June 15, 2024

DRM and 'casual piracy'

Some background on a major transformation taking place in the music industry, even as most mainstream media organizations print not a word about it:

Reuters article, May 31: Sony BMG tests technology to limit CD burning.

As part of its mounting U.S. rollout of content-enhanced and copy-protected CDs, Sony BMG Music Entertainment is testing technology solutions that bar consumers from making additional copies of burned CD-R discs. …

“The casual piracy, the schoolyard piracy, is a huge issue for us,” says Thomas Hesse, president of global digital business for Sony BMG. “Two-thirds of all piracy comes from ripping and burning CDs, which is why making the CD a secure format is of the utmost importance.” …

Among the biggest headaches: Secure burning means that iPod users do not have any means of transferring tracks to their device, because Apple Computer has yet to license its FairPlay DRM for use on copy-protected discs. …

San Jose Mercury News, June 15: Music industry eyes `casual piracy.’ Major labels to copy-protect all CDs sold in the U.S. The story begins:

The record labels are in pursuit of a new class of music pirates – not the millions who download bootlegged songs over the Internet but those who copy music CDs for their friends. …

It’s surprising to me that the Mercury News has accepted the record labels’ terminology in this matter. Piracy refers to making unauthorized reproductions of digital media for financial gain – or, stretching the term, for indiscriminate distribution. It is not piracy – “casual” or otherwise – when you buy music and make a few copies for close friends.

As Jessica Litman, author of “Digital Copyright,” writes in her law review article “War Stories,” 20 Cardozo Arts & Entertainment Law
Journal 337 (2002):

Under the old way of thinking about things, copying your CD and carrying the copy around with you to play in your car, in your Walkman, or in your cassette deck at work is legal. Borrowing a music CD and making a copy on some other medium for your personal use is legal. Recording music from the radio; maxing different recorded tracks for a ‘party tape,’ and making a copy of one of your CDs for your next-door neighbor are, similarly, all lawful acts. The copyright law says so: section 1008 of the copyright statute provides that consumers may make non-commercial copies of recorded music without liability. Many people seem not to know this any more.

Now, this is not to say that individuals have a right to make an unlimited number of an unlimited number of CDs for their friends. But where is the debate on this issue? The Merc article goes on:

Sony BMG Music Entertainment, home to some of the music industry’s biggest acts, including Bruce Springsteen, System of a Down and Shakira, plans to copy-protect all music CDs sold in the United States by the end of the year. Another major label, EMI, whose artist roster includes Coldplay and Norah Jones, will introduce copy-protected CDs in its two largest markets – the United States and the United Kingdom – in the coming weeks.

For consumers, it signals an abrupt change to the rip, mix, burn mania embodied by the 2001 Apple Computer ad campaign promoting the first iMac computer with a CD burner and software for creating custom music CDs. These new copy-protected discs limit the number of times people can create copies of music CDs or add individual songs to music mixes. …

On the PC, a message appears that asks the buyer for permission to install a piece of software on the desktop. Answer no, and the disc is ejected. It won’t play. Once installed, the software regulates how often people can rip a full copy of the CD to the computer, burn individual tracks or make full copies of each album. EMI, for example, will permit the consumer to upload an album once per computer, burn individual tracks seven times and make up to three full copies of each CD.

Should we allow the record labels to define the extent of our fair use rights through the DRM they place on the CDs we buy? (Ernest Miller suggests that the labels are making a strategic mistake through this attack on copying/sharing among family members and friends.)

This latest bit of news comes on top of the restrictions placed on other uses of digital media:

– it’s a federal offense to back up a copy of your DVD;

– it’s illegal to copy a purchased computer game with DRM onto your laptop or desktop;

– the new generation of digital television may impose similar limits on how you can copy or burn Hollywood programming.

Will citizens balk at these kinds of restrictions, or come to accept them? My suspicion is that the Darknet will grow in direct proportion to actions that turn mainstream Americans into “casual pirates.”


  1. Kevin,

    Actually, infringers have been called “pirates” for a long time. Edison regularly referred to patent infringers as “pirates”.

