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…

Microsoft v. Apple, Round ??

Another recent story/editoril in The Inquirer egging on Apple to divorce the way cool OSX and license it separately from the somewhat maybe less cool hardware (at least in the eyes of the Inq). And who else to better promote OSX than Dell. Anyway, a snippet:

Apple could position the move as “Dell is so cool, we had to do a deal with them.” Underlying that is “Let’s face facts, with the exception of a pretty case, and a couple of hardware features, we’re an Intel box all the same.” (I know I’m going to get foaming rabid Mac owners that say the bits under the hood of their machines are especially selected by Zen Master Craftsmen and assembled by virgins in a far off land with blessed incense burning on a 24×7 basis, but it just ain’t so).

What has Apple got to lose? Zero.

I certainly would be interested in seeing Apple do this. On the other hand, I don’t know if it would come at “zero” cost. As their user base increases, so do the variations of hardware that people will want to use, and the drivers, and the third party software and, before you know it, you’re starting to make compromises here and there to let everything work. Then as more users come on board it starts becoming more of a target for hackers, who then start working feverishly to craft attacks, trojans and viruses, then leading your users to suggest that your platform is inherently security-deficient, requiring further investment in updates, patches, etc. Then of course you get on MS’ radar, who also produces a rather important office productivity app for OSX and may not take too kindly to Apple trying once again to eat its lunch.

I don’t know. I just don’t see it happening. OSX is nice and all, but to my simple mind, there is, and has been, a viable alternative to Microsoft operating systems for quite some time – replete with easy installation, cool features, nice interfaces, good security, and even relatively broad hardware compability – its called Linux and its free. And unlike the old Slackware days, Ubuntu (along with several other variations), is pretty easy to install and configure. But even with all this, where’s Linux on the desktop? Yes, its certainly being used, but has it made more than a few percentage points dent on MS market share? No. Why? Inertia. Windows has the biggest installed base, therefore the biggest possible customer base, so developer develop for Windows and put less effort into others (with of course some exceptions). Therefore more apps for Windows. And users don’t pick an OS because they like it – they pick it because of the apps they can run on it. So they continue to buy Windows. Not because its that much better than Linux, or OSX, but because they have MS Office, Adobe Acrobat, Photoshop, Premiere, SAS, Mathematica, Cubase, AutoCAD, etc. etc. etc. all at their disposal. Sure, there are some nice apps for Linux and of course OSX – but certainly nowhere near the depth or breadth of Windows apps.

Given this, why the heck would Apple bother trying where Linux (which has a nicer price point) hasn’t (yet) succeeded? I guess we’ll see. It would be neat to see how far they get. But I ain’t holding my breath.