Zune's Viral DRM Will Violate Creative Commons

lopy writes "Medialoper has noted that Zune's highly touted wireless file sharing will infect otherwise unprotected audio files with proprietary DRM. In cases where users are sharing songs covered by any of the Creative Commons licenses, this would be a clear violation of those license. From the CC FAQ: 'If a person uses DRM tools to restrict any of the rights granted in the license, that person violates the license.' It'll be interesting to see how and if the CC community responds." An anonymous reader wrote in mentioning a post to the Crave blog, relatedly exploring how the Zune stacks up to the iPod.

fool me once...

Fool me once, shame on me.

With DRM, Microsoft, RIAA, MPAA, and the usual cast of characters, it's "fool us a billion times...", it doesn't seem to matter, they keep throwing this kind of foolishness our way.

I guess the good news about this is the silly layer of DRM adds that more assuredness the Zune will be a miserable also ran in the market.

Users will get over the cool factor quickly, especially when the favorite song someone shared with them stops playing three days later. Yeah, there's probably documentation. Who reads it?

I don't see any ads for this device touting "share your tunes three times or three days, whichever comes first!" to catchy music. If I were to buy one of these (not) anticipating the magic of wireless sharing I would return it immediately on learning the fine (hwah?, not so fine?) print.

And, what other silly DRM is layered? I wonder (and almost suppose) Microsoft further encumbers shared songs a la making a song shared by someone unshareable by a sharee...

And, if Microsoft wanted to limit the listening, why so Draconian a limit? WTF? If a tune has any texture, any depth, any insight at all, it can take a lot more than three listens to develop an ear for that song. Too bad. Clearly this is not the era to be exposing listeners to Beethoven or Mozart.

As for my part, I now freely distribute copies of music from my collection to any who want them. I always verbalize the disclaimer they must buy if they like with a wink and a nod. I know now my good faith efforts before were empty gestures. (I even refused in the past to let my daughters make tapes of CDs for their friends, not any more...)

This is all really too bad, because it could be interesting use of technology. Not really my cup of tea (I've posted on this earlier, responses to my post convinced me there could be some market for this).

Still a flawed system.

That sort of "one generation only" DRM is just as broken as all other types of it; it suffers from the same terminal flaws, namely that you can't well restrict the copying of data once it's been moved into the digital realm, where copying is inherent to even the most basic manipulations of the data (i.e., moving it from one place to another).

Just because it doesn't prevent all copies doesn't make it any less flawed from an inherent information-theory and cryptological standpoint, and in the long run I think it's doomed to failure. The only question is whether, in failing, it manages to take down a few otherwise-good formats with it.

Zuna vs. P2P - why is one illegal....?

Somebody gives me a file via Zune, I listen to it three times, decide it's crap and don't bother to buy a copy - that's ok by the RIAA.

I download a file on P2P, I listen to it three times, decide it's crap and don't bother to buy a copy - that's illegal...?

Am I the only one who sees the hipocracy here?

Maybe the RIAA will sue Microsoft but I'm not holding my breath. The last thing the RIAA wants is somebody to actually go to court and fight their trumped up charges.

Re:Why players need video screens...

I like Radiohead, Pink Floyd and The Smiths. If your idea was implemented, that would mean I would spend an inordinate amount of time looking at Thom Yorke, Roger Waters and Morrissey.

I would, on balance, rather kill myself.

Re:fool me once...

The RIAA is not a law enforcement group, hell they're not even part of the government. They can't send you to jail. They can call the Feebs on you or take you to court seeking damages. That's it.

The **AAs love how people think that they're law enforcement. They encourage people to think that by wearing those stupid "FBI" knockoff "**AA" windbreakers.

Re:fool me once...

No kidding. I am so sick of Slashdot's pro-microsoft anti-apple bias!

Re:fool me once...

Why is it, that on blogs, in comments, and many other places, I see this exact bahvior ascribed to Apple (adds DRM to .mp3s, has "proprietary format" conversion) when they've never done any such thing - and when Microsoft does it, it's no big deal?

Umm... Well, its no big deal with Apple because they don't put any DRM on any MP3s and never have.

Their iTunes AAC files (which you purchase from their site) do have fairplay DRM on them but MP3s they are not. They are a completley different file format and are a different beast when it comes to lossey codecs.

You can rip CDs all day long with iTunes to MP3s or AACs (I don't know why you would want to rip to AAC but you can) and not get a bit of DRM on those files.

