Automated DRM keeps spoiling the show, from the DNC to Mars

Science-fiction fans from all over the world were avidly watching the live broadcast of the Hugo Awards last Sunday from Chicon 7, the World Science Fiction Convention in Chicago. This is a venerable event with much more longevity than you might imagine: Attendees were celebrating the event’s 70th year. One of the award winners, British author Neil Gaiman, was recognized for a script for the cult BBC TV series “Doctor Who.” Following the showing of a clip from the episode, Gaiman took the podium for the award ceremony to make his acceptance speech.

Then, however, the broadcast was abruptly cut off. A robot at Ustream, presumably using data provided by the BBC, decided on the basis of that short clip that this was an illegal broadcast of “Doctor Who” and pulled the plug. Worse, it turned out that no one at the Hugo Awards or at Ustream was empowered to turn it back on again. Ustream has promised to upgrade its robot to understand fair use, but the proposal is both ridiculous — even judges struggle with fair use arguments — and dangerous.

This is an object lesson in the problem with entrusting the policing of copyright to software. Fundamentally, the use of copyrighted materials is a matter of discretion and judgment. The clip shown at the Hugo Awards was legitimate by any measure: a fair use of an extract to illustrate a news item, plus a clip supplied with the approval of the copyright holder. But to know that it was legitimately present in the broadcast involved complex human judgment and the balancing of gray areas to reach a sound conclusion that survives legal scrutiny.

The Hugo Awards debacle wasn’t just an isolated instance, either. After last night’s Democratic National Convention, anyone who sought to watch the video of the evening’s presentations on BarackObama.com or YouTube found the video flagged by copyright claims shortly after it finished, according to Wired. Ironically, YouTube is the official streaming partner of the Democratic National Convention, yet according to Wired, the site put a copyright blocking message on the video. Anyone trying to access the video was presented with a message claiming the stream had been caught infringing on the copyright of one of many possible content companies, including, “WMG, SME, Associated Press (AP), UMG, Dow Jones, New York Times Digital, The Harry Fox Agency, Inc. (HFA), Warner Chappell, UMPG Publishing, and EMI Music Publishing.”

A campaign spokesman later told Wired that there was a “technical error on YouTube that inadvertently triggered a copyright message at the end of the live stream Tuesday night.”

Here’s yet another example: Last month, according to TechDirt, NASA legitimately posted to YouTube a video of the Mars Rover landing. Within a few hours, YouTube automatically yanked the video, saying, “This video contains content from Scripps Local News, who has blocked it on copyright grounds.”

“While it’s not clear what happened, it seems likely that Scripps replayed the footage itself somewhere, and via some semi-automated process uploaded it to YouTube’s ContentID, in which it claimed copyright on all its works,” according to TechDirt. “But, of course, it was actually broadcasting public domain video from NASA. Unfortunately, YouTube can’t recognize that Scripps is the latecomer here, rebroadcasting others’ public domain material, and thus took down the material, only to have it corrected later.”

It’s not just Web robots: The AirPlay feature in Apple’s OS X Mountain Lion similarly blocks the streaming of DVDs to TVs on the network, even though it is perfectly legal to play a commercial DVD on your TV, even if the DVD player happens to reside on your computer.

People talk of “fair use,” but what they actually mean is that we all depend on the exercise of judgment in every decision. Near the bulls-eye of copyright where it was meant to apply — the origination of works by specialist producers — most people are clear what it means. But as legal scholar Lawrence Lessig eloquently explained in his excellent book “Free Culture,” in the outer circles we have to make case-by-case judgments about what usage is fair and what usage is abuse. When a technologist embodies their or their employer’s view of what’s fair into a technology-enforced restriction, any potential for the exercise of discretion is turned from a scale to a step, and freedom is quantized. That quantization of discretion is always in the interest of the person forcing the issue.

These technology-imposed restrictions aren’t just a problem for now. The natural consequence of having the outlook and business model of one person replace the spectrum of discretion is that scope for new interpretations of what’s fair usage in the future is removed. Future uses of the content involved are reduced to just historic uses the content had at the time it was locked up in the technology wrapper (if that — for example, digital books are generally not able to be loaned to friends, and even when they are, it’s treated as a limited privilege).

The law may change, the outlook of society may mature, but the freedom to use that content according to the new view will never emerge from the quantized state the wrapper imposes. The code becomes the law, as Lessig again explains in his book “Code.” Although the concept of “fair use” is potentially flexible and forward-looking, “historic use” is ossifying.

Thus the calls for better robots that understand fair use are misguided and pointless, a plot device that would fail the sniff test at the Hugo Awards, or in the wake of the Mars Rover landing or the DNC. Any technology that applies restrictions to text, music, video, or any other creative medium quantizes discretion and inherently dehumanizes culture. We don’t need better robots; we need the reform of copyright so that it only applies to producers and not to consumers.

This story, “Automated DRM keeps spoiling the show, from the DNC to Mars,” was originally published at InfoWorld.com. Get the first word on what the important tech news really means with the InfoWorld Tech Watch blog. For the latest developments in business technology news, follow InfoWorld.com on Twitter.