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  5. We have to clear , are these aspects affects music industry , i think it dont !

  6. Daniel Jolt says

    In mainland Europe – where I’m located – pretty much all new CDs are copy protected and the CD buying public has accepted it. Mostly because the people buying them prefer to break the law by copying a protected CD to not buying the CDs and write to the CD makers to complain.

    That’s the bit I really hate. The copy protection is no problem at all. The problem is IMO that by introducing the DRM it is no longer legal to copy digitally. This is why I reduced my own CD purchases from over 100/year to nearly nothing and buy the albums I want used on ebay to make sure they do not count as real sales.

    The fact is: If you accept this protection silently – even if you do not buy any protected CDs yourself – you will surrender the right to copy CDs for your own use forever.

    So complain with the right reason: I do not want copy protection because I want the legal right to make copies.

  7. Sorry, but something went screwy when I posted the previous comment. My reference to http://www.etymonline.com seems to have vanished.

    Maybe I’m not supposed to use angle brackets to delimit URLs in this thing? Must have interpreted it as broken HTML.

  8. Kevin and Ed:

    The use of “pirate” to mean “infringer” goes back considerably earlier than Edison. According to , the word has been used to mean “one who takes another’s work without permission” since 1701.

    I think we have to accept that usage as well-established (but, of course, JD said nothing contrary to this in his posting).

  9. Nato Welch says

    Hold on a minute, here.

    If Sony’s new technical protection measures are so easy to bypass that anyone holding the shift key down while inserting one of their new CDs, that means anyone doing something like that is a federal felon under the DMCA. This isn’t news, so much as the fact that *Sony itself* is now providing customers with the information they need to bypass those measures.

    So does this mean that Sony is trafficking in circumvention “devices” for their own product? Are they inducing their own customers to commit a felony with their own product?

  10. Nato Welch says

    Hold the shift key down when inserting the CD. Granted, most folks don’t know that, but the people that do still put ripped tracks online for the people that don’t.

    Given the exponential nature of content propagation, it doesn’t really matter how many holes in the dike you plug up. Network saturation might be dealyed for a few hours, at most.

    Strangely, once one bypasses this annoyance, you can rest assured that neither burned cds nor the audiofiles will retain it, meaning that only Sony’s *customers*will be affected by it No one else will even notice!

  11. Fair use has always been a necessarily grey, fuzzy affair, which varies greatly depending on the circumstances. It’s situational. From a galaxy of individual court cases we get a sense — but only a general sense — of where the lines are drawn.

    To my mind, there’s no such thing as “casual piracy.” Using a digital work in a way that the record labels don’t approve of does not constitute piracy, and we need to constantly remind the media of that.

    Next week, I’ll be appearing on open source radio with the leader of six movie release groups. These are organized teams of individuals, working across international borders, whose mission is to release every Hollywood movie onto the Internet.

    My own view is that this behavior is wrong and does indeed constitute piracy, but that the studios are effectively punishing millions of law-abiding citizens — by preventing them from backing up their purchased DVDs, by preventing them from copying portions of a movie for fair-use commentary, through technology and law that does nothing to curtail true piracy.

    That’s where the real battle lies: Hollywood’s clampdown on the public’s fair use rights as an ineffective weapon in their battle against real piracy.

  12. So what exactly is the difference between “casual piracy” and “fair use” ?

    Are they the same, or does the former also include things that ought to be included in the latter ?

  13. Brian Srivastava says


    Just when you thought it couldn’t get any more idiotic. Sony will let you work around the copy protection to copy to your iPod, if you e-mail them and ask nicely.

    Remind me again why I’m going through this hassle to buy a CD and copy it to my ipod? At least my iPod is connected to a mac, though those advantages don’t seem likely to last.

  14. Brian is correct that market mechanisms can take care of part of the problem. An uncopyable CD is simply a less attractive product than a copyable one. To the extent that consumers value the ability to copy, the record labels’ release of a product line with fewer desirable features should lead to either lower prices or lower sales.

    But price competition is only a partial solution. The other, and ultimately the more important, part of the solution is supposed to arise through quality competition. That, however, is what makes the DMCA so insidious–it curtails the innovative fervor that should be impelling quality competition.

