UltraViolet Gets Two Lifelines January 12, 2012
Posted by Bill Rosenblatt in Economics, Fingerprinting, Services, Standards, Video.add a comment
A panel at this week’s CES show in Las Vegas yielded two pieces of positive news for the DECE/UltraViolet standard, after a launch several months ago with Warner Bros. and its Flixster subsidiary that could charitably be called “premature.” Of the two news items, one is a nice to have, but the other is a game-changer.
Let’s get to the game-changer first: Amazon announced that a major Hollywood studio is licensing its content for UltraViolet distribution through the online retail giant. The Amazon executive didn’t name the studio, though many assume it’s Warner Bros. Even if it’s a single studio, the importance of this announcement to the likelihood of UltraViolet’s success in the market cannot be overstated.
Leaving aside UltraViolet’s initial technical glitches and shortage of available titles, the problem with UltraViolet from a market perspective had always been a lukewarm interest from online retailers. As I’ll explain, this hasn’t been a surprise, but Amazon’s new interest in UltraViolet could make all the difference.
UltraViolet is the “brand name” of a standard from a group called the Digital Entertainment Content Ecosystem (DECE), headed by Sony Pictures executive Mitch Singer. It implements a so-called rights locker for digital movies and other video content. Users can establish UltraViolet accounts for themselves and family members. Then they can obtain movies in one format (say, Blu-ray) and be entitled to get it in other formats for other devices (say, Windows Media file download for PCs). They can also stream the content to a web browser anywhere. The rights locker, managed by Neustar Inc., tracks each user’s purchases.
In other words, UltraViolet promises users format independence and a hedge against format obsolescence, while providing some protection for the content by requiring it to be packaged in several approved DRM and stream encryption schemes. It includes a few limitations on the number of devices and family members that can be associated with a single UltraViolet account, but in general UltraViolet is designed to make video content more portable and interoperable than, say, DVDs or iTunes downloads.
Five of the six major Hollywood studios (all but Disney*), plus the “major indie” Lionsgate, are participating in UltraViolet.
One of the design goals of UltraViolet was to ensure that no single retailer could attain a market share large enough to be able to control downstream economics — in other words, to avoid a replay of Apple’s dominance of digital music downloads (and possibly Amazon’s dominance of e-books). To do this, the DECE studios pushed for ways to thwart consumer lock-in by online retailers that would sell UltraViolet content.
The most important example of this is rights locker portability: users can access their rights lockers from any participating retailer. UltraViolet retailers must compete with each other through value-added features.
Amazon’s Kindle e-book scheme offers a good illustration of platform lock-in and how it differs from other features that a retailer can build or offer. If you buy an e-book on Amazon, you can download and read it on a wide variety of devices: not just Kindle e-readers but also iPads, iPhones, Android devices, BlackBerrys, PCs, and Macs — in other words, pretty much everything but other e-reader devices. You get e-book portability — it will even remember where you last left off if you resume reading an e-book on another device — but you are still tied to Amazon as a retailer. If you want to read the same e-book on a Nook, for example, you have to buy it separately from Barnes & Noble (and then you can read that e-book on your PC, Mac, iPhone, Android, etc.).
This lock-in gives Amazon power in the market as a retailer; it had 58% market share as of February 2011 (by comparison, Apple has over 70% of the music download market). UltraViolet wants to make it as difficult as possible for a single digital video retailer to assert such market power.
The downside of that policy has been a lack of enthusiasm among retailers to sell UltraViolet-licensed content — which entails significant development investment and operational expenses. A good shorthand way to evaluate the potential impact of a standards initiative is to look at the list of participants: what points in the value chain are represented, how many of the top companies in each category, and so on. In DECE’s case, members have included most of the major movie studios, plenty of consumer device makers, lots of DRM and conditional access technology vendors, and so on, but few big-name retailers… one of which (Best Buy) already had a different system for delivering digital video content via Sonic Solutions.
Warner Bros. tried to jump-start the UltraViolet ecosystem by acquiring Flixster, a movie-oriented social networking startup, adding digital video e-commerce capability, and using it as an UltraViolet retailer for a handful of Warner titles. This has been little more than a proof-of-concept test, which was plagued by some technical glitches and suboptimal user experience — all of which, according to Singer, have been fixed.
