Time was that if you wanted to see a movie, you went to a theatre or you waited a few months to rent a VHS tape or DVD at five bucks a pop. If you wanted to read a book, you either drove to the bookstore and bought it, or to the library and borrowed it, under strict regulations governing its return. If you wanted to listen to a specific band or singer, you shelled out for the LP – or more recently, the CD.That's just the way it was. An artist/performer/writer would create something and you would pay real money to buy a copy. Or you'd pay less money and/or be somehow inconvenienced to borrow a copy that someone else had already paid for. Makes sense, right? Who wouldn't want to get paid for the work they do?
Problem is that consumers buying a disc or a tape or a book inevitably ended up paying a bunch of people other than the artist. Part of the purchase/rental price would go to the publisher. Portions of it would go to the marketing company, the shipping company, the folks who designed the album or book cover, etc, etc, etc. And hey, don't even get us started on being forced to buy an entire album comprised primarily of filler. Ultimately, most would argue, the old school media business model took advantage of the consumer.
But in the purely digital, networked era, old school routines have been forever altered. And while that's theoretically great news for the end user, who can now buy selectively and at his or her convenience, it also presents us with a whole new set of hassles. Hassles such as copy protection.
The sensibility of "protecting" a "copy" so that unauthorized users can't access it or so other copies can't be made is inarguable. After all, we can't think of a single author, artist, or performer who'd be cool with selling one copy of their work and having everyone else grab freebies from that first copy. More on that later.
But too often the current brands of copy protection stymie the authorized, original purchaser from doing what they want with their fully legit, purchased copy. Copy protection often makes access to the file in question more difficult than it should be. Copy protection-infused content may have compatibility issues with current and future devices. And copy protection costs money to incorporate into manufacturing, a fee that is occasionally passed onto the consumer.
In the end, the argument against copy protection – the most infamous iteration of which is known as Digital Rights Management (DRM), the umbrella term for any technology that modifies a device or file to inhibit improper use of that file – comes down to freedom and ownership. Do you really own something when the manufacturer might opt to render it inoperable or otherwise come a-knocking on your virtual door if you do something that annoys them? Furthermore, goes the same argument, true pirates will always find a way around whatever copy protection is currently in vogue.
In October of 1998, the US Senate passed an amendment to United States copyright law criminalizing the production and distribution of technology that would allow consumers to thwart technical copy-restriction methods. Essentially, the Digital Millennium Copyright Act, as it is known, makes it a crime to circumvent anti-piracy measures and outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software. This amendment forms the basis for all that has followed. And there has been a lot to follow.
Perhaps the most extreme example of copy protection gone awry was the Sony rootkit scandal of 2005. That was the year Sony BMG Music Entertainment had the bright idea of incorporating a rootkit – essentially a collection of tools that enables administrator-level access to a computer – into its music CDs. Why would it do this? Because inside that rootkit and "cloaked" by it was a form of DRM that stealthily sent information about you to good old Sony. If you tried playing the CD through your PC, and especially if you tried doing anything untoward, Sony would theoretically know.
One problem: Said rootkit, like most rootkits, also allowed basically anyone with even moderate hacking savvy to gain access to each PC that harbored it. Hello, bad guys. Worse still, the rootkit embedded itself so deeply within systems that any attempts to remove it would effectively render entire machines useless.
And to top it off, when asked to respond to public and media criticism of the concept, Thomas Hesse, President of Sony BMG Global Digital Business, downplayed the entire situation. According to Hogue, "Most people, I think, don't even know what a Rootkit is, so why should they care about it?"
Nevertheless, Sony quickly developed and released a software tool to enable removal of the offending rootkit. Yet even this didn't work properly – merely masking the code rather than obliterating it. Ultimately, a second removal tool seemed to do the trick.
Soon thereafter, Sony announced it would exchange affected CDs and cancel its copy protection program. But to say the damage was already done is a serious understatement. If Joe Q Public hadn't already loathed the concept of DRM, he certainly had ample reason to do so now.
But DRM isn't the only controversial element in the ongoing Battle Royal betwixt media/music publishers, the common man, and those who would pirate anything for a buck. Fast forward to 2010 and the case of LimeWire.
LimeWire was, of course, one of numerous peer-to-peer file-sharing sites operating during the wild and wooly – some would say lawless – days of the early 2000s. But while LimeWire and its ilk were undoubtedly used by some for perfectly upstanding, perfectly legal reasons, truth is that a ton of people went there for the freebie media.
The Recording Industry Association of America (RIAA) certainly thought so, and it, along with Arista Records, Atlantic, BMG, Capitol, Motown, Virgin, Warner Brothers, and a half-dozen other prominent labels, took LimeWire owner Lime Group LLC to court to prove their point. At the trial, "expert" testimony stated the vast majority of files changing hands via the service was of the MP3 variety, containing copyright protected material – generally music. Indeed, the figure was said to be a whopping 93 percent.
