Macrovision Trying To Plug the Analog Hole with a Suit, Attacking Our Fair Use Rights

I don’t know how I missed this story. The CamcorderInfo blog alerts me that Macrovision has sued Sima Products, which manufactures so-called video enhancers that do a pretty good job of fixing Macrovision’s analog copy protection scheme. Using the Digital Millenium Copyright Act as its weapon Macrovision won a preliminary injunction against Sima back in June.

Sima is appealing and the case has been bumped up to the Court of Appeals for the Federal Circuit.

As Ars Technica points out, the consumer electronics manufacturers, along with the Amercian Library Association and the Electronic Frontier Foundation, are lining up with Sima. What’s interesting about their arugment is that they’re saying Macrovision’s analog copy protection doesn’t prevent copies. Rather, it just makes it hard to get a good copy.

If you’ve ever tried to copy a commercially produced VHS tape, or tried to copy a DVD to a VHS tape, and seen the picture cycle from being normal to going dark, sometimes losing sync, then you’ve seen the effect of Macrovision. All it does is introduce distortion in the signal that preys on the automatic gain control used in most VCRs. Some VCRs are more immune from it than others, but it’s variable.

So Sima’s copy enhancers simply allow you to get a better quality copy. And since they do it by digitizing the signal, then converting it back to analog, the improvement is really just a byproduct of the conversion and fixing what is, in effect, a faulty original video signal.

What’s most evil about Macrovision’s suit is that it really has nothing to do with large-scale illegal copying. It’s far more efficient to copy DVDs using deCSS rippers and DVD burners than a real-time analog dupe. Plus, the analog conversions do reduce the quality somewhat.

Essentially, Macrovision is attacking what amounts to fair use copying on the scale of home taping and CD burning. Anyone using a Sima enhancer is copying things in real time, so they can’t be pumping out hundreds of copies. And they may just be copying clips.

That last use is the one I encounter most in my day job doing video work at a university. Instructors in cinema, languages, drama and literature like to use short film clips to illustrate lots of different points in class. And, it’s perfectly legal to do so. Making a clip tape (or DVD) makes it a lot easier to use clips in class, taking out all the fast-forwarding, cueing up and other hassle that takes up valuable time in class.

But the Macrovision encoded in VHS tapes and DVDs often makes this a frustrating experience, even though faculty are almost always using copies they own or that were bought by the institution.

So the Sima boxes are a great aid to these instructors, allowing them to make better use of the media they own or can legally access for purely educational purposes. But if Macrovision wins this case, that part of the analog hole will go away.

Of course, I don’t think it will go away completely. My guess is that Sima’s boxes are designed and manufactured by some company in China, and you can probably buy the same thing under a dozen other off-brands if you look hard enough. So while Sima might be prevented from selling them, they’ll pop up somewhere else, but be harder to find.

What’s especially frustrating about Macrovision’s bully position is that their analog copy protection shouldn’t work on digital recording devices like DVD recorders or analog capture devices for PCs. But the manufacturers of these items are bullied into designing them so that they can detect the signature qualities of Macrovision’s degeneration of the signal. So most DVD recorders will refuse to record when they detect it, and a lot of capture devices will either pass on the bad quality or also refuse to capture.

So if you’ve ever thought you might want to be able to copy a VHS tape or DVD for fair use purposes, now is a good time to go buy that Sima copy enhancer (I’ve already got mine).

#2 Music Download Service Has No DRM

It’s been a while since I’ve blogged about eMusic. I was a customer for a few years when it was a monthly-subscription fee for all-you-can-download MP3s from independent and minor labels. I quit in 2003 when eMusic changed hands and went to a limited download model. But this year I decided to resubscribe after noticing that the lineup of bands and labels–from John Zorn’s Tzadik label to classic albums from Black Flag–had greatly expanded.

Now, USA Today reports that eMusic has become the #2 downloading service on the ‘net, largely built upon two factors. First, the company sells MP3s that are utterly free of DRM, so they can be played on any MP3 player, and freely burned to CDs. Second, eMusic has actively recruited independent artists and labels, making it a terrific site for music lovers with a taste for the interesting, challenging and unusual.

Of course, being #2 behind iTunes means only having 11% of the market. But I think that’s pretty substantial for a site that doesn’t have most of what’s on the Billboard Hot 100.

Beyond having a constantly expanding selection of good tunes, I resubscribed to eMusic because it’s a good deal, and I don’t mind giving my money to smaller labels willing to trust their customers and treat them with respect. Rather than 99 cents to rent a song from iTunes, I‘m currently paying 23 cents per song that I can keep and burn, and that no change to terms of service can take back from me.

My one small complaint about eMusic is that their selection of underground metal is actually worse than it was three years ago. At least two big labels (Relapse and Metal Blade) are no longer on eMusic, although recently things have improved somewhat with the addition of the German Steamhammer label.

