April 18, 2024

Record Companies Boxed In By Their Own Rhetoric

Reports are popping up all over that the major record companies are cautiously gearing up to sell music in MP3 format, without any DRM (anti-copying) technology. This was the buzz at the recent Midem conference, according to a New York Times story.

The record industry has worked for years to frame the DRM issue, with considerable success. Mainstream thinking about DRM is now so mired in the industry’s framing that the industry itself will have a hard time explaining and justifying its new course.

The Times story is a perfect example. The headline is “Record Labels Contemplate Unrestricted Music”, and the article begins like this:

As even digital music revenue growth falters because of rampant file-sharing by consumers, the major record labels are moving closer to releasing music on the Internet with no copying restrictions — a step they once vowed never to take.

Executives of several technology companies meeting here at Midem, the annual global trade fair for the music industry, said over the weekend that at least one of the four major record companies could move toward the sale of unrestricted digital files in the MP3 format within months.

But of course the industry won’t sell music “with no copying restrictions” or “unrestricted”. The mother of all copying restrictions – copyright law – will still apply and will still restrict what people can do with the music files. I can understand leaving out a qualifier in the headline, where space is short. But in a 500-word article, surely a few words could have been spared for this basic point.

Why did the Times (and many commentators) mistake MP3 for “unrestricted”? Because the industry has created a conventional wisdom that (1) MP3 = lawless copying, (2) copyright is a dead letter unless backed by DRM, and (3) DRM successfully reduces copying. If you believe these things, then the fact that copyright still applies to MP3s is not even worth mentioning.

The industry will find these views particularly inconvenient when it is ready to sell MP3s. Having long argued that customers can’t be trusted with MP3s, the industry will have to ask the same customers to use MP3s responsibly. Having argued that DRM is necessary to its business – to the point of asking Congress for DRM mandates – it will now have to ask artists and investors to accept DRM-free sales.

All of this will make the industry’s wrong turn toward DRM look even worse than it already does. Had the industry embraced the Internet early and added MP3 sales to its already DRM-free CDA (Compact Disc Audio format) sales, they would not have reached this sad point. Now, they have to overcome history, their own pride, and years of their own rhetoric.


  1. The main reason that Apple’s Fairplay hasn’t been more completely broken is that they give you a way out. You can buy a song from iTunes, put it on a playlist, and burn that playlist to a CD-R as PCM audio. Then you can rip it back in and encode it in any DRM-free format you want.

    But this is a hassle that does deter me from buying much from the iTunes music store. Most of the time I’ll just order the CD and rip it onto my player. It’s easier, the quality is better (though 128 kb AAC isn’t all that bad), and it is often cheaper if I’m buying the whole album anyway.

  2. Why do I feel something that cannot be even properly expressed in English…
    In Finnish it’s “vahingonilo”, and somebody may recognize the German expression “Schadesfreude”.

  3. Whoa whoa whoa, hold on just a minute folks:

    Music in freely-playable MP3 format doesn’t mean “no DRM.”

    For example, you can fingerprint music as you distribute it to customers, so that illicit copies can be traced to the original purchaser, his or her IP, account etc. This is DRM.

    Or for a less timely example, SDMI was a DRM system intended to work with ordinary, “unrestricted” MP3 files—the “do not play” messages were stored as watermarks, which are format-independent.

    We’re not likely to see an elaborate SDMI-like system in the future, which requires all devices to cooperate; but you probably will see fingerprinted music. If a record company gives music away in an unrestricted format, twenty bucks says it will be fingerprinted in some way that at least survives format conversion.

    I think you’re not seeing the death of DRM here, but rather just a shifting of gears into passive DRM, the kind that you don’t notice unless a file with your name on it lands on a file-sharing network.

  4. I have a question. What do you think the industry would do if a program was developed that could record music played on a person’s computer? Meaning that I would be able to listen to a podcast or streaming radio and simultaneously record what I hear in a high-quality format?
    Assuming that the podcast or Internet radio station isn’t infringing on copyright in any way, what problems would you foresee in this situation for consumers and the distributors of the program?

    I am asking because I can’t seem to get around the fact that downloading MP3s doesn’t seem any different to me than recording songs off the radio on to a cassette tape, something listeners have done for years without being lambasted as pirates. (I’m referring to people who make tapes for their own use, not commercial copies for sale.) And, although I freely admit that I may just see it this way because I am part of the depraved pirate generation, I wonder what the response of courts would be if the process of getting one’s own copy of an mp3 looked more similar to the act of taping a song off the radio.

