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The Pros and Cons of Strengthening Intellectual Property Protection: Technological Protection Measures and Section 1201 of the United States Copyright Act

2007; Taylor & Francis; Volume: 16; Issue: 3 Linguagem: Inglês

10.1080/13600830701680453

1469-8404

Jane C. Ginsburg,

Law, AI, and Intellectual Property

Abstract The announcement in late November 2006 of the Copyright Office's triennial rulemaking to identify ‘classes of works’ exempt from the §1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted ‘class of works’ by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers of devices or providers of services seek to leverage into de facto monopolies over utilitarian articles, the protection of access controls on computer programs that in turn control the function of these objects, then the courts and the Librarian of Congress through the Copyright Office will need to exercise countervailing vigilance in interpreting the statute. Fortunately, §1201 is not so hermetically drafted as to resist all attempts to introduce flexibility; this article suggests some approaches to offset overly literalist statutory construction. Notably, the emergence of fair use as a limiting norm of extra-copyright application, as evidenced in the Trademark Dilution Revision Act 2006, suggests that judges may yet devise ways of reconciling broader intellectual property rights with principles of free expression. Those who interpret the statute should nonetheless bear in mind the many new business models that Congress foresaw and that digital rights management measures (some of them author-empowering) have in fact enabled, lest insecurity dampen the prospects for these models' development. Acknowledgements This article was initially prepared for a symposium on ‘The Pros and Cons of Strengthening Intellectual Property Protection’, held at Waseda University on 15 December 2006, and is in part adapted from ‘Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience’, 29 Columbia J.L. & Arts 11 (2005). Thanks for research assistance to Kevin Burdette and Keith Bradley, both Columbia Law School class of 2007, and to Jeff Vernon, Columbia Law School class of 2008. Notes 1 See the Online Service Provider Liability Limitation Act, 17 USC §512. 2 See 17 USC §§114, 115 provisions on digital phonorecord deliveries. 3 See, e.g., Lessig, L. (2001) Jail time in the Digital Age, New York Times, 30 July, p. A17; see also Jesdanun, A. (2001) Copyright Act draws complaints: Digital-use law called too broad, Seattle Times, 21 December, p. C6; Gillmor, D. (2002) Hacking: Hijacking our rights, San Jose Mercury News, 28 July, p. 1F. 4 Section 1201 provides, in relevant part: 1201. Circumvention of copyright protection systems (a) Violations Regarding Circumvention of Technological Measures. (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter. … (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that— (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. (3) As used in this subsection— (A) to ‘circumvent a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure ‘effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. (b) Additional Violations. (1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that— (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; (B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof. (2) As used in this subsection— (A) to ‘circumvent protection afforded by a technological measure’ means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and (B) a technological measure ‘effectively protects a right of a copyright owner under this title’ if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title (17 USC §1201 (1998). For a discussion of the legislative history of §1201, and of proposals that preceded it, see Besek, J. (2004) Anti-circumvention laws and copyright: A report from the Kernochan Center for Law, Media and the Arts, 27 Colum. J.L. & Arts 389, pp. 400 – 407. 