Digital Media Distribution: Is the Honeymoon Over?

We’ve seen and smelled it coming, but now this may be the time when the entertainment oligopoly finally catches up with us. It’s been around 6 years since the first CD burners hit the market, and in that time they’ve gone from high-end items to everyday computer accessories. Since then we now even the most inexpensive computers are capable of processing and storing hours upon hours of digital audio. I’m not sure where the entertainment industry was during this time — my guess is that they were too worried about DVDs, which they myopically believed would singlehandedly ruin the movie business — but they’ve finally woken up to something many of us have integrated into our daily lives for the last several years.

It’s actually pretty amazing to realize that we’ve had several years of relative freedom to record, copy, trade and manipulate digital music however we see fit, mostly unfettered. Those years of freedom, however, seem to be coming back to haunt us. Although the RIAA has gotten pretty adept at using current copyright law to get at actual bootleggers — those who make pirate CDs for a profit — simply getting the high-volume operators isn’t good enough, now they want to get the occasional copier.

For decades the music industry grudginly accepted a level of copying using tape (cassette, reel to reel, 8-track). For most of that time tapes of an LP or CD were generally considered to be sonically inferior to the original soruce. Bootleg cassettes sold on the streets of major cities were typically of pretty poor quality and not really worth the time or money. Thus, it is understandable why the industry might have focused on going after organized for-profit bootleggers and mostly leaving alone the guy with a double-cassette deck and a big tape collection.

The real first shot in the home taping wars happened in the early 80s the movie industry challenged the first home VCR, Sony’s Betamax, claiming that the device was intended primarily for violating copyright. The Supreme Court ruled that although the VCR could be used to pirate movies, that wasn’t it’s primary use, and so VCRs became a ubiquitous household device. A few years later Sony and other Japanese electronics manufacturers were ready to release the next consumer recording device, the digital audio tape (DAT) recorder. The DAT promised CD quality digital tape recording far outpacing cassettes. The record industry feared it would also allow for pristine pirate copying too, so this time the industry jumped into action before the device reached American shores. After court hearings and Congressional hearings DAT finally reached the US years in the late 80s, but only after copyright law was amended to require that a small levy be added to all blank recording media (including old analog cassettes) to compensate the entertainment industry for lost revenue due to copying, along with a copy protection scheme (SCMS) that prevents a digital copy being made from a digital copy. (BTW, that’s the law that makes audio CD-Rs that work in audio component CD recorders cost more than computer CD-Rs.) As a result DAT arrived in the US way too expensive, and mostly DOA (though now it occupies a niche with professional musicians and audio producers).

Given the entertainment industry’s fast response to DAT it’s kind of strange that it took them so long to react to CD-R and mp3. Perhaps the lag on mp3 is understandable because it was mostly an underground movement that only came to the industry’s attention when companies like Napster attempted to capitalize on it. But CD-R was never undergound–though very expensive when introduced.

Maybe the music industry has just been biding it’s time while figuring out what to do. Their main problem is really the fact that using a CD recorder to copy CDs for your friends or make mixes is no more illegal than doing the same thing with cassettes or 8-tracks. Which is to say, it’s not completely legal or illegal — it’s a grey area. It is clear that fair use exceptions to copyright law allow you to make limited copies of your own music collection for your own private use, and maybe to share (maybe not) in a limited fashion.

As several commentators have noted, current industry calls for copy protection technologies is really a way to do an end-run around fair use by creating controls over how you use the entertainment you buy, regardless of what you may do with it. It seems as though right now the music industry is willing to let you make a few limited copies on your own computer or mp3 player, but not copy songs to a friend’s computer. But something must be clear — with copy protection it is something they have to let you do, without that permission you can’t do it, fair use or not.

This bill entered into Congress by Sen. Hollings marks the sweeping but belated recognition by the record industry that computers have become audio components. Which means now the computer is the same as a DAT to them, but much harder to stop, since they’ve already spread all over the place and into 60% of homes. It’s near impossible to pass a law requiring retroactive modification of devices already out there, but you sure as hell can constrain the ones yet to be sold. Adding punch to such a new law is the already existant Digital Millenium Copyright Act which makes it illegal to modify or remove copy protection controls regardless of whether the use of the resulting copy is actually a legal use. Thus, if Sen. Hollings’ bill makes it into law, you could find your next comptuer, CD burner or even sound card to have a little extra device that will stop your next CD burn in its tracks.

An analysis of this war over intellectual property that seems mostly to go missed is that it is indicative of the massive growth of corporate power and influence over Congress. Basic freedoms which we’ve grown to take for granted, to even take as rights, are now being chisled away because our corporate entertainment powers see them as reducing their bottom line by a few percentage points (a conclusion that has yet to be proven in any manner). Key to understanding why this is happening is the fact that the intellectual property industries–music, movies, books, software–are now the largest industries in the US. Microsoft, BMG and Universal are the GE, GM and Boeing of today. And with that comes the same power and influence. What was once the Military Industrial Complex is becoming the Military Entertainment Complex. But it’s no less scary.