The state of California passed a
law last Tuesday that makes it illegal for someone to electronically
disseminate a commercial copyrighted work to more than 10 people without
including the sender's email address and the title of the work. Offenses
under this law are punishable by up to a US $2,500 fine and a year's
imprisonment, with lower penalties for minors. People charged with
violating this law can avoid conviction if they can demonstrate that they did
not know that a work was "commercial" when they distributed it online.
We believe that the importance of this law cannot be overstated.
Although not much has been made of it, compared to other legal developments such
as the "Induce" Act currently making its way through Congress, it should send
shock waves through the DRM industry for the precedent it sets.
In recent weeks, we have been examining various online content
providers' attempts to codify the meaning of the controversial phrase "share
with friends" in terms that a technological system can represent.
MusicMatch's On Demand
service lets subscribers send playlists to arbitrarily many "friends," who can
play each song up to three times without paying. Apple's iTunes lets users
burn tracks on up to 3 CDs. The new
fnacmusic service
in France lets users burn up to 7 times and transfer content to up to 5 devices.
PassAlong Networks's
new service on eBay allows 10 burns. And on it goes. We had said
that the market, and licensing agreements with content owners, would be likely
to determine the practical definitions of "sharing" where the law is too vague.
But not anymore. California says that the number is 10. Of
course, if an electronic distribution of content contains the sender's email
address and the title of the work, then there is sufficient information to
proceed with a charge of infringement under existing copyright law.
Various flavors of DRM schemes rely on this principle: that if a user attaches
identifying information to a distribution of copyrighted material, then either she
should feel safe in legitimately distributing those works, or forensics
should lead to her as an infringer.
Microsoft's eBook technology,
Bitmunk's
Superdistribution network, and the Fraunhofer Research Institute's
Light Weight DRM
scheme all rely on this basic principle. If this California law spreads to
the rest of the US and beyond, then technologies like those become mere
conveniences for content owners, and service providers will have
legal guidance when deciding how many friends someone can really have. Of
course, content owners can still choose to limit distribution even further and
can use encryption-based DRM technologies to enforce those limits.
We would be remiss if we did not add that the number 10 is a seemingly
arbitrary, capricious, and intrusive number - as any fixed, non-huge number
would be. But for better or for worse, technological means of distributing
copyrighted works call for technological ways of controlling their distribution,
and those must be specifiable in terms that technological systems can understand
and not by unimplementably vague concepts like Fair Use or Fair Dealing.
In other words, although many may object to reducing friendship to numbers,
everyone's life is ultimately made easier by them in this case. Now, let
the serious discussion begin on what those numbers should be.
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