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Future imperfect
Copy protection won’t work, and compulsory licensing raises the specter of government control. Why our best hope may be just to muddle through.
BY DAN KENNEDY
Beyond the music

PORNOGRAPHY WAS the first profitable industry on the Internet, and it's still the most lucrative. So it’s no surprise that the adult-entertainment industry has already explored the legal issues of copyright in the digital age. No, the Recording Industry Association of America was not the first to subpoena users’ information from Internet service providers.

Execs at Titan Media, a San Francisco producer of "all-male erotica of the highest caliber," saw that copies of their films were getting swapped around the Internet. To try to halt the illegal copying, a year ago the company subpoenaed a local Internet service provider for names and addresses of suspected individuals. The ISP is fighting the subpoenas — just as Verizon fought the RIAA’s subpoenas of music swappers. (A taste for titles like Manplay and Slammer might be considered more private and potentially embarrassing than a preference for Creed or Backstreet Boys. Depends whom you ask.) Still, Titan’s trailblazing experience sheds light on how file-sharing affects businesses beyond the music industry.

Think of any product that can be digitized — movies, books, and computer games are the most obvious — and imagine a Kazaa-style file-swapping Web site for those products. Any movie you can think of, available at a mouse click? Any porno? This technological potential sets up the real battles of copyright on the Internet. Inconvenience currently hinders such movie-swapping, but before long the bandwidth, processing, and file-compression issues will sort themselves out. Downloading and burning copies will be as easy for Scorsese’s latest as for Nelly’s.

While it’s easy to argue that song-swapping actually helps the music industry by promoting demand for albums, concerts, and merchandise, it’s hard to argue that free distribution of films helps movie studios in any way (not to mention movie-rental stores). "We only have a few titles in our collection," says Gil Sperlein, general counsel for Titan Media. "So one act of infringement has a real impact on our business."

That clear difference, however, might help the film and game industries in the public mind, suggests Mark Fischer, an intellectual-property attorney with the Boston office of law firm Fish and Richardson. Consumers might be more understanding of built-in copy protection and threats of lawsuits over a $60 product than a 99-cent song. "Technological protections are accepted in computer games but not in music," Fischer says.

But Sperlein doubts that technological solutions will succeed. Titan Media has used encrypted copy protection on its DVDs, to no avail. "Every time a new encryption technology is invented, it seems like a new program comes out to get around it before our DVD gets to the stores," Sperlein says.

Those decoding programs might not reach the average customer, but all it takes is one person to upload a DVD to Kazaa, and away it goes. Sperlein believes, in fact, that most of Titan’s movies now being swapped on those systems were uploaded from a DVD only once; the rest are copies of those copies.

Sperlein has one more warning for those who espouse the beauty of unlimited open sharing, quite apart from his own company’s bottom line. When selling DVDs, Titan Media and its distributors can pretty effectively identify and deny underage customers, Sperlein says — and be held responsible if they don’t. No such protection exists on open file-swapping systems. Kids can get gangster rap as easily as boy bands, and Slammer as easily as SpongeBob. Nobody checks IDs on Kazaa.

BY DAVID S. BERNSTEIN

I HAVE SEEN the future of digital media. And it is a big, honking mess.

Last Thursday, more than 100 technology experts, lawyers, consumer advocates, and industry representatives converged on Harvard Law School to spend the day talking about "Digital Media in Cyberspace."

Despite hours spent discussing lofty goals, technical arcana, and the laws of unintended consequences, the themes of the conference essentially boiled down to two:

• Can we really do anything to stop Johnny from downloading the latest Eminem release without paying for it?

• Even if we can, does that mean we should?

The answer to the first question was "yes" — well, maybe, sort of. By using "digital-rights management" software (DRM, or copy protection in plain English), CDs can be engineered so that it’s difficult or impossible to rip tracks and upload them to the Internet.

But there are, shall we say, problems. Make DRM too rigid, and you can’t share what you’ve bought with other members of your family — or even among your own playback devices, which might include a desktop computer, a laptop, an MP3 player, and the CD deck in your car. Make it too loose, as with songs and albums sold at Apple’s online iTunes Music Store, and any idiot (i.e., me) can convert the DRM-encoded files into ordinary, infinitely copyable MP3s, with no discernable loss of sound quality.

And that’s just the beginning of an immensely complicated debate.

