The Next Milestone In Killing Fair Use

Back in the stone age (say, about 20 years ago) we used to have this quaint concept for media we purchased called "fair use."  I won't get into the legal definitions, but it meant in practice that if I had a book, I could read it at home, or I could take it into work and read it there.  In college, I would read novels in the back of boring lectures, and soon hit on the tactic of xeroxing 20-30 pages of my book and putting the copies in a folder to disguise what I was doing.  Fortunately, fair use let me do so without penalty.  Sometimes a friend would read an article in a magazine he thought was cool, and he would xerox a copy of the article (a sample of the magazine, so to speak) and share it with me.

Increasingly, in the digital age, none of the behaviors are allowed anymore.  For years I used to install my copy of turbo tax on both my home and office computers, and carry my tax file back and forth on a floppy to work on it.  Then, a couple of years ago, Turbo Tax installed a form of rights management that required that I buy a second copy of the same software for my own personal use for my office.  In effect, I could no longer carry my novel to work -- I had to buy a second copy if I wanted to read it at the office.  The same situation has prevailed with digital music files - increasingly recording companies are taking the position that if you want a digital file on both your iPod and your home system, you need to buy two copies.  And the sampling and sharing we used to do all the time with magazine and newspaper articles are not longer permitted for digital media.

Having firmly established the principle that multiple uses by the same individual of the same digital media should require multiple purchases, where do we go next?  Well, I think that we will look back on the release of Windows Vista as the next great milestone in killing fair use.  Microsoft may have left out nearly every product enhancement they originally promised for Vista, particularly the revamped file system, and tried to hide the fact with some pretty desktop eye candy, but they found plenty of time to add numerous DRM and copy protection schemes to the OS. 

Because, having killed fair use for multiple copies, believe it or not, the media companies are attempting to kill fair use even for the original media by the original buyer!  I know this sounds crazy, but in Windows Vista, media companies are given the opportunity to, in software, study your system, and if they feel that your system is not secure enough, they can downgrade the quality of the media you purchased or simply refuse to have it play.  In other words, you may buy an HD DVD and find that the media refuses to play on your system, not because you tried to copy it, but because it feels like your system *might* be too open.  The burden of proof is effect on the user to prove to the media companies that their system is piracy-proof before the media they paid for will play (emphasis added). 

PVP [a new Vista DRM component] eliminates these security gaps, enabling a series of DRM measures that keep
a high-resolution content stream encrypted, and in theory completely protected,
from its source media all the way to the display used to watch it. If the system
detects a high-resolution output path on a user's PC (i.e., a system capable of
moving high-res content all the way to a user's display), it will check to make
sure that every component that touches a protected content stream adheres to the
specification. If it finds a noncompliant device, it can downgrade the content
stream to deliver a lower-quality picture -- or it can even refuse to play the
content at all, depending on the rights holder's preferences.

So you see the next step.  First, they prevented fair use of copies.  Now, they are going to prevent fair use of the original.  Back to the book analogy, its as if the book will not open and let itself be read unless you can prove to the publisher that you are keeping the book in a locked room so no one else will ever read it.  And it is Microsoft who has enabled this, by providing the the tools to do so in their operating system.  Remember the fallout from Sony putting spyware, err copy protection, in their CD's -- turns out that that event was just a dress rehearsal for Windows Vista.

As Rosoff's statement implies, many of Vista's DRM technologies exist not
because Microsoft wanted them there; rather, they were developed at the behest
of movie studios, record labels and other high-powered intellectual property
owners.

"Microsoft was dealing here with a group of companies that simply don't trust
the hardware [industry]," Rosoff said. "They wanted more control and more
security than they had in the past" -- and if Microsoft failed to accommodate
them, "they were prepared to walk away from Vista" by withholding support for
next-generation DVD formats and other high-value content.