That said, eMusic is hard to beat when it comes to indie rock and jazz. I especially like being able to download just a track or two to check out an artist or album without having to go in for a full album.

It’s not revolutionary, but eMusic’s relative success gives me some hope that business model based upon trust and respect can actually prosper.

OH, the Tubes! or, Why I Don’t MySpace.

Thanks to everyone’s fake anchorman, Sen. Ted Steven’s tubular understanding of the workings of the Internets is gaining much more popular recognition. Now the NY Times has taken note, as well as the LA Times, and the Washington Post.

But one blogger apparently got his MySpace account temporarily suspended because he posted a parody song of Stevens’ internets tubes rant. Because Stevens’ comments were made during a Senate meeting, they are not under any copyright protection whatsoever. That didn’t stop MySpace for jumping the gun, even though they restored the account later. The blogger, Andrew Raff, told Wired News:

“I’m not at all upset about MySpace taking the page down — just curious as to why,” he wrote. “I have yet to receive a reply to my inquiry as to why this account was deleted…. I am very curious about the reasons why they took this down — if it is a case of extreme caution with regards to copyright or whether it is the result of some other influence (perhaps even good taste).”

Art Brodsky of Public Knowledge rightfully questions the MySpace incident, given that MySpace was purchased by Rupert Murdoch’s News Corp this year, and that network neutrality threatens the passage of the Senate telecomm bill that would hand over big wads of power and money to Murdoch’s cable and entertainment interests.

Which leads me to the reason why I have not set up camp over at MySpace. I’ll admit that I’ve been tempted, especially noticing how effectively the site allows people to network together, and how it might help me connect with friends I’ve lost touch with.

But the Murdoch connection and the MySpace terms of service are really too much to swallow.

From leading the media campaign in support of Margaret Thatcher, and making Fox News the propaganda arm of the Bush Administration, to belligerently agitating for widespread media deregulation, there is very little good in politics and life that Murdoch and News Corp. stand for or do. Quite obviously, all that I do with mediageek stands in pretty stark opposition with everything Murdoch does.

I had this conversation with my pal John Anderson a couple of weeks ago, with him equating getting onto MySpace as getting in bed with Murdoch and Fox News.

If nothing else, creating independent media is about having control over distribution and transmission, not just production and creation. That’s why the Indymedia movement, for all its growing pains, is still important. Because Indymedia is a movement that attempts to take the shackles off distribution, so that corporate control can’t suddenly wipe a picture, story or video right of the internet.

That’s why I fund my internet hosting for mediageek myself. It is a small financial burden, but the tradeoff of having control is worth it. In my ideal world, I’d host the server myself in my own house, but I don’t quite have the resources to pull that off. But I want and need this blog and website to be subject to as few terms of services as possible. I don’t want some middle manager jumping the gun over something I’ve posted that might be infringing or just offensive.

I guess it’s kind of lucky that I’m not hip enough to have gotten on MySpace before the Murdoch buyout. It would kind of suck to have to close up a useful page because the MySpace boys decided to cash in to Rupert.

It is cool that free services like YouTube, Blogger, and even MySpace are there to allow people to post interesting content to the internet without charge. But the control these companies gain through their popularity should give us pause — how will they use their power?

At the beginning of this decade, there was this cool site called MP3.com that let bands post their songs on the internet for free. But then the site got bought, and the new owners wiped out everything. Ostensibly, their actions were more about finances and change of plan than politics — but did that matter to bands who lost their vital presence on the internet?

It’s a simple idea that gets proven time and again: ownership matters.

One Step Closer to the Demise of the Record Button?

In addition to the votes for LPFM and against net neutrality, the Senate Commerce Committee voted in favor of an amendment creating the broadcast flag for both radio/audio and TV/video. If you haven’t heard already, the broadcast flag would allow all content producers to effectively disable the record button on any digital device you own. The flag regime would force electronics manufacturers to give control over your recorder to the entertainment cartel, even preventing you from recording material that you otherwise have every legal right to record.

This big telecom saugsage keeps getting packed tighter with fat and pork, I’m really hoping it bursts. While I’d like to see net neutrality become law, especially if the big telcos are going to get the big national franchise bone thrown their way, on the whole I’d like to see this so-called telecom reform bill die an ugly death.

Bit-Torrenting TV Shows — Why Do It?

No Media Kings interviewed one man responsible for releasing a significant quantity of series TV shows onto Bit Torrent to find out why. It’s an interesting read:

If you try to approach file-sharing the way I do, it is a library. A library exists to provide copyrighted materials to the general public without purchasing, pending return of the item. …
While the nature of the Internet makes downloads an instant copy of the materials instead of a physical item to remove and replace, the same basic principles apply: I pay for my cable to capture the shows I want to keep from TV. I see the commercials, whether I’m watching it while capturing, or while editing it into an AVI file. I pay for the internet connection that sends it to people.