It would be unworkable for Hollywood to pin its hopes for its next big digital format on a small unknown retailer owned by one of the studios. It has been vitally necessary to attract a big-name retailer to both validate the concept and provide the necessary marketing and infrastructure footprints. There had been talk of Wal-Mart entering the UltraViolet ecosystem, although it already has its own video delivery scheme through VUDU. But otherwise, the membership list had been short on major retailers.
Of course, Amazon is the major-est online retailer of them all. And it so happens that Amazon’s digital video strategy is a good fit to UltraViolet in two ways. First, Amazon currently runs a streaming service (Amazon Instant Video), whereas UltraViolet is primarily focused on downloads, a/k/a Electronic Sell Through (EST): the idea of UltraViolet is to buy a download and only then be able to view it via streaming.
Second, Amazon Instant Video does not look particularly successful. Of course, Amazon does not reveal user numbers, but it is telling that Amazon included Instant Video Unlimited as a perk in its US $79/year Amazon Prime program… and that when people extol the virtues of Amazon Prime, they tend to emphasize the free overnight shipping but rarely the streaming video.
The biggest winner thus far in the paid online video sweepstakes is Netflix, with about 24 million subscribers as of mid-2011. Netflix’s subscription-on-demand model is most likely far more popular than Amazon Instant Video’s pay-per-view (except for Amazon Prime members) model. Thus Amazon may be looking for ways to improve its market position in video without having to hack away at the Netflix streaming juggernaut.
The video download market is in comparative infancy. It has no runaway market leader a la Netflix, or Apple in music. If this situation persists long enough, and if Amazon’s trial run with UltraViolet is successful, then other retailers might see UltraViolet as a viable format as well… precisely because it will make them better able to compete with the Online Retailing Gorilla.
Yet the other dimension of UltraViolet that is currently lacking is availability of titles. And that’s where the other CES announcement comes in. Samsung announced a “Disc to Digital” feature that it will incorporate into new Blu-ray players later this year. With this feature, users can slide in their Blu-ray discs or DVDs, and if the content is “eligible,” they can choose to have that content available in their UltraViolet rights lockers for delivery in any UltraViolet-compliant format.
The Disc to Digital feature is a collaboration between Flixster (i.e. Warner Bros.) as online retailer and Rovi as technology supplier. It works in a manner that is analogous to “scan and match” services for music such as Apple iTunes Match: it scans your DVD or Blu-ray disc, identifies the movie, and if the movie is available in the UltraViolet library of licensed content, gives you an UltraViolet rights locker entry for that movie. Rovi’s content identification technology and metadata library are undoubtedly at the heart of this scheme.
There are two catches: first, users will have to pay a “nominal” fee per disc for this service, which is even larger (and as yet unspecified) if they want it in high definition; second, it is limited to “eligible” content, and no one has offered a definition of “eligible” yet (beyond the fact that the content must come from one of the DECE participating studios). But surely the “eligible” catalog will exceed the current list (19 titles) by orders of magnitude, or the service will not be worth launching.
Nevertheless, these developments are very positive news for DECE/UltraViolet after months of embarrassments and bad press. DECE still has lots of work to do to make UltraViolet successful enough to be the major studios’ designated successor to Blu-ray, but at last it’s on track.
*Yes, I’m aware of the irony of using a tag line from “Who Wants to Be a Millionare” in the title of this article: Disney owns the home entertainment distribution rights to that hit TV game show.
European High Court Says No to ISP-Level Copyright Filtering November 28, 2011
Posted by Bill Rosenblatt in Europe, Fingerprinting, Law, Music, Services.add a comment
Last Thursday the European Court of Justice (ECJ) ruled that ISPs cannot be held responsible for filtering traffic on their networks in order to catch copyright infringements. This ruling was the final step in the journey of the litigation between the Belgian music rights collecting society SABAM and the ISP Scarlet, but it is a landmark decision for all of Europe.
This ruling overturned the Belgian Court of First Instance, which four years ago required Scarlet to install filtering technology such as acoustic fingerprinting to monitor Internet traffic and block uploads of copyrighted material to the network. Scarlet appealed this decision to the Brussels Court of Appeals, which sought guidance from the ECJ.
The ECJ’s statement affirmed copyright holders’ rights to seek injunctions from ISPs like Scarlet to prevent copyright infringement, but it said that the Belgian court’s injunction requiring ISP-level copyright filtering went too far. It cited Article 3 of European Union Directive 2004/48, which states that “measures, procedures and remedies [for enforcing intellectual property rights] shall be fair and equitable, shall not be unnecessarily complicated or costly and not impose unreasonable time-limits or unwarranted delays.” The ECJ decided that the mechanism defined in the appeals court’s ruling did not meet these criteria.
