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«Hal Abelson Ken Ledeen Harry Lewis Upper Saddle River, NJ • Boston • Indianapolis • San Francisco New York • Toronto • Montreal • London ...»

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In testimony at the Jammie Thomas trial in October 2007 (see the sidebar earlier this chapter), Jennifer Pariser, the head of litigation for Sony BMG, suggested that ripping your own legally purchased CD, even for personal use, is illegal, asserting that making a copy of a purchased song is just “a nice way of saying ‘steals just one copy’.” The RIAA web site specifically states that there is no legal right to copy music CDs, although it allows that copying music “usually won’t raise concerns” so long as the copy is for personal use, and it warns that it’s illegal to give your copy away or lend it to others to copy.

In contrast, in an October 2006 poll of Los Angeles teenagers, 69% believed that it is legal to copy a CD from a friend who had purchased it.

222 BLOWN TO BITS That resentment can easily grow to a sense of moral outrage. In the words

of Electronic Frontier Foundation founder, John Gilmore:

What is wrong is that we have invented the technology to eliminate scarcity, but we are deliberately throwing it away to benefit those who profit from scarcity. We now have the means to duplicate any kind of information that can be compactly represented in digital media…. We should be rejoicing in mutually creating a heaven on earth! Instead, those crabbed souls who make their living from perpetuating scarcity are sneaking around, convincing co-conspirators to chain our cheap duplication technology so that it won’t make copies—at least not of the kind of goods they want to sell us. This is the worst sort of economic protectionism—beggaring your own society for the benefit of an inefficient local industry.

But one person’s sharing can be another person’s theft, and the other side in the copyright war has no shortage of its own moral outrage. The motion picture industry estimates that the retail value of unauthorized movie copies floating around the Internet is more than $7 billion. As the president of the

MPAA puts it:

We will not welcome … theft masquerading as technology. No business, including the movies, can keep its doors open, its employees paid, and its customers satisfied if pirates and thieves are allowed to run ramshackle over this country’s basic protection of the right of individuals to the ownership of their creative expressions, and to benefit from those expressions and that ownership.

This is not “balance.” It’s a nasty firefight filled with indignation, recriminations, and a path of escalating punishments and anticompetitive regulation in the name of copyright law. As collateral damage of the battle, innovation is being held hostage.

Toward De-Escalation Getting off that path requires freeing ourselves of old ideas and perspectives.

Difficult as that seems, there are grounds for optimism. During 2007, the recording industry made a major shift away from reliance on digital rights

CHAPTER BALANCE TOPPLED

management. In addition to restraints it imposes on technology, DRM is an inconvenience both for consumers and publishers. There has been an increasing public acknowledgement of the downsides of DRM, not only by consumer groups, but by the industry itself.

One of the first visible moves was an announcement in February 2007 by Apple’s Steve Jobs, in the form of an open letter to recording industry executives asking them to relax the licensing restrictions that required Apple to implement DRM on iTunes music. In Jobs’s view, a world of online stores selling DRM-free music that could play on any player would be “clearly the best alternative for consumers, and Apple would embrace it in a heartbeat.” The industry reacted coldly, but other groups chimed in to agree with Jobs. In March, Musicload, one of Europe’s largest online music retailers, came out against DRM, noting that 75% of its customer service calls were due to DRM.

Musicload asserted that DRM makes using music difficult for consumers and hinders the development of a mass market for legal downloads. In November, the British Entertainment Retailers Association also came out against DRM.

Its director general claimed that copy protection mechanisms were “stifling growth and working against the consumer interest.” By the summer of 2007, Apple iTunes and (separately) Universal Music Group began releasing music tracks

USING WATERMARKING

that could be freely copied. The iTunes tracks contained information Using watermarking rather than (“watermarks”) identifying the origi- copy restrictions and access control nal purchaser from iTunes. That way, is an example of a general approach if large numbers of unauthorized to regulation through accountcopies would appear on the Internet, ability, rather than restriction.

the original purchaser could be Don’t try to prohibit violations in traced and held accountable. advance, but make it possible to A few months later, even that identify violations when they occur level of restriction was vanishing. By and deal with them then. The same the beginning of 2008, all four perspective can apply in privacy, as major music labels—Universal, EMI, mentioned in Chapter 2, where one Warner, and Sony/BMG—were can focus on the appropriate use of releasing music for sale through personal information rather than Amazon without watermarks that restricting access to it.





identified individual buyers. It was a remarkable about-face over the course of a year. When Jobs made his February 2007 proposal, Warner Music CEO Edgar Bronfman flat-out rejected the idea as “completely without logic or merit.” Before the end of the year, Warner was announcing that it would 224 BLOWN TO BITS sell DRM-free music on Amazon, with Bronfman explaining in a note to

employees:

By removing a barrier to the sale and enjoyment of audio downloads, we bring an energy-sapping debate to a close and allow ourselves to refocus on opportunities and products that will benefit not only WMG, but our artists and our consumers as well.