5 17 USC §1201(d) – (j) (1998). 6 321 Studios vs. MGM, 307 F.Supp. 2d 1085, 1095 (ND Cal 2004); Universal Studios vs. Reimerdes, 111 F.Supp. 2d 346, 317 – 18 (SDNY 2000), aff'd sub nom. Universal City Studios, Inc. vs. Corley, 273 F.3d 429 (2nd Cir 2001) (rejecting as ‘spurious’ the claim that DVD protection code did not ‘effectively’ protect DVDs because a Norwegian teenager easily cracked it); Sony Computer Entertainment vs. Divineo, 457 F.Supp. 2d 957 (N.D. Cal. 2006) (rejecting the contention that wide availability of circumvention devices makes a technological protection measure ‘ineffective’). 7 Lexmark Int’l. vs. Static Control Components, Inc., 387 F.3d 522 at 547 (6th Cir 2004). The court also stated that ‘one would not say that a lock on any door of a house “controls access” to the house after its purchaser receives the key to the lock’. This proposition is questionable: the lock continues to control access to those who do not have keys. On remand from the Fed. Cir, the District Court in Storage Technology vs. Custom Hardware, 2006 U.S. Dist. LEXIS 43690 (D Mass 2006) followed the 6th Cir in ruling that when access to the copyrighted work (in this instance: computer code) is otherwise available (in this instance: on floppy disks), a measure controlling access by some other means is not ‘effective’. 8 Chamberlain Group vs. Skylink Techs., 381 F.3d 1178 (Fed Cir 2004). Professor Randal Picker has pointed out the kinship between the Lexmark and Chamberlain DMCA cases and previous (unsuccessful) attempts to convert controversies about competition in the spare and replacement parts markets into copyright infringement claims (see Picker, R. C. (2005) Copyright and the DMCA: Market locks and technological contracts in F. Leveque and H. Shelanski (eds), Antitrust, Patents and Copyrights: EU and US Perspectives (Cheltenham, Edward Elgar 2005), which discusses, inter alia, Toro Co. vs. R&R Prods. Co., 787 F.2d 1208 (8th Cir 1986) and Southco Inc. vs. Kanebridge Corp., 390 F3d 276 (3d Cir 2004)). 9 See 17 USC §§1301 – 1302 (2000), for the closest Congress has come, setting out a sui generis regime limited to the protection of boat hull designs. 10 Lexmark, 387 F.3d, at 547 – 548. 11 Lexmark, 387 F.3d, at 548. 12 Chamberlain, 381 F.3d, at 1197 – 1201. The Fed. Cir reiterated this analysis in Storage Technology Corp. vs. Custom Hardware Engineering & Consulting, Inc., 421 F.3d 1307 (Fed Cir 2005) (circumvention of code controlling access to data library maintenance software held not to violate §1201 because access does not ‘facilitate copyright infringement’: copies made in RAM once software is accessed are copies permitted under the §117(c) exception for computer maintenance). 13 Chamberlain, 381 F.3d, at 1200 – 1201. 14 H.R. Rep. No. 105 – 551, pt. 2, at 23 (1998). 15 Besek, Anti-circumvention Laws, p. 474. 16 In one case, the plaintiff brought an action seeking a declaratory judgment that §1201(a)(1) was unconstitutional because it restrained his First Amendment right to reverse engineer software that blocked access to certain Internet sites in order to publish a list of the blocked sites. The court held the complaint too vague to give rise to an adjudicable ‘case or controversy’ (Edelman vs. N2H2, 263 F.Supp. 2d 137 (D Mass 2003)). In any event, it is likely plaintiff's conduct would have benefited from statutory and administrative exceptions to §1201(a) (see Besek, Anti-circumvention Laws, pp. 414 – 415). 17 IMS Inquiry Mgmt. Sys. vs. Berkshire Info. Mgmt. Sys., 307 F.Supp. 2d 521 (SDNY 2003); Accord, Egilman vs. Keller & Heckman, 401 F.Supp.2d 105 (DDC 2005). 