The DRM Plan

by Don

The fight over the broadcast flag isn't over despite the recent court ruling.

We're still being locked out of our hardware and media by Digital Rights Management (DRM) and the shifting ideology over how we use the media and equipment we buy.

The technical and legal means are discussed in Michael Sims's speech on DRM and the EFF's speeches on "Hackers and the Law" from The Fifth HOPE.  The speeches are archived online and well worth downloading.

I'm going to focus on an aspect of DRM they didn't talk about, specifically how will DRM change the way we use music and why does the music industry love digital audio files?

Contrary to vociferous protestations of the (((RIAA))), the major labels love digital audio files.  They conceived of them years ago under the rubric of the "Celestial Jukebox."

It would have worked much like P2P does today - you think of a song, hop on the network, and enjoy.  Tunes shipped directly to your stereo for a small fee, not unlike the online music stores of today.  Note though that it wasn't a "music box," it was a "jukebox."

You'd have to pay every time you played a song.  And you couldn't transfer it off the box to another system.  If you wanted to listen in your car or while jogging or at a friend's you'd have to buy the song again.  You'd pay every time you played.

This didn't happen but it doesn't mean the industry has given up on the concept.  The Jukebox would have required a robust broadband and Wi-Fi infrastructure to work - something that didn't emerge until P2P had already broken out and indeed may never have developed unless P2P came along.  Instead of the Celestial Jukebox we have iTunes and DRM.

The price of an album from an online music store is generally comparable to the price of a CD ($10-ish per disc.  If you're paying more than $12- $13 per CD, you're shopping at the wrong stores.  Also, this refers to the "general" price of albums online.  Some releases have already been priced much higher at online music stores, costing as much as they would at the mall and this will become the norm as the online stores become the dominant means for people to get music).

There are major differences in the CDs and digital music files beyond packaging.  A CD from the store has no controls built into it.  You can play it anywhere, make as many copies as you like, and even sell it.  DRM-enabled files can only be played on devices that have permission to play them.

It's important to note these permissions because they can change.

Let's look at the iTunes Terms of Service (TOS).

Not to pick on Apple, but they're the biggest player and set the standards for how online music stores will operate.  According to Apple's "Usage Rules" (www.apple.com/support/itunes/legal/terms.htm) you may have copies of the file on "five Apple-authorized devices at any time" and "burn a playlist up to seven times."

It doesn't specify how often you may burn an individual file, but it does say "Any burning or exporting capabilities are solely an accommodation to you."

Of course it also has the standard TOS legalese and informs you that Apple may change the TOS at any time without warning and you are as bound to them as you are to the original one you clicked through.  In "the event that Apple changes any part of the Service or discontinues the Service, which Apple may do at its election, you acknowledge that you may no longer be able to use Products to the same extent as prior to such change or discontinuation, and that Apple shall have no liability to you in such case."

So you, as a person who paid to use these tracks in a non-infringing way get screwed if Apple changes its mind over how its service operates or changes the service at the behest of the music industry.  These changes happen automatically and affect all the DRM tracks you have.  You sync your digital audio device with your computer to transfer songs.  The program used to sync is always updating itself every time you go online.

I've gone a long way to say what we all know.

Yes, there are ways around DRM and there always will be.  The problem though is not that there won't be a way around it when it hits but rather that we'll acquiesce to it because breaking the DRM will be more work than just going along, if it can be broken at all.

Also, drawing on Michael Sims, they're going to try to make DRM a hardware issue, not a software issue.  So cracking the DRM will involve either hacking your equipment the way phreakers used to do or by running a crack on every media file you ever want to play ever again.  Yes, it's beatable, but a lot of people will pay the extra 1-2-5-10 dollars to not endure having to beat it.

This is an issue that's already coming up.  There are only two ways to listen to a digital music file - either with a player (iPod, computer, etc.) or by burning it to a CD.  Some cars are now being equipped with DVD players.  DVD players won't play CD-Rs unless the laser is specially designed, which they generally aren't.

So with no major adjustments, cars are now locking out homemade media.  No copies, no mixes, and no albums that you downloaded from the Internet.  The technology that's needed to lock us out of our media is less complex than we imagine.

Also, the DRM default will be to deny copying unless the track clearly states you may.

That makes sense from the industry's point of view - you can't copy without special permission.  However, when we say "copy," the industry is thinking "play."  The default setting for playing a track will be to block you from playing the track you paid for.

Why not make the permission automatically allow you to play the track?  If the default permission is set to allow you to play the media then you won't have problems with corrupted tracks being blocked.  Nor would pre/non-DRM tracks be blocked.  That's why "play" would equal "no" by default.