Consider, for example, that kids — and an increasing number of adults — have already decided they’d rather download MP3s for free than pay $15 or so for a CD. By copy-protecting that CD, the music industry is only making the legitimate product less useful. Or, as a group of Microsofties put it in a paper on the "darknet" (its evocative name for the tangle of illegal activities that takes place on the ’Net), "increased security ... may act as a disincentive to legal commerce."

And since even DRM advocates concede that hackers will always stay one step ahead of the copy-protection geeks, consider the steps that the record industry might take to escalate its crusade against illegal file-sharing. Some go so far as to raise the specter that new laws may make anonymity illegal or impossible on the Internet, or mandate technologies that would allow snoopers to examine users’ hard drives.

The Electronic Frontier Foundation’s senior staff attorney, Fred von Lohmann, warned of "collateral damage," arguing that increased surveillance capabilities could endanger political dissidents in Third World countries, where online anonymity is crucial. Think of Salam Pax, the pseudonymous, Baghdad-based blogger who dared to take on both Saddam Hussein and George W. Bush in the run-up to the war in Iraq.

John Perry Barlow, co-founder of the EFF and former lyricist for the Grateful Dead, put it more simply: "Today’s digital-rights management can easily become tomorrow’s political-rights management."

WHICH BRINGS ME to the second question raised at the conference: should we even try to crack down on file-sharing? Or is there another, better, smarter alternative that will lead to peace, harmony, and endless prosperity?

Attempting to answer the second question was William "Terry" Fisher, director of the law school’s Berkman Center for Internet and Society, which — along with GartnerG2, a Stamford, Connecticut–based research-and-consulting firm — was the sponsor of the event.

Terry Fisher has spent a considerable amount of time and effort trying to think through a concept known as "compulsory licensing," which would legalize pretty much all file-sharing — music, movies, books, and the like — while setting up an alternative compensation system.

His ideas will be contained in his next book, Promises To Keep: Technology, Law, and the Future of Entertainment, which will be published next year by Stanford University Press. As he described it last week, it would essentially work like this:

• The copyright-holder of a given work would register it with the appropriate agency — most likely the federal government.

• A tax would be levied to raise enough money (about $2.5 billion a year) to pay copyright-holders for their downloaded work. Fisher believes the income tax would be the most equitable vehicle, but for reasons of political pragmatism he says it would make more sense to tax blank CDs and Internet-service providers.

• Some method would have to be devised to count the number of times a given work is downloaded.

• Copyright-holders would then be paid on the basis of how many times their work is accessed.

On the face of it, this is a clean, easy-to-like idea. It is certainly beats letting record-industry goons spy on your online activities. And yet the more the participants kicked it around, the more the entire subject started to look like a game of whack-a-mole: knock down one problem and two more spring up.

Compulsory licensing is, after all, designed to knock down the biggest problem of all. If file-sharing ceases to be illegal, then we no longer have to worry about illegal file-sharing, right?

Yet Fisher’s idea, in some ways, envisions a sort of government-sponsored Ministry of Culture. Perhaps I’m being paranoid. (Perhaps some of the other participants were, too.) After all, people have been filing applications with the government’s copyright office for more than two centuries without particularly worrying about the political, sexual, or other controversial content of their work.

But in this, the Age of Ashcroft, there is reason to worry about having to register one’s content with the government in order to get paid. (Of course, you would still be able to offer your content for free without having to register.) A few people mentioned the possibility of a private alternative, noting that ASCAP and BMI handle similar arrangements for songwriters. Ultimately, though, even a private entity would need to have some sort of a relationship with the government, as do ASCAP and BMI.

Content is not the only area in which the government might interfere. Can you imagine members of Congress fulminating against an increase in Fisher’s proposed Internet tax, blustering that their hard-working constituents shouldn’t have to pay more so that Britney Spears can buy another diamond-encrusted G-string?

Or how about something a little less theoretical? One participant in Fisher’s afternoon idea-storming session asked about how to prevent someone from gaming the system — from preventing some under assistant West Coast promotion man from setting up a bot to download an album over and over and over in order to drive up the hit count and, thus, the amount of money he would get paid. Fisher’s response was to agree that that was a problem.

Obviously there are still a lot of bugs to work out. Fisher is being prudent, to say the least, when he says that industry groups should unite and put together a pilot project before bringing a compulsory-licensing proposal to Congress.

A SIGNIFICANT conceptual shortcoming marred the discussion last week. All that talk about digital-rights management and compulsory licensing presupposed that the record industry must continue pretty much the way it always has, and that it should be made whole either by protecting it from illegal file-sharing or by rewarding it with a government-run fee system.

