Media Rights Technologies (MRT) has sent
cease-and-desist letters threatening legal action to Apple, Microsoft,
Adobe, and RealNetworks. MRT is charging these companies with
intentionally avoiding usage of its X1 Secure Recording Control DRM technology
and thus violating the anticircumvention provision of the DMCA. The
technology purportedly prevents stream capture and transcoding on Windows
platforms.
MRT, based in Santa Cruz, CA, operates the
BlueBeat.com
internet radio service, which features intelligent, eclectic programming at true
high-fidelity bit rates -- and, of course, the X1 Secure Recording Control
technology. The company's founder and CEO, Hank Risan, is a colorful
figure whose polymath background includes a PhD from Cambridge at a young age, a
personal fortune made in the financial markets, and a highly prized collection
of vintage guitars.
Yet this has got to be one of the most preposterous DRM-related legal actions
on record. It's now a given that vendors of DRM technologies for consumer
media applications have been unable to earn revenue from software licensing, so
some of them have turned to the legal system through patent assertion to
monetize their technology. Heard of "patent trolls"? MRT is now the
world's first DMCA troll. MRT and its attorneys get points for novelty, at
least.
This threatened litigation is not in the same category as previous abuses of
the DMCA, such as those concerning
garage door openers
and laser printer
toner cartridges, where companies used the DMCA to help preserve market
share against encroaching competitors. Instead, this move smacks of desperation from a
company whose success in selling its DRM software outright has been no different
from that of many other DRM vendors, including one of MRT's targets (RealNetworks)
as well as ContentGuard, Intertrust, and other companies that are now long gone.
The richest of the many ironies here is that MRT's actions reflect a
fundamental misunderstanding of the original intent of the anticircumvention
law: to help companies such as Microsoft, Apple, Adobe, and RealNetworks
avoid responsibility for implementing strong, effective DRM. The
law itself does not specify how powerful a "technical protection measure" (TPM,
the legal term for DRM) needs to be in order to be covered, and court opinions
in cases such as Universal v. Remeirdes (2000) have reinforced this: the law gives digital media technology vendors a backstop regardless of a DRM scheme's strength.
The liability for hacks rests solely on the hacker, no matter how easy it is to hack.
MRT is attempting to turn DMCA sideways by effectively accusing these companies of hacking their own technology,
of vicarious liability through being able to adopt X1 Secure Recording Control
(and paying MRT for it, presumably) but choosing not to. On the surface,
this sounds similar to the vicarious liability theory being bandied about in
some current litigation, in which content service providers like YouTube are accused of
failing to implement filtering technology. But there's an important difference: in the latter case, the plaintiffs are not
trying to sell the defendants any technology; they are trying to protect their
copyrights.
If MRT turns this bizarre litigation into a referendum on the effects of the
DMCA on the strength of DRM technologies in the market, that would be quite
interesting. But we doubt that this is MRT's primary intent.
Events
IE 7
Firefox 2.0