The real issues here are the requirement that the ISP bear the cost and complexity of running the filtering technology, and the fact that running it would slow down the network for all ISP users. It’s easy to see how this would not meet the requirements in the above EU Directive.
This decision has direct applicability in the European Union, but its implications could reach further afield. For example, the issue currently being argued between Viacom and Google at the appeals court level in the United States boils down to the same thing: whose bears the cost and responsibilty to police copyrights on the Internet?
Of course, EU law doesn’t apply in the United States. In the Viacom/Google litigation, Google is relying on the “notice and takedown” portion of the Digital Millennium Copyright Act (DMCA), a/k/a section 512 of the US copyright law. This says that if a copyright holder (e.g., Viacom) sees one of its works online without its authorization, it can issue a notice to the network service provider to take the work down, and if it does so, it won’t be liable for infringement. Google’s argument is that it follows section 512 assiduously and therefore should not be liable.
Viacom’s task in this litigation is to convince the court that the DMCA doesn’t go far enough. More specifically, its argument is that the legislative intent behind the DMCA is not served well enough by the notice-and-takedown provisions, that network service providers should be required to take more proactive responsibility for policing copyrights on their services instead of requiring copyright owners to play the Whack-a-Mole game of notice and takedown.
The ECJ’s decsion in SABAM v. Scarlet has no precedential weight in Viacom v. Google. But it may help get the Third Circuit Appeals Court to focus on what Jonathan Zittrain of Harvard Law School has called the “gravamen” (which is legalese for “MacGuffin“) in this case: who should be paying for protecting copyrights.
Irdeto Acquires BayTSP October 24, 2011
Posted by Bill Rosenblatt in Fingerprinting, Publishing, Services, Video.2 comments
Irdeto announced on Monday that it is acquiring the antipiracy services company BayTSP. Terms were not disclosed, but this is the culmination of a “strategic alternatives exploration” process that BayTSP had been engaging in for some time.
BayTSP monitors P2P networks, file-sharing services, and other places where unauthorized content might lurk and generates evidence that content owners can use to support legal action against infringers. It uses a range of technologies, including sophisticated network traffic analysis and fingerprinting. It has been one of a shrinking number of providers of such services as the industry has consolidated.
This is a good strategic fit for Irdeto in various ways. First, BayTSP will boost Irdeto’s existing antipiracy services; this will strengthen the company’s competitive positioning particularly against NDS, which is known to have robust antipiracy services to complement its content protection technologies. Second, BayTSP has made some recent forays into e-book antipiracy services, which will complement Irdeto’s own new content protection technology for the e-publishing market.
Yet the consolidation of antipiracy services within a major content protection company has interesting implications for the economics of content protection. Typically, copyright owners pay for antipiracy services such as those of BayTSP, Peer Media, and Attributor, but downstream entities such as network operators, online retailers, and device makers pay for content protection technologies such as conditional access and DRM. At the same time, pay TV operators are starting to launch services in which the content can go beyond the customer’s set top box, possibly onto their tablets, mobile handsets, and PCs. The question is: do pay TV operators believe it’s their responsibility to protect the content beyond the STB?
Irdeto will have to decide the answer to this question. Specifically: will it continue to charge content owners for BayTSP’s antipiracy services, or will it attempt to add to the fees it charges its operator customers? To put it more cynically, have Hollywood studios encouraged Irdeto to acquire BayTSP (as they encouraged Irdeto to buy BD+ Blu-ray content protection technology from Rovi just three months ago) so that they no longer have to pay for it?
Seen in this light, Irdeto’s acquisition of BayTSP becomes part of the company’s overall strategy to offer more comprehensive and higher-grade content protection services to pay TV operators, on the theory that they will pay more to get better protection. This is a risky strategy, but given the growing footprint that Irdeto has in the overall content protection market, it’s a risk that Irdeto can probably afford to take.
iTunes Match Goes Beta, and It Downloads September 2, 2011
Posted by Bill Rosenblatt in Fingerprinting, Music, Services.2 comments
When Apple announced iCloud back in June, it announced an intriguing feature called iTunes Match. iTunes Match will scan users’ hard drives for music files and identify them using techniques such as acoustic fingerprinting and scanning ID3 metadata in MP3 files. If it identifies a track that’s in the massive iTunes library, it will download that track to the user’s Apple devices or PCs/Macs running iTunes software. Apple will charge US $24.95/year for iTunes Match. Earlier this week, Apple took it into beta and released it to developers.
