Clickwrap and Copyright Abuse

Via Legal Theory Blog: SSRN-Slaying the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse


In the era of digital delivery of content, copyright owners have turned with a vengeance to contract law to specify the rights and responsibilities of their customers. Many copyright owners today seek to avoid the express statutory limits on their rights contained in the Copyright Act by invoking the institution of contract. For example, these contracts attempt to prohibit the exercise of rights universally recognized as fair use, such as copying portions of a work for criticisms, product comparison and reverse engineering, or they seek to limit the application of the first sale doctrine. Enforcement of these contractual provisions alters the statutory scheme defined by Congress in the Copyright Act. This Article argues that the current legal doctrines available to invalidate these overreaching provisions or to strike claims asserted for their breach fail to provide appropriate incentives to reform contracting behavior by content owners. Even if, as a matter of contract law, a court would not enforce contractual terms that are inconsistent with the Copyright Act, the use of these provisions in ubiquitous shrinkwrap and clickwrap licenses has an in terrorem effect on users. After exploring the potential chilling effect that these overreaching clauses may have on users’ behavior and why it is critical for courts to find ways to discourage the use of such clauses, this article argues that applying an appropriately tailored doctrine of copyright misuse to these licensing terms would provide a more robust reformation of contracting behavior. […]

Well, Here It Is (and the Fight Is On)

The MSN Music Store: MSN Entertainment – Music: Home

We’ve licensed a vast selection of music – over 1 million tracks – from major music labels, independents, and even undiscovered artists. Our easy interface helps you find music you like, or you can just sit back and listen to the radio. We want you to spend less time searching for music and more time enjoying it, whether it’s on your PC, on a CD player, or on a portable device.

[…] Pick the device to match your lifestyle

No matter how you want to enjoy your music, there’s a device that works with MSN Music to meet your needs. You can transfer your MSN Music downloads to more than 70 portable devices that support the popular Windows Media format, such as the flash-based Creative Technologies Muvo TX, hard-drive-based Rio Carbon or Dell Digital Jukebox, and new high-end Portable Media Centers from Creative Labs and Samsung.

[…] System Requirements

These are the minimum requirements to play radio or purchase music from MSN.


  • Windows 98 SE, Windows 2000, or Windows XP

  • Internet Explorer 5.01 (or later), which supports 128-bit encryption

  • Windows Media Player 7.1 (or later), we recommend the latest version

  • A 233 megahertz (MHz) processor (such as an Intel Pentium II or Advanced Micro Devices (AMD) processor) or faster

  • 64 megabytes (MB) of RAM or more

  • Speakers and sound capability

  • Payment with a valid credit card with a U.S. billing address

  • To enjoy high-quality audio as a Radio Plus subscriber, you will need Windows Media Player 9 Series (or later)

CNet News’ writeup: Microsoft opens MSN Music store

Microsoft’s entry into digital music sales is part of a curious path taken by the software giant. Industry analysts and executives consider Microsoft’s full-blown effort to build its own music service as both a defense against Apple iTunes’ dominance in the market and an offensive push to transform Windows into a digital media hub.

Ideally for Microsoft, Windows would be used by people to store an array of digital files such as songs, photos, videos and feed them into televisions, stereos and personal media devices.

Apple’s iTunes success poses a threat to Windows, as its popularity could help it become a preferred platform for digital media. Many analysts compare today’s music battle with Microsoft’s war against the Netscape Web browser, which was seen as a challenge to Windows. Microsoft feared that software engineers would gravitate to developing applications on Netscape, thus circumventing Windows. The same possibility with iTunes is throwing a shadow over Microsoft’s media hub plans for Windows.

