As the Internet continues to penetrate households and Internet traffic continues to increase, a number of substantive questions arise about its use and abuse. As remarkable new innovations are revealed to the world, making life simpler, more efficient, and convenient, these benefits tackle and trade off an individual's privacy.[i] As copyright holders try to protect and enforce their rights, pirates will try to eviscerate that very entitlement. A primary concern for property owners is economic loss when pirates pass-off their property for a profit. This affects consumers because companies are instituting measures that infringe upon the fundamental right to free speech.
Why Watermarking& Fingerprinting?
The sub-topic, "Watermarking & Fingerprinting", is of great importance because it helps to address the protection of intellectual property and correlates to the right to privacy. The right to privacy plays a unique role in American law and society. Although not explicitly protected by the Constitution, it has assumed multifarious meanings and no longer conveys one coherent concept. Conversely, intellectual property rights have become increasingly difficult to enforce. Due to increased Internet infringement, Congress enacted the Digital Millennium Copyright Act ("DMCA"), which provides some safe harbors for infringement liability for Internet service providers. [ii] However, in today's global economy, copyright holders are particularly concerned about their economic loss. In this paper we will address how the protection of intellectual property is significantly diminished in technological advancements and accordingly, while there are measures in place to deter unauthorized use and duplication, robber barons of the cyber world always figure out how to circumvent them.
Like all property, intellectual property must be protected from unauthorized use.[iii] Without adequate methods to protect property rights, pirates will plunder and pillage the rights of the legal copyright holder, thus making rights unenforceable. Property is viewed as a collection of rights and not a collection of things. As evidenced by the plethora of "bootleg" DVD's for sale and the availability of "unauthorized" copies available for download on pirate websites, there is a cause for concern for market participants in the Entertainment industry.
Latest developments (Digital Rights Management HDCP Watermarking, fingerprinting)
Article 11 of the World Intellectual Property Organization Treaty ("the WIPO Treaty") recognizes the right of the copyright holders to use technological measures to protect their content by requiring contracting members to provide legal protections and remedies against circumvention of copy protection measures (such as watermarks) used by content owners. [iv]
However, Sony BGM in an attempt to "protect their copyrights" distributed CD's with software on the CD's that track the user's activities.[v] This act of hiding files on a user's computer invades privacy.[vi] What is so egregious about the conduct is that the software creates a hidden area called a root kit.[vii] In the windows operating system this may pose a security risk.[viii] If a hacker with a malicious intent knows the location of this software he/she could potentially introduce a virus to reside on the computer permanently.[ix] This increased susceptibility is counter productive to web security and denigrates the integrity of the user's computer system.
Watermarks are imperceptible data embedded in content. Removing a good forensic watermark significantly degrades the quality of the copy, thus destroying the economic value of the copy.[x] A fingerprint points to who purchased the product and registered it. With forensic watermarks, the imperceptible data contains information for tracing to the source of unauthorized copying of content. An example of a technology that can be used to generate a forensic watermark may be found in U.S. Pat. No. 6,285,774 entitled "System and Methodology for Tracing to a Source of Unauthorized Copying of Prerecorded Proprietary Material, such as Movies.[xi] The most important thing, as mentioned above, is not that the system works, but the Hobson's choice between methods to enforce rights and the infringement of the freedom of speech and privacy.
Personally experiences and lessons learned?
Copyright infringement has always been a problem for copyright holders. And in our technologically advanced world, companies are willing to explore every option to protect their rights.
I have personally experienced a DRM in effect, last year when I purchased a new 13-inch Mac book. I downloaded movies from itunes and when I connected my Mac book to my external 20-inch monitor, I received a message on my Mac book monitor.[xii] I could not see any movie displayed and a message was displayed on my Mac book. At first, I thought that I needed a special cable to view the movie. After some tinkering I decided to call customer support since my Mac book was brand spanking new and under warranty. What I learned during the discourse between the technical support representative and myself, was that Apple had a high-bandwidth Digital Content Protection (HDCP) on my Mac book.[xiii] In essence I was forced to watch my movie on my Mac book. I guess Apple completely disregards a user's "fair use" of copyrighted material.
At first glance, it appears that HDCP's and forensic watermarks would be useful in copyright infringement battles using the No Electronic Theft Act ("NET").[xiv] Also, contract law restrictions, combined with watermarking and fingerprinting, will provide great flexibility in controlling infringement. But is this true? Why should I have to be restricted to view my legally purchased itunes movie on my 13inch screen? What happens when a screener alleges the copy was surreptitiously obtained and his/her claims are legitimate? Will they be considered the proximate cause? You see where we are headed with these questions, to mitigate these problems there needs to be more control measures in place, more diligence from a manufacturer's perspective and restrictions on the net.
On the physical aspect, movie screeners[xv] are now requiring to agree to contracts with non-distribution clauses.[xvi] This gives the screener the exclusive right to possess the movie once received and this right is revoked once the copy is returned. However, this exclusivity does not mean that the original owner relinquishes the rights. Copyright owners have used contract law in the past to regulate the distribution and use of their content, but with the addition of embedded forensic watermarks in each screener, the studios have met the burden required to prove in civil court when a recipient has broken a contract provision by distributing a copy of a screener.
However, the NET act specifically states "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement."[xvii] Therefore, it appears that although watermarks may be capable of identifying the source of unauthorized reproduction and distribution of copyrighted materials, additional evidence will be required in a successful prosecution to prove that the unauthorized actions were willful.[xviii] That is, if they have "deep pockets" in my opinion.
