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FTC Warns Against Deceptive DRM 159

Posted by kdawson
from the we'll-come-calling dept.
Jane Q. Public writes "At the Federal Trade Commission's Seattle conference on DRM, FTC Director Mary Engle started off by referencing the Sony rootkit debacle, and said that companies are going to have to get serious about disclosing DRM that may affect the usability of products. She also said that disclosure via the fine print in a EULA is not good enough, and 'If your advertising giveth and your EULA taketh away, don't be surprised if the FTC comes calling.' Transcripts and webcasts are available from the FTC website." Update 18:13 GMT by SM: as Jane Q. Public was nice enough to diplomatically point out, the webcasts are no longer functioning, but transcripts are still available.
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FTC Warns Against Deceptive DRM

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  • by quangdog (1002624) <quangdog@gm[ ].com ['ail' in gap]> on Friday March 27, 2009 @12:33PM (#27360137)
    Is there any DRM that is not deceptive at some level? It seems that the makers try very hard to gloss over what the DRM actually does/restricts when they are trying to sell you their stuff.
    • Digital Rights Mismanagement

      Doesn't seem too deceptive to me, pretty descriptive actually.
      • Re: (Score:3, Insightful)

        Digital Rights Mauling

        as in the DRM software mauls your digital rights.

      • There are no such things as Digital Rights to be managed. There are just rights. Whether the information is in electronic form or affixed to physical form in meatspace, it is your right to use it how you deem fit, not to be managed by the one with an exclusive right to sell it.
        • I agree with you in principle, but the law says otherwise.
          • I suppose we'll have to wait at least 4 more years to fix it. But I suspect something worse that will make us long for the good old days of the DMCA will come along that we'll have to roll back.

      • by corsec67 (627446) on Friday March 27, 2009 @01:11PM (#27360805) Homepage Journal

        Digital Restrictions Management.

      • Technically "Digital Rights Management" is correct, as it allows the copyright holder the RIGHT to RESTRICT what can or can't be done with the product. It also shows which side of the copyright holder / customer equation it's designed for.

      • The correct term is Digital Restrictions Management.

      • Digital Restrictions Management might be a better fit.

      • by rtb61 (674572) on Saturday March 28, 2009 @12:35AM (#27368041) Homepage

        Well in fact the use of it is a complete lie. DRM attempts post sale theft from the consumer. Any attempt of DRM that is used has to be made clear at the point of purchase. Any attempt by any DRM device that attempts to damage or impinge upon the use of devices owned by the consumer is in fact a criminal act under numerous cyber crime laws, where said actions where carried out with out the consumers fore knowledge "prior' to purchase.

        So in reality as it is currently being used DRI is more appropriate, as it is digital rights infringement.

        Unless it is clearly stated at the point of purchase, what damage the content I am purchasing will do to devices upon which I install that content, including spinning up of CD-DVD drives - basically unfair wear and tear, forced online registration - theft of internet bandwidth, theft of rights of resale - limited number of installs, installation of undesired software - theft of hard disk storage space, loss of computer performance - unwanted drivers making use of CPU cycles, you are stealing from me.

        I assure you whether you steal a little bit from everyone or a lot from just a few people you are still a crook, a pirate stealing what does not belong them, a criminal waiting to be prosecuted for stealing from millions of people. So get your legal facts straight and learn to recognise who the real criminals are for a start it is not the customers who buy you content.

        • Were you under the impression that I support DRM? I happen to be typing this from an Ubuntu laptop, busy installing Debian on a small office server across the room. I publish my software under the GPL v2 and BSD licenses. 99% of the content on my primary site is licensed under the Creative Commons, requiring only attribution.

          So again, do I sound like the kind of guy who supports DRM of any kind? You must have misread my post (brief as it was). It was intended to be sarcasm.
    • I agree. At first I thought that this could be a great step forward. But at it's core, DRM - at least when it ties content to specific hardware or prevents fair use - is deceptive. I don't see the FTC fixing that issue anytime soon.

    • Sure. Remember the games like Monkey Island that required a code wheel of sorts? It didn't have to be deceptive, because it didn't try to manipulate your computer to prevent copying. Simply, if you didn't have the code wheel, it was a pain in the ass to make your own, so a copy wouldn't do you much good (until everyone learned about Neverlock and the likes)
      • I hated that. It meant I had to spend an extra 5 minutes at the photo copier after I copied the actual game. That's 5 more minutes I could have spent gaming!
    • by Z00L00K (682162)

      Combine DRM with an EULA written by a lawyer trying to skin you for your arm and leg for any conceived wrongdoing and when the EULA also states that you use the application/data on your own risk and no responsibility for hardware or anything else and you are toast.