Microsoft's official position is that Vista's DRM capabilities serve users by
providing access to high-quality content that rights holders would otherwise
serve only at degraded quality levels, if they chose to serve them at all. "In
order to achieve that content flow, appropriate content-protection measures must
be in place that create incentives for content owners while providing consumers
the experiences they want and have grown to expect,"

Nope, no arrogance here.

Matt Rosoff, lead analyst at research firm Directions On Microsoft, asserts that
this process does not bode well for new content formats such as Blu-ray and
HD-DVD, neither of which are likely to survive their association with DRM
technology. "I could not be more skeptical about the viability of the DRM
included with Vista, from either a technical or a business standpoint," Rosoff
stated. "It's so consumer-unfriendly that I think it's bound to fail -- and when
it fails, it will sink whatever new formats content owners are trying to
impose."

More links on Vista DRM issues here

Update:  OpenOffice 2.1 is out.  We love OpenOffice at our company.  We stopped buying MS Office a couple of years ago and have been thrilled with the decision.  The version 1 release was weak but since version 2.0 it has been a very strong offering.  It is nice to see Sun getting its Microsoft hatred out in a more productive manner than suing them all over the place.

  • Ryan Cupples

    The best thing Microsoft could have done would have been to deny this and just sink the formats here and now. More and more people are wanting to watch movies on their laptops and computers and it would have been suicide to say "NOPE, NO SUPPORT FOR YOU VISTA" and walk away.

    Unfortunately, Microsoft really doesn't need another lawsuit, and you know it WOULD happen.

    RIAA vs Microsoft: Microsoft is engaging in anti-competitive practices by refusing to capitulate to the RIAA's demands that they implement privacy protection. The RIAA claims damages of numbers unmentionable through standard or scientific notation for the purpose of saving paper.

  • Silentclaw

    Honestly, I'm not seeing a problem here. If someone tries to sell me a book that can only be read inside of a locked room, then it's my choice if I want to buy the book with that restriction in place, or not. They shouldn't be forced to sell me a copy of the book which I can read anywhere.

    If the options were "Pay $0.01 for a book which can only be read in a locked room, or $10.00 for a book which can be read anywhere." there are some books which I would purchase with that restriction. Likewise, if the only way to get the book was to buy a copy which could only be read in a locked room, there are some books I would still purchase.

    Of course, if some publishers only sold books which could be read in locked rooms, and others sold books which could be read anywhere, one of these publishers would get a lot more of my business.

  • Valens342

    Has anyone thought about this in the context of intellectual property and the economic security of first world nations? As we know, manufacturing and such are outsourced, and rightly so, to parts of the world where it is cheaper to engage in these activities - generally emerging economies. This helps check inflation in the develped markets, and provides a sundry list of other economic benfits on both sides, as well. However, the economic growth of developed markets is therefore increasingly dependent on intangible and easily copied products know as 'intellectual property' and a few other things. If emerging market coutries mass produces bootleg copies of media/software, and are heedless of patent protection, and so on, where does that leave us? Perhaps the Microsoft effort is an example of an inconvenient but necessary feature of a global economy in the digital age...

  • Rob

    Vista seems to be looking more and more like ME was to 98. I'm not so sure I want to jump on Vista bandwagon yet, the main reason being DRM. While Vista's security features are great for the corporate world (especially banks), I'm not sure what improvements the "power user" will gain from Vista.

    Could "DRM injected Windows XP" (aka Vista) lead to the unraveling of Microsoft, or at least give room for more competition (ie. Ubuntu) ?

  • http://thelibertypapers.org/ Brad Warbiany

    So what's the over/under on hackers breaking the DRM code? 45 days from release, or will they figure it out before release even happens?

    Like those old "copy-protected" CD's, that all you needed was a black marker around the edge to defeat.

  • http://www.lexspoon.org Lex Spoon

    I agree it is a growing problem. We need to redesign copyright law so that it does not fundamentally erode our liberties. The original strategy was that one-off reproduction was too expensive for people to bother with, and mass-scale reproduction is inevitably visible to the police. Nowadays one-off reproduction is cheap, and so the only way to make copyright work is to be very intrusive into our private lives. It is as if everybody had a money-printing machine and were told not to use it; imagine the level of policing you need to make sure nobody turns their machine on!

