No, I Don’t Download Illegal Music

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But I did in my sordid past.

I have a semi-boycott on RIAA backed music because the lawsuits against music fans left a very bad taste. I do buy a handful of songs or CD’s that I like on iTunes and I sometimes buy CD’s and t-shirts at festivals and concerts. I don’t buy nearly as much as I did prior to the RIAA lawsuits. I buy music at Magnatune, a Creative Commons label, as well. I haven’t used any of the file sharing programs to illegally download music since the before demise of Napster. A lot of the music I downloaded back in the late 90’s was stuff I already had on CD. Had I known I could rip it from the CD, I would have gone that route. I just wanted to listen from my computer and shuffle the songs, a typical tailing baby boomer scenario.

In short, I do think that music created and performed by artist beholden to a label should be legally purchased. If enough people buy the music, the artist may be able to make enough money to live on. Music lovers should also check out some of the alternatives. I have put links a few of these in the Alternatives section. The artists that license their work with Creative Commons need to survive and make money, too. They didn’t get a bonus and marketing from a record company (well, except for Nine Inch Nails).

I donated to one guy I liked from Magnatune via a Paypal link and got an email back from him offering to send me a gift if I provided a shipping address. Such personal service is sorely lacking in the music business.

The Ministry of Trust

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Most of the discussion on DRM these days focuses on the RIAA because of the all press surrounding their efforts to curb music sharing. All RIAA pro-DRM arguments revolve around record labels making more money by keeping controls on the recordings purchased on-line. They put an Orwellian spin on it by declaring that DRM is good because without it there will be no more music since the artists won’t get paid. Indulge my skepticism here for a moment. DRM does not prevent illegal file sharing. MP3’s that are downloaded are ripped from a purchased CD containing no DRM from the outset.

I have provided links to a 9-part series featuring an RIAA exec speaking to Arizona State University in the Videos section. While this information is not specifically about DRM, it does balance the discussion somewhat. He outlines the woes of the music industry to a room full of college students. In his defense, putting these woes squarely on the backs of college kids is not an easy task and I almost felt sorry for him when the protesters showed up. I fell on my sword for the group and watched all nine parts. I got that hour of my life back courtesy of the insomnia from worrying that no one will ever make music again because I downloaded “Turn Me On Mr. Deadman” back in 2001.

Anyway, it is widely known that most bands that sign with a major record label are basically indentured servants working off a large advance. That advance is often the only money the band will ever see for their efforts. This is not the sole fault of the record label. Bands enter into contracts with defined terms, usually not in the band’s favor. The folly of youth causes otherwise intelligent and talented musicians to sell their souls for royalties that hover around 10 cents on the dollar. A band has to sell a million records to pay back a $100,000 advance. THEN they can start making money. While $100,000 is a lot of money, it will only go so far divided by several band members over the course of a studio recording and North American tour. Rent, food, booze, whatever, needs to be paid in the meantime. Many successful bands are broke through several CD compilations and they still make music.

Piracy & Industry Responses

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Digital Rights Management (DRM) has been quoted as the answer for dealing with piracy whether it be software or music or any other other form of intellectual property such as text, images, movies and games. But DRM is not the only defence that industries use to protect their interests. In this post, I would like to talk about a few different options that industries have referred to in the past to combat piracy.

Perhaps it is the music industry that has attracted the most attention for its efforts to stem online piracy. The Recording Industry Association of America (RIAA) claims piracy as a prime culprit in a $2.7 billion decline in revenues between 1999 and 2003; the Motion Picture Association of America (MPAA) cites worldwide losses due to piracy at $3.5 billion, though the organization declines to calculate losses due to the Internet. Specific DRM solutions aside, DRM is considered the answer to the media industry’s preoccupation with piracy.
For the major media companies that have reacted to piracy with some form of rights enforcement, results have varied in effectiveness. By far, the most common form of enforcement, and the least effective, is the cease-and-desist order. The New York Times, for example, took issue with Amazon.com and Borders.com for publishing its Bestsellers List on their sites without permission from the newspaper. In May 1999, The Times sent both companies cease-and-desist orders.
Some companies have actually filed lawsuits against infringers. In cases where ownership of the pirated material is verifiable, through the use of DRM or otherwise, this can be effective. Playboy magazine was awarded nearly $4 million in damages plus legal fees last year in a suit against a site called Five Senses. The site was offering over 7,000 scanned Playboy images as part of a subscription service. On rare occasion, rights holders have succeeded in shutting down pirate sites.
 

