As we move to a world where all entertainment is delivered digitally, the battle over copyright protection is turning into a full-blown war. And consumer rights may end up being the biggest casualty as media companies hunker down and try to redefine what users can and can't do with the content they've paid for and the hardware they own.
From Apple's iTunes and Real Networks' Rhapsody music network to movie rental sites like CinemaNow and Starz' Vongo, legitimate digital media services are exploding. But each additional option brings a new battle, new restrictions, and even new dangers for unsuspecting users. Copy protection included in Sony BMG audio CDs allowed virus writers to co-opt the system and sneak onto users' PCs. Satellite and HD Radio, which promise higher-quality audio and more content, may become difficult for listeners to record if the music industry has its way. And TV fans are finding that cable stations are limiting their ability to time-shift shows; pending federal legislation may curtail their rights even more.
Worse, since we last looked at this battle in 2002, technology firms, which once struck a balance between the rights of content owners and the rights of users, have sided more and more with Hollywood as they strive to secure the content they believe will help sell their products.
We'll look at the multiple fronts of the digital wars--from file sharing to music to TV--and give you a hint of what's next.
Copyrights and Wrongs
Peer-to-peer file sharing remains the bogeyman, driving entertainment companies toward ever-increasing control over content. Despite the U.S. Supreme Court decision holding Grokster liable for the actions of its copyright-defying users, and despite more than 13,000 lawsuits filed by the Recording Industry Association of America and the Motion Picture Association of America, file swapping is still growing. According to P-to-P research site Big Champagne, some 6.5 million U.S. users share files at any one time--up more than 30 percent from the year before.
Media companies have responded in two ways. Using their influence in Washington, D.C., they've pushed for laws friendlier to the rights of content owners. At the same time, Hollywood has threatened to withhold access to its libraries unless electronics manufacturers build devices with sufficient copy protection.
This is not the way the copyright process was supposed to work, according to Jessica Litman, author of Digital Copyright (Prometheus Books, 2001).
"Copyright law was intended to protect reading, viewing, and listening as much as creating and distributing," says Litman, a professor of copyright law at Wayne State University Law School. "Now it takes what people previously saw as their rights and treats them as loopholes the copyright owners will close, if they can."
Take books, for example. You can read a book anywhere you want, skip chapters at will, give the book away or sell it, quote portions of it on your blog, or scan it into your PC and print out a copy. And when the book eventually becomes part of the public domain, you can do anything you please with it--including printing copies and selling them at a profit.
Buy an electronic book, however, and your rights start to wither. You're now subject to the terms of an end-user license agreement. Depending on the EULA, you may be able to read the book on only a limited number of machines (usually just one), and you probably won't be allowed to sell it, lend it, or make backup copies.
As you move up the content spectrum to digital music, movies, radio, and TV, the rules can be just as restrictive.
"[Hollywood's] model is to make experiencing copyrighted material--reading a book, listening to music, or watching a movie--legally like going to a movie theater," Litman says. They want you to buy a ticket, watch ads, eat only their food, leave when they want you to, and pay for it all again each time you do it, she says.
Brad Hunt, senior vice president and chief technology officer for the MPAA, disagrees, arguing that content owners are seeking ways to offer users more options than they have with today's media. "Instead of saying 'here's the movie locked to a piece of plastic, take it or leave it,' content owners may make other rights available to you to do more with it," he explains.
The primary battleground for digital content has long been music. To combat widespread file swapping, the record industry has attempted both copy protection for CDs--most notoriously in the form of Sony BMG's XCP rootkit (see "Copy Controls: How Far Will They Go?" for more)--and digital rights management schemes for online music. Each has made life more difficult for legal purchasers of music.
Usually, copy-protected CDs don't prevent you from making copies so much as they limit how many copies you can make and where you can make them. If you played a protected Sony CD on your PC, for example, you could rip three copies of the CD to your hard drive. If you then put this music into your Windows Media Player library, you could burn three other CDs. But Sony's XCP scheme prevented iPod fans from easily copying MP3s from the CD to their music libraries, though a workaround was available upon request.
Online music rules are even more complex. You can play music purchased from iTunes on up to five systems, for example, but if you want to add a sixth, you have to log on to one of the other machines and "de-authorize" it. You can burn a playlist to a CD, but no more than seven times. You can share tunes across five computers on a local network, but the other users can only listen to the music. Still more restrictive are the rules for iTunes' video downloads--there's no sharing at all.
Yet as DRM schemes go, iTunes' FairPlay system is fairly transparent, Jupiter senior analyst Joe Wilcox notes. "People know it's there only if they try to violate it," he says, adding that with Windows DRM, he's had problems with both legit music playback and the purchasing process.
Moreover, incompatible DRM schemes can lock users into a particular technology. If you purchase your music from iTunes, realistically you have two options: to buy iPods for the rest of your life--since iTunes music won't play on other players--or to ditch your library and start over. Players that support Windows Media Audio DRM are more plentiful, but similar restrictions apply to them.
Later this year, new DRM technologies may challenge the hegemony of FairPlay and WMA, says Bill Rosenblatt, president of GiantSteps Media Technology Strategies and editor of DRMwatch in New York. One approach, the Marlin DRM scheme, is based on personal identity: It would let you access content on a variety of portable devices according to who you are, not what device you're using. Another DRM platform, code-named Coral, would allow service providers to convert content from one DRM format to another, making it playable on a wider variety of devices. Both schemes are backed by two closely allied consortia whose members include 20th Century Fox, Hewlett-Packard, Philips, and Sony.
Navio, a small Silicon Valley startup, is taking yet another tack. Instead of buying digital files, users, in Navio's scheme, buy the rights to enjoy them. So when a user is at work but wants to hear a song that he downloaded at home, he can log in to Navio, which confirms that he has rights to the song and allows him to download or stream the song to a new device. Files can still use DRM technology to prevent unfettered file swapping, while consumers get many of the same freedoms they've grown used to with analog content.
"If the rights are properly defined and ubiquitous, they'll become more valuable to consumers than the actual files," says Navio CEO Stefan Roever. Then only people with no money and lots of time will fool around with file sharing, he adds.
Navio already enforces media rights for the Fox Sports and Fox Music Web sites, and at press time it was preparing to announce a deal with a major record label.
Meanwhile, another front is opening in the war over digital music: The RIAA is pushing for legislation that would prohibit listeners from recording or sharing individual songs broadcast via new digital radio services unless they paid a fee for each song. Nevertheless, the group favors being able to record digital radio in blocks of 30 minutes or longer.
"We support time-shifting," says RIAA spokesperson Jenni Engebretsen, but not "cherry-picking individual songs and storing them in a library on an MP3 player in a manner that substitutes for a sale."
According to Public Knowledge, a consumer rights group based in Washington, D.C., such rules would extinguish fair-use rights that listeners have enjoyed in the past--there are no such restrictions on the right to record personal copies of songs from traditional radio broadcasts.