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...

[yagu]

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).

Contributory and Vicarious Infringement

[russotto]

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.

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

[nebaz]

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.

Doesn't really sound like a problem

[BadAnalogyGuy]

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?

[flooey]

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

[brunascle]

but that's the same thing with the napster/audiogalaxy/kazaa/etc lawsuits. the companies themselves werent breaking the law, they're just allowing users to break the law. and they still got shut down.

Such a crazy story

[Bill, Shooter of Bul]

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

[OzPeter]

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.

Re:fool me once...

[LunaticTippy]

They tried this type of DRM with DAT, and DAT is nearly dead.

I was quite interested in the format at the time, but without buying "professional" equipment for an extra $1k you couldn't create master tapes.

If I made or bought a song, I don't want to have to figure out which machine the "original" is on in order to put it on my mp3 player.

It's gonna take some lawyers...

[Frosty Piss]

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.

Re:Contributory and Vicarious Infringement

[tddoog]

That is one of my beefs with this thing. The sharing feature facilitates copyright infringement. Ostensibly Microsoft has negotiated some sort of deal with the RIAA that allows Microsoft to let people copy music which is illegal unless specifically allowed by the copyright holder. Contrary to (the RIAA's) popular belief, the RIAA does not hold the rights to or represent everyone who holds the rights to every song ever written performed etcetera. So it seems that this "feature" would facilitate massive copyright infringement. Ive written and played a few songs, where do I sign up for some of this class action.

Where's the NewYorkCountry lawyer when you need him.

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

[99BottlesOfBeerInMyF]

Microsoft would have been guilty of enabling illegal file sharing/IP theft without this DRM wrapper.

Technically so long as they let users share any music they uploaded without restriction or monitoring, MS could probably have walked on this without ever losing a case. They would, however, have pissed off their RIAA partners and it would have made the Zune less profitable for advertising research. Also, it would have de-motivated purchases from their online store, since users could just share music including music from CDs, or downloads.

Re:Licensing is to IP

[FLEB]

FAILURE to analogize!

If it were sharecropping (using music as an example), I'd have to sing the song myself to get any enjoyment. Apart from karaoke CDs, that's pretty rare. It's more like rental or land-contract... or not like real-estate at all.

Sued for millions!! Class Action!!!

[I'm Don Giovanni]

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

It's quite sad that you guys are calling for lawsuits that would result in one of two things: 1. Removing the sharing feature altogether (many of you would love that just to stick it to MS, but you'd be screwing over Zune's users in the process); 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").

You guys will accomplish nothing significant with this ridiculous "suit".

Still a flawed system.

[Kadin2048]

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.

Re:fool me once...

[WhatAmIDoingHere]

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.

Inflammatory title...

[RingDev]

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:Sued for millions!! Class Action!!!

[PeterBrett]

"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:Contributory and Vicarious Infringement

[gutnor]

A song will probably cost about 2$. You just buy one at a time and the player gives you an easy way to purchase it.

That business model look a lot like the business model of mobile ring tone and games. You may wonder ( I wonder ) who send an SMS to an obscure service for 2$ and only receive a stupid ring tone. But that kind of service is very *very* profitable.
Do not overestimate people reaction against DRM. People bought DVD long before it was cracked and even now most people buying a DVD don't care about the zone, mandatory warning, ... or the simple fact that they can't make a copy.

The Microsoft player certainly has a lot under its belt. It would probably have been a real hit if iPod didn't exist. (Depending on the polish of the service and interface off course)

Off course we are in an iPod + iTune world so there is little place for alternative ( Sandisk, Creative, ... tried multiple times before )

( Note: I know I know, this is /. and iPod is Apple -> the iPod do not need an alternative )

4. PROFIT!!!!!

[Tharkban]

1. Create crappy song with Creative Commons License
2. Get Microsoft to force user to violate license
3. ...
4. PROFIT!!!!!!

Sometimes step 3 is easy to imagine.

Re:Contributory and Vicarious Infringement

[MrAnnoyanceToYou]

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:fool me once...

[sm62704]

The RIAA is not a law enforcement group

Quoth The Who: "...owns a gun that fires cops". The man who owns the cop is more powerful than any cop.

Re:fool me once...

[MojoStan]

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.

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

[Joce640k]

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

[r3m0t]

"Am I the only one who sees the hipocracy here?"

Yes!

Using P2P you could have listened to the song *any* amount of times before deleting it. They don't know! Maybe you even uploaded it to somebody else or copied it to another device.

So maybe you *didn't* decide it was crap, unlike what you would claim in court.