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Last May I posted — in an article titled “Challenging DMCA Conventional Wisdom” — about a creative, but seemingly futile, effort by RealNetworks to plead its way around the Digital Millennium Copyright Act for yet another variant of DVD-ripping software. Well I missed the conclusion. In mid-August a federal court in San Jose (the Northern District of California) sided with the movie studios against Real, issuing a permanent injunction, and holding in a well-reasoned opinion in RealNetworks, Inc. v. DVD Copy Control Association, that Real had violated the DMCA.
So this is effectively the end of RealDVD. Calling the DMCA a series of “epochal amendments” to US copyright law, Judge Marilyn Hall Patel concluded that CSS technology “effectively controls access” despite having been hacked, finding that the statute is directed at preventing circumvention by the “average consumer,” and that Real’s CSS license was no protection because it had exceeded the scope of the license.
While it is true that no case has ever held that a licensee of the DVD [Copy Control Association] can be held liable for circumventing that same technology under the DMCA, that is simply because no court has ever adjudicated the issue. And, it may be that no licensee has been so bold as Real.
Perhaps the only amusing part of this rather sad escapade is the court’s observation that the RealDVD product was known internally as “Vegas,” because of the well-known marketing phrase “what happens in Vegas, stays in Vegas.” Secrets don’t hold up that well in Hollywood, on the other hand.
I am waiting, ostensibly patiently, for arrival of the complete collection of The Beatles music on newly remastered digital CDs. It is a little odd, though, since the group pioneered so many innovative recoding techniques in the analog realm. This performance of Revolution from U.S. television will have to do for now.
Most observers believe that, right or wrong, the Digital Millennium Copyright Act (DMCA) prohibits copying of DVDs, even for backup purposes, because of its Content Scrambling System (CSS) encryption technology. Now Real Networks is challenging that conventional wisdom in California, where its RealDVD product is under attack. But the litigation developments actually suggest that Real is taking a different direction. According to CNet News, a “surprise” expert witness for Real:
disputes Hollywood’s claims that the industry included in a license for its DVD-encryption technology a ban on copying DVDs while in a computer hard drive. Real argues that because it possesses a license to use CSS and because the license doesn’t prohibit the copying of DVDs in all cases, Real isn’t guilty of breaching its contract.
How Real squares its contract argument with the DMCA claims against it by the movie studios is convoluted. Without getting into a lot of detail, the gist of the DMCA prohibition on reverse-engineering is that no one is permitted to “circumvent” technological means applied to protect digital content (i.e., DRM or content protection). The anti-circumvention provisions “put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works.” That’s exactly what CSS does, as I understand the technology. The fact that a CSS license may not prohibit copying is not the same as whether it is permitted under DMCA. So this approach is a good one for Real, but almost surely will be less than acceptable to the “open commons” crowd, which has detested the DMCA standard for a long time.
If you are interested, and especially if you disagree, please tell the U.S. Copyright Office, which is handling another periodic rulemaking to define what is and is not prohibited under the statute.
OK, so my new colleague Ryan Wynia at BeYOB.com posted, in bullet form, the “rules of engagement” for social media for businesses I presented at SPARKt2 in Chicago on April 29. Glenn Manishin’s Rules of Engagement [BYOB]. But that short treatment misses some of the nuances, and besides, I thought of them first! So here are my six rules of engagement for social media — Twitter, Facebook, etc.– all of which can be summed up in the phrase “if you are going to do it, do it right.”
1. Be Authentic…Have an Identity. When using social media for business, you must establish a unique identity. While the early Web was accompanied by the slogan “No one knows if you are a dog on the Internet,” social media are different. Reputation and credibility flow from identity. If you want to develop business via social media, don’t be anonymous and do not be a cartoon. Logos may be fine for corporate PR and customer relations postings, but without a profile photograph, bio and link, audiences will be far less likely to follow you and even less willing to believe what you say.