Mark Hosler: Creative Commons is “the Sierra Club of Intellectual Property, Negativland is more like Earth Firsters.”

There’s a nice short video interview with Mark Hosler of Negativland at Minnesota Stories talking about the Creative Commons approach to copyright and what he sees as problems with it. Actually, it’s more of a Hosler monologue than an interview, but pretty concise and informative nonetheless.

I didn’t know this, but apparently Negativland helped come up with the Creative Commons sampling license, spurred in part because they didn’t like any of the other CC licenses.

Senators Discuss Plugging the A-Hole

Public Knowledge’s Policy Blog has a rundown summary of today’s Senate Commerce Committee hearing on the Broadcast Flag. According to PK Sen. John Sununu was the hero of the day, questioning why Congress needed to interevene and noting that other technologies, like VHS videotape, flourished without government mandated protections.

If there wasn’t a consensus on the broadcast flag for TV and video, PK’s acurtis says the committee was generally critical of extending the flag to radio. According to CNET’s Declan McCullagh, even the National Association of Broadcasters isn’t in favor of a broadcast flag for radio

Every time you think the Broadcast Flag is dead, it comes back more bloated and evil, with this version trying to plug up the so-called “analog hole.” The hole is the fact that once a signal becomes analog (to go into a speaker, or an analog TV, for instance) digital copyright controls don’t work anymore, even if copies aren’t as good as identical digital copies.

Although the copyright cartel could implement anti-copying technologies right now, they need the cooperation of the electronics industry, which has less interest in screwing its customers. So because the entire electronics industry can’t be coerced into making their recording devices slaves to the RIAA and MPAA, the cartel has to run crying to Congress to make it law.

The most recent draft of the Broadcast Flag bill is even more evil than before, with provisions to effectively kill fair use, as the EFF points out:

You say you want the power to time-shift and space-shift TV and radio? You say you want tomorrow’s innovators to invent new TV and radio gizmos you haven’t thought of yet, the same way the pioneers behind the VCR, TiVo, and the iPod did?

Well, that’s not what the entertainment industry has in mind. According to them, here’s all tomorrow’s innovators should be allowed to offer you:

“customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law.”

Had that been the law in 1970, there would never have been a VCR. Had it been the law in 1990, no TiVo. In 2000, no iPod.

Please, will the capitalists in charge of Disney, Viacom, Sony/BMG, Time-Warner/AOL, and their brethren tell us again about how bad regulation is?

Viva la free market! Death to the record button!

Vinyl and the Death of our Cultural Heritage

In the last couple of months I’ve been discussing what I’m calling the death of our culturual heritage due to obscene copyright laws. In some ways, it’s worse than I even thought — and I’m both pretty cynical and informed.

There are thousands, if not millions of recordings that were issued on vinyl LPs but have never been reissued on CD. If you own a copy of some rare piece of vinyl, you’re lucky because you can still listen to it, provided it’s not already beat up and you’re reasonably careful with it (vinyl can last longer than magnetic tape). But nobody else can have that pleasure.

I didn’t realize that copyrights on sound recordings in the US from before 1972 were so draconian until I listened to this recent story on NPR’s All Things Considered. Copyright laws for printed matter and other materials published before 1978 were not nearly so bad.

The result is that recordings that are even fifty or more years old cannot be re-released without getting permission from the original copyright holder–typically the record label. In the case of some recordings, the copyright holder may not exist anymore, or the copyright might be part of some estate that doesn’t even realize it owns it, and so may be almost impossible to find.

In other situations the copyright may be owned by one of the major recording conglomerates which is uninterested in re-releasing it and would charge unreasonable royalties to anyone wishing to license it.

To me, the most ironic thing about old recordings, especially of popular music from before the 1960s, is that the labels themselves often don’t have a really good inventory of what they own, and they may not even own copies of the master tapes, or even the vinyl. So you could own a vinyl copy of a record that the record company doesn’t have a copy of, and yet they can stop you from making it available to anyone else, even for non-profit purposes.

I guess that’s what file-sharing, BitTorrent and CD-Rs are for.

The Copyright Cartel’s A-Hole Is Nothing New

The “analog hole,” that is. In all the pre-holiday, end-of-semester rush I missed the introduction of new copyright legislation to address the so-called analog hole. That hole refers to the fact that most current copy-protection technologies only get in the way of digital copies, limiting CD copying and ripping to MP3, or copying DVDs, for instance. But once a digital signal becomes analog, like when music hits your speakers or a DVD image is transmitted to your analog TV for display, it’s now pretty easy to record, capture, manipulate and copy.