Astute readers may have caught a very interesting word in the previous paragraph: download.
We had been speculating whether Apple would supply tracks to users’ devices by download or streaming; Apple itself had been ambiguous — I would say intentionally — on this point. A poll of Copyright and Technology readers suggested that streaming was the likely method, by more than a two-to-one margin. No: in the latest version of the beta, as of August 31, it’s downloading. (To be more precise: progressive downloading, meaning that the track starts playing shortly after the download starts.)
I imagine that stream vs. download was an issue in Apple’s licensing negotiations with the music industry leading up to the iTunes Match launch; and it’s possible that Apple may move to streaming at some point in the future. Royalty structures for downloads and streams differ. Streaming is cheaper yet requires much more technical infrastructure — although Apple supposedly owns such infrastructure as the result of its purchase of the streaming service la la in late 2009.
The implications of iTunes Match as a downloading “cloud sync” service are worth considering, and they don’t look very favorable to the record companies. ITunes Match helps Apple lock users into the iTunes/iPod technology stack now that it no longer uses DRM — although all of the files involved are unencrypted and therefore easy to use in non-Apple music players.
At the same time, iTunes Match is essentially an amnesty service for people who have unauthorized music files. For $25 per year, you can get pristine, legal AAC-encoded copies of up to 2500 of your music files on all of your devices. That’s a penny a track to go legal and get the added convenience of music synced to all your Apple devices.
On the one hand, this service probably won’t appeal to hoarders — those people who have accumulated multi-terabyte hard drives full of dubiously legal content. 2500 tracks, roughly 250 albums’ worth, is not much for hoarders. It’s unlikely that many of them will be interested in paying $25 to ease worries about infringement for a small fraction of their holdings.
The use case that Apple (and record companies) most likely had in mind is, in fact, very much like the DRM use case: to apply to so-called casual copiers, who may have ripped a few of their friends’ CDs or downloaded the occasional track from a file-sharing network but would pay a modest amount for legal music plus the convenience of keeping it on multiple devices.
On the other hand, the opportunities for abuse — the analogs to DRM hacks — are interesting to contemplate.
Here’s one example. I presume that iTunes Match uses Gracenote’s music identification technology, because iTunes already uses Gracenote. Yet this is different from the usual content identification use case, in which it’s safe to assume that ID3 tags actually signify the music in the file. In other words, music ID technology typically looks for ID3 tags (or equivalent metadata in other file formats) first and stops if it finds them, otherwise it goes on to analyze the actual content in the file using acoustic fingerprinting.
If iTunes Match comes across a music file, does it check to make sure that the music in the file is actually the music that the metadata describes? One would think not, because this would be inefficient. But in that case, it would be possible to create libraries of MP3 files that contain dummy MP3 data along with ID3 tags signifying actual music. Do you want a nice collection of a couple thousand tunes in your favorite genre? Just download this ZIP file of fake MP3s and run iTunes Match on them; you’ll get legal files of all those tracks on all of your Apple devices.
Although such dummy files would take some effort to create, they would be easy enough for non-techies to use with iTunes Match. To me this sounds just like a hack to a weak DRM, with one big difference: whereas it’s a crime to hack DRMs, this hack is perfectly legal. Furthermore, I would argue that because the files are unprotected, this type of hack is more of a problem for record companies than for Apple compared to DRM.
iTunes Match is still in beta, with launch expected in the coming weeks. We’ll see whether this feature leads to more abuse than DRM hacks relative to the money that it puts in record companies’ pockets.
New White Paper: The New Technologies for Pay TV Content Security August 18, 2011
Posted by Bill Rosenblatt in DRM, Fingerprinting, Technologies, Video, Watermarking, White Papers.add a comment
I have just published a new white paper: The New Technologies for Pay TV Content Security. This white paper was commissioned by Irdeto.
The 28-page paper describes the current state of the art of techniques for protecting video content delivered over pay television networks such as cable and satellite. The two primary theses of the white paper are:
- Pay TV often leads in content protection innovation over other media types and delivery modalities. That is because, among other reasons, it is a fairly rare case where the economic interests of content owners and service providers are aligned: content owners don’t want their content used without authorization, and pay-TV operators don’t want their signals stolen. Therefore pay-TV operators have incentives to implement strong and innovative content security solutions.