2. Offer Value (Content), Not Self-Promotion. This should be a no-brainer. When participating in social media, what is of interest to other members is substance. Despite popular misconceptions, social networking is not about revealing what one ate for breakfast. Rather, it is providing domain expertise to others by sharing one’s knowledge, experience and insights. Twitter is filled, for instance, with get-rich quick and Web marketing schemes, life coaches, success gurus, MLM schemers and others engaged in overt sales pitches. They are rapidly becoming classified as “Twitter spam” and rightfully ignored. To gain an audience, talk about what you know, not what you sell.
3. Listen to the Audience. A corollary to rule #2, stay sensitive to “trending” topics and engage on matters of relevance to the audience. That means listening as much as talking on social media sites. A traditional maxim for negotiations is that one must acknowledge the views and statements of others (”I hear what you say…“) before responding, especially if critiquing. By engaging after listening, one can ensure that posts and updates reflect the issues on which the audience is looking for information. And by providing it, you can and eventually will gather your own audience of followers and readers.
4. Tone Matters. “Social stream” is rapidly replacing email as a dominant form of digital communication. But even more than email, social presence and status updates are communicated in near real-time, meaning that hitting the “post” or “update” button without thinking about the wording of your content can be disastrous. Mainstream media is filled with stories of employees being disciplined or fired, and applicants rejected, because of inappropriate “Tweets.” This is so way more problematic than a college student uploading drunken beer pong photos to Facebook or Flikr. Sacrcasm reads even worse on social media than it does in email. Avoid flame wars at all costs!
5. Follow, Answer and “Retweet.” The Web is about content and community, not technology. So after adjusting to the immediacy of social streaming, the most important aspect of doing business on social media is engaging that community by participating as a full-fledged member. Lurking is dated and counterproductive. Interact with others, promote good ideas by following and reposting authors. The more you participate the more you can profit in the long run.
6. Remember That “Tweets Live Forever.” Nothing one posts on social media sites goes away, even after one quits. Facebook, for instance, made clear in February that content shared with other members survives if a member cancels his or her subscription. Blog comments, Twitter posts, etc., are archived and indexed by Web bots and spiders almost instantly. You can delete a Tweet, but chances are almost 100% it remains visible to the world. So when posting content, ask the old question–would you want your update to appear on the front page of the New York Times? If the answer is no, trash it and move on. Remember, social media for business is about brand and reputation building. You will never sell anything if your “recalled” updates brand you as a loose cannon or a curmudgeon.
What do you think? Reactions appreciated. You can also check out my companion post on SiliconANGLE.
SciFi Channel is all set to become Syfy. But no, despite what CNet News implies, it is not the lawyers’ fault. The point here is a rather arcane one about trademark law, which prohibits use of a generic term as a protected description of goods or services. The CNet article seems to suggest that “SciFi Channel” could not be trademarked because “Sci-Fi” is generic. But if the mark is unique and the entire phrase has not been allowed into the public domain, as in Science Channel, there should be no problem. So on this one, don’t blame me!!
Two weeks ago there was a major outcry within the Facebook community over revised Terms of Service (ToS) for the hugely popular social networking site. The gist of the protest was an implication in the new ToS that Facebook claimed “ownership” of user-generated content (UGC) and reserved the right to market it for for commercial purposes.
Facebook ToS
That conclusion would be rather stupid from a business perspective and was quickly disowned by Facebook management. Facebook CEO Zuckerberg: “We Do Not Own User Data” [Mashable]. But because this was a Website policy, changeable unilaterally without user consent, it leaves unanswered the larger question of whether UGC is owned by the person posting the content, the person on who’s page/site the content appears or the owner of the service/server. The issue is WAY broader than Facebook. It applies, for instance, to comments posted on newspaper sites, blogs, photos shared on Flickr and the like, and many more applications.
Today I am not trying to answer the question, rather raising some. In the law of traditional commercial relationships — say banking or telephony — the “content” one shares with a company is owned by the corporation. Your banking records can be obtained by the government without your consent because they are “owned” by the bank. Only sector-specific privacy laws like Gramm-Leach-Bliley, which are altogether too rare in the United States, limit what the company can go with data arising from its relationship with customers. Hence, Facebook was possibly wrong (although correct from a customer relationship standpoint) to argue that it needed a license from one user to display his/her content on the “Wall” of another user, even when the first person had affirmatively decided to share that UGC by posting it within Facebook.