The music industry hasn't given up on the Celestial Jukebox.  They want you to buy a copy of every track you want every time you play it.  They can't do this with CDs - permanent collections of non-DRM media files.  CDs are physical - you can do whatever you want with one once it's in your hands.  That goes against the industry's current ideology.  Plus there's always the profit motive.  The CD is the last expense of the record companies.

When a band signs with a (((major label))), they get an advance against royalties on future sales.  From this advance the band pays for the recording and production of the album, any videos and promotions, and the tour.  The label provides seed money and then pays to print the CDs.  Without the need to press CDs (when the label just takes the master tapes the band paid for and uploads them to iTunes), the label's only job becomes recouping a minor investment and getting paid.

"But wait," digital Utopians will say, "the artist can do that as well.  They can record at home and sell their tracks directly through iTunes."  No, they can't.  The labels are maintaining their old role as gatekeepers, blocking acts from radio, television, and online music stores.  The digital music services aren't dealing with bands, they're dealing with companies.  There's no money in dealing with artists on a one-on-one basis.  No one has the time, resources, or inclination to do that.

So the music industry wants to eliminate the CD so you'll re-buy every song you liked, and every new song you'll buy will mean pure profit.  They'll use DRM-hardwired equipment to look for the play permission.  Any CD lacking that (i.e., every CD ever) won't play.  Nor will any of your old files or any files from groups outside the industry that haven't bought access to the DRM codes.

The music industry will be able to completely lock everyone out of our culture, turning it from something we collectively create by deciding what we use, keep, and build upon into something the industry decides based on what's making the biggest profit at any given moment.

And that'll be it.  We'll all be stuck buying DRM-protected tracks for our DRM-enabled players, rebuying files for broader use or every time a file is corrupted or lost.  And P2P won't be spared either.  DRM will block new material from being ripped and ripped material from being played so the resource pool that fuels P2P will dry up.

There are also questions of Fair Use being impinged - people being prevented from making music at home or DRM being appended to files you rightfully have and then being unable to play (for instance, public domain or Creative Commons-licensed tracks suddenly having limits applied for transfer and copying) but that gets into Fair Use rights which is a different discussion.

Those problems all arise from DRM being the default and are more fully discussed in the books cited at the end of this piece.  Where I want to go is towards solutions.

The first step is to cut DRM off at the source: Congress.

Write, don't email, write your representatives letters outlining your opposition to government-mandated DRM in all its forms whether it be the broadcast flag or the DMCA.

Remember when writing them that DRM is anti-copyright and unconstitutional.  It prevents media from ever entering the public domain which goes against the U.S.'s definition of copyright.  Also, support the EFF and pay attention when votes on these issues come up.  Contact your representative whenever they do and write letters to the editor.  Don't surrender to cynicism.

The second step is to not use DRM files and devices.  Encode all your music into the open-source Ogg Vorbis and FLAC formats and only buy players that let you use these file types.  They aren't going to vanish and devices that play them aren't going to regress to lock them out.  Don't use online music stores.  They'll all have - and always will have - DRM.

But where should you get the music that you encode into Ogg/FLAC?  From CDs you buy.

That's the third step.  Buy music you want, like, or are curious about on CD.  The record companies will keep manufacturing CDs as long as they're making money (and once they stop, they won't get your money) and hardware manufacturers won't stop making CD players until people aren't using them anymore.  They also won't make CD players that refuse to play pre-DRM discs.

Instead manufacturers will make your computer refuse to play pre-DRM files forcing you to use your stereo to play CDs just like you have to do with tapes and records.

There is another reason to buy CDs.  It's not a technical one, it's an ideological one.

When you hop on a P2P network or an online music store you grab the track you want and then maybe the rest of the album.  Or, if you grab the entire album, you cull the tracks you don't want at the moment and delete them.  You can do this with a CD as well, putting all your favorite tracks on a mix-CD or putting them on repeat, but the rest of the album isn't lost.

When you ditch the album for the single you rob yourself of those times when you pull out an old album and let it play past the one song you liked, when you hear the next track and understand it in a way you didn't before, when you hear a song at a party and then later find you had it yourself, taking you back to that moment.

When you accept only taking the tracks from the moment and scuttling the rest - a lauded advantage of P2P - you are robbing yourself of the opportunity to rediscover music, your music.  You are instead buying into an ideology of music not as art or even culture but as product, as something disposable.

That's the music industry's ideology.  Don't let it be yours.

Support the artist, support local retailers, and buy the CD.  Keep music an issue of control, not permissions, of CDs, not DRM.

Background information for this piece came from:
Return to $2600 Index