  5. Adub Says:
    January 30th, 2007 at 8:41 pm

    “The worrying aspect of this to me is the inevitable move away from the sound quality of music on CD to the lossy MP3 format. Music is about the sound, not the portability. It just seems like a silly thing to sacrifice. Like watching videos on an iPod postage stamp screen.”

    This reminds me of the switch from LP to tapes and CDs. People complaining over and over again that the sampling used for CDs sounds so much worse than the analog sound of an LP. You can boost the quality of an mp3 to have, practically, zero compression. Worst case, you can distribute wav files sampled at the same rates as CDs. I believe certain online vendors already give you that option. It still not as good as the analog sound of the LP, but at least it’s CD quality. 🙂

  6. the_zapkitty says

    Leah Says:

    “Dear Gentlemen:”

    I’m not a gentleman, and I don’t even play one on TV so would a zapkitty do? I hope so… you appear to have been asking this question hither and yon on the net.

    “I would be grateful if anyone could tell me what the rank of Cfn. stands for.. in the Canadian Infantry Corps tfd. R.C.E.M.E”

    It denotes a Craftsman in the Royal Canadian Electrical & Mechanical Engineers. This appears to have been the RCEMC’s equivalent of a PFC.

    I actually don’t know much about the Canadian military once you get past the Bomarc and the Avro Arrow… 😉

  7. I’m not so sure that the media companies will actually do this. They may be pissed at Apple, who now ‘owns’ the digital music channel, but they are not giving up, especially as Vista has just arrived and big media is so deep into the DRM of that disaster that their eyes are brown.
    For an overview by someone who knows the internals read ‘A Cost Analysis of Windows Vista Content Protection http://www.cs.auckland.ac.nz/~pgut001/pubs/vista_cost.html

    He calls the Vista Content Protection specification ‘the longest suicide note in history.

    Little known fact about Vista: quote: ” So if you design a new security system, you can’t get it supported in Windows Vista until well-known computer security experts like MGM, 20th Century-Fox, and Disney give you the go-ahead (this gives a whole new meaning to the term “Mickey-Mouse security”). It’s absolutely astonishing to find paragraphs like this in what are supposed to be Windows technical documents, since it gives Hollywood studios veto rights over Windows security mechanisms.”

    Nope they are not going to give up….

  8. The worrying aspect of this to me is the inevitable move away from the sound quality of music on CD to the lossy MP3 format. Music is about the sound, not the portability. It just seems like a silly thing to sacrifice. Like watching videos on an iPod postage stamp screen.

  9. The problem with selling for $2.99 is that people won’t pay that much, and they’ll copy the music anyway. I suggest that AAC is (more or less) unbroken because, at a dollar per song, nobody cares to put that much effort into it. Oh wow, I saved a whole dollar!

    By AAC I assume you mean Apple Fairplay. AAC is the underlying format, and it’s the same whether it’s sold by Apple, encoded in iTunes, or encoded by an open-source encoder.

    Keep in mind that piracy is not the main motive for breaking Fairplay — interoperability is. It’s much easier to pirate the same songs from a CD… and the resulting copy will be better quality, so that’s what pirates do.

    Fairplay was broken several times; Apple “fixes” it with almost every release. If the current version hasn’t been broken, it’s probably because interoperability isn’t a problem for the majority of Apple’s customers. Either they’re happy with the official workaround of burning a CD and re-ripping, or they have no need to play the songs anywhere but in iTunes or on their iPod.

    My guess is that anyone who did have a problem with Fairplay is no longer an iTunes customer. Apple made it pretty clear that they wouldn’t tolerate the DRM being broken by updating it so frequently, so gradually people — music fans and hackers — have lost interest.

  10. MaverickRonin says

    Copyright is dying and the prognosis doesn’t look too good. Companies may be able to survive when most of their ‘customers’ download everything they want for free with bittorrent, but the probably won’t and their business models will have to change. The only way to stop the mainstreaming of p2p ‘piracy’ will involve turning the country into a police state that makes 1984 look like Mad Max.

    For now all those IP lawyers should just be glad we don’t have replicators yet. I wonder what will happen when someone gets sued by Ferrari for replicating an Enzo in their backyard.

    (btw, I think we’ll get nano-factories a long time before the energy-to-mass type they have in Star Trek.)

  11. DensityDuck says

    The problem with selling for $2.99 is that people won’t pay that much, and they’ll copy the music anyway. I suggest that AAC is (more or less) unbroken because, at a dollar per song, nobody cares to put that much effort into it. Oh wow, I saved a whole dollar!

