Subject: [dvd-discuss] The DIVX (pay-per-failed-venture) analogy Date: Sun, 18 Jun 2000 05:07:06 -0500 From: Chris Moseng Reply-To: dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu There are many elements of the DIVX scheme that could shed light on various elements of this case. I want to focus on one here: the sunset of the authorizing authority and its relation to the publication of a work. DIVX, the DMCA protection-measure poster child, went belly up June 16, 1999 (why, that was one year ago almost to the day!) Despite the misinformation reported to come directly from CC about DIVX in its "heyday," most consumers realized that they were entering into a pay-per-use scheme with severe limits on access. Forward-thinking consumers probably also realized that the limits would also be time-sensitive. Someday, DIVX's number would come up, and access authorization would be denied or unavailable (barring reverse- engineering of the server-player authentication mechanism and some 'generous soul' hosting a computer and 1-800 number in perpetuity. Come to think of it, this may have been a cheaper solution for CC than buying everyone off). In any case, purchasing a DIVX disk came with the understanding that someday its contents would be beyond reach, as access could no longer be authorized. This happened sooner rather than later, but because it relied on a corporate infrastructure its eventual expiration was certain. A year later the spectre of CSS looms (it didn't seem so bad last year, did it?). Except this access protection measure has potency DIVX never had. DVDs have critical mass. Material is being exclusively "published" on DVD. The studios are *serious* this time. Finally, I get to the point: The plaintiffs are asserting that access to the work is protected by a TPM. They assert that access can be authorized or unauthorized. Unauthorized access is unlawful per 1201. Never mind or access is authorized in an instant case--think of it in the abstract, along the infinite timeline. Who grants authorization? The entity with authority to grant access, the holder of the copyright (or their designee?). When will access be authorized? Access will be authorized only during such time as the entity with authority exists and is willing to grant authorization. This is necessarily finite. See DIVX. Imagine for some reason (illness, perhaps) I "purchased" The Tin Drum on DIVX. The Tin Drum is a copyrighted work, and the copyright holder's designee (Circuit City's subsidiary) grants me authorized access. The next week, DIVX goes does the permanent stock split and no longer exists to grant me authorization. I cannot access the work. Even if I paid to have anytime access to the work. Even if there is fair use to be made of the work. Even when the copyright expires. Now, apply the scenario to DVDs. Where does the analogy fall apart? Is it because my DVD player is not calling into the DVDCCA/MPAA/Studio and asking for permission? Is it the explicit agreement that DIVX had with its customers? Remember, there is no sunset clause in the DIVX customer agreement (http://www.dvdresource.com/contributions/divxagreement.shtml), but it does disclaim responsibility for "interruptions in service." Presumably the proxy rights to designate authorization fell back to the studios when DIVX died. I am sure every day the various studios happily field authorization requests from abandoned DIVX consumers. What can we learn from this? I'm not entirely sure, but I'm comfortable saying it has to do with the sunset of an authorization body and with whether or not the material on the disc can be considered published. Basically, if there is no way to obtain authorization, should a consumer be held to 1201? What if there is a way, but it is unpublicized or results in a blanket denial of authorization? Was the material on a DIVX disk considered published? Could consumers make fair use of a DIVX-fixed work? Can they do it today, in the absence of the CC subsidiary granting authorization? Would trafficking in a DIVX circumvention device violate 1201? Would using it? What about after the work's copyright has expired? Who would sue? >From the other perspective, does a consumer have any recourse when their DVD player doesn't play new DVDs because the key's been revoked? Can a consumer be held in violation of 1201 when an authorizing body never explicitly grants access, just denies it post hoc? Suppose such a caveat were printed on all DVDs? Why should a consumer of a published work be required to ask for access authorization at all? Does the existence of a TPM mean the work is not published, but behind large, locked doors? And, moving way too far into this line of fantasy, does congress have the right to give copyright holders such large doors? I suppose this is another final constitutionalty defense. Can you tell how many ways I take exception to the DMCA yet? How might DIVX analogies benefit the defense? The plaintiffs? More questions than answers here, some have been seen before, I suppose. The DIVX analogy has been mentioned in the list in March (0 followups), and in passing other times. Maybe the list just doesn't find it interesting. Well, I've already got all this written, might as well try it again. Basically, all I see with CSS is DIVX with double the faceless corporate rigamaroll and a more subtle brand of fascism. Oh, and I know that the bigger questions will probably not be legally answered for years. I'm just musing. Hopefully some of this isn't just noise, I do think that the analogy to DIVX can be helpful. Any takers? Chris (noisy)