Future impact on business
Pirated movies/materials have exploited the property rights of the rightful owners at a great economic loss to legitimate holders of copyrights. [xix]The video/film entertainment industry is still tweaking their high-definition video content and digital distribution standards, but this decision may adversely impact business. From my Mac book experience I know that I will never download another movie from itunes, because I cannot display or promote "fair use" of my movie. This restriction is counter productive for companies because it may encourage users to access movies by illegal means.
The advent of digital watermarking is a step towards protection of intellectual property, but is a similar fate of the audio industry unavoidable? Watermarking allows companies to point and declare, "Hey that's my intellectual property!" but the true problem lies with the enforcement and prosecution of copyright infringement. As pointed out in Secrets and lies by Bruce Schneier, the real problem lies not with the technology, but with the "trade-secret" information being disclosed, made public and eventually erased by pirates.
When Professor Ed Felten of Princeton University, tried to publish what purportedly would assist people in bypassing DRM schemes, several companies threatened lawsuits.[xx] This is so because the DMCA currently ensures the protection of DRM schemes.[xxi] However, if congress raises the issue to the Supreme Court to balance the user's fundamental right to speech and the "fair use' doctrine, a landmark case and an amendment could be seen in the near future.
A single watermark that provides both forensic and copy-control functions could be implemented for the legitimate purpose of tracing, but at what cost to the user? In today's society where "big brother" is constantly monitoring, it almost seems that there is unfettered access to user information. In short, the world wanted access and that's exactly what was given. Access to your every move, location and personal information.
As indicated by a recent lawsuit, Viacom vs. Google[xxii], companies are vigorously trying to protect their intellectual property rights, and attain valuable information from others, that is, if deep pockets are involved.[xxiii] Content owners want reasonable compensation for their creative efforts. The industry norm of carefully scheduled "distribution channels" helps companies obtain this compensation. By controlling access to pirated copies manufactures are forcing two behaviors, making consumers purchase a legitimate copy or downloading a bootleg copy elsewhere. In effect, the ends will justify the consumer means.
- In 1988, Congress gave the movie industry new tools to fight piracy when it enacted the Digital Millennium Copyright Act ("DMCA"). The Digital Millennium Copyright Act may be used against pirates who interfere with watermark implementations. This Act was passed in part to implement the World Intellectual Property Organization Copyright Treaty ("WIPO Treaty"). It recognizes "the fact that in the digital age, authors must employ protective technologies in order to prevent their works from being unlawfully copied or exploited." The purpose of the WIPO Treaty was to introduce new international copyright rules to address issues raised by "new economic, social, cultural and technological developments." Article 11 of the WIPO treaty recognizes the right of the movie industry to use technological measures to protect their content by requiring contracting members to provide legal protections and remedies against circumvention of copy protection measures (such as watermarks) used by content owners.
- The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. The Director General is Francis Gurry.
- Virus scanners typically can't see files in a root kit.
- The message reads, "This movie cannot be played because a display that is not authorized to play protected movies is connected."
- A High Bandwidth Content protection (HDCP) is a prophylactic measure designed by Intel. It is designed to prevent pirates from creating an output to copying devices.
- The No Electronic Theft Act ("NET") provides for criminal remedies against consumers who trade economically valuable files (such as movie files) electronically. Congress passed the NET Act after a Federal Court in Massachusetts held that an individual could not be prosecuted for posting copyrighted software on a publicly accessible computer bulletin board. The intent of this act is to make people who intentionally distribute copyrighted content (including pirated movie content), but don't profit from their distribution, criminally liable
- Screeners are movie critics, awards personnel of various institutions who evaluate a movie based on its content and the nominations it should receive if any
- According to the website Howstuffworks.com, It is estimated that revenue losses in the movie industry from illegal distribution of copyrighted material to be near 5 billion dollars a year.
- Viacom vs. You tube S.D.N.Y,253 F.R.D. 256
- This suit alleges that You Tube appropriates the value of creative content on a massive scale for You Tube's benefit without payment or license and the brazen disregard of the intellectual-property laws fundamentally threatens not just plaintiffs but the economic underpinnings of one of the most important sectors of the United States economy."
- Bradley, Tony. (n.d.). Your right of privacy. Retrieved March, 19, 2010, from http://netsecurity.about.com/od/newsandeditorial1/a/aaprivacyrights.htm
- Courington, Jeffrey. (2008). U.S. Patent No 20100064139. Washington, DC: U.S. patent and Trademark Office. Retrieved March, 19, 2010, from http://www.faqs.org/patents/app/20100064139
- Layton, Julia. (n.d.). How Digital Rights Management Works. Retrieved March, 17, 2010, from http://computer.howstuffworks.com/drm5.htm
- The Digital Millennium Copyright Act (DMCA). Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998).
- No Electronic Theft Act. HR 2265, P.L. 105-147, 111 Stat. 2678.
- Poznak Law Firm, Ltd. New Criminal Penalties for Copyright Infringement on the Net. Retrieved March, 12, 2010, from http://www.poznaklaw.com/articles/netact.htm
- The United States Patent and Trademark Office. (2006). What is Intellectual Property. Retrieved March, 12, 2010, from http://www.uspto.gov/web/offices/ac/ahrpa/opa/museum/1intell.htm
- The World Intellectual Property Organization. Retrieved March, 17, 2010, from http://www.wipo.int/portal/index.html.en