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EFF Asks FTC To Demand 'Truth In Labeling' For DRM (techdirt.com) 122

An anonymous reader quotes a report from Techdirt: Interesting move by Cory Doctorow and the EFF in sending some letters to the FTC making a strong case that DRM requires some "truth in labeling" details in order to make sure people know what they're buying. The argument is pretty straightforward (PDF): "The legal force behind DRM makes the issue of advance notice especially pressing. It's bad enough when a product is designed to prevent its owner from engaging in lawful, legitimate, desirable conduct -- but when the owner is legally prohibited from reconfiguring the product to enable that conduct, it's vital that they be informed of this restriction before they make a purchase, so that they might make an informed decision. Though many companies sell products with DRM encumbrances, few provide notice of these encumbrances. Of those that do, fewer still enumerate the restrictions in plain, prominent language. Of the few who do so, none mention the ability of the manufacturer to change the rules of the game after the fact, by updating the DRM through non-negotiable updates that remove functionality that was present at the time of purchase." In a separate letter (PDF) from EFF, along with a number of other consumer interest groups, but also content creators like Baen Books, Humble Bundle and McSweeney's, they suggest some ways that a labeling notice might work.
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EFF Asks FTC To Demand 'Truth In Labeling' For DRM

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  • classy actions (Score:5, Insightful)

    by harvey the nerd ( 582806 ) on Tuesday August 09, 2016 @08:07AM (#52670425)
    We need just a few standard form models for DRM like Model A, Model B, ...Model D, that are standard commercial options and well understood broadly.
    We need a complaint mechanism with teeth for false representation and tortutious interference,
    • Re:classy actions (Score:5, Interesting)

      by Anonymous Coward on Tuesday August 09, 2016 @08:29AM (#52670537)

      How about making post-sale non-negotiable contract changes illegal?
      And no, it is not as simple as me just getting a refund if I deny the new EULA.
      I know cases where people buy new hardware of even take vacation time to play a game. If the game then is updated post-sale with a license that the person don't want to accept then he/she is still screwed.
      The case is similar for business software. I you have built a sever farm with the intent of running a software with a known license it should not be acceptable for the software vendor to just who up with a new license.

      An EULA that you have to click through to install that weren't available for reading at the store when you purchased the software should not be enforceable.

      • by AmiMoJo ( 196126 )

        These are called "incidental losses", losses you incur because the product is defective or unfit for purpose. The EULA usually says you can't claim them, but such clauses are illegal in many countries (including the UK) where the law very clearly says that you can.

        • Clauses that cannot be enforced should be illegal, and punishable by law. They serve give the impression that you have less rights than you have. Most people are not lawyers, so even if they read the agreement it cannot reasonably be assumed they know which clause are not applicable. It is not reasonable that consumers seek legal advice before purchasing a DVD or a video game.

    • by EvilSS ( 557649 )

      ... and tortutious interference,

      "You're honor, their DRM is interfering with my torture."

      "You're honor that can't be right, DRM is torture!"

      "Agreed, case dismissed."

  • Misleading? (Score:5, Insightful)

    by RabidReindeer ( 2625839 ) on Tuesday August 09, 2016 @08:08AM (#52670433)

    "Own it (snicker) on DVD!"

    • by Anonymous Coward on Tuesday August 09, 2016 @08:28AM (#52670527)

      "License it for viewing, in our licensed player, by yourself, and only yourself, on DVD today, for very small values of today, and only if you're in a country we like!", doesn't really have the same ring to it.

      • Re:Misleading? (Score:4, Insightful)

        by TheRaven64 ( 641858 ) on Tuesday August 09, 2016 @11:17AM (#52671579) Journal

        I recently bought the boxed set of Stargate SG-1. Everything was fine until I got to Season 6, which had some copy protection that meant that about 4 minutes into each episode it would jump back to the menu. I found a bunch of documentation about the company responsible and their approach works by putting out-of-range indexes into some of the header fields in the stream. Most players simply ignore these values, but it crashed mine. I'd be very happy if almost-DVD-but-violates-the-spec-and-may-randomly-break-because-we-hate-paying-customers disks had to be labelled differently to DVDs.

        Oh, and the worst part about this: the only way that I could watch Season 6 was to rip the DVDs. Great job with 'copy protection' guys!

      • Makes for a good jingle though.

    • by Anonymous Coward

      "Own it (snicker) on DVD!"

      Take a photo. Document the purchase.
      Then hit them with a DMCA notification together with the proof of you being the owner.
      Then sue them for fraud when they say that you aren't the owner.
      Probably no profit since only large companies are allowed to do bullshit like that.

