Company Says Tech Giants Must Use Its Product to Prevent Stream-Ripping

Stream-ripping has eclipsed file-sharing as the unauthorized activity most damaging to the entertainment industries, MRT said. A yearlong MRT study of stream-ripping applications found they had been downloaded 100 million times, 1/2 of those from Download.com, CEO Hank Risan told us. “There’s no way to monitor” how often such programs are used because, unlike file- sharing, stream-ripping is a private activity, and ripped files show no marks of having come from streaming media, he added. The Copyright Royalty Board (CRB) cited massive stream-ripping as justification for raising webcasting rates in its recent decision, Risan said.

RIAA and the International Federation of the Phonographic Industry tested MRT’s product, the X1 Secure Recording Control, and found it effective for preventing ripping, MRT said. “It’s the only technology in the field. We have no competitors,” Risan said. The company, which also operates webcaster BlueBeat.com, received a global license from IFPI to webcast in 320 kbps MP3 -- an unusually high bitrate -- in part because its protection system couldn’t be cracked, Risan said. BlueBeat is negotiating with SoundExchange for lower royalties based on its stations’ anti-ripping protections, he added.

Targeted companies got the pitch from MRT, but either turned down licensing or took steps to simplify stream- ripping, Risan said. Microsoft “took off the gloves” in Vista, expanding its Sound Recording function by removing a 60-sec. limit on ripping, and providing 96 kbps bitrate in the WMA format, he added. MRT lawyer Archie Robinson said Microsoft and RealNetworks had responded to the cease-and- desists, and MRT was expecting responses soon from Adobe and Apple. Those companies couldn’t be reached for comment.

The issuing of cease-and-desists to spur the use of certain technology appears to be a first. Broadcasters and record labels have pushed Congress to require “flags” to be inserted into content to prevent unauthorized copying, and media companies are pressing YouTube to use filtering technology to block infringing videos. But 3rd-party vendors aren’t known for taking legal action on behalf of rightsholders.

“There’s lots of case history” to suggest vendors can file DMCA claims on behalf of copyright owners on circumvention allegations, Risan said. He pointed to RealNetworks’ lawsuit against Streambox, which was subjected to an injunction against circumventing RealNetworks’ streaming protections. Congress drafted the DMCA so civil action could be taken “on behalf of any person injured by a violation,” Robinson said, which includes “anyone who was in the position to help the content owner but was foiled” by the streaming provider. “Once they know about the [anti-ripping] controller that we have… and fail to adopt it or some other protection,” by their silence companies are encouraging users to stream-rip, he said.

The legal effort isn’t MRT’s first crack at requiring protection on streams. It went lobbying with RIAA about 18 months ago and demonstrated its technology to Congress, which resulted in the Perform Act’s anti-ripping language, Risan said. “We've been working with these guys for a long time and we can’t go any further” outside the courts. Asked why SoundExchange, in its campaign to protect the CRB rates, didn’t mention stream- ripping, Risan guessed the group is “afraid that if they mention it, there'll be even more stream rippers in the market.”

MRT’s invocation of the Streambox case is inapt, said Electronic Frontier Foundation lawyer Jason Schultz. No one challenged RealNetworks’ standing to file suit “because it actually protected the contents” that Streambox was stripping of protection. The DMCA applies only to content “that is being protected at the moment,” not content that theoretically could be protected for the good of rightsholders, Schultz said: “This is sort of like a credit card company sending you junk mail saying, ‘You're stupid if you don’t sign up for our card because we have lower rates.'”

Sec. 1201(c)(3) of the DMCA allows for products that don’t “provide for a particular response to any particular technological measure.” The provision was intended to “explicitly kill” MRT’s argument, and require that any technological measure limit the use of content “in the ordinary course of its use,” not by setting a marker that products must recognize, Schultz said. “Vendors would just be buried in demands and requests for all kinds of tech mandates” otherwise.

Robinson admitted MRT was stepping into unknown legal territory with its DMCA interpretation, calling the ripping issue “brand new.” But Sec. 1201 doesn’t justify any tech design, he said, pointing to prohibitions elsewhere in the statute. “To the extent that their design violates the circumvention requirements… then they don’t have that freedom of design.”

In a written statement, RIAA Gen. Counsel Steve Marks called stream-ripping “a growing problem” that has “technological solutions,” and said “it is unfortunate that Internet radio stations and others have failed to address this harmful problem.” But the group didn’t comment on MRT’s litigation strategy. Eric Garland, CEO of P2P measurement firm BigChampagne, agreed that stream-ripping is a “gateway” in that ripped files are often uploaded for P2P sharing, but “stream-ripping is not even remotely rivaling file-sharing” as an activity in itself. Even going by software downloads, the 100 million downloads MRT cited are dwarfed by the “hundreds of millions” of P2P software downloads, he said.