Ultimately, like fellow P2P service Grokster – which unsuccessfully argued in 2005 that it was innocent because files had not passed directly through its own computers – and so many others before it, LimeWire was shut down. But that left a question: What damages would Lime Group be compelled to pay? Figures in the billions and even trillions of dollars had been bandied about.
On May 13th of this year, that figure was decided. Lime Group and its founder, Mark Gorton, would cough up 105 million dollars. Gorton's legal team announced he was relieved, undoubtedly in part that LimeWire was somehow able to survive as long as it did and presumably make enough bread to pay the fine. In fact, that LimeWire continued to operate until 2010, thus preventing the suing parties from making as much mullah as they felt they otherwise deserved, prompted Warner boss Edgar Bronfman to call the situation "devastating."
Yet even in victory, the RIAA didn't quite come across as magnanimous. Rather than passing the winnings directly to the artists, the RIAA has once again followed its past pattern of earmarking the dough for its continued campaign against piracy. Though one might argue such a fight – and such a victory – will ultimately benefit the artists simply because it theoretically deters others, the gobs of money the RIAA has already thrown into its campaign certainly hasn't stamped out piracy.
Nevertheless, the RIAA remains undeterred. According to the organization, "The music business has increased its digital revenues by 1,000 percent from 2004 to 2010, (yet) digital music theft has been a major factor behind the overall global market decline of around 31 percent in the same period. And although use of peer-to-peer sites has flattened during recent years, other forms of digital theft are emerging, most notably digital storage lockers used to distribute copyrighted music."
The RIAA asks us to consider the following: "In the decade since peer-to-peer file-sharing site Napster emerged in 1999, music sales in the U.S. have dropped 47 percent, from $14.6 billion to $7.7 billion. From 2004 through 2009 alone, approximately 30 billion songs were illegally downloaded on file-sharing networks."
Furthermore, claims the RIAA, investigations by market research firm The NPD Group reveal that just 37 percent of music acquired by U.S. consumers in 2009 was paid for, and that US Internet users annually consume between $7 and $20 billion worth of digitally pirated recorded music.
And the RIAA hasn't stopped at P2P services. It has also sued thousands of individuals/end users for copyright infringement (some reports say as many as 35,000), and in many cases, won. Granted, it hasn't often recovered the maximum $150,000 per song damages the US Copyright Act says it's theoretically entitled to, an amount that would obviously break anyone for a lifetime. And it's dropped many cases or settled out of court for far, far smaller settlements. Even so, a far, far smaller settlement is still a victory – a victory that adds to its coffers and keeps the threat very real.
Music obviously isn't the only target. Voltage Pictures, the producer of the Academy Award-winning flick Hurt Locker, has recently sued nearly 25,000 BitTorrent users for illegally downloading its explosive 2008 film. Of that total, 10,532 downloaded through Comcast, 5,239 through Verizon, 2,699 through Charter, 1,750 through Time Warner, and the rest through unknown sources. Most of these services have already agreed to turn over the offending IP addresses.
And this follows hot on the heels of similar action against downloaders of the film The Expendables, where "US Copyright Group," an arm of the law firm Dunlap, Grubb & Weaver, sued some 23,000 movie fans earlier this year. The financial details have yet to be revealed, but the hard, cold reality is that if you have an IP address, and if you illegally download a movie, you might be next on the hit list.
Illegal TV streaming has also become a target. Indeed, even sites that link to illegal streaming are susceptible. One such site goes by the name of channelsurfing.net, a website that, when it still had life, merely listed links to external, third-party sports streaming sites. In March of this year, Immigration Customs Enforcement (ICE) and Homeland Security Investigations (HSI) branded the site a criminal operation and arrested the owner, 32-year old Brian McCarthy of Texas. McCarthy was charged with criminal copyright infringement for “reproduction and distribution” of copyrighted material and aiding and abetting copyright infringement.
He faces a maximum penalty of five year in prison. Five years!
In March, 2011, HarperCollins announced it would distribute DRM-enabled eBooks to libraries. Lend the book 26 times and it's deleted, forcing the library in question to buy another. In the gaming world, recent blockbuster titles such as Call of Duty: Black Ops have been illegally downloaded millions of times, much to the detriment of its developer and publisher. Nintendo, meanwhile, has upped the DRM ante considerably by fashioning a plan that would render permanently unplayable any 3DS system that's experienced unauthorized software or illegal mods. Anti-DRM group Free Software Foundation has responded by sending Nintendo a rather large box of faux bricks. Its reasoning being, clearly, that one brick deserves another.
And let's not forget the granddaddy of all things tech, Intel. It's recently come to light that the latest line of Intel Core i series processors will not only be faster, more power-efficient, and more graphically-capable, but they'll also brandish enough hardware DRM through their new "Intel Insider" feature to protect the content of motion picture studios. It works like this: Due to concerns over piracy, the big studios are nervous about getting on board the 1080p movie streaming bandwagon. So Intel is instituting measures deep within its hardware to ensure 1080p movies are streamed but not copied. Intel's going to great pains to tell anyone who'll listen that it's not DRM. But it is.