The increasing recognition that the DRM approach is failing is sparking experiments with other models for distributing music on the Internet.

Universal has been talking to Sony and other labels about a subscription service, where users would pay a fixed fee and then get as much music as they want. One plan links the service to a new hardware device, here the price of the service would be folded into the price of the hardware.

A related idea is to distribute music through blanket licenses with mobile carriers or ISPs. New companies are emerging that offer this kind of service on college computer networks. Another variant is the idea of unlimited content networks. These are networks that give access to music or video that floats around the network with no restrictions. People can make unlimited use of the material—downloading, copying, moving it to portable devices, sharing with others—as long as they keep it within the network.

A complementary approach promotes sharing of music and other creative works in a way that enriches the common culture, by making it easy for creators to distribute their own work and to build on each other’s work. One organization that provides technical and legal tools to encourage this is Creative Commons. This organization distributes a family of copyright licenses that creators can use for publishing their works on the Internet, including licenses that permit open sharing. The licenses are expressed both as legal documents and as computer code that can support new applications.

If a work appears on the Web with the appropriate Creative Commons code, for example, search engines might return references to it when asked to find material that can be used under specified licensing conditions. Stimulating open sharing on the Internet is an example of moving toward a commons— that is, a system of sharing that minimizes the need for fine-grained property restrictions (Chapter 8, “Bits in the Air” includes more on the notion of a commons).

Experience with these and other approaches will show whether there are economically viable models for distributing music that do not rely upon

CHAPTER BALANCE TOPPLED

DRM. Success could pave the way

CREATIVE COMMONS LICENSES

for the motion picture industry and other publishers to get off the anti- If you’ve created works that you want circumvention path—a dead end to publish on the Internet, you can that has been more effective at use the Creative Commons license harming innovation than at stop- generator at creativecommons.

ping infringement, and which even org to obtain a license tailored to some of the original architects of your needs. With the license, you can the policy are now acknowledging retain specified rights of your choice while granting blanket permission for as a failed approach.

Even then, however, the larger other uses.

problems created by the DMCA would not fade away, since policies locked into law are not easily unlocked.

If the content industry moves to better business models and the DRM battles subside, the DMCA’s anticircumvention provisions may continue to be anticonsumer, anti-competitive blots on the digital landscape. Unless repealed from the legal code, they would remain as battlefield relics of a war that was settled by peaceful means—unexploded ordnance that a litigious business could still use in ways unrelated to the law’s original intent.

The Limits of Property For 15 years, the fights over digital music and digital video have been the front line of the copyright wars. Perhaps innovations and experiments that are already underway will help defuse those battles. The enormous potential of the Internet for good—and for profit—need not be sacrificed to combat its abuse. If you do not like what others are doing with the Internet, the Internet does not have to become your enemy—unless you make it your enemy.

The indignation over copyright is intense. The interest in new approaches, such as accountability and commons, suggests the deeper source of the discomfort with the metaphors of property and theft when applied to words and music. The copyright balance that is being toppled by digitization is not just the traditional tension between creator and the public. It is the balance between the individual and society that underlies our notions of property itself. Accountability and commons are attempts to find substitutes for the ever-expanding property restrictions imposed in the name of digital copyright law.

226 BLOWN TO BITS When we characterize movies, FREE CULTURE songs, and books as “property,” we Lawrence Lessig’s Free Culture: How evoke visceral metaphors of freedom Big Media Uses Technology and the and independence: “my parcel of Law to Lock Down Culture and land versus your parcel of land.” But Control Creativity (Penguin, 2004) the digital explosion is fracturing compellingly traces the story of these property metaphors. “My parhow overbroad copyright restric- cel of land” might be different from tions are jeopardizing the future of “your parcel of land,” but when both a robust and vibrant public culture. parcels are blown to clouds of bits, the clouds swirl together. The property lines that would separate them vanish in a fog of network packets.

Learning To Fly Through the Digital Clouds In 2004, Google embarked on a project, mentioned in Chapter 4, to index the book collections of several large libraries for Google’s search engine. The idea is that when you search on the Web, you’ll be able to find books relevant to your search query, together with a snippet of text from the book. As Google describes it, they are creating “an enhanced card catalog of the world’s books,” and this should be no more controversial than any card catalog.

The Association of American Publishers (AAP) and the Authors’ Guild object to the Google book project, and they are suing Google for copyright infringement. In the words of the AAP President Patricia Schroeder, “Google is seeking to make millions of dollars by freeloading on the talent and property of authors and publishers.” The president of the Authors’ Guild equates including a book in the project with stealing the work. At issue is the fact that Google is scanning the books and making copies in order to create the search index, and the case is being debated on legal technicalities about whether this scanning constitutes copyright infringement.



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