- Before today, many content security schemes could be described as hack-it-and-it’s-broken (such as CSS for DVDs) or a cycle of hack-patch-hack-patch-etc. (such as AACS for Blu-ray or FairPlay for iTunes). Now technologies are available that break the hack-patch-hack-patch cycle, thereby decreasing long-term costs (TCO) and complexity.
The white paper starts with a brief history of content protection technologies for digital pay TV, starting with the adoption of the Digital Video Broadcasting (DVB) standard in 1994. Then it describes various newer technologies, including building blocks like ECC (elliptical curve cryptography), flash memory, and secure silicon; and it describes new techniques such as individualization, renewability, diversity, and whitebox cryptography. It ties these techniques together into the concept of security lifecycle services, which include breach response and monitoring.
The final section of the paper discusses fingerprinting and watermarking as two techniques that complement encryption as ways of finding unauthorized content “in the wild.”
My thanks to Irdeto for sponsoring this paper.
Video Fingerprinting Gains Momentum for Contextual Advertising September 3, 2010
Posted by Bill Rosenblatt in Devices, Fingerprinting, Services, Video.add a comment
The New York Times reported yesterday that YouTube’s Content ID video fingerprinting technology is being increasingly used to support ad revenue sharing deals with content owners instead of for blocking of unauthorized uploads. Google reports that about a third of all the videos that carry advertising are user uploads of copyrighted material. This amounts to over 600 million views per year and constitutes about 5% of total YouTube volume.
It also contributes to YouTube’s 50% increase over last year of videos with associated display ads — growth that Google is counting on as its next wave of major revenue, as opposed to the text ads that make up the vast majority of its current revenue. In fact, the revenue from the increasing volume of display ads is apparently on track to be enough to make YouTube — finally — profitable.
Let’s remember that content owners get compensated for these user uploads of their material through ad revenue sharing — and moreover, that they are choosing this model instead of using YouTube’s fingerprinting system simply to block unauthorized uploads.
I am firmly not in the camp of people who believe that online advertising is going to be the sole savior of the content industries. I believe that direct consumer revenue remains vitally important. However, YouTube’s experience is admittedly a quintessential example of the “freemium” model, whereby a technology is widely used for free but can be profitable through revenue from a modest proportion of users. Another exemplar of this model is Skype, which makes its money through SkypeOut calls to regular telephones and other services.
Yet the more applicable message from YouTube’s results with fingerprinting-triggered contextual advertising is that rights technologies are ultimately about enabling choices of business models. Content owners and service providers can use them to make money in ways that either satisfy or annoy users, or in ways that make sense for their content or don’t.
This leads us to the newly-released version of the Apple TV Internet video device. It’s much smaller and cheaper than the original Apple TV (one of which is highly functional as a heat-generating, power-sucking paperweight in our living room), and it only supports rentals of movies and TV shows, not downloads-to-own. As far as TV shows go, only ABC (tied to Apple via Disney and Steve Jobs) and Fox are participating, the latter stressing that it’s doing so on an experimental basis. NBC and CBS are sitting out, claiming that episodic TV is not intended for pay-per-view distribution.
Like I said, it’s about choice.
Carphone Warehouse and Catch Media Launch Music Access Service August 3, 2010
Posted by Bill Rosenblatt in Business models, Fingerprinting, Music, Services.add a comment
The UK’s Carphone Warehouse has launched a service called Music Anywhere, powered by the LA-based startup Catch Media. Music Anywhere is a service that combines two primary features: the ability to sync your music files through the Internet to all of your connected devices, and the ability to stream your music from any web browser. The service is available through Carphone Warehouse for a subscription price of £29.95 (US $48) per year, or if you buy a certain Samsung handset model, it’s built into the handset price.
For you online music historians out there, Catch Media is best explained as a cloud sync service (DoubleTwist) crossed with an online music locker (MP3Tunes.com). Except that instead of requiring you to upload your tracks to a server for Internet streaming, Catch Media detects your music via acoustic fingerprinting and maintains a rights locker for your user account that keeps track of the music you’re allowed to stream. It has a library of several million tracks, but if your music isn’t in the library, it will upload the track and store it for you.
The biggest difference between Music Anywhere and the aforementioned services, however, is that it has licenses from the record companies — who get paid royalties. Hence the subscription fee. Royalties are paid per play based on play counts from the player app that runs on PCs and portables and from Catch Media’s streaming servers.