    Valens, it is an important question as more of the world produces IP. I suspect, however, that we are much better off embracing law that does not fundamentally erode our individual freedoms and require a large policing effort. Changing or eliminating copyright would mean that Microsoft Windows and The Matrix might not be profitable, and I honestly lament that. However, we would still have lots of software made, and lots of film, and we would also have less policing into our personal computers. It just seems better to align our laws with the way today's technology works.

    Keep in mind the next step, guys. Now that Vista includes this drek, Microsoft is going to lobby for this stuff to be a legal mandate. If they win, it will become illegal to run an operating system without DRM. Is that not a chilling enough reason to reconsider how copyright works?

    More here:

    http://www.lexspoon.org/blog/digital-copyright.html

  • Valens342

    Not nearly as chilling as 1st world economies suffering the effects of the elimination of intellectual property rights, and all the attendant problems. I don't see a free for all being a solution at all. It provides a temporary bonanza for emergind economies, and crushes the new growth areas that developed ones are increasingly dependent on, and I am not at all sure that this would provide a boon to the software or media world, other than sheer volume. I suspect that the solution does lie in a redo of copywright and patent law, and the policing of such, but not in their watering down or effective removal. Alas, I can think of no easy answer to the problem.

  • T J Sawyer

    I agree 100% with you on the seriousness of the problem. But the real source of the problem is not Microsoft. It is you - and me. We allowed the people we send to Washington to pass the current Digital Copyright law. People on HD forums were complaining about this issue many years ago.

    We refuse to get involved when it counts because:
    1. We thinks it doesn't matter to us.
    2. We don't have time.
    3. We claim it is too complex.

    Oddly enough the entertainment industry didn't think these things.

    We end up with exactly what we deserve. These guys work for us, let's supervise them.

  • http://www.siliconinvestor.com/readmsg.aspx?msgid=23236941 Tim Fowler

    RE: "The same situation has prevailed with digital music files - increasingly recording companies are taking the position that if you want a digital file on both your iPod and your home system, you need to buy two copies."

    Is that really true? You might have to buy different copies for different types of players, but usually you have the rights to have a copy on your PC and a copy on a player.

  • Someone In their Grave

    The Truth is a Lonely life, and Trust No-one, Not even me, or ones-self. The good will die and Evil will win in this world.

    Know this, That living a truthful life and having freedom is not a FUN and Exciting life.. it is again a lonely and dying one...

    You will not find those of the truth in a mansion but in their Graves...

  • Max Terry

    The best thing to do right now is to simply beg, borrow, steal, and share all the intellectual property and server space you can muster, give as much money to the artists (support concerts, downloadable indie releases, etc.), don't buy Vista (get a Mac! run Linux! stick with XP!), call your representatives, write the most inflammatory letters possible to members of the RIAA and MPAA, and simply do not give any money to anything with DRM.

    All the industry is doing right now is fucking themselves over. Remember, there will always be artists, there will always be audiences. Who needs the (or at least THESE) goddamn middlemen? What if bands simply posted on their websites that they are looking for "investments" for a new album. Once they get the money, it's theirs to spend how they will. Likewise, we would be free to listen to their music as we will. Free market meritocracy trumps lobbying corporatism. Look at Google versus Microsoft recently...

  • Anonymous

    Why even be interested in Vista. Because of all the Vista fanfare a few months ago, I switched my OS to Ubuntu. This new "upgrade" is nothing more than kernel tweaking and some fancy graphics. Compare it to going from windows 95 to windows 98. Windows 95 was good to use until around year 2000, when developers started dropping support.

  • TCO

    I think more chilling to property rights is the situation with patent law. Way too much gaming going on there, vice head-down, butt-up science research.