    As annoying as it may seem to all involved, an “arms race” pitting protective digital mechanisms against disabling technology would serve the public interest; it would teach us a lot about both security and invasion. The externalities could be enormous. But the DMCA makes much of the work on one side of this arms race illegal–and the rest of it much more costly than it should be.

    The implicit loss to society is subtle, but potentially enormous. One of the basic justifications of our entire economic system is that private ownership of the means of production produces significant externalities that serve the public good. Classically (and most obviously), large employers invest in the communities in which their employees live. But the classic defenses of capitalism (think von Mises) also emphasize that the competitive races to produce and market attractive, high quality products push forward the frontiers of science and technology–a clear externality serving the public good. Laws like the DMCA that curtail this competitive drive weaken that justification. Writ large, they threaten to undermine the entire capitalist system.

    Bottom line: Am I upset with the labels for trying to make copying hard? No. That’s what they’re supposed to be doing. I’m upset with our lawmakers for preventing the competitive responses necessary to make our economy thrive.

  15. Kevin,

    Actually, infringers have been called “pirates” for a long time. Edison regularly referred to patent infringers as “pirates”.

  16. Brian Srivastava says

    Well if you look at what starforce copy protection did (in part because it was outright destructive), those companies got blacklisted, and so you see posts on gaming message boards to the effect of ‘does this game use starforce?’

    Can anyone really imagine a consumer buying a CD they can’t rip to MP3’s anymore? That’s downright absurd. I would be suprised if there are a great many people buying extremely popular titles (ie teenage girls), who don’t have some sort of mp3 player which they are using. The CD format is a means of conveying rippable content to the user, the user then tosses the CD on a shelf or in a pile somewhere and never touches it again. The moment they can’t do that, they’ll stop buying CD’s altogether. I seriously doubt the market for this stuff is savy enough to bother trying to distinguish EMI, Sony, Virgin, whatever the big labels are from one another. Even though we all know michael jackson owns half the money from beatles tracks through sony, they don’t seem to be getting boycotted for fear of helping him after all (even though his own music has completely tanked). If even one company puts out DRM on a disc that sufficiently annoys a customer, they’ll just stop bothering with buying CD’s alltogether. Granted this could be good news for apple and the itunes store.

    I don’t think the computer game industry has as much to worry about. The ‘shelf life’ of a computer game at full price is short, (in some cases even for A list titles a matter of weeks), before a significant price drop. This isn’t really piracy its competition. The market is people who, like me, must have it on the first day its out, and am on a first name basis with everyone in the local electronics boutique so I can get my copies ‘first’. The issue of piracy doesn’t really exist with those lot, and within a couple of weeks even your good title is replaced on the shelf by everything else, so if anything you want people to pirate it at that stage so they’ll play it and be hooked for the next one. Obviously if you look at stuff like GTA, doom, half life KOTOR2, Halo2 etc… the first day sales tend to indicate a lot more people played and anticipated the next one than obtained a copy of the first one. The other huge A-list titles are MMO’s (see world of warcraft and their 2 million subscribers + 500k more lined up in the PRC), which aren’t dependent on CD copy protection anyway.

    The console market has been using copy protection for years (whether one calls it that or not) and it has pretty much proven to be completely useless except on the gamecube where using odd sized disks has just made the costlier in the first place, but harder to copy/pirate.

    Obviously any software that depends on installing software on the users computer is an exercise in futility if it will also play on linux/mac/any other OS/ generic CD player. The usual holding down the ‘shift key’ trick might work, but failing that people will just muck with registry entries until it does work (and then release a utility, negating the value of having put copy protection software on the CD in the first place). Waste of time and money and will annoy consumers enough they just won’t buy it. I don’t need anymore spyware trying to install itself on my computers thank you.

  17. No, piracy refers to taking a vessel by force on the high seas beyond the reach of national law.
    Rhetorical inflation has no place in law.
    The origins of applying this to music date back to ‘pirate radio’ – offshore broadcasters like Radio Caroline.