A Pro-MS Take on the MS Music eTailing Venture

An unsurprising take from a Ziff pub. It’ll be interesting to see if “good enough” translates from the computing realm into one where the expectations are more lofty — after all, when’s the last time your CD player “ate” your music or your receiver “crashed?” ‘Cuz I have had to learn the “CTL-ALT-DEL” equivalent for my “insanely great” iPod once, and I’m sure I’ll have to again — but it’s a keystroke sequence that hasn’t been burned into my memory the way that Microsoft has managed with “CTL-ALT-DEL”: iTunes may rock, but Microsoft will win

Apple’s iTunes store and iPod players have been earning a 4.0 grade point average. But Microsoft merely has to get a 3.0, multiplied by the Windows user base, and it wins. All of the online music stores sell the same music from five major labels (and a handful of indies who don’t make or break anyone’s business). And even if Apple does have leverage with the labels now, I can assure you that all five of them will throw Steve Jobs under the bus when the Windows music store starts heating up.

Am I arguing that Apple needs to open and license its music platform? Nah. Wouldn’t matter. iTunes and iPod should stay proprietary to Apple to keep them both insanely great–while Microsoft takes over.

Not to mention the effect a phrase like “Microsoft takes over” will have on the sphincters of music and movie executives.

APWire on XM and TimeTrax

New Front: Recording of Digital Broadcasts. (Also in the Washington Post)

Note that the RIAA got the AP to frame this report to support their agenda, rather than noting that recording of radio broadcasts have been legally protected since the AHRA. Frankly, it’s an excellent exercise in rhetoric to note the extent to which this article manages to frame the discussion so that the “reasonable” reader must conclude that TimeTrax is illegal.

It reminds me, again, of the way that Larry Lessig points out that so many of the innovators in Internet applications are people who are NOT part of the establishment — kids, foreigners and other troublemakers — and how vulnerable these vitally important innovators are in the face of poorly-designed legislation and institutional structures that enshrine the status quo.

[TimeTrax’] MacLean said all his software does is simply record music off the analog XM signal.

It’s exactly the same as running it off a cassette recorder,” he said. MacLean speculated that XM was pressured by the recording industry.

[…] The recording industry has yet to devise a way to block such methods of copying music, so it has mostly concentrated its enforcement campaign on people who distribute song files.

Still, in June, the RIAA submitted comments to the Federal Communications Commission, asking the panel to enact new rules to safeguard music played through digital radio receivers from being pirated.

“Digital audio broadcasting without content protection is the perfect storm facing the music industry,”‘ the trade group wrote to the FCC.

The RIAA suggested the FCC require digital radio broadcasters to encrypt their content or use an audio protection flag — bits of data that would travel with the stream or satellite radio signal to denote that the content was under copyright.

Properly equipped digital players or receivers would recognize the flag and, ultimately, restrict whether the content could be copied or distributed.

See earlier coverage: Now, What Were You Saying About Promoting Innovation? and Two From TechDirt

See the Home Recording Rights Coalition site

Related: Benny Evangelista’s Reining in tech: Learning from the Napster case, the entertainment industry is trying to block new technology before it takes off

[The MPAA’s Fritz] Attaway remains optimistic that these high-intensity debates will eventually result in new technological possibilities for all sides, like the DVD, which has become the fastest-selling consumer entertainment technology in history. Since 1997, more than 100 million DVD players and 3 billion DVDs have been shipped, according to the DVD trade association Digital Entertainment Group.

But [the EFF’s Fred] von Lohmann said other technological innovations may have already been killed off.

“I’m not sanguine that technology will triumph,” he said. “We may never know what has been kept from us.”

OT: And It’s Only September …

Cory has a stronger stomach than I – he’s got some coverage of the Hastert-Soros brouhaha that started up over the weekend. See Video of GOP House Speaker accusing Soros of taking dope money and Soros responds to drug-lord accusation . Soros’ letter to Hastert. (Later: See this Salon entry; Slate’s Dennis Hastert on Dope)

For a more thorough discussion of the depths to which this campaign has already gone, see Salon’s They knew how to win. Does John Kerry?