Heck you can even rip to Apple Loseless mp4 without DRM. Its just that only quicktime, iTunes, and iPods only have the patent codec for them, but I can share a MP4 with my friends all day long and they can make copies and put it on their iPods if they wanted.

Re:fool me once...

its no big deal with Apple because they don't put any DRM on any MP3s and never have...

You can rip CDs all day long with iTunes to MP3s or AACs... and not get a bit of DRM on those files.

Heck you can even rip to Apple Loseless mp4 without DRM... but I can share a MP4 with my friends all day long and they can make copies and put it on their iPods if they wanted.

I think people are misunderstanding (or spreading FUD about) Microsoft's plans with DRM and music shared between Zune players. Windows Media Player only adds DRM to ripped tracks if it's set up to do this (you set this up during installation/first run). If you accidently set up WMP to add DRM to ripped files (it used to be the default), then here's the instructions to disable this: How can I rip files to my computer without copy protection? [microsoft.com]

From the articles I've read so far (TFA for this story has been Slashdotted), it sounds like Zune will add DRM to files that are wirelessly shared with other Zune players, not to the DRM-free files you transfer from the Zune software (WMP 11?) to the Zune. Adding DRM to your shared, but intitially DRM-free, files may sound like a crap move, but do you think any player (including the iPod) can get away with allowing direct player-to-player copying without adding DRM? This would be similar to file "sharing" like P2P, but on a smaller scale. In the paranoid RIAA's eyes, people could be adding copyrighted music to their players even if they didn't own the original CD.

but I can share a MP4 with my friends all day long and they can make copies and put it on their iPods if they wanted.

But can you make a direct transfer from iPod to iPod? Can you easily transfer a DRM-free MP4 file from your iPod to all of your friends' computers? I'd be surprised if the RIAA allowed this.

Contributory and Vicarious Infringement

It's time to sue Microsoft for contibutory and vicarious infringement for doing this. Use the Grokster case as precedent. It's time the pro-DRM side got a taste of their own legal medicine.

Re:Contributory and Vicarious Infringement

Microsoft would not be doing anything wrong.

You know 'wrong' and 'illegal' are not synonyms, right?

The person who distributes the CC-licensed work would be breaking the terms of the license...

The contributory copyright violation in the grokster case was that they knew or expected that people would be using their technology to violate copyright and made a profit off of it. MS is in exactly the same boat. making three copies of a song for random people in a wireless net is almost certainly illegal copyright violation and MS is making money facilitating it. Take em to court RIAA!

Re:Contributory and Vicarious Infringement

I guess we just need a load of CC-licensed artists to form some kind of Association and pool their resources. I look forward to the first case being filed!

Don't hold your breath. My interpretation of MS's press release is that Creative Commons music will not be shared at all unless they are selling them through MS's online store and authorize it by opting in. Songs you rip yourself will not be sharable. This seems to be purely a marketing feature to advertise songs you bought to others and get them to buy them when they stop playing after 3 days. It will only work for songs bought from MS's store and whose publishers specified it to be sharable/advertising enabled.

Re:Contributory and Vicarious Infringement

And so, like the Xbox before it, the Zune gains market share due to the very people who hate Microsoft and want to stiff them hacking their hardware drivers. If people start cracking the Zune security, and then M$ isn't to blame, I'm going to laugh incredibly hard when version two of the Zune is much much harder to crack open. This means M$ has acquired a portion of the market at the expense of the very people who really wanted to lock it down. It's funnier every time it happens, except that Redmond retains control.

Re:Contributory and Vicarious Infringement

The contributory copyright violation in the grokster case was that they knew or expected that people would be using their technology to violate copyright and made a profit off of it. MS is in exactly the same boat. making three copies of a song for random people in a wireless net is almost certainly illegal copyright violation and MS is making money facilitating it. Take em to court RIAA!

