321 Studios and the free software community [LWN.net]

In the Bunner DVD case, the DVD Copy Control Association attempted to suppress the distribution (or even linking to) of the DeCSS code (which decrypts content from DVDs) with the claim that the code contained trade secrets. The court's rulings suggested that the trade secret claim was not going to hold up, and the Bunner case was dropped last year. The trade secret weapon had proved ineffective in this case.

The DVDCCA has responded with a change of direction: the group is now suing 321 Studios, which makes a proprietary DVD copying program, for patent infringement. 321 and its DVD Copy program have been in and out of the courts for a while; the company started the litigation with a suit which attempted to obtain a ruling stating that its products do not violate the DMCA. The bringing of a patent suit changes the nature of this battle, however. It is a living demonstration of one of the free software community's deepest fears: that software patents will be used to prevent us from programming our computers to work the way we want them to.

It is interesting to note that patents are incompatible with trade secrets. Patent applications require full disclosure of the technology for which protection is sought; any technology which has been publicly disclosed in this manner cannot, by definition, be a trade secret. Thus far, we have been unable to turn up a reference for the exact patent which is being claimed by the DVDCCA; if anybody has a pointer, we would appreciate hearing about it. Given the timing, however, the patent application must have been in the works while the trade secret case was pending. Filing trade secret suits while having already disclosed the relevant technology would be, at the least, an act of bad faith.

321 Studios is also being sued by Macrovision, which is also claiming patent infringement along with DMCA violations. 321 has just filed a response pointing out that, among other things, Macrovision's patents cover an analog copy-protection mechanism which is not relevant to a digital copying program.

This company has been fighting many of the same digital rights battles as the free software community. But there has been no big outpouring of support for 321 studios; for the most part, its battles have been ignored. 321 Studios has not been able to obtain the same level of interest and support as, say, Elcomsoft has. One might point out that 321 Studios is a proprietary software company; that is true, but so is Elcomsoft. The real answer, perhaps, is that the community has sensed that 321 Studios does not really share its values; 321 appears to have little interest in any issues beyond immediate sales of DVD copying software.

The difference in values has just become rather more apparent, however; see this triumphant press release from February 5. Therein, 321 notes that one of its customers was said to be using DVDXCopy for "piracy." The company responded by shutting down the software remotely. This program, it seems, puts a watermark into every disk it creates allowing the company to identify who performed the copy and, should it feel so inclined, to shut down the software altogether.

This feature highlights one of the largest differences between free software and (at least some of) its proprietary relatives. The DeCSS code does not come with watermarking and remote shutdown capabilities. The Gimp will not attempt to prevent its users from creating an image that might look like some nations' currencies, and Ghostscript will not try to prevent that user from printing such images. Neither Freevo nor MythTV will phone home with details of just how often the user replayed the latest banal Superbowl publicity stunt. Nothing prevents anybody from coding any such features, but, equally, nothing prevents the rest of the world from taking them back out. Free software evolves toward one specific end: meeting the needs of its users. There is no room for conflicts of interest, no space for the agendas of industry consortia, advertisers, or governments.

321 Studios is not fighting for that view of the software universe; the company simply wants to be able to sell its product. We can certainly sympathize with the company as it deals with familiar problems like the DMCA and software patents. But, while 321 is fighting many of the same battles as the free software community, it is fighting them as part of a different war.

(Log in to post comments)

321 Studios and the free software community

Posted Feb 19, 2004 8:55 UTC (Thu) by brouhaha (subscriber, #1698) [Link]

321 Studios is also being sued by Macrovision, which is also claiming patent infringement along with DMCA violations. 321 has just filed a response pointing out that, among other things, Macrovision's patents cover an analog copy-protection mechanism which is not relevant to a digital copying program.

Without researching it further, but based on a past professional experience with how the Macrovision corporation does things as well as a personal experience, I can make an educated guess.

Macrovision licenses DVD players, satellite receivers, PVRs, etc. to incorporate circuitry that generates the copy protection signal only when the content indicates that the protection should be enabled. Generally they do not charge a per-unit fee for these hardware licenses. Macrovision sells the content providers licenses to set the protection bit in the content.

Macrovision asserts that setting the protection bit in the content without buying a license from them infringes their patents.

Personally, I'm somewhat skeptical that by simply writing a few bits in a different state on a DVD-R medium, that I've violated their patents. The DVD-R medium is not capable of generating the Macrovision signal, that is a function of the player. And the player is licensed for the patent. Therefore it seems to me that under the doctrine of first sale, the owner of the player has the right to play any media on it which may or may not cause it to output a Macrovision-encoded signal, without the need for the medium to also be licensed. But IANAL, and I have no idea how a court would view this.

Anyhow, in the matter at hand, I suspect that Macrovision probably is asserting that 321's software produces media with the Macrovision enable bit set, but without paying Macrovision for a patent license.

Sklyarov and Free Software

Posted Feb 19, 2004 21:01 UTC (Thu) by gleef (guest, #1004) [Link]

This company has been fighting many of the same digital rights battles as the free software community. But there has been no big outpouring of support for 321 studios; for the most part, its battles have been ignored. 321 Studios has not been able to obtain the same level of interest and support as, say, Elcomsoft has. One might point out that 321 Studios is a proprietary software company; that is true, but so is Elcomsoft. The real answer, perhaps, is that the community has sensed that 321 Studios does not really share its values; 321 appears to have little interest in any issues beyond immediate sales of DVD copying software.

I disagree, there wasn't really a huge outpouring of support for Elcomsoft. There was a huge outpouring of support for Dmitry Sklyarov, and Elcomsoft benefited from some spillover. There was support for Sklyarov because he was a programmer, and a foreign national, who was horribly mistreated by the US Government and Adobe. Many of us could easily see ourselves or our friends in Sklyarov's position. Once Sklyarov was safely home and out of legal jeopardy, most of the active support faded away to mild interest.

If a company is selling it's stuff under a proprietary license, and someone challenges their software, it's their software, their business. Even if we have a goal in common (eg. getting rid of software patents), it's tough to get worked up for a company getting sued over their stuff.

On the other hand, if a company is sharing (and selling) stuff under a Free License, and someone challenges their software, it's our software too. It's easy to get worked up when someone is challenging our stuff, and the vast majority of the Free Software community has no problem if a friendly business gets helped in the process of us defending our stuff.

True, companies like Elcomsoft and 321 Studios might make appropriate temporary allies towards certain goals, and it's probably politically naive to not help them when they are fighting for goals that match ours. On the other hand, we have enough issues to deal with without going hunting for other people's problems, even if helping them would help us somewhat.