But, as the more astute of you may have noticed, Music Anywhere doesn’t actually provide any music that you don’t already own. For that, you need a service like Spotify — which does essentially the same set of things that Music Anywhere does, for about four times the price. Music Anywhere will work with tracks in any of the major unencrypted formats. No DRM is involved, but the player app, which reports play count information to Catch Media’s servers, has to be relatively hack-proof to work properly.
For the record companies, the value proposition of Music Anywhere is very simple: it’s a way to capture value from pirated tracks. Let’s face it: what we’re really talking about here is users who have music from “borrowed” CDs, file-sharing networks, and all the other usual places, plus maybe a few tracks from iTunes and their own CD collections. In other words, the contents of a typical iPod.
Music Anywhere’s marketing materials include some lip-service to terminating user accounts “in extreme cases where it becomes apparent that most of a person’s music collection has been [in] fact pirated.” That’s a nice-sounding statement, but when you dig below the surface, it becomes absurd. Hardcore pirates won’t want to pay £30 per year for anything having to do with music. On the other hand, record companies would love to get paid for use of pirated tracks — the more the merrier. When looked at that way, Music Anywhere’s success seems to be predicated on a lot of nudge-nudging and wink-winking.
Music Anywhere hopes to find a viable niche between free music and more expensive subscription services like Spotify and Rhapsody by parsing out a price for access to music by itself. Many digital media pundits have said that people should be willing to pay for just that, even if they aren’t willing to pay for music itself. Now we’ll see whether they’re right.
P.S. Carphone Warehouse is owned by the major US-based electronics retailer Best Buy, which intends to launch the Music Anywhere service next year — presumably in the States. A combination of Catch Media and Napster — also owned by Best Buy — could be quite interesting.
LimeWire Turns to Court of Public Opinion May 24, 2010
Posted by Bill Rosenblatt in Fingerprinting, Law, Music, United States.add a comment
Two weeks ago, a federal judge found LimeWire liable for secondary copyright infringement. Now that LimeWire CEO Mark Gorton is staring down the possibility of owing as much as US $450 Million in damages, he has begun damage control. He has adopted a strategy similar to that of corporations (Toyota) and politicians (former New York governor Eliot Spitzer) that lose the trust of the public: he’s hired a publicist.
There is no other plausible way to explain the article on Gorton that appeared in yesterday’s New York Times (his hometown paper). It has everything: the professed innocence and incredulity of how things have come to this pass, the philanthropy and good deeds, the human side of Mark.
This Times article has the thumbprints of a disaster-recovery PR firm all over it: it was pitched to a journalist (Joseph Plambeck) who writes the Times’s Media Decoder blog but has limited technology experience, instead of a media-tech-savvy reporter like Brad Stone or John Markoff; Gorton’s story of how he tried to reason with the music industry is accepted without question; the opposite side of the issue is represented by a single fire-breathing quote from RIAA president Mitch Bainwol that just serves to make Gorton look even more like a poor innocent slaughtered lamb.
Those of us who have been following the LimeWire case through its almost four years’ running know better. Gorton claims that he had no idea what was coming to him legally — even though, after the Supreme Court’s 2005 Grokster decision, most of LimeWire’s fellow P2P file-sharing services shut themselves down. And Judge Kimba Wood’s summary judgment opinion against LimeWire cited precedent set in exactly that Supreme Court case.
LimeWire proffered a content filtering scheme as a “solution” for the record companies. But the scheme, based on a simple hash calculation for music files, was similar to one proposed by AltNet years earlier that was roundly derided as trivial to hack; it was also less robust than other schemes that record companies had already approved before they sued LimeWire, such as that of Audible Magic.
Finally, the business model that Gorton has proposed to the music industry — a monthly subscription fee for unlimited DRM-free downloads — is also hard for anyone who understands the digital music landscape to take seriously. It would offer far more music rights for far less money than any legal music service thus far. And even leaving aside this model’s negative effects on the music industry, LimeWire would only have found itself with millions of users who would sign up, download, and cancel after the first month or two.
No, the proper way to view LimeWire is as a music industry provocateur in the Michael Robertson (of MP3.com, MP3Tunes, and AnywhereCD fame) goad mode. Gorton can’t even claim that he’s passionate about music; he admits he doesn’t even own an iPod.
One assumes that LimeWire will appeal Judge Wood’s ruling. If LimeWire ends up prevailing, then it may get its attorney’s fees paid by the record industry. But its PR bills will remain unreimbursed.