      Mind that most EULA:s aren't worth the paper they are written on.

      DRM = Digital Rape Method.

    • Agree. But why? It's just so foolish.

      Misleading your customers - even by omission - is just bound to be counter-productive in the medium term. Or even - in this age of virtually instant communication - the very short term.

      If you can't justify selling your product, with all its features and restrictions, then you've got a serious problem with your business model.
      Oh wait...

    • by Kjella (173770) on Friday March 27, 2009 @02:19PM (#27361993) Homepage

      Of course DRM is deceptive since it's impossible to design "good" DRM. This is the four factor test for fair use:

      1. What is the character of the use?
      2. What is the nature of the work to be used?
      3. How much of the work will you use?
      4. What effect would this use have on the market for the original or for permissions if the use were widespread?

      DRM does not know the character of use, because you can copy the whole by parts it does not know how much you'll use and finally it has no way of determining the market impact of your use. It's not in any way possible to make DRM that could support fair use. So you can err on the side of the consumer or the copyright holder, and erring on the side of the consumer was the old way - no DRM, but if you did something that was not fair use they could take you to court. The other is to err on the side of the copyright holder, disallowing any use that might be used for nefarious purposes. That means blocking you from doing many things that you want and that would be fair, because a machine could never make that determination and even if it could, what you use it for can only be determined after the fact. Designing "good" DRM is therefore a theoretical impossibility.

  • by MrEricSir (398214) on Friday March 27, 2009 @12:35PM (#27360175) Homepage

    ...when a certain US president accidentally bought some region 1 DVDs for a certain UK prime minister?

    • by flaming error (1041742) on Friday March 27, 2009 @01:01PM (#27360647) Journal

      Mod parent up.

      Awhile back I was trying to explain to a stickler-for-the-rules nothing-to-hide trust-the-system colleague why dvd regions were stupid. He didn't see the problem. Until he brought back some DVDs from overseas.

      If our heads of state and legislators actually experienced DRM for themselves, DRMs days would probably be numbered.

      • by Chyeld (713439) <chyeld@gm a i l . c om> on Friday March 27, 2009 @01:09PM (#27360763)

        The ironic thing here is that while it is also something of an attack on the consumer, region locking is a completely seperate issue from DRM.

        Region Locking = You can only use content on devices sold in or for the same region you purchased the content in.

        DRM = You can only use content if you agree to give up certain rights you otherwise had and agree to allow the company selling the content to place technological locks in place on your property to ensure your compliance.

        • DRM = You can only use content if you agree to give up certain rights you otherwise had and agree to allow the company selling the content to place technological locks in place on your property to ensure your compliance.

          No thanks, I am happier with my money in my pocket. So really DRM == NO SALE (at least for me).

      • Re: (Score:3, Interesting)

        by Ihmhi (1206036)

        Perhaps we should go buy a particularly popular film on DVD - say, Bolt - but get it in a region that won't work in the States. Then give it out as a gift to Senators.

        Could put a little note in there that says, "If there's any problems with getting this DVD to play, please go to [website]" where we'll have info on how regions work and why that new movie won't play for them.

  • Be 0wnz0r3d by DVD (Score:5, Insightful)

    by HTH NE1 (675604) on Friday March 27, 2009 @12:37PM (#27360239)

    'If your advertising giveth and your EULA taketh away, don't be surprised if the FTC comes calling.'

    Does this include, "Own it on DVD"?

    • by Belial6 (794905) on Friday March 27, 2009 @08:21PM (#27366547)
      Please let it include "Own it on DVD". I can accept the idea that I only "Own" that one copy, but watching commercials telling me that I can "Own" a movie, then listening to MAFIA agent and those that believe them, explain how I don't own the movie, but only "licensed" it, just grates my hide.
  • Well, well. (Score:5, Insightful)

    by fuzzyfuzzyfungus (1223518) on Friday March 27, 2009 @12:38PM (#27360253) Journal
    I'm absolutely delighted to have the FTC's assurance that regulatory capture could never ever happen to them.

    In fact, I would argue, it already has. Let's be real clear here: what Sony, for instance, did with their rootkit was a crime. If I had done it, I'd probably still be sharing a cell with Bubba. Because it was done by a corporation, under a layer of legalistic obfuscation, to "consumers" it was treated as a fairly minor civil matter. Sony handed over some money, offered to replace a few CDs, and mumbled something about being sorry if anybody was offended. Pathetic.
    • by Zironic (1112127)

      The problem appears to be that corporations being imaginary beings and not physical are rather hard to put in a jail.

