Copyright or Copy Wrong?

Napster has been at the heart of an incredible controversy pitting copyright, fair use, and computer technology in ways the inventors of copyright never would have imagined centuries ago.

Copyright

The whole idea behind copyright is allowing the creator of a work to profit from it though the right to decide who may produce copies. That's the theory, at least, although piracy has always been a problem - and never before on the scale allowed by copyright.

In the olden days, you had to have a printing press to violate copyright. Over the last half-century, you could do it with a copy machine or tape recorder. Today some countries are known for the high quality and high availability of pirated CDs, software, movies, and more.

Traditionally, piracy has been a matter of scale - only those who could afford a printing press and bindery could pirate books. Later it required high capacity tape dubbers or CD pressing equipment.

All that changed with the Internet, MP3 file compression, Napster, and CD burners. Suddenly it was possible for anyone on the Net to find virtually any piece of music that had ever been digitized, choose the level of quality they wanted, copy it to their own computer, and listen to it there or burn it to a CD for the car or Discman.

Right and Wrong

It's really hard to put the issue in black and white terms. The fair use clause in copyright law allows us to copy original material for private nonprofit use. It doesn't allow teachers to copy chapters and hand them out to their students, but copy machines have made that very common. (Savvy teachers get permission and may pay a nominal fee to legally provide copies to their students.)

Radio stations do pay a fee so they can broadcast music on the airwaves. Nothing prevents you from taping that music for private use. In some jurisdictions, blank tapes and CDs are surcharged so musicians can be compensated for this kind of copying. (Then there's the completely different question of whether the artists ever see a penny of it, but this isn't the time or place for that discussion.)

With the advent of videotape and VCRs, the whole thing went to court. Our right to tape television broadcasts for private use was upheld under fair use.

The Right to Copy

Under copyright law, we've had the right to make a single copy for private use, although that has never been particularly easy. For instance, photocopying a book can take a long time, and dubbing an LP to tape took however long it took to play the record.

Some of that has changed due to technology. High speed equipment can dub tapes in a fraction of real time. CD burners can copy and entire CD in less than one-tenth the time it would take to listen to them - and digital technology allows us to make copies with the same quality as the originals.

Copy Protection

Of course, publishers do what they can to make copying difficult. When I sold high end audio back around 1980, one of our salesmen subscribed to an expensive audiophile newsletter that was widely photocopied. To circumvent this, the newsletter was published in blue ink on dark red paper. (If you've ever played the old copy protected version of SimCity, you know how hard that is to read or copy.)

Software vendors invented various copy protection and license protection schemes. Some made disks that couldn't be copied. Others would only run if you had a dongle in the appropriate port. Still others would check the network to make sure nobody else was using the same serial number. None of this stopped people from finding ways to make backup copies, but it helped reduce piracy.

MP3s

Under copyright law (as best I understand it, and I am not a lawyer), we have the right to make a backup copy for private use. That doesn't mean we can copy a CD and give away the original - or keep the original and give away the copy. As long as we own the CD, we're entitled to use of the copy; once we transfer ownership of the CD, the copy should go with it or be destroyed.

The same goes for ripping MP3s from our CDs. As long as we own the CD each track came from, we have the right to copy it to another medium for private use. We can then play the MP3s on our computers or MP3 players. We are also allowed to burn our own compilation CDs as long as we own all of the original tracks.

The beauty of MP3s is small file size. You can choose the best combination of file size and sound quality for your use, and even the highest quality MP3s take up a lot less space than the original files on the CD.

Napster and the Law

What Napster did is allow anyone connected to the Internet to copy MP3 files from other individuals and make their own MP3 collections available to others. They made some noise about only copying tracks from CDs/tapes/albums you owned, but did nothing to enforce it. In short, Napster made widespread music piracy a fact of life by coordinating access to all those MP3 files on all those computers.

Of course, this brought everyone into a messy legal quagmire. The recording industry had little to gain from going after individual users, since legal fees would vastly outweigh damages or what they might realistically collect. So they went after Napster, a service used and loved by millions.

Honestly, Napster is a great idea. You can download your favorite songs and listen to them - it's a bit like listening to your favorite radio station, but without ads or songs you don't like. By analogy with radio, it's hard to believe there could be anything wrong in snagging MP3s off the Net and listening to them on your computer or MP3 player.

On the other hand, the recording industry and artists see a lot of lost income when people who don't have a right to copy their songs are freely downloading them for personal use. The size of that industry doomed Napster as a free music exchange the minute the RIAA took notice of the problem.

Okay, said Napster, give us a list of songs you don't want shared. We'll block 'em.

Okay, said Napster users, do that and we'll rename the band Metalica or Meta11ica or something similar and get around your blocks.