That would depend on what kind of liscensing agreement MS made with the RIAA. Of course if an artist not part of the RIAA wanted to sue them that would be different. However, contributing to breach of copywrite under the CC liscensing agreement by 'requiring' that all music be wrapped in the same DRM may have more of a chance to be done. I believe some of the MSN community stuff is done under CC, so they can't claim ignorance of the liscense. Therefor they can be held to have known/should have known that sharing music covered under the CC would be done in violation of copywrite if wrapped in their DRM.
Oh the sweet irony, indies hitting MS with the exact same argument the RIAA used against Napster & Grokster.
"Your honor, the federal courts have upheld that despite the substantially non-infringing use of a system, a companies encouragement of people to trade music files makes them accountable for the infringement of their clients.(re Napster & Grokster) We understand that the defendant is claiming that their distibution method of wrapping files in DRM & time limiting usage makes the action fall under fair use, however we humbly direct the courts attention to the [insert number of CC songs available] songs liscensed for distribution under the Creative Commons liscense. The actions of the defendant place their users in direct violation of the terms of this liscense, and as such, MS, by encouriging the users of Zune products to violate the liscense - and thus copyright law as they no longer have a legal copy of the music, is a direct contributor to the copyright infringment of it's users. We feel that the damage done to our clients reaches into the $[asshat number with no relationship to reality] and so ask MS to pay them $[even higher number] to cover our clients losses, their emotional distress, and legal fees. We additionally request an injunction prohibiting MS from further enabling this gross violation of copyrite law."
The beauty of that is that the CCL makes it absolutely clear that you are making your own copy only by accepting the conditions of the CC liscense. If you violate the liscense, you have just surrendered your right to continue owning the music you already downloaded. This is unlike the music industry that plays the "it's a product - wait, no, it's a liscense game". Here you clearly make & own your own copy under a liscense. Violate the terms of the liscense & you void your right to own the copied work => destroy the work or be in violation of copyright. I don't see MS touting this fact while they run around promoting Zune.

Re:Sued for millions!! Class Action!!!

"Sued for millions?" You have to prove damages. What are the damages here in monetary terms? Zero.

They're called statutory damages. You know, like the RIAA sues for. You don't think they are claiming that the damage to them caused by someone uploading a single song is really $150,000 do you?

2. much more likely, MS would just add a disclaimer telling the user, "The sharing feature is NOT to be used to share CC files" (like the various DVD/CD copying programs have a disclaimer, "This software is not to be used to violate the copyright of protected works").

Ah, just like that disclaimer (almost verbatim) protected p2p vendors from getting their pants sued off. Oh wait: it didn't. Oh well, maybe MS need to just obey the law that they're so keen on getting others to obey.

Re:Chinese Translation analogy

Anyone can zip and password protect a CC file. Does this mean Zip is a problem or the Zipper?

Is Zune the problem, or the guy who put the CC file on his Zune player?

So who broke the law, the guy who translated it, the guy who paid for the translation, or the guy who bought the translation.

Take that back

Zune accomplishes this amazingly stupid feat by wrapping shared music in a proprietary layer of DRM, regardless of what format the original content may be in. If Microsoft's claims are to be believed, this on-the-fly DRM will be seamless and automatic - which must be some kind of first for Microsoft.

This story should be pulled immediately! Slashdot does not tolerate cheap shots towards Microsoft

Licensing is to IP

what sharecropping is to realestate ownership. It's just that simple.

I don't know if Microsoft is liable here...

The FAQ on the article basically does not allow a person to distribute a creative commons work that has been modified with DRM. Microsoft is doing no such thing. While their software will DRM-ify the song, it is the end user who is using the Zune as the mechanism of distribution. Clearly the works are available without the DRM, as the original user got the song in the first place. This seems to me to be an issue of a transport layer. If you know Microsoft will always DRM, and you try to use this mechanism to distribute CC'd licensed works, then perhaps you are the one who is in violation of the license.

Re:I don't know if Microsoft is liable here...

The difference is that CC and "free" licenses open themselves up to abuse because they grant so much leeway in the method of distribution of content (and software). With a normal copyright, the user gets no redistribution rights except for what falls under the concept of First Sale. There is no question that redistribution violates the copyright.

CC licenses blur that line considerably. All of a sudden, you grant almost free usage of content to your audience. The copyrights you retain are essentially non-existant. When you declare terms of use, you start peeling that freedom back again, blurring the line further. If the CC guidelines state that no electronic blocks (DRM) may be attached to the content, how do you reconcile that with the fact that computers and the internet are not universally available and present themselves as implicit content locking mechanisms (you can't access these electronic files without also getting online)? The entire act of creating digital content means that the content is restricted to only those who can gain access to it.

The CC license requirement against DRM is non-sensical because the content itself, at the source, is never out of reach from those who would be interested in it. The DRM is just another mode of distribution, like tissue paper or papyrus. It may not be the optimal method of information transfer, but it's better than nothing.

