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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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April 4, 2006

Decoding the Drivel

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Posted by Alan Wexelblat

I hate the inability of reporters to think critically, acting instead as echoing mouthpieces for whatever corporation, government, or entity has released the press clipping they're using in place of doing their actual job of, you know, reporting.

Today's prime sample comes via the AP, bylined Gary Gentile. Sorry Gary, but you deserve this.

First up, the headline: "Hollywood studios sell movies on the Web". Actually, what they're selling is the ability to download and view a copy of the movie. So a better headline would be "Hollywood studios sell additional movie viewings via the Web." Let's call a spade a spade and refer to these as "tickets" because that's the model at work here.

Next, the subhead proclaims: A FIRST: MAJOR FILMS ARE AVAILABLE ONLINE TO OWN (caps in original). Leaving aside torrents and other illegal sharing, this ignores every other download scheme that has preceded it. It also carefully elides the key word "some." In fact a better phrasing would be "Hollywood makes some big-budget films available." I dispute the word "own" here because in fact what's being sold is some DRM-wrappered package of bits that you very clearly do NOT own. I own my DVDs. I can copy them, watch them on different players, resell them, et cetera. None of these things are do-able with these latest downloads. Thus "own" is... well, let's be charitable and say it's misleading.

Bravely we soldier forward to the body text where we read: "The films can't be burned onto a disc for viewing on a DVD player. Still, the move is seen as a step toward full digital distribution of movies over the Internet." This prompts any critical thinker above the age of 12 to say "by whom?" What person outside of the Cartel could possibly view this as a step forward? This is along the lines of stores that tell you they've reduced their hours, cut service, eliminated perks "for your benefit." Um, no.

Then we're told that these download tickts "will be priced similar to DVDs -- between $20 and $30." I don't know about you, but the last time I paid $30 for a DVD was quite some time ago. Most are going hot off the legal press for $12-18, depending on which discount outlet you frequent. Perhaps Mr. Gentile shops at more upscale boutiques for his DVDs, but more likely he didn't even bother to check one basic fact before filing his copy.

Finally, we get a quote in which Jim Ramo, chief executive at Movielink (the Cartel arm with exclusive license to sell these tickets) gets to gush rapturously that "Digital delivery hasn't arrived until the major studios allow home ownership, and now they have and now digital delivery is very real." Gag me with a sycophant. First off, digital delivery arrived in my home the day the cable company put in a digital box, about three years ago. Second, "allowing" home ownership makes it sound like the king has deigned to bestow his blessings on the populace. OK, sure, that's how they see the world, but it's still disgusting and shouldn't be mentioned in public. And finally, I think I already addressed the "ownership" lie. Letting a Cartel exec repeat the lie unchallenged doesn't make it true.

OK, I can't bear to continue the point-by-point dissection. The gist is that it's PC-only, some movies, doesn't include Disney at all, only gives a few of the films on the same day as DVD release - most are delayed 45 days - and is just overall a continuation of the sad sorry attempts by the Cartel to defend their antiquated business models. Oh, for a press reporter who would actually report THAT news.

Comments (6) + TrackBacks (0) | Category: Big Thoughts


COMMENTS

1. CMN on April 4, 2006 1:44 PM writes...

Is it true that you can copy a DVD that you own? I thought that's what the whole DeCSS brouhaha is about--that while it is possible technically to do so, the DMCA makes it illegal to crack the encryption that prevents it. In which case this is no different from the DRM wrappered file which presumably prevents you from copying or playing on computers other than the one you bought it with.

Also, I'd be interested to hear more about what your definition of "own" is. Do any restrictions on your use of something mean you don't really "own" it, or are there particular rights you can enumerate that, if you had them, you would agree they constitute ownership? If you think any form of copyright is legit at all (do you?) you have to at least acknowledge a distinction between owning a particular copy and having the right to use it to make additional copies.

Permalink to Comment

2. Anonymous on April 4, 2006 6:50 PM writes...

Also, I'd be interested to hear more about what your definition of "own" is. Do any restrictions on your use of something mean you don't really "own" it, or are there particular rights you can enumerate that, if you had them, you would agree they constitute ownership?