18 A password-controlled access measure fits the statutory definition of a technological measure that effectively controls access to a work (see 17 USC §1201(a)(3)(B)). 19 See, e.g., 321 Studios vs. MGM, 307 F.Supp. 2d 1085, 1098 (ND Cal 2004) (‘321 states that its software does not avoid, bypass, remove, deactivate, or otherwise impair a technological measure, but that it simply uses the authorized key to unlock the encryption. However, while 321's software does use the authorized key to access the DVD, it does not have authority to use this key, as licensed DVD players do, and it therefore avoids and bypasses [the] CSS [access control]’). 20 See, e.g., Coxcom vs. Chaffee, 2006 WL 1793184 (DRI); DirecTV vs. Borrow, 2005 US Dist LEXIS 1328 (ND Ill 2005); Comcast of Ill. vs. Hightech Electronics, 2004 US Dist LEXIS 14619 (ND Ill 2004); DirectTV vs. Ferguson, 328 F.Supp. 2d 904 (ND Ind 2004). 21 See, e.g., Corley, 273 F.3d 429; 321 Studios vs. MGM, 307 F.Supp. 2d 1085; Macrovision vs. Sima, F.Supp.2d (SDNY 2006); see also Automotive Inspection Services, Inc. vs. Flint Auto Auction, Inc., 2006 US Dist LEXIS 83056 (ED Mich, 15 November 2006) (granting a TRO under §1201(a) because the defendant apparently hacked the plaintiff's auto inspection software to use it beyond the term of the license). 22 See DirecTV vs. Little, 2004 US Dist LEXIS 16350 (ND Cal 2004), for an exception in which the court determined that there was a factual dispute concerning whether the defendant's ‘smart cards’ were ‘primarily designed for signal theft’. 23 307 F.Supp. 2d at 1097 – 1098 (citing Corley, 273 F.3d at 443; US vs. Elcom, 203 F.Supp. 2d 1111, 1120 (ND Cal 2002)). 24 321 Studios vs. MGM, 307 F.Supp. 2d 1085, at ∗7; see also Macrovision (defendant's ‘CopyThis’ and ‘GoDVD’ devices that strip macrovision protection from DVDs held to violate §1201(b): ‘Sima's defense that it only intends to enable “fair use” copying of copyrighted works is no defense at all’). 25 Similarly, in Macrovision, defendant's assertion that the device enabled back-up copying seemed pretextual. 26 RealNetworks vs. Streambox, 2000 US Dist LEXIS 1889 (WD Wash, 18 January 2000). 27 17 USC §117 (2000) permits archival copying of computer programs, but not every work expressed in 1s and 0s is a ‘computer program’ (see Elcom, 203 F.Supp. 2d at 1135). 28 E-mail forwarded from student, with inquiry ‘Can they do this?’. 29 87 F.Supp. 2d 976 (ND Cal 1999). 30 See 17 USC §109(a) (2000). 31 See Ginsburg, J. C. (2001) Copyright and control over new technologies of dissemination, 101 Colum. L. Rev. 1613, 1633, n. 83. 32 For a general critique of arguments that price discrimination can justify the creation or reinforcement of intellectual property rights, see Gordon, W. J. (1998) Intellectual property as price discrimination: Implications for contract, 73 Chi-Kent L. Rev. 1367. 33 See, e.g., Ginsburg, J. C. (1999) Copyright legislation for the ‘Digital Millennium’, 23 Colum. J.L. & Arts 137, 148 – 152, for a fuller description of these, and the other, exceptions to 17 USC §1201(a) (2000). 34 17 USC §1201(f) provides: (f) Reverse Engineering. (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title. (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title. (3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section. (4) For purposes of this subsection, the term ‘interoperability’ means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged. 35 See §1201(f)(2)(3). 36 334 F.Supp. 2d 1164 (ED Mo 2004), aff'd., 422 F.3d 630 (8th Cir 2005). 37 334 F. Supp. 2d, at 1185. 38 334 F. Supp. 2d, at 1184. 39 334 F. Supp. 2d, at 1184. 40 See, e.g., Sega Enters. Ltd. vs. Accolade, Inc., 977 F.2d 1510 (9th Cir 1992); Sony Computer Entm't, Inc. vs. Connectix Corp., 203 F.3d 596 (9th Cir 2000). 41 See 17 USC §1201(a)(1)(B) – (E) (2000); but see 207 – 209, infra (suggesting the possibility of judicial articulation of ‘fair circumvention’ exception). 