Re:I don't know if Microsoft is liable here...

I see you've been modded funny. I hope that you were trying to be funny, because if this was a serious argument, it is astoundingly ineffective. If I grant you a license to my copyrighted work with the only restriction being that you are not allowed to copy it onto papyrus, you are bound by that term if you accept the copy. The only thing I can't do is restrict non-infringing copying or statutory fair uses, because Title 17 doesn't give me control over those in the first place. Other than that, I can pretty well impose whatever restrictions I like, let them be ever so arbitrary, silly and/or useless. "The work was readily available," is not an excuse.

As for the argument that being electronically encoded is itself an "implicit content lock," I invite you to convince a court that your ludicrous definition is correct. You could just as easily argue that writing in English is an encryption because not all people are literate in English, and you would be just as wrong.

Does it really wrap non-WMA files?

Considering all the FUD that gets commentary and analysis about MS and Vista recently, it would be nice to know exactly where he got the information that Zune would also wrap non-WMA, non-DRMed files in a DRM layer.

Does it really do that? Anyone have a source?

Re:Does it really wrap non-WMA files?

...it would be nice to know exactly where he got the information that Zune would also wrap non-WMA, non-DRMed files in a DRM layer. Does it really do that? Anyone have a source?

The original source quoted is Forbes Magazine's article with direct quotes from Microsoft spokespersons, however, in reading that article [forbes.com] it seems to me to imply that only a subset of songs bought from MS's version of the ITunes store will be available for sharing and it implies that any other music simply won't be able to be shared at all, including Creative Commons works, although the wording lends itself to ambiguity.

Doesn't really sound like a problem

From the sound of the article, this is only implemented for the wireless sharing feature and not for all media, so you'll still be able to send these files to each other, unencrypted, with no adverse effects. It just won't work over wireless.

As for the CC-licensed content, the original data is still available, unhampered by DRM.

It's unfortunate that the link to the previous analysis is broken in the article. For something like this, it really helps to have more facts.

Who is liable?

Assuming the Zune allows violation of the Creative Commons license in this way, who is liable? Is it Microsoft, for making the device, or the user, for distributing Creative Commons-licensed material in a way that's incompatible with its license?

Re:Who is liable?

Assuming the Zune allows violation of the Creative Commons license in this way, who is liable? Is it Microsoft, for making the device, or the user, for distributing Creative Commons-licensed material in a way that's incompatible with its license?

You must be new here.

Such a crazy story

Ok let me take a poll
How many people will buy a zune ?
Ok of those select few, how many have CC content they are or were planning to put on the zune ?

Is anyone's hand up? Furthermore, it would be the end users that would violate the CC license, not microsoft. I can violate the licence today with Microsoft Media Player. Why doesn't CC sue microsoft for allowing users to violate the licese that way? Zune just makes it easier to violate the licese CC doesn't have a say and doens't ahve a leagal leg to stand on. The whol anti DRM thing on slashdot has gotten way out of hand. There are many artists who awnt this kind of protection for their music. They are stuggling to make ends meet and tak to fans who tell them they burned copies of their cd's and gave them to all their friends. These bands are on INDEPENDANT labels, not covered by RIAA. Its an option, let people choose to use it or not use it. Microsoft added a feature that previously didn't exist amoung mp3 players and wanted to make sure that no one used it to violate the artists rights. It just means that you will have to distrubute CC licences files some other way, possibly the same way you are doing right now!

Marketing tool not Listener tool

I appologise for not remembering where I saw/heard this but in the last 24 hours I saw a comment that made a lot of sense with regards to the Zune and the 3 day/play rule. This feature is not meant as a convenience of the user so they can share their music with others. Its a feature of the marketing people so they can virally encourage you to buy more.

Imagine a bunch of kids at school. The first one buys a track from the Zune store, shares it around to all his/her friends, creates interest in the cool tune. And then *poof* the music vanishes. So what do all the friends do? The head off to the Zune store to buy buy buy.

From that perspective the feaure makes a great lot of sense.

How about when someone manages to kill the DRM?

Given that no DRM I've yet heard of has been able to stand up against a bunch of people willing to crack it, does anyone think the Zune might gain a cult following if someone should manage to disable the 3-day/3-play limit on the songs? Or even the DRM wrapper that adds DRM to the songs that don't have it? Because a DRM-less Zune actually sounds like a good idea. Hackers, get to it!

It's gonna take some lawyers...

