Microsoft Zune and NBC Universal Copyright Filtering Collaboration

If you haven’t read about it, the New York Times reported yesterday that: Microsoft May Build a Copyright Cop Into Every Zune. Essentially, the large content provider would withhold their content from a distributor unless the distributor put in effective measures to prevent against piracy. We’re not talking about DRM here, we’re talking about filtering software, whether it resides on the playback device like a Zune or iPod, or in the software on a syncing computer that stores the consumers’ library of music and movies like the Zune or iTunes software. This software would troll your library checking for content that was somehow infringing or unauthorized. It may even be spyware that could report back to someone about the contents of your media library.

Unfortunately, rumors about something like this are not new. Much of the discussion had been around Apple and NBC/Universal. Universal has been hell-bent on this stuff for a while now—remember when they begged the FCC to allow filtering in the net neutrality context last summer to help the poor corn farmer? And earlier this year, the RIAA’s own Cary Sherman essentially described the scenario—which I’ve fortunately clipped here in this video:

In the ‘Times article, they quote an NBC representative on the alleged filtering deal with Microsoft:

Mr. Perrette said the plan is to create “filtering technology that allows for playback of legitimately purchased content versus non-legitimately purchased content.”

Who decides what is legitimate? Infringing or unauthorized? Under copyright law, you’d need a court to decide, but here, it’s probably the content company that withheld the content from the distributor—in this scenario, NBC Universal. Will there be any accounting for how the consumer put the content in his library? What if videos are recorded off the TV and transferred into the library? Legally off a DVD using analog outs? Purchased while in a foreign market? Shared from a friend for a weekend? Clipped for fair use? What if NBC Universal decides that ABC/Disney’s content wasn’t legitimate?

Filters can’t tell the difference, because all they do is compare what a consumer has in their library against a database of registered content. It really doesn’t matter whether you’re thinking about watermarking or flagging content, if the content in the library and database doesn’t match, presumably that’s the content that is filtered and the consumer is prevented from hearing or watching it.

Since the article was published, Microsoft has tried to correct the record by saying:

We have no plans or commitments to implement any new type of content filtering in the Zune devices as part of our content distribution deal with NBC.

But by choosing the words he used: “Zune devices” and “Zune family of devices,” in my view, he really stepped in it. Here he’s essentially saying that, “No, Microsoft won’t put filters on a Zune, but that doesn’t preclude us from putting the filters in our Zune software on PCs.” Who cares if the software is on the Zune device? The Zune device is essentially a “roach motel” anyways, you can’t get music or videos on it without using the Zune software on the PC. The logical place for such filters are in the syncing Zune software. If you don’t believe me, take another look at Sherman’s video again, where he says:

Filters can be put in the applications for example. You know, one could have a filter on the end user’s computer that would actually eliminate any benefit from…encryption because if you want to hear it, you’d have to decrypt it, and at that point the filter could work.

The big content companies want to control what you can and can’t see. They want this control at the ISP level and on the computer you’re using to read this blog post. Tech companies, like Microsoft and AT&T, appear to be more interested in making another buck “exclusively” distributing or promoting content instead of being concerned about the people who pay for it.

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