    • by sconeu ( 64226 )

      I'd love to see someone sue for false advertising on that.

      How big would their sales be if they read "LICENSE IT (for limited purposes) ON DVD TODAY!!!"

  • by El Cubano ( 631386 ) on Tuesday August 09, 2016 @08:14AM (#52670459)

    I'd like to see the government provide relief from DRM-related laws when a company goes out of business, drops support for a product, or when the (ever lengthening) copyright term expires. In fact, I'd like to see that in order be able to assert copyright over an encumbered work that the rights holder must have on deposit with the Library of Congress all necessary software/devices/documentation/etc. to ensure that the Library of Congress can remove the encumbrances for all US citizens when it becomes appropriate under the law (e.g., the work is abandoned or its copyright term expires). The way things are going now, we are going to end up with an entire generation of creative works which will be under a, for all practical purposes, perpetual copyright. Sure the technology will eventually advance to the point that today's DRM will be breakable like a child's toy, but the cases will still have to be fought in court. The perversion of copyright needs to be fixed properly instead of leaving it as a battle for future generations.

    • The perversion of copyright needs to be fixed properly instead of leaving it as a battle for future generations.

      While I completely agree with everything you stated in your post, your last sentence makes me chuckle. Even though I agree with it as well. But is there anything that the US government doesn't kick the can for future generations to have to worry about? For the most part, very few things get resolved these days before they become a major crisis. Social Security has been within 20 year of bankruptcy for decades. It keeps getting band-aid fixes and was getting a lot of lip service for a while. Heath care refor

      • by rickb928 ( 945187 ) on Tuesday August 09, 2016 @09:03AM (#52670703) Homepage Journal

        The current near-perpetual extensions of copyright isn't 'kicking the can for future generations'. It's granting virtually eternal copyright by redefining 'lifetime' in corporate terms.

        And corporations have an unlimited lifetime. Yes, they do:

        - If successful, they persist forever.

        - If failed, they sell their property to another.

        - If the purchaser fails, they repeat. Ad Infinitum.

        Perhaps corporate copyright should be limited to the initial originator or purchaser, and any transfers then be limited to reasonable terms. 7-20 years. No extensions. Further sales inherit the limit.

        But copyright is so broken it's criminal. Despite the problems, we have greater problems in American to solve, such as the open disdain for and circumvention of law at all levels, in every area.

        • The current near-perpetual extensions of copyright isn't 'kicking the can for future generations'. It's granting virtually eternal copyright by redefining 'lifetime' in corporate terms.

          In the U.S. copyright statute, the effective lifetime of a corporation is 25 years after a work is first published.

          • Copyright in a work of individual authorship subsists until 70 years after the end of the calendar year in which the last surviving author dies.
          • Copyright in a work published before 1978 or a work made for hire subsists until 95 years after the end of the calendar year of first publication (or for 120 years after the end of the calendar year of creation if not published within 25 years).

          Prior to

          • And if the property is sold to a subsidiary?

            Let's not study the usual solution for corporations of making the most minimal modification and claiming a new copyright, which is surely not supposed to happen, but the government can hardly keep up, and will grant despite no significant change.

            It's a racket. All I can ask is that it be reasonable, and for a corporation 'reasonable' isn't anything like what I would like it to be. 'Fair' no longer seems to be a concept in law.

            • I think you are misunderstanding. If a corporation is the author of the work, the term is a flat, fixed 25 years from date of first publishing. No trickery works to extend that. Selling it, or the rights, to a different corporation does not change the first date of publication.

              But, of course no works are authored by corporations. Instead, corporations pay people to author things and transfer copyright rights to the corporation. That means that the individual terms apply to the work.

              • by tepples ( 727027 )

                But, of course no works are authored by corporations.

                A corporation is considered the author of "a work prepared by an employee within the scope of his or her employment" (17 USC 101). This "scope of his or her employment" is for the courts to decide based on several factors [wikipedia.org], though the statute does list situations in which works commissioned by the client of a contractor are deemed made for hire: "as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an

        • by chihowa ( 366380 )

          But copyright is so broken it's criminal. Despite the problems, we have greater problems in American to solve, such as the open disdain for and circumvention of law at all levels, in every area.

          The latter problem is intimately related to, and follows from, the former (and similarly broken laws). Fixing copyright law will actually help to fix the open disdain for law in general.

          To make laws that man cannot, and will not obey, serves to bring all law into contempt.