I don't speak for Alan, but I would say that ownership includes at minimum:
1) the freedom to sell, give away, or otherwise dispose of the article;
2) for a copyrighted work, the freedom to enjoy all fair uses (at minimum, all uses considered fair under US law).

To clarify, it is currently impossible to own most movies on DVD, because the DMCA restricts noninfringing uses. Eliminating the fair use defense to infringement would make it impossible to own any copyrighted work. Extending the fair use defense to cover circumvention would make ownership possible, though not necessarily convenient.

Permalink to Comment

3. CMN on April 4, 2006 8:04 PM writes...

"I don't speak for Alan, but I would say that ownership includes at minimum:
1) the freedom to sell, give away, or otherwise dispose of the article;
2) for a copyrighted work, the freedom to enjoy all fair uses (at minimum, all uses considered fair under US law)."

Interesting that 1) pertains to an "article" while 2) pertains to a "work." If copyright law is to exist at all, one has to accept that there can be ownership of an article embodying a copy of a work without concomitant ownership of the work itself. I can own a DVD without owning the movie. It seems to me that once I buy a DVD I do own it--I can keep it as long as I like, exclude others from using it, and give it to whomever I choose. Now if it's a Region 1 DVD and I give it to a friend of mine in Italy, it won't work on that friend's DVD player. This is certainly a deplorable shortcoming of the DVD I was sold, and a practical limitation on the beneficial use that I can make of it, but I don't think it diminishes the fact that I own that DVD.

Let me make clear that my goal isn't to disagree with Alan's underlying point--his discontent with the controls being put on content. I'm just not sure that "ownership" is the best concept with which to analyze what's wrong.

In fact, the more I think about it, the less sure I am that it even makes sense to talk about owning a "package of bits" in the same way I own a DVD. Unlike the DVD, the package of bits doesn't have a physical existence separate from that of the computer drive (owned by me) onto which I downloaded it. Does it make sense to talk about "owning" the files on my hard drive separately from my ownership of the hard drive itself? When I own a book, does it make sense to say I also own the words in it? I own the ink molecules that spell out those words on the pages, but that's really just part of the book.

The first sale doctrine depends on the distinction between "article" and "work," on the fact that the "article" is a physical object I can dispose of, and by doing so also relinquish my ability to make use of the "work" embodied in it. I'm not sure it's possible to make such a distinction with regard to a downloaded file, so I'm not sure that one can or should expect to "own" such a file in the same way one "owns" a book or DVD.

For first sale doctrine to make sense in the digital realm, there would have to be a way to transfer a file to someone else that simultaneously erased it from the transferor's hard drive. Perhaps a DRM regime could be created that did this, I don't know. Or rather than erasing it, simply deauthorized the transferor's computer to read the file while authorizing the transferee. Again, I'm not saying this is necessarily how we should want things to work, I'm just saying that if you want to rely on an analogy to the ownership of physical objects, you have to be willing to accept such limitations on use.


Permalink to Comment

4. Jeff on April 4, 2006 8:59 PM writes...

CMN, you're buying into cartel propaganda. Fair use doesn't imply buying copyright and controling its content for the sole purpose of giving it away. That's what the cartels would have you believe, but that falls into a very narrow range of consumers willing to pay for content. The so-called "pirates" are doing it regardless of DRM, fair use consumers are being punished for it.

The whole "deCSS" debate was precisely based on fair use, just a guy wanting to play the content he paid for on the hardware of his choosing (linux in that case). I've got my entire DVD collection (450 titles) backed up on portable hard drives. Thank goodness for hackers AND pirates, I hope they continue knocking some sense into these horrible industry dinosaurs.

Permalink to Comment

5. drwex on April 5, 2006 2:05 PM writes...

It's true that DVDs also come with DRM and other anti-fair use technologies. I probably exaggerated slightly in my rant which was actually not directed at the Cartel (more of the same, no surprise) but at the compliant fourth estate that really ought to be able to do its job better than this. If they did, the Cartel's propaganda wouldn't be so effective.

Permalink to Comment

6. Neo on April 5, 2006 7:20 PM writes...

Many of these DRM schemes do indeed seem to reduce you from owning to renting, in effect; sometimes right up to the point of having to keep on paying repeatedly, instead of just once, for your copy.

Permalink to Comment

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