      • Re:Well, well. (Score:5, Insightful)

        by fuzzyfuzzyfungus (1223518) on Friday March 27, 2009 @01:02PM (#27360653) Journal
        Gangs are also imaginary beings and somehow we manage to work past that and charge the humans inside them. One or more people inside Sony decided that criminal conduct was a good idea; they should be rotting in jail. If we actually cared, we could certainly do this(probably more easily, in fact, since gangs probably have worse email retention than corporations).
        • by Ironica (124657)

          Gangs are also imaginary beings and somehow we manage to work past that and charge the humans inside them.

          Gangs are not legal entities specifically designed to insulate the humans inside them from responsibility for their actions.

          • by Aphoxema (1088507)

            My gang is. We call ourselves the Double Winzer Knot Crew, we've even got tax exempt status though we are a for-profit. Fortunately, the IRS doesn't hear much about our income coming from the 'individuals' we provide the service of getting rid of 'trouble' for.

          • Re:Well, well. (Score:4, Interesting)

            by MasterOfMagic (151058) on Friday March 27, 2009 @03:30PM (#27362969) Journal

            That must be why the drug cartel leaders personally escort the drugs across borders because they don't care about being shielded from the responsibility for their actions.

            Of course gangs are specifically designed to insulate those at the top from legal responsibility for their actions. That's why there are drug mules that carry the drugs, a chain of intermediaries that carry orders (assumed to be from their boss, but can't be proven legally) to the people executing them. The whole point of being a higher-up a well-run gang is that the people below you get busted and you escape being charged.

          • by AK Marc (707885)
            Gangs are not legal entities specifically designed to insulate the humans inside them from responsibility for their actions.

            Corporations were invented so that when someone signed as a representative of a corporation, that agreement would survive past the departure of that person at the corporation, and that investors with absolutely no say in day-to-day operations wouldn't be held liable for corporate actions greater than their initial investment. There was no employee shielding initially. That's a new
        • by geekoid (135745)

          That person probably wasn't in the US.

      • by qbzzt (11136) on Friday March 27, 2009 @01:04PM (#27360679)

        The problem appears to be that corporations being imaginary beings and not physical are rather hard to put in a jail.

        Put the highest level manager who cannot produce written proof this was ordered by somebody higher up the chain in jail. Next time, the CYA chain will go all the way to the CEO.

      • Re: (Score:3, Interesting)

        by Manchot (847225)
        Since people are so big on having corporations having the same rights as people, I would love to have a justice system that actually treats them equivalently. Did a corporation knowingly break the law? If so, send it to "prison:" revoke its corporate charter for a certain period of time, and prevent it from doing business. Better yet, force it to make license plates for the state.
        • by Bert64 (520050)

          Then those in charge will simply shut down the corporation that got caught and move all the assets to a new shell corporation...

          You need a way to take their assets, shut the corporation down and jail those in charge.... They will be a lot more careful when the penalties actually cost more than the profits from continuing illegal activity.

    • Re: (Score:3, Funny)

      by Anonymusing (1450747)

      If I had done it, I'd probably still be sharing a cell with Bubba.

      "still"?

      How is Bubba doing these days, anyway?

    • Re:Well, well. (Score:5, Insightful)

      by swb (14022) on Friday March 27, 2009 @01:19PM (#27360937)

      What needs to happen is that the chief officer of a company or the chair of the board needs to be the one that is physically accountable should the corporation be convicted of a crime. "I didn't know" or "they didn't tell me" won't be excuses for lack of oversight or management involvement.

      I can guarantee you that should highly placed corporate officers be held personally accountable for criminal actions of the corporation they WILL get involved enough to ensure it doesn't happen.

      • Re: (Score:3, Insightful)

        by geekoid (135745)

        So you are saying if I put code in my next software release that opens up a hole into your computer for me, the CEO should go to jail?

        That doesn't seem right.
        The level of involvement they would need would stifle all production.

        • by Chyeld (713439)

          Actually, I'm fairly sure that's exactly what being an officer of the company is about, you are legaly responsible for the actions of your company.

  • by Samschnooks (1415697) on Friday March 27, 2009 @12:50PM (#27360493)
    I once was at a seminar where an attorney from the FTC was there. To make a long story short, it takes quite a bit of complaints before the FTC takes action. So, if anyone comes across a deceptive DRM, file a complaint with the FTC and then submit an article here on Slashdot and everywhere else you think folks would be interested, and tell them about it.

    The FTC won't act unless they know about it and if it's affecting a lot of people.

    Notice how those small time telemarketers who violate the Do Not Call List never seem to get caught even when you file complaint after complaint with the FTC; whereas, the big corps who do it are caught and paraded around the media?

  • TO READERS (Score:5, Informative)

    by Jane Q. Public (1010737) on Friday March 27, 2009 @12:59PM (#27360603)
    The Slashdot editors chose to change my article to state that webcasts are available at the FTC site. They are not. There were live webcasts but (at least on my Mac) the links only worked when the talks were live.

