Fair Use and the DMCA

An article in Wired News with the dramatic title of “Lawmakers Tout DMCA Killer” describes the most recent attempt to: (a) water down the protections afforded to content owners by the DMCA; (b) ensure the preservation of fair use rights on the part of users. As is usual, each side has its own rhetoric to describe what is happening, so in fairness I took the liberty of offering to readers of this blog the two alternative descriptions above. The nub:

The Boucher and Doolittle bill (.pdf), called the Fair Use Act of 2007, would free consumers to circumvent digital locks on media under six special circumstances.

Librarians would be allowed to bypass DRM technology to update or preserve their collections. Journalists, researchers and educators could do the same in pursuit of their work. Everyday consumers would get to “transmit work over a home or personal network” so long as movies, music and other personal media didn’t find their way on to the internet for distribution.

And then of course on the other side:

“The suggestion that fair use and technological innovation is endangered is ignoring reality,” said MPAA spokeswoman Gayle Osterberg. “This is addressing a problem that doesn’t exist.”

Osterberg pointed to a study the U.S. Copyright Office conducts every three years to determine whether fair use is being adversely affected. “The balance that Congress built into the DMCA is working.” The danger, Osterberg said, is in attempting to “enshrine exemptions” to copyright law.

To suggest that content owners have the right to be paid for their work is, for me, a  no-brainer. That being said, I wonder whether the DMCA and increasingly more complex and invasive DRM schemes will ultimately backfire – sure they protect the content, but they sure as heck are a pain in the ass – just my personal take on it. For example, I’d love to buy digital music, but having experienced the controls that iTunes imposes and suddenly having all my tracks disappear, I just don’t bother with it now. Not to mention the incredible hoops one needs to go through to display, say, Blu-ray on a computer – at least in its original, non-downgraded resolution – why bother with all of that at all?

I wonder whether this is, in a way, history repeating itself in a way. I am old enough to remember the early days of software protection – virtually every high-end game or application used fairly sophisticated techniques (like writing non-standard tracks on floppies in between standard tracks) in attempting to prevent piracy. Granted, these have never gone away altogether, particularly for super high end software that needs dongles and and the like, and of course recently there has been a resurgence in the levels of protection that have been layered on in Windows, but after the initial, almost universal lockdown of software long ago, there came a period where it seemed many (if not most) software developers just stopped using such measures.  At least that’s what seemed to happen. I’m not quite sure why, but I wonder if this same pattern will repeat with content rather than software. I suspect not. But hey, you never know.

In the meantime, off I go, reluctantly, in the cold, cold winter, to the nearest record shop to buy music the old fashioned way…

The Costs of Sarbanes-Oxley

No, this post is definitely not what you’re thinking. Its not about how more and more companies are looking into going private or going to markets like AIM instead to try to avoid the increasingly greater burden of legislation like SOX.  In fact, quite different altogether. Its a story about how Apple will be charging a few dollars to unlock a feature already built into one of its products. That in itself is nothing particularly earth-shattering. What is a bit wonky is the reason Apple cites. According to another story at iLounge, its because of SOX:

Another Apple representative has added details on the Sarbanes situation: it’s about accounting. Because of the Act, the company believes that if it sells a product, then later adds a feature to that product, it can be held liable for improper accounting if it recognizes revenue from the product at the time of sale, given that it hasn’t finished delivering the product at that point. Ridiculous.

I don’t purport to be an expert on SOX but I thought it had to do with internal controls, rather than accounting standards, which I thought, if memory serves, were still at least primarily driven by the pronouncements of the Financial Accounting Standards Board in the US, and not SOX.

So, if you are the proud owner of Core 2 Duo Macintosh, you too will be personally experiencing the cost consequences of SOX, even if you are not a US public corporation. And you can’t even avoid it by going private. Very odd indeed.