A big problem is that many media companies and companies like Microsoft don't really believe that copyright license like CC and the GPL are "real" licenses. These companies believe that there is really nothing backing these kind of license up, and while the little people may get pissed off, no one has the resources to come after them. It's going to take a court case to make these people pay attention to Open Source licenses.

I'm now of the belief...

That this product in and of itself will not prosper.

On the other hand, someone will find a way to hack a better , more open OS onto it, using it's hardware capabilities. And they will have a hit.

Or MS will abandon it and whoever is doing the OEM manufacture of the hardware will sell it to a company wiloling to put an open OS on it.

I can always dream and hope.

We are...

...Zune of Borg. Lower your firewalls and prepare to be accessed. Your audio and video uniqueness will be added to our own. Resistance is futile.

Microsoft *had* to use this DRM....

or the **AA would have had to sue the hell out of them. The ultimate nightmare for a **AA executive is a "college Zune party." A bunch of people get together, swap a ton of music/movies/etc., and leave. No torrents, web servers, or IP addresses to list in a lawsuit or threatening letter to a college administrator. Microsoft would have been guilty of enabling illegal file sharing/IP theft without this DRM wrapper.

Re:ok so?

As a former long-time owner of a Sony Minidisc player, I can give you a glimpse of why the hate is so strong here. It's about (what my best friend calls) 'wasted potential.'

Let me give you an idea of what my Minidisc life was like for about 5 years:

The device is capable of so many uses. You can record, you can play, you can run with it, you can hook it up to a million sound systems, etc. etc. etc. But the software is designed with keen observation from the lawyers in the company. Many of the features that you, in your sweet heart, KNOW are there are disabled. Recording and then copying are severely restricted. Getting music onto the damn thing takes the effort equivalent to climbing a mountain.

Long story short, it's a gallant horse with strong legs in a tight and painful harness. Severely limited in its movement, the animal withers.

The wireless component of the Zune give it immense potential to dethrone the Ipod. But, we all know that DRM and MS's history will give us a scenario much like the one I consistently experienced as a Minidisc fan.

That's why I have an Ipod.

MS screws up a good idea again

With wireless devices becoming more popular everyday, it's only a matter of time before there's an MP3 player with wireless adhoc network capability to transfer files. As it stands, I can already with my wired connection and my archos player transfer files via wire to other players without lame DRM or other interference. Which is really neat when you want to share something with someone who has a MP3 player that is classified under USB mass-storage. It's only a matter of time before free wireless sharing between 3rd party players emerges. I was almost 100% certain MS would screw this up somehow, and it looks like they did quite a job of it. The possibilities are cool, but with the DRM, very limited. And you can bet I'd be looking elsewhere for my next player.

I suppose it's to be expected, these are the same people that went out of their way to store Media Center files in a proprietary format making it almost impossible to watch on Linux or just about any other computer. What a shame.

Copyright Violation?

So if I write and record a song, copyright it and then release it my friends who then share it with a Zune, does that mean I can sue Microsoft for Creating a derivitive work based on my copyrighted materials?

Perhaps I could then send a legal blackmail letter to microsoft offering to settle for $3700 and if they don't accept, I can recover up to $150000 for each violation? Regardless of what the actual loss is, it seems the precedent set by the RIAA would declare that each copyright violation for a song is worth more then actual damages.

Inflammatory title...

That should read: Zune's Music Sharing Features Will Allow Users to Violate Creative Commons.

The Zune is an inanimate object. It isn't doing anything. It allows the USERS to share music in a DRM'd format. It is the user's responsibility to know that THEY are violating CC by distributing a piece of media with out complying with that media's license.

-Rick

Re:Hrm. I guess I would never use the WiFi

Actually, according to Microsoft's Zune Insider, Zune WILL allow you to share music that hasn't been purchased through the Zune Marketplace:

http://www.zuneinsider.com/2006/09/answers_to_some .html [zuneinsider.com]

Here's what he says in answer to a question about this:

"I made a song. I own it. How come, when I wirelessly send it to a girl I want to impress, the song has 3 days/3 plays?" Good question. There currently isn't a way to sniff out what you are sending, so we wrap it all up in DRM. We can't tell if you are sending a song from a known band or your own home recording so we default to the safety of encoding. And besides, she'll come see you three days later. . "

4. PROFIT!!!!!

1. Create crappy song with Creative Commons License
2. Get Microsoft to force user to violate