[Infowarrior] - Economist Mag: Criminalising the consumer

[Richard Forno]

Criminalising the consumer

Apr 27th 2007
>From Economist.com
Where digital rights went wrong

http://www.economist.com/displayStory.cfm?story_id=9096421&fsrc=RSS

IS IT legal to make a copy of that DVD you¹ve just bought so the family can
watch it around the home or in the car? In one of the most watched copyright
cases in recent years, a judge in northern California ruled last month that
copying DVDs for personal use was legal, given the terms of the industry¹s
licence and the way the copies were made.

The wider implication of the ruling remains clouded‹not least because the
DVD Copy Control Association, the loser in the case, has 60 days to appeal.
But whatever the video industry may like to think, the writing is on the
wall for copy protection.

Copyright is a tricky thing. It protects only the way that an author,
designer, photographer, film-maker or composer has expressed himself. It
does not cover the ideas or the factual information conveyed in the work.

What constitutes fair use or an infringement is trickier still. Much depends
on the purpose and character of the borrowed material¹s use. Limited
reproduction for the purpose of criticism, comment, news reporting,
teaching, scholarship and research is considered fair game. But the
wholesale repackaging of the content for commercial use is a flagrant
infringement.

In America, the Audio Home Recording Act of 1992 made it legal for people to
record copyrighted radio broadcasts for personal use. But while the act said
nothing about making digital recordings, ripping copyrighted music tracks
off CDs and storing them on an iPod has become an everyday occurrence.
Despite the number of iTunes downloaded for a fee, Apple would be in trouble
if people were prevented from transferring legitimately owned CDs to their
iPods. The software Apple gives away to iPod customers is designed to let
them do just that.

Most people think it ludicrous that they can¹t do the same with the DVDs
they own. Now it seems, despite squeals from the movie industry, the law is
finally moving in the video fan¹s favour.

The issue in the recent case was whether Kaleidescape, a maker of digital
³jukeboxes² that store a person¹s video and music collections and distribute
the entertainment around the home, had breached the terms of the DVD Content
Control Association¹s CSS (content scrambling system) licence.

A Kaleidescape server stores digital content ripped from CDs and DVDs on its
hard drive. The content is then encrypted and fed to various screens and
speakers around the home by a secure cable. Kaleidescape claimed that
content distributed this way was even safer than it was on the original
polycarbonate disks. The judge not only agreed, but couldn¹t find any breach
of the copy-protection licence either.

If the case ends there, to all intents and purposes the notion of fair use
would appear to apply to DVDs as well as CDs. The movie industry, which
nowadays depends as much on DVD sales as on box-office receipts, still seems
to think that making life difficult for its customers is a recipe for
success.

After likewise shooting itself in the foot for ages, the record industry is
now falling over itself to abandon DRM (digital rights management) on CDs. A
number of online music stores such as eMusic, Audio Lunchbox and Anthology
have given up using DRM altogether. In a recent survey by Jupiter Research,
two out of three music industry executives in Europe reckoned that dropping
DRM would improve sales.

The latest music publisher to do so is EMI, which announced in January that
it had stopped producing CDs with DRM protection. ³The costs of DRM,² it
declared, ³do not measure up to the results.²

In an open letter entitled ³Thoughts on Music², even Steve Jobs, Apple¹s
charismatic boss and chief evangelist, recently called for the elimination
of DRM. From this month, Apple¹s iTunes will sell EMI¹s highest quality
recordings (those with sampling rates of 256 kilobits per second) without
DRM for a small premium.

Belatedly, music executives have come to realise that DRM simply doesn¹t
work. It is supposed to stop unauthorised copying, but no copy-protection
system has yet been devised that cannot be easily defeated. All it does is
make life difficult for paying customers, while having little or no effect
on clandestine copying plants that churn out pirate copies.

Now the copy protection on DVDs is proving just as easy to bypass. The
biggest flop has been the CSS technology featured in the recent Kaleidescape
case. It was first cracked back in 1999 by a Norwegian programmer called Jon
Lech Johansen, who showed, in a few short lines of elegant code called
DeCSS, just how trivial such lauded protection systems really were. Since
then, even the DRM used to protect the new high-definition video disks (the
Blu-ray format from the Sony camp and its HD-DVD rival from the Toshiba
alliance) have been cracked wide open.

While most of today¹s DRM schemes that come embedded on CDs and DVDs are
likely to disappear over the next year or two, the need to protect
copyrighted music and video will remain. Fortunately, there are better ways
of doing this than treating customers as if they were criminals.

One of the most promising is Audible Magic¹s content protection technology.
Google is currently testing this to find the ³fingerprints² of miscreants
who have posted unauthorised television or movie clips on YouTube.

The beauty of such schemes is that they don¹t actually prevent anyone from
making copies of original content. Their purpose is simply to collect
royalties when a breach of copyright has occurred. By being reactive rather
than pre-emptive, normal law-abiding consumers are then left in peace to
enjoy their music and video collections in any way they choose. Why couldn¹t
we have thought of that in the beginning?