Figure : Industry Responses to Piracy

Tactic Example Result Content Medium
Cease-and-Desist Order The New York Times has filed a cease-and-desist to keep Amazon.com from using its best-seller list. Pending Text
Lawsuit Playboy filed a lawsuit against Five Senses Production for illegally distributing Playboy images. Playboy was awarded $3.74-plus million in damages, Image
Shut Down for Piracy Interactive Digital Software Association attempted to shut down an Web site selling pirated video games. Web site was forced to shut down Video
Settled for Damages RIAA has collected damages from Nimbus and Quixote Corp. Quixote paid $4 million in damages Music

Source: Jupiter Research
© 1999 Jupiter Research

In the field of software, it is estimated that Central Europe and Latin American countries hold as much as 60-70% pirated software, with Asia-pacific following with about 55%. With such high estimates for the pirated software, software vendors are, no doubt, have a right to be concerned about the loss in revenue as well as the dilution of their brand equity. Perhaps no company has had so much trouble with piracy as Microsoft. Over the last couple of years, Microsoft has launched several initiatives to combat piracy. These measures, dubbed “The Genuine Advantage” set an example of how piracy can be combated not by means of monopoly but by the way of offering goodies to genuine customers.

The Microsoft program “The Genuine Advantage” is a small piece of software that can correlate the software certificate number with the machine. Once the correlation is established, only after getting the consent of the user, the software does not need to send any further information to Microsoft, thus alleviating any constant concerns of privacy associated with this system. Once Microsoft deems the software as genuine, it offers all the updates, security patches and even some free softwares, templates and goodies as a reward to genuine customers. In fact, it is a great example of how Microsoft has used to its own advantage the existence of security loop-holes and malicious viruses and worms to scare users away from pirated software and conveying the impression that Microsoft protects its genuine customers.

http://download.microsoft.com/download/3/6/3/363e4976-3abd-4eab-b2e2-a643342bc869/Yankee_Group_Piracy_Research_Whitepaper.pdf

What’s so Wrong With DRM?

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Since embarking on the DRM project, I have been asked why we shouldn’t support the artists and pay them. This is a problem. I wholeheartedly support an artist’s right to recoup costs and earn a living anyway that they can. If they can earn a good living or get fabulously wealthy creating and promoting their work, I think that is wonderful. They do not have a “right” to earn a living this way, just an opportunity and a marketplace to do so. This is the way that all professions work, at least in American society. We have told entire segments of the workforce that the market will only bear so much for their skills. Is this what we are telling the Arts? I really hope not, but DRM may be off-putting enough to do just that.

DRM has nothing to do with paying an artist for their work, nor does it prevent illegal sharing of music. DRM is like the cable shackling furs to a garment rack at Macy’s. A customer can purchase the item with or without the existence of the cable; it assumes criminal intent on the part of customers; it inconveniences legitimate customers that want to try on the garment; and it is can be circumvented by a determined thief with a pair of tin snips. The difference is that the cable on the garment rack is intended to deter a thief, whereas DRM is not.

In its current implementations, DRM does very little, if anything, to control illegal file sharing. It does, however, limit the use of purchased content to proprietary interfaces and devices. The ultimate goal of DRM is to retain control of the legitimate distribution of digital content, like the good old days of buying an 8-track and a vinyl record to be able to play in both types of players. The record companies would love nothing more than for consumers to have to re-purchase 10,000 songs after a hard drive failure.

DRM limits a consumer’s ability to play purchased content across disparate platforms. Music purchased on iTunes cannot be played on any portable player other than an iPod. So, if you have a Microsoft Zune, you can’t play your iTunes music on it. This is, of course, designed to sell proprietary players and multiple copies of songs. Music with DRM is cumbersome to work with, especially if the consumer is not technically savvy.

DRM doesn’t respect fair use; DRM encumbered works are worthless for legitimate educational purposes or parodies. The RIAA may like it that way, but fair use is legal, and DRM takes it away from the purchaser.

DRM ignores the derivative nature of creative works and gives nothing back to the community as it locks the work in bondage. Creative work is a reflection of the time period in which it was created and genres come in and out of fashion. In the current **AA business models, creative expression is never free, only a commodity to be peddled to consumers. Sampling, once a valuable tool for creative expression, is now forbidden without paying an additional fee. Ultimately, someone must pay a record label for each and every sound it produces at each and every utterance. Similarly, we are forced to view a warning from the FBI before every movie we watch in our home theaters.  DRM prevents the skipping or removal of this quite redundant requirement.

Welcome to DRM @ PTC!

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Welcome to DRM@PTC here at Weblogs at Harvard Law School. This blog has been started as a final group research project for LSTU E-120 Internet and Society: Technology and the Politics of Control. Our project goal is to create a “persuasive statement advocating a policy position” and, in an effort to bring multimedia elements to this assignment, we have created this blog to feature links to our research materials including, articles, speech transcripts, and legal discussions, as well as full text versions of the DMCA, U.S. Copyright law, and other supporting documentation. We are also featuring a video called “Conversations On DRM” which was another project completed by this group for the course and audio podcasts, of other speeches, discussions, and presentations. Finally, our “blogroll” has links to other blogs that contain mountains of information about DRM, copyright law, fair use, and multitudes of additional topics within this interesting and complex subject.

We hope that visitors to this blog will find it useful as a hub for further research into DRM and we, the group, are likely to continue moderating the blog rather than just use it as a way to obtain a final grade. We encourage users to mine the links, leave comments, and start discussions!

Thanks,

The Group

Neil Perry
Paula Eichler
Kumar L. Narshimma Yajamanam
* (Ariel Thomas was a group participant in the “Conversations on DRM” video.)