42 17 USC §1201(a)(1)(C) (2000). For a fuller discussion, see Besek, Anti-circumvention Laws, pp. 416 – 423. 43 See Library of Congress, Copyright Office, 37 CFR Part 201 [Docket No. RM 2005-11], Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies at 5 [hereafter ‘2006 Rulemaking’]. Available online at: http://www.copyright.gov/1201/docs/fedreg_notice.pdf 44 ‘2006 Rulemaking’, pp. 6 – 7. 45 See Exemption to the Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556, 64556, 64559 (proposed 27 October 2000) (to be codified at 37 CFR, pt. 201); Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 68 Fed Reg 62011, 62014-15 (31 October 2003) (to be codified at 37 CFR, pt. 201). 46 ‘2006 Rulemaking’, pp. 32 – 33; see also recommendation of the Register of Copyrights in RM 2005-11, Rulemaking on Exemptions from Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Recommendation of the Register of Copyrights (17 November 2006) [hereafter ‘Recommendation’]. Available online at: http://www.copyright.gov/1201/docs/1201_recommendation.pdf 47 See ‘2003 Rulemaking’, p. 44. 48 See discussion infra, 204 – 209. 49 See ‘Recommendation’, p. 48: (a) It was undisputed that mobile handset consumers who desire to use their handsets on a different telecommunications network are often precluded from doing so unless they can obtain access to the bootloader or operating system within the handset in order to direct the phone to a different carrier's network. The evidence demonstrated that most wireless telecommunications network providers do not allow a consumer to obtain such access in order to switch a cell phone from one network to another, and that the consumer could not use the cell phone with another carrier, even after fulfilling his or her contractual obligations with the carrier that sold the phone. In order to switch carriers, the consumer would have to purchase a new phone from a competing mobile telecommunications carrier. 50 ‘Recommendation’, pp. 52 – 53. 51 E.g., query whether the film professors at issue in the film clips exception would themselves be capable of circumventing the access controls; but for the purposes cited in the exception, perhaps the university's or film studies department's IT group would come within the scope of the permissible activity. 52 Cf. Lexmark, 387 F.3d, at 552 – 553 (Merritt, J., concurring) (anticipating more ‘complex and creative’ lock-out codes, and cautioning that these should not make an anti-circumvention action any more successful; rather courts should guard against ‘[g]iving authors monopolies over manufactured goods’ by ‘allow[ing] authors exclusive control over not only their own expression, but also over whatever functional use they can make of that expression in manufactured goods’). 53 See discussion supra, 202. 54 See ‘2003 Rulemaking’, p. 53. 55 ‘2003 Rulemaking’, p. 53. 56 Apple has announced that it would not employ this DRM on higher-priced EMI songs (though EMI recordings sold at the lower-price point will continue to include DRM) (see Smith, E. & Winfield, N. (2007) EMI to sell music without anti-copying software: Online-strategy shift breaks with industry on combating piracy, Wall Street Journal, 2 April, p. B5. 57 See 105th Congress, HR 2281, §107(2)(d) (Secretary of Commerce to report on ‘the degree to which [DMCA] claims constitute a serious impediment to the development and production of competitive goods and services’). This provision was not, however, included in the final version of the DMCA that emerged from the Judiciary Committee's, rather than the Commerce Committee's, draft. 58 See Report of the House Committee on Commerce, Rept. 105-551, HR 2281, at 43 (the reverse engineering exception ‘applies to computer programs as such’, not to measures that ‘control[] access to any work other than a computer program’). 