Okay, said the music industry, creating a list of blocked songs isn't viable. There are too many artists, too many tracks, and too many ways to rename files.

The Future of Napster

Napster could survive as a free music sharing service by limiting their users to a list of songs authorized for free distribution. Anything broader than that will infringe on the rights of the artists and record companies.

The only alternative is for Napster to pay for the right to distribute any and all MP3s, just as radio stations pay a fee to broadcast music. Of course, if Napster is paying for that right, someone has to provide Napster with enough money to do that. And that's exactly where Napster will be going this summer - tune in to Napster for details as they emerge.

DVD, CSS, DeCSS, and DMCA

Hoping to avoid the easy copying available with CDs, DVDs are encoded to only work in certain regions and encrypted to prevent copying. DVDs use a content scrambling system (CSS) to prevent unauthorized copying using an algorithm that was supposed to remain secret. (Sure, just like the German Enigma encryption engine used in World War II.)

DVD players have a chip that can decrypt CSS, allowing you to watch DVDs. DVD-ROM drives in computers don't have CSS decoder chips; decoding has to be done in software or on a video card with a CSS chip. (Apple has used both solutions.)

None of this is a problem if you want to simply watch DVDs on DVD players, Macs, or Windows computers. It is a problem if you want to watch a DVD on a Linux machine, which is where DeCSS comes into the picture. In October 1999, someone figured out how to decrypt DVDs and copy them to a hard drive. From there, it would be possible for Linux users (not to mention anyone else) to watch the decrypted video.

Reverse engineering the content scrambling system was a clever hack, and you'd think it would be legal, since it allows people to watch the DVDs they own on computers running Linux. The DeCSS code was widely disseminated, but then came the lawsuits.

Unlike the old copyright law, which allowed copies for private use, the Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent copyright protection systems. In short, by making it possible for Linux users to view their DVDs on their computers, DeCSS violated copyright law. That's right - Linux users were prohibited from viewing their DVDs on their computers by the new copyright law.

The DMCA only applies in the States, right? Well, for now. The European Copyright Directive will bring the same thing to all European nations within 18 months.

Interestingly enough, CSS doesn't prevent bit-by-bit copying of DVDs, so a pirated DVD will work just like the original. What it does prevent is copying the DVD to your hard drive, from which you could convert it to another format (e.g., QuickTime), copy it to another medium, and distribute copies. Because DeCSS allows that, it is illegal under the DMCA.

SDMI & CPRM

The next technological step is SDMI, the Secure Digital Music Initiative. According to their home page, "SDMI's charter is to develop open technology specifications that protect the playing, storing, and distributing of digital music such that a new market for digital music may emerge."

SDMI looks like a boon for the music industry, since the technology limits the number of times digital music can be copied. As I understand it, you'll only be able to rip tracks from SDMI-compliant CDs to CPRM (Content Protection for Recordable Media) devices - you may need a CPRM compliant hard drive or media player (I won't say MP3 player, since SDMI hopes to kill MP3s). You may or may not be able to back up SDMI files; if you can back them up, you may not be able to restore them from backup.

This may be the same kind of technology Microsoft will use to prevent users from installing Windows XP more than twice. Microsoft is pushing SDMI over MP3.

As John Naughton notes, "If this nonsense isn't stopped, the days when you could do what you please with your own hard disk are numbered." It seems to be just a matter of time, although Apple Computer is on record as opposing CPRM hard drives.

The Future

When Apple introduced the Macintosh, they promised 1984 wouldn't be like 1984. And thus far, 2001 isn't like 2001, either. Still, we have to watch out for out of control governments and technologies.

As I researched this article, I began to see the media moguls, particularly the MPAA and RIAA, as far more powerful political forces than I would have guessed. They crafted the DMCA to protect themselves; it was not created to benefit the public.

Between Microsoft's .NET initiative, the DMCA making it illegal to decrypt (or even discuss decrypting) DVDs, and CPRM/SDMI becoming a reality, we're losing the control Apple and others gave us when they invented personal computing in the 1970s. We're losing the ability to make private copies of copyrighted material we own. And once digital television replaces analog, we may not even be able to record our favorite programs without CPRM hardware and a license to record.

It's starting to feel like Max Headroom, the dystopian future controlled by media networks. That's where the RIAA, MPAA, and Microsoft want to lead us.

Will you follow? 

Further Reading

• Watershed for Digital Music, Oscar S. Cisneros, Wired News, 1999.06.28. An early look at SDMI.
• The American crocodile that swallowed freedom, John Naughton, The Observer, 2001.04.29. RIAA, DMCA, CPRM, SDMI, DeCSS, and some common sense.
• Son of CPRM fails at ATA committee vote, Andrew Orlowski, The Register, 2001.04.02.