Back in mid-December the House Judiciary Committee introduced a bill intended to close the analog hole by mandating a watermarking technology called VEIL that would instruct recording and digitizing devices to block, limit or handicap recording.

The bill came into my consciousness today because of an open letter written by the CEO of mobile player manufacturer Neuros to the Justice Committee:

The so-called Analog Hole is used primarily by law-abiding consumers who want to time-shift or place-shift their legally obtained content. It is most definitely not the method of choice for content pirates. Why would anybody steal content by recording an analog signal when they can more easily make illegal but digitally perfect copies by “cracking the encryption” directly on the PC? Put another way, trying to reduce copyright piracy by closing the Analog Hole is like outlawing the sun roof to prevent thieves from stealing car stereos. In either case, such legislation would deprive consumers of choice and enjoyment while doing little to reduce theft.

Most commenters on the “analog hole” make it seem as though VEIL is the first seriously considered analog anti-piracy technology. But, in fact, most of the movies you own, on VHS or DVD, are protected by an analog copy-protection technology called Macrovision. It was developed back in the 1980s to fight VHS movie piracy. Simply explained, Macrovision degrades parts of the video signal such that an encoded video should play back normally on a TV, but is distorted when recorded onto another videocassette. The scheme relies on the fact that signal degradation is unavoidable with analog copying, and that VHS video degrades significantly when copied to another VHS videotape.

Macrovision is still on most commercially produced videocassettes, and it’s also integrated into the composite outputs of DVD players so as to prevent VHS copies of DVDs. That’s why DVDs don’t always play back properly if you route the signal through a VCR to your TV. The Macrovision signal is activated by the DVD itself, similar to region encoding.

Further, most consumer DVD recorders are able to detect the presence of the Macrovision signal and will halt recording when it’s there. Thus most DVD recorders won’t dub a DVD, even via a basic composite analog video connection. To a lesser extent, DVD recorders often won’t record from commercial VHS tapes either, depending on how strong and consistent the Macrovision encoding is.

Also back in the 1980s the RIAA was having conniptions about the imminent introduction of Digital Audio Tape in the US, and tried to force the implementation of the CBS-developed “CopyCode” which would have been encoded in all music recordings and which would cause a DAT recorder to stop recording. The “CopyCode” was nothing more than a notch in the recording blanking out a set of frequencies. CBS and the RIAA claimed it was inaudible, but recording engineers, the high fidelity press and equipment manufacturers reported otherwise, and the initiative failed.

Nevetheless, the proposed “analog hole” legislation is bad news and bad policy all around. Further it would only further accelerate the loss of our media heritage as more and more legacy media is rendered legally uncopyable by new digital technologies.

Grateful Dead Archive Resurrection

According to Relix.com and a post at Archive.org the Grateful Dead show archive is being mostly restored.

Per Relix:

According to Grateful Dead spokesman Dennis McNally, the removal on November 22 of all downloadable Dead recordings from archive.org was the result of “a great communication snafu.”

“It is my understanding that by the end of the day, the audience tapes will be restored to archive.org,” McNally said by phone. Soundboard recordings will also be available streaming only.

“We at archive.org now realize that our mistaken attempts to move quickly were based on what we thought the Grateful Dead wanted,” the site’s administrators said in a public statement. “For this we apologize both to the Grateful Dead and their community. There has been a great deal of reaction, our actions have caused more than necessary.”

Although there is a reversal here, do note that it is not a full reversal. Those precious soundboard tapes which have a newfound financial value as paid downloads will no longer be available for free. As Dead spokesman McNally told the AP:

The soundboard recordings are “very much part of their legacy, and their rights need to be protected.”

Today’s AP article echoes my argument from yesterday:

With concert tickets now removed as a source of revenue, sales of the band’s music and other merchandise have become increasingly important in an age where music is distributed digitally instead of on CDs, vinyl and cassette tapes.

And the arrival of Apple Computer Inc.’s iTunes online music store, and other similar sites, means free downloads can be seen as competition, said Marc Schiller, chief executive of Electricartists, which helps musicians market themselves online.

The band sells music on iTunes and exclusive shows through its Web site.

“When the music was given away for free to trade, the band was making so much money touring that the music was not as valuable to them,” Schiller said. “Apple iTunes has made digital downloads a business.”

And, frankly, keeping the audience tapes free and available is a damn good marketing strategy. With better quality soundboard recordings available to buy, a fan might hear an audience recording of a show and think, “great version of Dark Star, but I sure wish the sound quality was better.” Now, a better quality version can be had.

Think of the audience recording as the free version of a web service, and the sounboard recording as the paid upgrade. In essence, all those audience recordings are like advertisements for the soundboard downloads.

The Dead can’t give up that steady income, can they?