  12. Always follow the money….

    No industry has more contempt for its customers than the record business. I think their notion of selling plain-vanilla MP3s doesn’t add up to much more than an end-run around iTunes, which the biz simultaneously loves and hates.

    The labels may be willing to make that piracy-threat trade-off, if it means they can sell hit singles for $2.99 per, which Apple won’t let them do.

    That’s what they really want to do.

  13. Captain Obvious says

    Well Duh! I sure hope all the folks that were hassled by the RIAA folks get together and sue the A$$ off these folks. The RIAA and the “Music Industry” needs to pay a hefty penalty for their stupidity and narrow vision.

    Capt. O.

  14. PJ/Maryland says

    MD makes the obvious point that the Times misses: DRM is cumbersome. In fact, the article is close to nonsensical: music labels might release music without DRM because digital music sales are being hurt by rampant copying. Stay tuned for BestBuy to start giving away big screen TVs because of rampant theft, and the IRS to stop accepting income tax payments due to rampant cheating…

  15. First, I think the online music world has made the same mistake as teh CD world. (And the DVD world). I believe a substantial portion of CD sales was people re-buying their vinyl music, or building a library of their favourite songs. They finished a few yeas ago, and sales have fallen off.

    the same thing is happening with DVDs and electronics. People ahve been buying their favourite oldies, and have become sated with what they have and the realization that they buy it, watch/listen once or twice and file it. Price-point reality is setting in.

    I think one of the solutions is what Jobs has rejected- tiered pricing. It’s actually already here for CDs and DVDs, thanks to “previously viewed” and bargain bins.

    I have never bought i-music simply because the DRM just seems too cumbersome.

  16. What was Hilary Rosen’s role in all this? Will any of this marginalize her influence and cache within the Democrat Party?

  17. Yeah, well, another characteristic of geeks is their inability, when things turn their way, of considering the possibility that it had nothing at all to do with the world realizing the amazing cleverness and rightness of their position. It’s a narcissist thing…

    See, what about the possibility that the turnover time in pop music has gotten so short that copying hardly matters much? In other words, what is the commercial “lifetime” of a pop hit in 2007, versus 1995? How many months are people eager to pay for it, until they consider it a big yawn, something you find on the Yesterday’s Greatest Hits CD in the $1.99 bin? My guess is that the lifetime of a pop hit has drastically shortened since the mid 90s and that this, more than any intellectual epiphany (“My God! I’ve been wrong about this whole thing all my life!”) underlies their change in business plans. Put simply, they may not give much of a damn about copying any more because it won’t affect their bottom line — which increasingly depends on finding Hot! New! Hits! faster and faster.

  18. You guys are just proving Ed’s point. You wouldn’t assume that “unrestricted” means technically unrestricted if the RIAA hadn’t spent the last ten years developing and selling technical restrictions. What would an “unrestricted mp3” have meant before DRM came along? Surely, it would mean one that you are free — legally, not technically — to copy.

    Ed isn’t saying that the Times is using the word wrong (they’re abiding by conventional usage), he’s saying that the RIAA and company must now embark on a PR compaign to restore “unrestricted” to its original, more literal meaning.

  19. I agree with Mr. Finkelstein about the Times’ use of “unrestricted,” but I largely agree with the majority of your point. The RIAA and its supporters have painted artists as damsels at the mercy of the ravenous Internet beast, and DRM was supposed to be the shining knight. For all those that accepted this truth, the abandonment of DRM would seem akin to the townsfolk turning away the services of the shining knight, telling the knight: “Yeah, we’re just going to let nature take its course and see what happens. We think this will be a great opportunity for our damsels.” The industry has spent so much time, money, and energy convincing the world that the Internet media distribution phenomenon is a totally new beast bent on the destruction of all artistic media. To give up on DRM would seem to me an admission that the feared beast is not artistic apocalypse. Such a position shift would require a lot of explaining about the old position. I’m interested in seeing how this plays out.

  20. We Have Always Been at War With EastAsia, err, DRM, err, no, just forget about it …

    I think you’re over-punditing it all.

    1) They mean *technically* unrestricted. And most commentators tend to be somewhat imprecise on the details of copyright law. It’s pretty common to see articles being confused about the differences between e.g. public domain, GPL’ed distributions, creative commons licenses, and strict copyright.

    2) Never underestimate the inventive ability of slick lawyers and PR flacks, combined with an press which just echoes such statements. Devoted passion for detailed intellectual consistency is a geek thing.