    So if you try to access the webcasts and it doesn't work, please don't blame me. The editors wrote that in.
    • by Xtifr (1323)

      And yet, somehow, you were able to use the word "editors" without sarcasm dripping from your tongue. Congrats. I haven't been able to do that on this site for many years! :)

      (And thanks for the clarification. I was a little puzzled why they would have been pulled. Now that I know they were never actually posted, things make a lot more sense.)

    • by geekoid (135745)

      oh sure they did. Do you have a paper trail~

    • I am not trying to "blame" anybody else... but I am trying to avoid others blaming me for something I did not do.
  • by davegravy (1019182) on Friday March 27, 2009 @01:01PM (#27360643)

    don't be surprised if the FTC comes calling.

    Sony: "Hello?"

    FTC: "Hi, this is the FTC, you have some deceptive DRM in your latest product"

    Sony: "Oh?"

    FTC: "Yeah, so we're just calling to let you know"

    Sony: "I'm not surprised that you're calling"

    FTC: "Wonderful. Have a good day, sir. Goodbye."

  • about. darn. time. (Score:5, Insightful)

    by swschrad (312009) on Friday March 27, 2009 @01:02PM (#27360651) Homepage Journal

    they should require a prominent logo of a broken CD if DRM is in use.

  • Sounds great! (Score:5, Insightful)

    by Lumpy (12016) on Friday March 27, 2009 @01:14PM (#27360841) Homepage

    So when are they going to kick the arse of all the movie studios?

    They advertise "OWN IT TODAY" on all their dvd releases. Yet they claim in courts and elsewhere that you dont own anything but are merely licensing it.

    I want them forced to advertise "Get your limited, conditional and revokeable without warning license to view it today!"

    • Re:Sounds great! (Score:5, Interesting)

      by je ne sais quoi (987177) on Friday March 27, 2009 @01:34PM (#27361213)
      Mod parent up! Along with the own it/license it false advertising, the entire current format for blu-ray media discs needs to scrapped, along with HDCP. The blu-ray java engine just means I need to run windows to play blu-ray discs as they should be and the HDCP means that I can't play my legally purchased discs using my legally purchased blu-ray disc drive except at a crummy resolution. I need to break the law and remove the copy protection just to view them. I would say this is a huge joke, but at $30 a disc, it isn't funny.
      • by Shagg (99693)

        HDCP means that I can't play my legally purchased discs using my legally purchased blu-ray disc drive except at a crummy resolution.

        There is a flag that will restrict you from viewing HD over the analog outputs, but as far as I know none of the studios are using it. Do you know of one who is, or are you referring to "HD over component" vs "HD over HDMI" as "crummy resolution"?

        • by PRMan (959735)
          Try it on a Vista PC with an old VGA monitor. You'll see what he means.
          • by Shagg (99693)

            You can't display HD on an old VGA monitor anyway, that has nothing to do with HDCP.

            • by Bert64 (520050)

              Sure you can...
              I have a 21" CRT from 1999 which can handle resolutions higher than 1080p over the VGA connector without issues.

              • by AK Marc (707885)
                VGA resolution is 640x480. A VGA connector can display much higher than that. Most people don't use VGA to refer to the resolution, but some old geek may have taken VGA to be the resolution rather than the connector.
        • Re:Sounds great! (Score:4, Informative)

          by MasterOfMagic (151058) on Friday March 27, 2009 @03:37PM (#27363063) Journal

          The flag is called the Image Constraint Token. It is in the standard, but the studios were holding off using it. However, my upscaling DVD changer from Sony(!) refuses to upscale DVDs with CSS except over HDMI with HDCP. Connected only with component video, it only acts as a progressive scan DVD player.

      • by geekoid (135745)

        Who the hell pay
        s 30 bucks a disk? There isn't a movie you can't get for 22 bucks or less on Blu-Ray. Barring boxed sets, naturally.

        Of course, price is besides the point. I don't care if they are charging a buck, this is a deceptive practice, and the FTC should bring it to an end.
        Contact them and let them know.

      • I would say this is a huge joke, but at $30 a disc, it isn't funny.

        So don't be a facilitator of their greed. Refuse to buy the discs until they relent on the DRM. If enough of us say, "I don't need that, I won't buy that" then the copyright cartels will be forced to listen.

    • by geekoid (135745)

      Have you complained to the FTC, or do you just expected them to know all this stuff using magic elf farts?

  • I covered the FTC meeting for TeleRead.org (though since I'm connected right now through an iPod Touch from a hospital exam room I don't have any way to fetch the link).

    I also was credited by name for a question asked at the beginning of the last panel. :)

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