But what of corporations as employers? Since the law is settled, right or wrong, that a company owns emails generated on its systems, regardless of whether work-related, will that same conclusion hold for social communications sent and received via an enterprise Internet connection? And what of copyright; if a user posts photos to a sharing site, does that act imply either abandonment of their ownership interest or the grant of a “fair use” right to republication in full to the world?
These are interesting, and perhaps important, questions in the developing law of social media. Stay tuned here for more analysis and discussion as we make some tentative predictions of how the law will evolve and whether, in the ultimate analysis, it matters.
Wow, I’ve blogged in the past about how Real Networks’ devotion to subscription music distribution was an archaic business model. Now, Rob Glaser and company are about to launch a new software product that, if ruled lawful under the DMCA, may revolutionize movie distribution. Real Networks Throws Down the DVD Copy Gauntlet [FT.com]. In a post-Napster legal environment, however, it is fair to say that no one can predict with certainty how these sorts of issues will play out. But if Cablevision can offer a remote-storage DVR on the theory that users are copying, not the device’s software, there is a good chance Real is right. Good luck and Apple TV watch out now!
The French have views that strike Americans as strange on lots of issues, like Middle East terrorists, mistresses, Web censorship and now trademark rip-offs. So it was a big relief when, after last month’s French decisions for Louis Vitton and Hermes against eBay, the U.S. courts disagreed. It’s Up to You, Tiffany, to Keep the Counterfeiters Away [Law Blog-WSJ.com]. (The French apparently never got the memo that the Internet is a borderless network where national law can’t be effectively applied.) Seems that Tiffany’s high-priced lawyers argued that there was so much counterfeit merchandise sold on eBay that the company somehow had a legal obligation to police its auctions.
Well, that’s backwards. Intellectual property owners already can demand “notice and takedown” of infringing materials; the same thing is undoubtedly true of eBay. All that Vuitton, Hermes or Tiffany’s had to do was monitor auction and sales listings and notify eBay when they found fake items. Well, it’s much easier just to shift blame — and money — to someone else than take responsibility. All this case was about was moving financial responsibility for the cost of running a business (jewelry) from the retailer to the “deep pockets” dot.com company. That’s shameful.
In fact, U.S. District Judge Richard J. Sullivan in New York ruled that eBay and affiliates can’t be held liable for trademark infringement “based solely on their generalized knowledge that trademark infringement might be occurring on their Web sites.” The judge reasoned that when Tiffany notified eBay of suspected counterfeit goods, eBay “immediately removed those listings.” That’s the correct decision and strikes the appropriate balance between IP holders and Web sites, IMHO.
The U.S. Patent and Trademark office recently granted a patent to NetFlix for their online DVD ordering system. [NYTimes.com]. Now, I am a long-time NetFlix customer, but this indicates there’s a real problem in our patent system with the increasing issuance of so-called “business method patents.” Tim Hanrahan and Jason Fry write in Real Time for the Wall Street Journal that
The Internet bubble may have burst, but one of its unfortunate side effects is still with us, like a drunken partygoer who hasn’t noticed that a) it’s dawn, b) there’s no more beer and c) everyone else has gone home. . . . If you thought the [business-methods patent] controversy was as dead and buried as, say, IPOs for online pet-food delivery businesses, guess again. . . . Could someone — anyone — please grab Mr. Business Method Patent by the collar and heave him out in the hall so we can clean up?
Hear, hear!! It was bad enough with Amazon’s “one-click” patent, but now we’ve got insurance patents, order-processing patents and other patents for what are not inventions, but just ideas. Of course ideas are creative and deserve protection, but they should not be patentable. The difference is that copyright and trademark permit others to use creative ideas — within limits — to make better works, but patents are exclusive. It’s a difference of kind, and a crucial distinction between things that people actually build and things that they just dream of. Dreams are wonderful fantasies, as are business methods patents.
October 20th, 2009 | 
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