It’s not that the participants had blinders on. Several people openly wished for the eventual demise of the industry. But a conference aimed at finding practical solutions couldn’t really be expected to accommodate deeper philosophical issues.

At a minimum, industry executives should think about ways to provide more value, to give their customers a reason to buy rather than download. One way to do that is to improve the experience. CDs already sound better than MP3s, but apparently not by enough to make a difference to most listeners.

Slowly, the industry is starting to roll out CDs in formats called "super-audio compact disc" (SACD) and DVD Audio (DVD-A), which are said to sound dramatically better than ordinary CDs. Customers might be willing to put up with copy protection in return for a better experience than they can get online. And even unprotected, these high-quality tracks produce much bigger files than MP3s, a significant impediment to downloading.

Digging deeper, there is reason to ask why the record industry as we know it deserves to survive. Why not just let it fail and see what rises to take its place? Already, musicians make all or most of their money from touring. CDs may earn money for their label, but for the artists themselves, their recorded output is little more than a promotional vehicle.

In an op-ed piece for the Los Angeles Times earlier this year, the singer-songwriter Janis Ian wrote that her decision to put free MP3s on her Web site had led to a modest revival of her career.

John Perry Barlow observes that the Grateful Dead’s early version of free downloading — allowing their fans to record concerts and trade tapes — helped turn the band into one of the most successful live acts in the country, and probably boosted record sales by increasing interest in the Dead.

In a landmark essay for Wired in 1994, Barlow wrote that, until the digital era, we’ve been buying and selling bottles (records, books, and the like) while distributing the wine (music and ideas) for free. Now that the wine has been liberated from the bottle, he added, no one quite knows what — if anything — it should cost. "In certain areas," he said, "this leaves rights of ownership in such an ambiguous condition that property again adheres to those who can muster the largest armies. The only difference is that this time the armies consist of lawyers." Barlow’s solution: the open exchange of ideas, encapsulated in the Stewart Brand maxim that "information wants to be free."

Nine years later, Barlow, who is a fellow at the Berkman Center, hasn’t changed his mind; but he’s willing to make some compromises. For instance, he now supports some sort of Fisher-like compulsory-licensing system, at least for the immediate future, if only to stop the record industry from wreaking havoc on everyone else’s rights.

"The only reason to do that, in my view, is that the record industry is going to fundamentally change the architecture of the Internet on the way down," said Barlow. His worries: more surveillance, more interdictions, more criminalizing of civil acts such as copyright infringement, more dilution of the Fourth Amendment, more invasions of privacy.

"It’s a long list of evils that seem to be coming from this," he added. As for what will eventually replace the record industry, his notion is to let the artists experiment and work it out for themselves.

The Barlow solution — if I can summarize it accurately — might represent the best hope of moving us into the digital future. It would end the surveillance and legal tactics of the record industry. It would allow the industry to survive for now while at the same time encouraging the Grateful Deads and the Janis Ians to develop new models, new ways of connecting with their fans so that they can earn a living and support their work.

In short, we would muddle through until the picture becomes clearer. That’s a modest goal. But compared to the heavy-handed tactics of the record industry or the potential threat posed by a government-administered cultural-compensation hierarchy, it may be the best we can hope for.

Dan Kennedy can be reached at dkennedy@phx.com Read his daily Media Log at BostonPhoenix.com.

online music special
The Empire strikes back
Amid declining CD sales, weak releases, and the continued rise of online file-sharing, the five major labels are fighting to regain market share
BY TED DROZDOWSKI

Sue you, sue me blues
The recording industry tries to scare 60 million file-swappers by suing 261 of them
BY DAVID S. BERNSTEIN

College try
Local institutions of higher learning seek to stop their students from using school networks for illegal file-sharing — sort of
BY ADAM REILLY

Sounds like stealing to me
Call it ‘trading’ if you want, but I don’t buy it
BY SAM PFEIFLE

The young and the board
With little sympathy for the record industry, the P2P generation is takin’ it to the screen
BY MIKE MILIARD

The iCollector
There’s a history to this file-sharing thing that can help us anticipate its future
BY CARLY CARIOLI

Future imperfect
Copy protection won’t work, and compulsory licensing raises the specter of government control. Why our best hope may be just to muddle through.
BY DAN KENNEDY

Sonic youth
Musical adolescence in three parts
BY CAMILLE DODERO

Issue Date: September 26 - October 2, 2003
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