59 See, e.g., Corley, 273 F.3d, at 443. 60 See Corley, 273 F.3d, at 443; Elcom, 203 F.Supp. 2d 1111; 321 Studios, 307 F.Supp. 2d 1085. 61 See, e.g., Corley, 273 F.3d, at 453 – 458; Elcom, 203 F.Supp. 2d, at 1127 – 1137. 62 Corley, 273 F.3d, at 458. 63 Corley, 273 F.3d, at 459. 64 Elcom, 203 F.Supp. 2d, at 1131. 65 Eldred vs. Ashcroft, 537 US 186, 221 (2003). 66 Congress recognized this in the legislative history of the 1976 Act, which codified both doctrines (as §§102(b) and 107) (see House Report 94-1476, at 57, 66; see also Latman, A. (1963) Study no. 14: Fair use of copyrighted works, 1 Studies on Copyright 781. 67 HR Rep. No. 94-1476, 94th Cong., 2d Sess. 66 (1976). 68 Nimmer, D. (2000) A riff on fair use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 686 n. 66 (emphasis added); Burk, D. L. (2003) Anti-circumvention misuse, 50 UCLA L. Rev. 1095; Higgs, D. C. (2004) Lexmark International, Inc. v. Static Control Components, Inc. & Chamberlain Group, Inc. v. Skylink Technologies, Inc.: The DMCA and durable goods aftermarkets, 19 Berkeley Tech. L.J. 59, 63; Joyce, C. et al. (2003) Copyright Law (6th edn) (Newark, NJ, LexisNexis), §1.03[A], p. 947. 69 Courts have entertained ‘nominative fair use’ defenses to trademark infringement, and may be developing broader concepts of non-statutory, but lawful, unauthorized use of trademarks (see, e.g., New Kids on the Block vs. News Am. Publ'g, 971 F. 2d 302 (9th Cir 1992); see also Playboy Enterprises, Inc. vs. Welles, 279 F3d 796 (9th Cir 2002); see generally, McCarthy, J. T. (1992) Non-confusing nominative fair use. In J. T. McCarthy et al. (eds), McCarthy on Trademarks and Unfair Competition (4th edn) (Eagan, MN, Thomson West, 1992), §23:11). In addition, one scholar has argued for extending the fair use doctrine to patent law (see O'Rourke, M. (2000) Toward a doctrine of patent fair use, 100 Colum. L. Rev. 1177; see also Ritchie de Larena, L. (2005) What copyright teaches patent law about ‘fair use’ and why universities are ignoring the lesson, 84 Or. L. Rev. 779. 70 HR 683, 109th Cong., 2d sess. (2006), PL 109 – 312. 71 On the dilution claim and its contrast with traditional trademark norms, see generally, Bone, R. G. Hunting goodwill: A history of the concept of goodwill in trademark law, 86 Boston U. L. Rev. 547 (2006); Lemley, M. A. (1999) The Modern Lanham Act and the death of common sense, 108 Yale L. J. 1687. On dilution's less impressive record in the courts, see Long, C. (2006) Dilution, 106 Colum. L. Rev. 1029. 72 15 USC §1125(c)(3)(A). 73 See, e.g., decisions cited above in Note 69. 74 15 USC §1115(b)(4). 75 15 USC §1125(3)(A)(i)(ii). 76 For further development of the argument for a ‘fair circumvention’ exception, see, e.g., Kasunic, R. Identifying and preserving the traditional contours of copyright, 30 Colum. J. L. & Arts 397 (2007); Ginsburg, J. C. (2006) From having copies to experiencing works: The development of an access right in US copyright law. In H. Hansen (ed.), US Intellectual Property Law and Policy (Cheltenham, Edward Elgar), pp. 56 – 58 (suggesting ‘fair access’ exception); Tian, Y. (2005) Problems of anti-circumvention rules in the DMCA and more heterogeneous solutions, 15 Fordham Intell. Prop. Media & Ent. L.J. 749, 779. 77 Compare Lexmark vs. Static Control Components, 253 F.Supp. 2d 943 (ED Ky 2003), rev'd., 387 F.3d 522 (6th Cir 2004) (holding that circumvention of access code in order to make printer-compatible ink cartridge violates §1201(a)) and Storage Technology Corp., 421 F.3d 1307 (limiting unlawful circumvention to those acts that ‘facilitate copyright infringement’). 78 See Note 26. 79 See Pogue, D. (2007) A stream of movies, sort of free, New York Times, 25 January. Available online at: http://www.nytimes.com/2007/01/25/technology/25pogue.html?