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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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June 16, 2005

Record Companies Intend to Make Criminals of Us All

Posted by Ernest Miller

Pennsylvania's Times-Leader republishes a Mercury News report on the increasing use of DRM for audio CDs by the major labels (Music Industry Eyes 'Casual Piracy'). What disturbs me is the way that the music industry is now framing the argument:

The music industry considers the seemingly innocuous act of duplicating a music CD for someone else "casual piracy," a practice that surpasses Internet file-sharing as the single largest source of unauthorized music distribution. After fits and starts, the industry's largest players are taking measures to place curbs on copying.
Note especially that "casual piracy" is supposedly even worse than internet copyright infringement. Gee, if Congress has to pass laws against P2P filesharing services, what sort of laws will be necessary to stop what will likely soon be called "the greatest threat the music industry has ever faced"?

Instead of focusing their efforts on unrestricted public distribution via P2P networks, the record labels are poising themselves for an attack on copying/sharing among family members and friends. This doesn't seem to me a wise way to attempt to set copynorms. I've long supported the idea of "sharing with friends, not strangers" as a way to reinforce reasonable copynorms. See, Larry Solum, Copynorms and Nesson's Koan.

People want to share music with their friends and family and they see nothing wrong in doing this. In trying to characterize such sharing as criminal activity the recording industry will only be undermining support for copyright as a whole (To Save Copyright We Must Reform It):

The RIAA has taken the strategically foolish position that all filesharing is wrong. To most people outside of the ABA's IP bar, such an uncompromising approach to all filesharing is clearly incorrect. Most people believe that some sharing (particularly with friends or family) is legitimate, but other sharing is not. To the extent that the RIAA is not willing to compromise its position on filesharing, people will increasingly reject the idea that any filesharing is wrong. This is not a healthy development for those who believe that copyright is worth saving. The only way to save copyright is to reform it.
But that is precisely what the recording industry seems intent on accomplishing:
For consumers, it signals an abrupt change to the rip, mix, burn mania embodied by the 2001 Apple Computer ad campaign promoting the first iMac computer with a CD burner and software for creating custom music CDs. These new copy-protected discs limit the number of times people can create copies of music CDs or add individual songs to music mixes.
An "abrupt change", indeed. The music industry doesn't seem to understand that it is unencumbered MP3s that are filling the iPods of the world (21 iTunes per iPod).
"You can do with the CD you bought what you do with it if you're within the realm of personal use," said Thomas Hesse, Sony BMG's president of global digital business. "You can burn a copy that you play in your car or a copy that your son plays in his bedroom or make a personal mix. That's fine. That's the way people listen to music these days. If you attempt to burn 20 copies and distribute them to the kids who come to your son's birthday party, that's not possible."
Um, no. Please, three copies? That's not going to cut it, even if it is only for personal use. I've owned 3 MP3 players alone (and I'm not a guy who spends a lot of money on gadgets). I burn new mix CD-Rs (whatever I'm into at the time) whenever I plan an extended road trip. I sometimes make mix CDs with a sampling of music I think is cool for friends, just to turn them on to something new. And I'm hardly some sort of music power user.

You know, by the way, that I bought that music expecting it to be available to me for several more decades. You think the "burn track seven times" is all I'm going to need for those decades?

All this DRM will accomplish is to encourage people to bypass it, to download the inevitable DRM circumvention devices. They might be illegal, but they'll be available on the internet. Or, it will encourage people to use P2P programs to download the music they've already purchased. And, once they're on the filesharing network, why not download a few songs they haven't purchased? After all, if the record companies are going to make life hard for them with regard to music they've actually spent money on, they might rationalize that they've earned some free music.

In other words, record labels will only succeed in encouraging disrespect for copyright law. Thanks a lot, you bunch of short-sighted morons.

via EEJD

Comments (4) + TrackBacks (0) | Category: Digital Rights Management | File Sharing


1. Julian Bond on June 16, 2005 02:14 PM writes...

I'm not condoning this but merely reporting it.

A DVD-RW holds what? 5Gb? I know people who have burnt their collection of MP3s to 3 or 4 of these and take them round to their friends to copy onto their computers.

An 80Gb 2.5" disk and a USB2 case is what? $150? I know people who have filled one up and keep it in their shoulder bag. Dumping the whole lot onto somebody else's computer and dumping their files onto the disk takes an hour at most.

Who needs P2P when you can share with friends and family by the 10s of Gb? And with no risk of being chased by the RIAA via their ISP.

So here's two aphorisms. "Why is it my fault if your business model is screwed?" and "Just Say No To DRM". If the current content business disappeared you think people would stop making music or being paid to do it?

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2. Brandon on June 17, 2005 09:32 AM writes...

The Music & Movie companies are becoming more obsessed with keeping people from making copies of thier material to the point that it is interfering with normal people's ability to watch/listen to the media. My kid's TV doesn't have audio/video plugs on it, so thier DVD player is hooked up through the VCR. That makes the Disc think its going to be copied and makes the picture fuzzy and hard to watch. SO... I just make copies of the DVD's they watch and they work fine. One more illegal copy just because a legitimate customer wants to use the product that they PAID for!

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3. Stephen Hinkle on June 21, 2005 09:04 AM writes...

DRM Doesn't work. It is inevitable that consumers will get fully quality, portable copies, and some hackers will go to great lengths to insure that happens. Additionally, more and more DRM will just cause Gnutella to get more popular, and all it takes is ONE unprotected version to surface, which will serve as the original for the file shared version, and for that person to put that file on Gnutella.

I also beleive that all the DMCA's in the world, and all the hardware encryption will not stop content from being copied. Hackers will go to great lengths to create hacker tools, and eventually one will succeed. Additionally, for audio, what is to stop analog circumvention either? Nothing.

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4. The Antagonist on June 25, 2005 02:19 PM writes...

The Antagonist has written many times about the fundamental truths that underlie the p2p debate, along with the futility of DRM and legal threats.

The latest in this series of articles is Filesharing - The New Economy of Community, an attempt to introduce whatever tiny degree of logic possible into the arena of file-sharing discussion.

Earlier articles are here, here, here and here)

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