Living with Copyright Protection

Lawmakers and record labels see nothing wrong with limiting consumer behavior. As far as they’re concerned, consumers just don’t know what they’re buying.

The advent of digital technology has meant good news and bad news for music lovers. On the good side of the ledger, sound quality has improved, durability has increased and portability is greater than ever. But on the negative side, the technology has allowed record labels greater after-sale control over their products, enabling them to limit consumers’ activities in ways that were undreamt of 20 years ago.

Digital technology has also been a mixed blessing for the music industry. The revenue boost due to the consumer shift to CDs and the increased business opportunities presented by the digital format have been overshadowed by one really big problem: the combination of digitized music — a piece of music can be copied indefinitely with no drop-off in quality — with the portability of the digital format — mp3 files can be sent around the world in just seconds — has meant unlimited access to free music for millions of people.

Digital rights management (DRM) is the industry’s answer to the problem. Using an upside of modern technology to their advantage, the labels have decided to try to lockdown the spiraling problem of copyright infringement.

DRM is encrypted software code that prevents certain behavior — namely, copying. Responding to rampant copying, fueled by file-sharing sites such as Napster, the labels shot back in 2002 by issuing CDs with DRM technology. Unfortunately for consumers, the code was pretty basic. Copy-protected CDs often prevented any sort of copying, and in some cases the code led to the CDs not working on older CD players. This reporter is not the only consumer who’s cursed his hi-fi for skipping CDs for no apparent reason, only to realize it’s the CDs fault.

The move marked a shift in the relationship between the music industry and the consumer. The cassette tape allowed fairly easy copying of purchased music. Everyone knew it was wrong, but taping the latest Public Enemy — or Duran Duran, depending on your taste — album for your friends was socially acceptable. Of course the labels knew what was going on, but they were still making money, weren’t they? It was the ultimate victimless crime. But while that attitude has persisted into the digital age, the content owners have decided to act. As a result, there is now the specter of corporations governing what you can and can’t do in your home. It’s the ultimate Big Brother-style nightmare.

But is it? What’s unusual about the scenario being played out is that many consumers are willfully breaking the law and stealing something from rightful owners. All these owners are doing is fighting to keep what’s theirs. So why does DRM seem so controversial?

According to copyright experts, the answer lies in a basic misunderstanding about copyright. They believe that many people fail to realize that buying a CD is not the same as owning the copyright for the music on the CD.

“What you’re getting in exchange for the money is a set of licenses from the copyright owner,” says Alec French, who until March was the senior Democratic staffer in the House of Representatives for copyright issues. According to French, who is now at J A French Associates, the problem is that consumers think that their CD purchase gives them ownership over its contents. As he points out, that kind of unlimited license over copyrighted music would cost millions of dollars.

Copyright law, one of the few civil laws mandated in the Constitution, grants total ownership of an artistic work to its author for a limited amount of time — the life of the author plus seventy years. Its presence in the nation’s founding document shows the social importance that the framers attached to giving artistic creators ownership rights. That importance hasn’t changed in the intervening years: it is widely acknowledged that, in an era where mass reproduction of books, film and music is possible, a society’s cultural creativity must be supported by an ownership framework, giving creators an incentive to produce their work. The flipside of the bargain is that once the copyright has expired, the work moves into the public domain, where it can be freely enjoyed for the greater good. The view of the recording industry is that mass copying using digital technology is threatening this dynamic.

With few exceptions, any use made of a copyrighted work by a third party can only be undertaken with the author’s consent, usually in exchange for a fee. Radio stations have to pay a license fee for the songs that they play, as do restaurants and bars. The relationship between the copyright owner and the private listener is more nuanced, but power still ultimately resides with the rights owner.

There are certain things that the law allows private CD owners to do with their music. Under the fair use doctrine, people can copy their music from, say, their CDs to their portable mp3 players, or to cassette tapes for listening in their cars. But fair use does not cover lending CDs to friends for copying, or remixing the music and posting the remixes to the Internet. But while fair use doesn’t allow for this sort of behavior, modern technology does.

Part of the problem is that consumers had several years to enjoy all that modern technology has to offer. But eventually the rampant copying, Internet uploading, and file-sharing (exemplified by Napster) roused the record industry into taking action.

“The record industry put out unprotected CDs long before the huge copyright infringement problems began,” says French. As French sees it, DRM and copy control is a reaction to consumers going too far with digital technology. And while the controls stop a lot of consumer behavior, they still allow some freedom. “A consumer today with even DRM-protected technology can do so much more than they could ever do [before digital technology],” adds French, who as a lobbyist for the software industry was instrumental in the passage of digital copyright legislation in the late 1990s.

The record industry is similarly unmoved. “DRM is still giving consumers personal use,” says Mitch Glazier, Senior Vice President of Government Relations and Legislative Counsel of the Recording Industry Association of America, the lobbying superpower whose members produce 90% of the country’s recorded music. As far as Glazier is concerned, the fact that consumers were – and still are – able to use technology to break copyright law should not change the long-established copyright bargain established in the Constitution. “A state law that prevents you from stealing still stands even if people still steal,” he says.

If Congress’s actions are any indicator, lawmakers seem to agree with Glazer’s sentiments. The 1998 Digital Millennium Copyright Act (DMCA) granted copyright owners wider scope to protect their work, for instance by making it illegal to try to hack copy control mechanisms, even if the would-be hacker is only trying to access the music to copy for her own personal use. The DMCA also outlaws technologies that make such hacking possible. As such, the Act effectively prohibits actions that have a legal outcome.

The DMCA has come in for strong criticism for the control it allows companies to exert over people’s private actions, and there have been attempts to amend it. Most notably, in 2003 Congressman Rick Boucher introduced a bill called the Digital Media Consumers’ Rights Act, which would have made bypassing copy control mechanisms to enable fair use — such as personal copying — legal. The bill would have also legalized the devices that permit the hacking. But, and it’s a big but, the bill still awaits passage into law. The reality is that, seven years on, the DMCA has not been amended.

Boucher’s bill also put forward another consumer-friendly provision, one that would force record companies to label those products that have DRM or copy protection mechanisms. In true American fashion, this measure would then allow the market to dictate the success of such technologies: if consumers really object to CDs that cannot be burned, then they could simply not buy them, forcing the labels to stop protecting their music in this way. According to the noted academic Pam Samuelson, consumer electronics giant Philips is even advocating that such protected CDs be renamed altogether, since the term CD has a technical specification that includes portability, a characteristic that does not describe those discs that are copy protected.

Despite these calls, the reality is that DRM is here to stay, and will continue to control what consumers can and can’t do with the music they have legally bought. According to industry sources, technology companies are developing sophisticated DRM that will grant consumers the flexibility they enjoy under the fair use doctrine, but will still ensure payment to rights owners and distributors should their actions go beyond that. While consumers may view this as an infringement of their privacy, the record industry believes that these measures are essential to maintain the balance between creativity and the social good envisaged by the founding fathers.

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Sam Mamudi is the Americas Editor of Managing Intellectual Property magazine.