          Elizabeth Cady Stanton

    • by swb ( 14022 )

      I think we're largely setup for perpetual copyright anymore now that so much of the economy is based on intellectual property and it can be duplicated so easily.

      I think IP owners like DRM at least as much for its eventual obsolescence as for its resistance to casual copying. They know that they can comfortably license content with DRM knowing that the distributor and/or their DRM regime will eventually go out of business or become obsolete and that all they have to do is re-license it to the next distribut

    • The entire reason for DRM is an attempt to prop up a business model that makes absolutely no sense. Producing a creative work is hard. Copying a creative work is trivial. We've created entire industries around the idea of creating works for free and then charging people for copies of them. That sort-of worked back when copying was difficult (when a printing press was hugely expensive and before that when books had to be copied by hand) but it's been increasingly difficult to make work. The correct solu
  • DRM Money (Score:2, Interesting)

    by Anonymous Coward

    I want DRM'd money to spend on DRM products.
    So I can control what the company is allowed to spend it on, after I give it to them in exchange for the goods/services.
    The "decided after X months not to let you keep the money after all" is going to be a killer feature.

    • I want DRM'd money to spend on DRM products.

      That already exists. Credit card payments are subject to chargeback [creditcards.com], and PayPal payments are subject to PayPal's purchase protection policy [paypal.com]. Both give the buyer several months to report a seller who refuses to correct issues with a product that is not as described.

      • Both give the buyer several months to report a seller who refuses to correct issues with a product that is not as described.

        Several months? In order to be useful, the right needs to last for life + 70 years.

  • by Anonymous Coward

    .... the human mind didn't evolve to make rational decisions, especially not regarding technology. Technically any literate person would not want to license cultural works like games, the source code for videogames should theoretically be held by a library in escrow and copyright terms should never be beyond the lifetime of the game (5-10 years) so that it goes public domain. The whole of IP law is corrupt and the masses are too ignorant and illiterate to defend themselves because human mind simply doesn'

    • beyond the lifetime of the game (5-10 years)

      I've owned games longer than 5 years that I've never played - I'll eventually catch up. There is at least one game that is almost 20 years old that I intend to play but haven't. Unfortunately, there's still no way to give the publisher any money for that game, because the current rights-holder refuses to sell it and it's been out of print for at least 15 years. In fact, the game (The Neverhood) was a commercial failure, and they probably still haven't made back their investment. But I didn't have the mo

      • by Bert64 ( 520050 )

        As you point out however, there is often no way to pay for a piece of media after a few years anyway so even if you want to pay for it you can't...
        So the only legal way for you to acquire that 20 year old game is to wait another 70 years or more and then hope that a copy still exists anywhere, on media thats still readable, and any hardware still exists thats capable of playing it.

        • So the only legal way for you to acquire that 20 year old game is to wait another 70 years or more

          No - resale is perfectly legal. And I can find it used for ~$38. However, I already have a large backlog of games to play. I'm waiting out to see if GoG gets rights to it and can release it. Even if the original artists don't get compensated this way, at least the rights-holder gets the message that this is a game people will still pay for (there is a nearly 7,000 strong wishlist vote on GoG now).

          The Neverhood doesn't even run correctly on XP, since it requires 8-bit color and palette changes and is not

          • So the only legal way for you to acquire that 20 year old game is to wait another 70 years or more

            No - resale is perfectly legal.

            That would imply that someone else has to give up their own copy so that you can have the ability to play it. That is an unreasonable restriction when digital copies are trivial to make and no one could possibly claim to be harmed by the existence of additional copies of an out-of-print game.

            • That is an unreasonable restriction when digital copies are trivial to make and no one could possibly claim to be harmed by the existence of additional copies of an out-of-print game.

              There's been a bit of a renaissance of out of print games coming back from beyond. The harm is that you would prevent it from being made available again at all.

  • by Anonymous Coward

    Then they patched in "telemetry" that required a new EULA consent form. They stole the game from me with an update.

  • by Anonymous Coward on Tuesday August 09, 2016 @08:23AM (#52670507)

    The company names listed are not what I would call "content creators", since technically their business is built around capitalizing on the distribution of content that OTHER people have created.

  • by rsilvergun ( 571051 ) on Tuesday August 09, 2016 @08:24AM (#52670511)
    when I moved once I was in a new city by myself. I went out and bought a game for PC. Mindful that I didn't have internet I picked up Dragon Age Origins. I looked the box over and there was some vague note about an internet connection on the DVD case. Figuring I was home free I took it home and found I couldn't play it w/o internet (and no refunds on open software, of course).