Back before the Watergate break-in, Republican operatives had a name for their unique brand of below-the-belt campaign attacks: “rat fucking.” Part character assassination, part collegiate pranks, the dirty tricks — conducted in utmost secrecy — were designed to throw Democrats off balance, create confusion, and tarnish reputations. Three decades later these attacks have been perfected. Except now they’re practiced out in the open for everyone, including the compliant media, to witness.

[…] Instead of quickly pointing out that Kerry’s Vietnam accusers were factually challenged and that the coauthors of the anti-Kerry book, “Unfit for Command,” had severe credibility problems, too many mainstream reporters, editors and producers, taking their cue from Republicans, agreed to abandon serious campaign coverage for weeks in order to focus, yet again, on a so-called character flaw of the Democratic candidate. By the time the Washington Post, New York Times and Los Angeles Times did deploy reporters to knock down the Swift Boat Vets’ rickety charges, they’d taken on a life of their own in the anti-Kerry netherworld of talk radio, right-wing bloggers and Fox News.

[…] Nowhere has that that double standard been more apparent than when contrasting the way the media has covered the two parties’ conventions. Compare the coverage of Bush’s colossal blunder on Monday — telling NBC’s Matt Lauer that he didn’t think the war on terror was winnable — with Teresa Heinz Kerry’s trivial “shove it” remark during the Democratic Convention in Boston last month. So far, Bush’s gaffe has garnered far less coverage than Heinz Kerry’s.

And for a look at why the rhetoric is the way it is, see Framing the issues: UC Berkeley professor George Lakoff tells how conservatives use language to dominate politics [pdfs of parts one and two]. Note that Prof Lakoff is filing daily reports from the RNC – Aug 31

Of course, there are also arguments from the other side (see today’s Swift Boats and Double Standards by Benjamin L. Ginsberg, who recently resigned), but somehow the editorial only seems to reinforce the issue in my mind — and there’s the fact that he got ink in the Washington Post

Standards and Network Effects

Blu-ray group gets behind Microsoft tech

The Blu-ray Disc Association is making three video compression-decompression technologies mandatory in its read-only disc specification, and one of those codecs is Microsoft’s VC-1, a Panasonic representative said Tuesday. Panasonic’s parent, Matsushita Electric, is one of the 13 companies behind the Blu-ray format, which is vying with the rival HD DVD format to replace today’s DVDs for the coming era of high-definition programming.

VC-1 is the name given to Microsoft’s VC-9 codec by the Society of Motion Picture and Television Engineers (SMPTE), which is considering the technology as a possible standard. As VC-9, VC-1 has already won approval as a mandatory codec for the HD DVD format.

The decision by the Blu-ray group means that makers of Blu-ray disc players will have to incorporate VC-1, as well as another advanced codec known as MPEG-4 AVC High Profile and the older codec MPEG-2, said Richard Doherty, a director of Panasonic’s Hollywood laboratory. Advanced codecs are designed to squeeze a larger amount of content into a given space.

The move will lead to licensing fees given to companies, like Microsoft, that own intellectual property used by these codecs. The decision also appears to show that Microsoft was wise to buck its usual strategy and turn its VC-9 technology over to an open-standards body such as SMPTE. Doherty said it was “important” to the Blu-ray backers that Microsoft’s codec became an open-standards technology.

Interview with Roxio’s Napster’s Chris Gorog

Betting it all on Napster

Some whistling past the graveyard:

Right now, you’ve got Sony as a competitor, and Apple is dominating the space. You’ve still got Virgin, you’ve still got Microsoft, you’ve still got a lot of potentially very powerful brands coming into this space. Is that worrisome to you?

Well, I’d like to first address one of the comments you made–that Apple is dominating the space. Currently, Apple is not even in the subscription business. It’s not even on the playing field yet. I think that’s very significant and very important for anyone following this space to remember.

Apple’s “not even on the playing field yet?!” Now that’s optimism.

See also TechDirt’s The Downloadable Music Business Shuffle