Veoh’s Court Victory over Universal Music Group September 29, 2009
Posted by Bill Rosenblatt in Fingerprinting, Law, Services, United States.1 comment so far
I recently read through U.S. District Judge Howard Matz’s summary judgment opinion in the case of Universal Music Group v. Veoh, as a means of boning up on legal developments in the digital copyright field, in preparation for the Digital Breakfast panel in Washington this coming Thursday morning. I’ll be joined there by Jon Baumgarten of the Proskauer Rose law firm, copyright scholar Peter Jaszi of American University, and others. (I have a few complementary passes available for this panel; please email me if you are interested.)
In his opinion, Judge Matz came down in favor of Veoh, one of the major video-sharing sites. UMG had sued Veoh in connection with unauthorized copies of UMG music videos found on the site, claiming that Veoh had an obligation to take more proactive steps than it did to remove the unauthorized videos and terminate the accounts of the users that uploaded them.
The judge’s opinion in the case sets several benchmarks for applicability of the Digital Millennium Copyright Act’s “safe harbor” provision that will be relevant in future cases. The big one in process now is Viacom’s massive lawsuit against Google for videos on Veoh’s larger competitor YouTube.
Veoh argued that it had been taking sufficient steps to caution users against uploading infringing videos, to remove them from its site, and to terminate repeat offenders’ accounts. Specifically, Veoh followed the “notice and takedown” requirements of section 512 of the U.S. copyright law, which essentially obligate service providers to remove infringing material when copyright owners send them information about the material’s presence on the service. Veoh also implemented a content filtering system using Audible Magic’s acoustic fingerprinting solution – virtually a de facto standard for user-generated content websites – to recognize infringing uploads and block them if desired.
UMG, meanwhile, argued that Veoh did not respond to takedown notices quickly enough, that it dragged its feet on implementing Audible Magic, and that Audible Magic doesn’t work well enough to catch infringing content anyway.
The court bought none of these arguments. Instead, Judge Matz found that Veoh did act expeditiously to remove infringing content on receipt of takedown notices if copyright owners provided specific enough information about the content’s identity and location on the site. He found that, in many cases, UMG didn’t provide such specific information and that Veoh was not obligated to “fill in the blanks” on sketchy information. He cited various case precedents in support of this, including several cases that Perfect 10, a provider of adult image content, brought against various websites and lost.
Regarding Veoh’s implementation of Audible Magic’s fingerprinting technology, the judge found that Veoh wasn’t obligated “to implement filtering technology at all, let alone technology from the copyright holder’s preferred vendor or on the copyright holder’s desired timeline.”
In general, Judge Matz placed the DMCA-related burden of policing copyright infringement on sites such as Veoh squarely on copyright holders, not on service providers. His opinion reiterated this point several times.
Viacom’s objective in suing Google is, in essence, to get a court to change this standard; it would like to see the burden of copyright enforcement shift to service providers. This entails two things. First, Viacom would like to get a court to interpret Congress’s intent behind parts of the DMCA – specifically the notice-and-takedown and safe harbor provisions under section 512 – differently from the way Judge Matz did. It would like to see more requirements for policing copyright infringement imposed on service providers in order to qualify for safe harbor against infringement liability.
Second, it would like to see the doctrine of vicarious copyright infringement liability redefined to be more stringent. Vicarious liability refers (in this type of situation) to a service provider being culpable for copyright infringement if it has both the means of controlling what content is available on its service and a reason for not exercising such control, such as financial gain.
In the Veoh case, UMG tried to get the court to do both of these things; Judge Matz ended up doing neither.
It’s possible that Viacom expects a better result from a jury if it can get its case to go to trial. Or perhaps it expects a result similar to Veoh from a district court, which may believe that it does not have the clout to change the way the law is interpreted. In that case, Viacom most likely intends to respond by appealing it up the chain, all the way to the Supreme Court if necessary. Apparently Viacom believes that its own situation is different enough, or that it has sufficient evidence and legal arguments, for either of these strategies to work. In any case, two and a half years into the litigation, it’s clear that Viacom is in it for the long haul. The extent to which the Veoh decision hinders its progress remains to be seen.
Public Knowledge White Paper Attacks Copyright Filtering August 20, 2009
Posted by Bill Rosenblatt in Fingerprinting, Law, Watermarking.3 comments
The Washington-based advocacy organization Public Knowledge last month published Forcing the Net Through a Sieve: Why Copyright Filtering is Not a Viable Solution for U.S. ISPs. The white paper was a submission to the Federal Communications Commission in connection with its National Broadband Plan.
