let’s hope that consumers vote with their dollars and choose DRM free content and hardware whenever possible. DRM free is a relative term but still represents an ideal we should reward content providers for enabling.

Microsoft’s PlaysForSure DRM just took another step closer to the grave with the help of some rebranding. Those of you with players from SanDisk, Nokia, and Creative among others, looking for compatible music from Napster, Real Rhapsody, Yahoo Music, Wal-Mart and such must now look for the “Certified for Windows Vista” logo, not PlaysForSure. Of course, Microsoft’s Zune is also certified for Windows Vista, just not certified for Windows Vista so it won’t play back the same protected files. Man, could DRM get any more consumer unfriendly? [From Microsoft rebrands PlaysForSure to Certified For Windows Vista, confuses world - Engadget]