    To be fair I knew I was taking a risk. The game was already discounted for clearance. But it still would have been nice to have a big read label with something like "DRM. No Internet, No Worky" instead of a vague sentence in print best read with IBM's scanning electron microscope.
  • We need to stop using the acronym DRM, call it what it is, Digital Restrictions Malware.
  • "This work contains technological protection measures that may interfere with fair use".
    • "This work contains technological protection measures that may interfere with fair use".

      Short, sweet and to the point. I like it!

  • by Anonymous Coward

    I may use Steam unironically, but I draw the line at having to sign up for DRM that sits on top of DRM.

  • by emil ( 695 ) on Tuesday August 09, 2016 @09:29AM (#52670837)

    Verizon is notorious for locking phones on their network, preventing updates and general intransigence in the face of crumbling Android security.

    The FTC should make an example of Verizon - key escrow that opens for any phone that reaches six months without a security patch.

    Verizon has demonstrated that control is more important than security. The public should demonstrate, through the regulatory actions of the FTC, that security is more important than profits.

  • by Anonymous Coward

    DRM out to be outlawed. Using DRM is proof of mens rea to commit fraud.

    If it can't be outlawed, then it should only be allowed on Public Domains works (i.e. the publisher has to give up copyright if they're so disappointed with its protections that they prefer to rely on tech instead -- choose copyright vs DRM -- sort of like the choice between patent and trade secret).

    If it can't be limited to PD, then it ought to have mandatory labeling, like cigarettes.

    What EFF is asking for here, is already a huge compr

    • by tepples ( 727027 )

      sort of like the choice between patent and trade secret

      Some aspects of a single product are patented; other aspects are trade secrets. For example, MPEG-4 AVC in general is patented, but specific techniques used to improve encoding quality or decoding efficiency are trade secrets.

  • Why should the government even allow bypassing of consumer rights under the guise of "licensing" in the first place?
    I know, rhetorical question and I can get the best government I can buy when I CAN buy them, but from a naive perspective the entire concept of DRM is a slap in the face of society.

    I still play the games I bought in the 90s. Some may require OS tweaking to run on modern soft/hard-ware, but I CAN try to run them. All those new games on Steam, though? If Steam servers go down for whatever reason

  • Didn't you read and click 'Accept' on that license and terms of use agreement when you started your John Deere this morning?

  • I really hope this gets some serious traction. The only way manufacturers will stop their blatant abuse is if they have to admit to it up front, so customers can be informed enough to vote with their wallets.

  • This is all part of a much more general issue: restriction and even legal prosecution of "pre-crime activities".

    - You get DRM-encumbered products, because manufacturers are afraid you might copy the product. Copying is an action that has many uses; piracy is only one of many possibilities.

    - The DMCA prohibits circumvention of protective measures, because...why? The circumvention isn't the problem, nor are most of the reasons you might circumvent something. It's all about the relatively rare edge cases that

  • by OrangeTide ( 124937 ) on Tuesday August 09, 2016 @12:43PM (#52672495) Homepage Journal

    If I purchase some media, and it's not the usual sort of first-sale doctrine that you'd expect from a book purchase, then it needs to be clearly labeled. If there is DRM in place that prevents you from transferring ownership, that needs to be made abundantly clear before purchase.

    A CD that I can buy for $12, and sell back to a used CD shop for $3 is potentially a better deal than a cloud-only music purchase of the same album for $10. To accurately compare the two purchases, we need to know what we're agreeing to before hand.

    Sadly, I doubt any modern judge in the US would rule in favor of a consumer who failed to completely understand the 30 page EULA he was given.

    I recommend when Caveat Emptor (buyer beware) was usually said with a hint of irony.

  • This is an especially important topic given that new technology like Intel's SGX processors stand to allow 'uncrackable' DRM. Current DRM is like hide and go seek: parts of the software are encrypted on the disk and the decryption routine is obfuscated and hidden in the binary to make it as difficult as possible for people to intercept the key and copy it. However up until now, at the end of the day there has to be an encryption key somewhere that decrypts the software to run on your machine.

    SGX, on the
  • I really wished I was warned or foreseen that when I spent extra money to buy a PS3 with a bigger hard drive and a keyboard that shortly after my purchase that a firmware upgrade would take away the ability to run another OS meaning I wasted money on the extra hard drive space and a keyboard. Once this update was downloaded, it wasn't like I could turn around and uninstall it if I didn't agree with the changes to the EULA or their decision to take away the ability to run another OS. Some printer manufacture

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