The paper covers many technical, policy, and legal reasons why it’s a bad idea to adopt various types of technologies to keep unauthorized copyrighted material off the Internet. Some of the considerations include inaccuracy in identifying actually infringing material (whether false positives or false negatives), hampering ISP network performance, infringing on fair use rights, and forcing ISPs to incur costs that may be passed on to consumers.
Countries outside of the US, such as France and Belgium, have been seriously considering legal mandates for filtering copyrighted material from ISPs’ networks. Some ISPs in the US, like AT&T, have been experimenting with filtering technologies — in AT&T’s case, Vobile‘s video fingerprinting — while others, like Verizon, are against it.
Unfortunately, this white paper contains some errors and mischaracterizations that dampen its value in influencing regulations. The most serious of these occur in the sections on identifying content.
The paper discusses the difficulty of identifying a piece of content through metadata, such as ID3 tags commonly used in digital music. This is true as far as it goes. But it makes no mention of content ID standards that are gaining traction in various media industry segments, such as ISRC in music, ISAN in video, and DOI in various publishing industry segments. The use of content IDs, especially in watermarks, would greatly improve the efficiency and accuracy of content identification over other schemes.
The authors also mischaracterize the state of watermarking. They say that watermarks can be removed from content, leading to a pointless “arms race” between hackers and developers of watermarking technology. To support this, they point to research done by Ed Felten and his Princeton team in 2001 in connection with the failed SDMI watermark. Not only is this research ancient history with regard to watermarking techniques used today, but it is also off-target: the SDMI watermark was intended for a different purpose and thus was designed differently from watermarks used to identify content for forensic purposes. Such watermarks can be designed so that removing them leaves content that is perceptually degraded.
Finally, the authors claim that watermark detection won’t do anything to filter content from CDs, DVDs, or camcorded movies. This is not true. These can be and are watermarked as well; and the watermarks are designed to withstand transformations such as digital-analog-digital conversion.
There are other more general, almost “rhetorical” devices used in this paper that I would call questionable. One is the persistent use of the term “downloading” to describe what an ISP must do in order to find content to filter. The report accurately describes deep packet inspection, but this need not involve “downloading,” a term that implies an operation that takes time and is a departure from the usual process of routing Internet traffic. In fact, routers already examine Internet traffic for malware and various other types of content; they do this on the fly without “downloading.” Technology companies such as Zeitera are working on hardware-based fingerprinting technology that would work similarly for content identification that could be used for filtering.
Another such rhetorical device is use of the term “underinclusive,” meaning technologies that let infringing content through instead of blocking it (i.e., false negatives) — as opposed to “overinclusive,” meaning false positives. Content owners who favor filtering technologies are not necessarily looking to eliminate false negatives. This is reminiscent of the copyleft canard that antipiracy technologies are worthless because they aren’t perfect.
Finally, the white paper makes various connections between copyright filtering and net neutrality that are conspiracy-theoretical stretches. One example is the discussion about using filtering to slow down or speed up traffic through networks. I am not aware of any copyright filtering discussion that encompasses bandwidth throttling.
There are indeed serious concerns about copyright filtering, many of which this white paper raises effectively. Network efficiency and false positives that abridge fair use rights are the two big ones. Some of the technologies that this white paper claims are being considered for copyright filtering are just bad ideas, such as traffic pattern analysis, architecture-based filtering (e.g. P2P), and protocol-based filtering (e.g. BitTorrent). But an exposition of the negative aspects of this type of technology should at least lay out the arguments without resorting to trial-lawyer-esque rhetorical devices and factual gaps.
I’m also skeptical of any legally mandated technological scheme for controlling copyright. Ultimately, assuming that the technology can be made to work adequately, the use of copyright filters ought to be a matter of economics and private sector deliberation — something that the movie and user-generated-content industries have already attempted. Public Knowledge’s white paper does address the most important economic principle, namely the question of who pays for the technology. Any scheme that saddles consumers with the burden of cost for copyright filtering, such as the one proposed in the UK’s Digital Britain report in January, is inherently flawed. Private sector deliberations over copyright filtering should use this as a starting point if they are going to arrive at a workable solution.
Bill Rosenblatt
Azita Arvani
Bill Jones
Niels Thorwirth