Are Intel and the motion picture studios wrong? No. The threat of piracy, as has been proven countless times in the past, is very real. And certainly in this case, where consumers voluntarily pay for a streamed movie – not to own it but to watch it – we don't have an issue with Intel's steps.
In fact, we don't have a serious issue with some of the other copy protection measures we’ve outlined in this article. Why? Because sometimes, you just have to step back and eyeball a situation from the other side.
Just last year, for example, HIS and ICE officers seized two popular hip-hop blogs, OnSmash and RapGodfathers, for potential copyright infringement. While we can't comment on the validity of the seizure, we can say with authority that the some of the user comments following the shutdown do have a nasty edge. "DAMN CORPORATE GREED," says one, "We should just buy ONE album from an artist then email that album to a bunch of different email addresses and treat it like a chain letter to show this government and devilish record labels that their control is an illusion."
Now, if you were an artist trying to make a buck selling your tunes, this is the type of commentary that would make you think twice before marketing your music anywhere. Nevertheless, we also feel many measures have gone way, way overboard, to the point they seriously impact legitimate consumers and the very concept of "ownership" and "freedom."
Still, Steve Jobs calls DRM "wrong." Bill Gates says it has "huge problems." Anti-DRM groups such as Defective By Design ( www.defectivebydesign.org ) and Free Software Foundation ( www.fsf.org ) are seemingly popping up everywhere. Apple began selling DRM-free music tracks in 2007. And even Google has spoken up. In a speech earlier this month, Google executive chairman Eric Schmidt said proposals from both the U.S. and British governments that would block search engine access to file-sharing websites would conceivably threaten freedom of speech. Schmidt said Google is not on board with the concept, and will fight it if need be.
But maybe, just maybe, Schmidt and Google are barking up the wrong proverbial tree. Look at the copy protection landscape as it currently sits. Over here you have the RIAA, dropping millions over the years fighting its fight, suing everyone from file-sharing services to end users, and making only a microscopic dent in the world of piracy. Over there you have Homeland Security busting some dude for linking to television streaming sites. The Sony rootkit scandal, self-destructive game consoles, the list goes on and on. And on.
So there's this dam, see? And it keeps springing leaks. There's a whole whack of dudes running around and sticking putty in the various leaks, but it's an old dam and new leaks keep appearing. Worse still, the entire dam is becoming more fragile as each leak further impacts structural integrity. Sooner or later, you need more than putty.
Indeed, you could build a brand new dam. And that may be the ultimate solution.
One such dam is taking shape right now within government circles. It's called the Protect IP Act, and it's precisely what Google's Schmidt referenced a few paragraphs ago. Essentially, the Protect IP Act would grant authorities and copyright holders the power to completely block access to domains that are considered to have been naughty. It would also require search engines to censor offending sites out of their indexes.
If the words "draconian" and "blacklist" come to mind, you're obviously not alone. But we humbly ask that if nothing else has worked thus far, if pirates and assorted ne'er-do-wells continually find ways to circumvent current measures and effectively facilitate the theft of bazillions of dollars worth of intellectual property/copyrighted material, and if a never-ending stream of both money and time hasn't stopped what is by most accounts a purely criminal act, is it such a bad idea? It certainly is if it's used as blanket censorship. But maybe, just maybe, it won't be. Time will tell.
An even better concept may already be on display at forward-thinking services such as online gaming site Steam. As we move gradually to an always-on, always connected, Cloud-centric society wherein we're networked with the world in virtually every facet of our lives – and there's no doubt such a scenario is already on its way – the fact is that the Steam model makes a great deal of sense.
Sure, some would argue that the Steam form of DRM/copy protection – wherein users must have a live Internet connection when using and operating Steam products – is just one more way the "man" smacks us down. But we think it's the way of the future – a future where media is stealthily and without any impact on its user "validated" each and every time it's accessed. Granted, the criminals won't much like it, but hey…they're criminals.
We also expect some will continue to opt completely out of DRM altogether. All-purpose musician Trent Reznor (Nine Inch Nails, countless game scores) has done just that for quite some time now, preferring instead to make his music available at no charge and relying on concert ticket revenue, merchandise sales, and optional value-added paid versions of his tunes. After all, with many of the old school middleman costs (record store employees, shipping, elaborate packaging and design, etc) forever consigned to the distant past, Trent and others like him stand to personally see more of the proceeds. That Trent himself has long since dropped any ties to a record label certainly helps the bottom line.
As the Cloud moves inexorably over us and compels everyone to adopt to it, the DRM/copy protection battlefield will surely look much different even five years from now. We hope it's a far less convoluted future, and we know it surely couldn't get any uglier.
Or could it?