_r=1&oref=slogin 80 See http://www.rhapsody.com/home.html 81 See, e.g., Radio IO (http://www.radioio.com/), Sirius Internet (http://www.sirius.com/servlet/ContentServer?pagename=Sirius/Page&c=FlexContent&cid=1158082415620) and Pandora (http://www.pandora.com). 82 See nbc.com, abc.com, television.aol.com/in2tv. 83 See Marriott, M. (2007) Nothing to watch on TV? Streaming video appeals to niche audiences, New York Times, 6 August (describing ‘Devil's Trade’: a six-episode show shot by joint venture for the Internet). 84 Some content owners are also cooperating with websites that let users download their content (protected by DRM) for free. The content owners hope to make their money based on advertising (see, e.g., http://www.spiralfrog.com). Nor is DRM technology limited to audio or video files: E-book sellers, such as barnesandnoble.com, also use DRM. 85 See http://blogs.zdnet.com/BTL/?p=3577 86 See Rosenblatt, B. (2006) Movielink and CinemaNow add DVD burning, DRM Watch, 20 July (criticizing services for allowing users to make only one copy of Internet-on-demand movies). Available online at: http://www.drmwatch.com/ocr/article.php/3621401 87 E.g., the Microsoft Xbox videogame system now offers content licensed from CBS, Warner Brothers, MTV and Paramount; it will have 1,000 hours of content available by the end of the year. Customers pay US$1.99 for the right to watch a movie anytime within a two-week window. Once a customer begins watching the movie, he or she will have 24 hours to finish watching (see BBC News (2006) Xbox Live to offer TV downloads, BBC News, 7 November. Available online at: http://news.bbc.co.uk/2/hi/technology/6124042.stm). The BBC has tested iMP: software that allows users to request BBC programs interactively for watching or listening to on their computers. The DRM technology allows the BBC to set limits specifically for each show; some shows might reside on computers for only a day, others for two weeks (see Perry, S. (2004) More details of BBC iMP revealed: All content DRM'd, Digital-Lifestyles.Info, 26 February. Available online at: http://digital-lifestyles.info/display_page.asp?section=distribution&id=1009). 88 See Sling Media Press Release: ‘Sling Media Gives Consumers Their TV “Anywhere-Anytime” with the Slingbox’, 30 June 2005. Available online at: http://us.slingmedia.com/object/io_1157566576257.html. A similar service is provided by bigeardigital, which lets people upload audio content and access it from different devices and in different places (see http://www.bigeardigital.com). The flourishing new business of offering ‘ring tone’ downloads also employs DRM, with audio files available for download to cellphones, but protected against further transfer to other cellphone users via the Internet or other form of messaging (see, e.g., Infospace, Ringtones & Graphics: http://www.infospaceinc.com/mobile/ringtonesgraphics.php). For an explanation, see, Open Mobile Alliance (2003) Digital Rights Management, Short Paper, December (http://www.openmobilealliance.org/docs/DRM%20Short%20Paper%20DEC%202003%20.pdf) (‘forward lock prevents content from leaving device’ prevents peer-to-peer distribution). 89 See also Lauria, P. (2007) Top music labels back QTrax swap service, New York Post, 25 June 25; Levine, R. (2007) New model for sharing: Free music with ads, New York Times, 23 April. 90 See Mindawn Artists' FAQ re ‘demo files’: ‘The user can play it in full up to 3 times, and then the local copy of the file will self-destruct. The file is not playable outside of our player software, and our player “knows” how many times it has been played’ (http://www.mindawn.com/artists.php). 91 See http://www.snocap.com/about/faq/. Snocap appears to be successful; one report estimates that it lists over 3.3 million songs (see Fost, D. (2007) Tech chronicles, San Francisco Chronicle, 21 March, p. C3).