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DRM and 'casual piracy'

June 16, 2005 by

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.”

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Tinkering with personal media

June 14, 2005 by

Did everyone here catch the Editorial Observer item in Sunday’s New York Times?: A New Magazine’s Rebellious Credo: Void the Warranty! The article recounted the launch of Make Magazine, a throwback quarterly that celebrates the almost-forgotten idea of the creative impulse inside us all.

Make, its makers will tell you, is part of a grass-roots rebellion against consumer technology that they say stifles ingenuity by discouraging end-user modification. To these restless minds, increasingly sophisticated consumer products have forced users into a kind of stupefied passivity, with nothing to do but replace batteries and update software, to point and click into a zone of blissed-out consumption. … In this world, to tinker – to open the case, to fiddle with wires and see what happens – is to rebel.

My thought, after reading the article, was: Yes! The freedom to tinker! It’s no longer a concept confined to a narrow set of technologists, geeks and academics. O’Reilly is a tech publishing house, sure, but surely this periodical has tapped into a nascent impulse among some segment of Americans to throw off the shackles of consumerism and to hark back to a time when we were co-creators of our products.

I remember watching my dad tool around with short-band radio and spend weekends under the hood of his car. What tinkering skill sets will I pass along to my 6-year-old? At the moment, the best I have to offer is, alas, a set of tools in the Darknet that I can point him to, given the widening disconnect between our laws and the kinds of things people want to do with digital technology.

But perhaps we can think of tinkering in a larger context: as a reformulation of our media culture. In that sense, creating a work of personal media (and perhaps showing it off on one’s blog or a site like Ourmedia) is an affirmative action that looms larger than it may at first seem. Clinton talks (in the comments below) about a media revolution that’s about honesty and substance, and that taps into a sentiment I bring up often in my talks about personal media: the genuineness and authenticity that we’re seeking to connect with and that’s missing from the realm of commercial-driven mass media. Even the failings can hold meaning because they’re true and genuine. I’m not all that concerned with figuring out a business model for the big boys to replace the current regime; someone will do that, whether it involves advertising, subscription or some new model we haven’t thought of yet. What we should be concerned about is breaking the stranglehold that the major media outlets (500 channels and nothing on) have on our living rooms. I do believe that when a wealth of Internet programming comes gushing through our TV sets, American culture will change – for the better.

We’ll be a more fragmented society, yes, but we’ll also see more and more young people picking up the tools of digital creativity. And becoming tinkerers.

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A 'Darknet' backgrounder

June 14, 2005 by

OK, time to dive in here from my hotel room. A little while ago I posted a guest entry on the Berkman blog that offers a few details about how Darknet and Ourmedia came to be. It’s hard to summarize a book’s major themes in a paragraph or two, but the basic thrust is:

– Increasingly we’re become creators and co-creators of our media experiences instead of merely passive receptacles for big media content. I call this the personal media revolution.

– The law is fast becoming out of sync with what people want to do with media – to reclaim it, borrow from it, remix it and recirculate it.

– As such, the law is turning millions of us into a nation of digital felons. I cite example after example of people (a Boston pastor, an Intel vice president) using media in reasonable ways and yet finding themselves on the wrong side of the law because they’re broken the encryption on a DVD or tried to apply the precepts of fair use to our increasingly visual culture.

– But most of “Darknet” is not about the law – it’s about the future of media (movies, television, music, computing, games) and what kind of media we want as a society: spoonfed, one-way, traditional media or a more vibrant, interactive form of media filled with grassroots, shared experiences?

I suspect you can tell where I come down.

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Guest Blogger: JD Lasica

June 12, 2005 by

I’m happy to welcome JD Lasica, author of the new book Darknet: Hollywood’s War Against the Digital Generation, and co-founder of OurMedia, who will be guest-blogging here this coming week. This is part of JD’s virtual book tour.

I’ll be taking the week off, but the Friday book club will go on as normal.

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Reading Code in 2005

June 10, 2005 by

[This post is part of the Book Club reading Lawrence Lessig’s Code and Other Laws of Cyberspace. Please use the comments area below to discuss the Preface and Chapter 1. For next Friday, we’ll read Chapter 2.]

“Code is law.” Lawrence Lessig’s dictum pervades our thinking about Internet policy. Sometimes it’s hard, reading Code in 2005, to remember the impact the book had when it was published back in 1999. Six years is a long time on the net: four iterations of Moore’s Law. Dealing with that gap in time – the dotcom bubble, 9/11, the Induce Act, the Broadcast Flag, and everything else that has happened – is one of the challenges for us reading Code today.

To understand Code, we need to turn back the clock to 1999. Naive cyberlibertarianism ruled the day. The ink on Barlow’s Declaration of Independence of Cyberspace had barely dried. As Lessig puts it,

The claim now was that government could not regulate cyberspace, that cyberspace was essentially, and unavoidably, free. Governments could threaten, but behavior could not be controlled; laws could be passed, but they would be meaningless. There was no choice about which government to install—none could reign. Cyberspace would be a society of a very different sort. There would be definition and direction, but built from the bottom up, and never through the direction of a state. The society of this space would be a fully self-ordering entity, cleansed of governors and free from political hacks.

Most everyone seemed to believe this. Then Lessig’s Code appeared. Suddenly, people could see alternative versions of cyberspace that weren’t inherently free and uncontrolled. To many, including Lessig, the future of cyberspace held more control, more constraint.

Today, Internet policy looks like a war of attrition between freedom and constraint. So Code won’t give us the “Aha!” reaction that it might have given our younger selves six years ago. “Code is law” is the new conventional wisdom.

In turning back to Code, I wondered how well it would hold up. Would it seem fresh, or dated? Would it still have things to teach us?

Based on the Preface and Chapter 1 – a truncated portion, to be sure – the book holds up pretty well. The questions Lessig asks in the Preface still matter to us today.

The challenge of our generation is to reconcile these two forces. How do we protect liberty when the architectures of control are managed as much by the government as by the private sector? How do we assure privacy when the ether perpetually spies? How do we guarantee free thought when the push is to propertize every idea? How do we guarantee self-determination when the architectures of control are perpetually determined elsewhere?

Lessig’s crafty comparison, in Chapter 1, of cyberspace to the newly freed countries of Eastern Europe may be even more intruiging today than it was in 1999, given what has happened in Eastern Europe in the intervening years. I’ll leave it to all of you to unpack this analogy.

Lessig once said, “Pessimism is my brand.” His pessimism is on display at the end of Chapter 1.

I end by asking whether we—meaning Americans—are up to the challenge that these choices present. Given our present tradition in constitutional law and our present faith in representative government, are we able to respond collectively to the changes I describe?

My strong sense is that we are not.

We face serious challenges, but I suspect that Lessig is a bit more hopeful today.

Welcome to the Book Club. Let the discussion begin!

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