Copyright a-go-go

June 12, 2003 7:29 AM

Lessig and the RIAA's Matt Oppenheim This great Q&A between two very well spoken opponents in the copyright wars answers (very clearly) many of the questions that have stemmed from the ongoing erosion of the public domain by copyright law and the degradation of the music industry by file swappers. I was struck by how straight many of the answers were... a fascinating read
posted by dirtylittlemonkey (29 comments total)

oh.. via Slashdot
posted by dirtylittlemonkey at 7:31 AM on June 12, 2003

Thanks. Excellent link.
posted by dobbs at 8:22 AM on June 12, 2003

Matt Oppenheim says, "Having said all this about copy-protected CDs, as far as I know, only nine such CDs have been released in the U.S. The rumors of widespread use of copy-protected CDs seem to more prolific than the CDs." So that's all right, is it? It's not a problem, don't worry about it? Tell that to the rest of the world having to deal with this headache. You're next, America.

Then he goes on to say, in response to a question about whether it's okay to download a track that you already own on CD, "As a practical matter, there is no reason to do it. It is easier these days to rip a recording from a CD than to download it. And, when you rip the CD, you do not open up your computer to all of the spyware and other viruses that are part and parcel of most illegal P2P services." So ripping is okay, is it? Then why use copy protection designed to foil it? Surely the RIAA and the multinationals it represents would do nothing to antagonise legitimate customers wanting to listen to the music they've bought?

Good to know it's A-OK to record from 8-track, though. Woo.
posted by rory at 8:24 AM on June 12, 2003

Some interesting answers on both sides. But I have to question arguments like this one:
From an ethical perspective, when individuals engage in illegal copying, they are taking money out of the pockets of all of the people who have put their hard work into making the music. That includes everyone from the famous rock star to the woman working the sound boards to the back up singers to the truck driver who delivers the CDs.
If all those people actually profited from a per-unit sale, that's one thing. But outside of the top artists with the power to negotiate favourable contracts, the only individuals benefitting from volume sales are the executives. It's shameful that they're parading the image of lowly-paid subordinates in an effort to justify their largesse, knowing full well those people will never see any difference in pay.
posted by GhostintheMachine at 8:29 AM on June 12, 2003

I only wish that this were a roundtable discussion, so that Oppenheim had an opportunity to refute or at least respond to what I consider the more lucid and unbiased commentary from Lessig.
posted by thanotopsis at 8:49 AM on June 12, 2003

You're next, America.

Nope, it fell flat on its face at last count.


As for interesting RIAA representative quotes:

"Sharing involves lending something to somebody, and while it is on loan, the owner no longer has it. "

Wrong - that's lending. Examples: "I'll share my experiences with you" or, for that matter, "I'll have a share in the profits" or "I'll share the pizza". More often than not, sharing implies division rather than actual transfer.


"The goal of copy protection in CDs is not to prevent individuals from making copies that they want to make for personal use, but rather to prevent individuals from distributing the recordings or making copies they don't have a right to make. "

Gee, that's nice - never mind that the copy protection solely affects the person who bought the CD, and not the folks sitting in the P2P networks laughing their collective asses off at such clever measures.

"We are doing exactly the same thing that every other infringer is doing. "

Surely that must have been a slip.

"Of those less than one hundred mistakes, all of them, as far as I know, have been resolved without any adverse effect on the individuals distributing the content. "

Being unjustly threatened with legal action regarding your own copyrights ... is just a friendly joke, pal.

"Your claim that artists are being cheated out of their revenue is more of a popular myth than anything else. The vast majority of musicians are dying to get contracts with record companies. "

The relationship of the first sentence with the second sentence is lost to me. Extreme analogy: drugs abuse is bad for you, but plenty of people still abuse drugs. Bad joke: and the percentage of drug abusers is probably slightly higher among those trying to get a contract with a music corp when compared to the general population.

"We get it, and record companies have been trying for at least three years to sell music online. Some of the ventures and business models have been more successful than others. "

IOW, you still don't get it.

"Given the increased cost to produce and distribute copyrighted works, Congress has tried to keep pace with what it has believed is necessary to continue to incentivize creators and publishers. "

Except, of course, that there has been no increase in anything other than greed.

"Individuals are not permitted to make copies of their copyrighted recordings and distribute them to others without permission from the copyright owner. Whether or not you do it for free or for profit is irrelevant; the impact on the copyright owner is the same, they do not have the ability to sell their artistic work to others because they have received an unauthorized free copy. "

Zzzzzzzzzz. The fact that someone receives an unauthorized copy does not preclude that the same person would buy one if they did not have the pirated copy. Likewise, having a pirated copy does not preclude the "infringer" is not going to go out and buy a legal one for a wide variety of reasons.

"The DMCA Anti-Circumvention provision is intended to encourage innovation, both in the artistic community and the technological community. "

Technical innovation beaten a German kid using a permanent marker to crack CD protection measures. As for artistic innovation, mr. RIAA has previously mentioned how sales are down and, catch this, "We would love to have more variety on the radio. " Which part relates to the promised innovation
posted by magullo at 9:09 AM on June 12, 2003

Oppenheimer kept parroting the industry line that digital copies are perfect, when in fact most online trading is done using lossy compression such as MP3 that can sound quite poor on a good stereo. These downloads are good for getting a feel for the music before you buy it, but if I like a song I will go out and buy a high quality copy; i.e. CD.

A question that I would have liked to have seen raised is what do listeners do to get access to older or rarer recordings that are out of print but available online? It is not as if one is downloading in place of buying; for some music the internet is the only place to get it.

I am a big fan of Apple's Itunes service, but the selection is limited and the price needs to come down. Why doesn't even one of the big five simply put their entire catalog online with a similar service and see what happens. I think it would be wildly successful, especially if the price were right.
posted by TedW at 9:10 AM on June 12, 2003

My favorite part was when Oppenheim made the argument that longer copyright terms are necessary because, "Given the increased cost to produce and distribute copyrighted works, Congress has tried to keep pace with what it has believed is necessary to continue to incentivize creators and publishers."

Er, what the hell is he talking about? Technology has reduced the cost of production of copyrighted works, and the internet has decreased the cost of distribution.

Never mind how Oppenheim might have responded to Lessig's "lucid and unbiased commentary" -- I'd much rather hear Lessig's lucid and unbiased responses to Oppenheim's idiocy.
posted by jburka at 9:12 AM on June 12, 2003

Lessig Quote I liked: " The RIAA is the Recording Industry Association of America. It is not the Recording Industry and Artists Association of America. It says its concern is artists. That's true, in just the sense that a cattle rancher is concerned about its cattle."

Oppenheim quote I take issue with: [re Copyright and it's goals and extensions of copyright] "Given the increased cost to produce and distribute copyrighted works, Congress has tried to keep pace with what it has believed is necessary to continue to incentivize creators and publishers."

The increased cost of production is a lie; that is it's a choice. Technology, software, is making it cheaper to produce good quality recordings. Also... distribution becoming more expensive? How so? Also... HELLO??? The internet is a form of distribution far cheaper than regular physical transportation costs. More nonesense from the RIAA et al.

Also, "To date, nobody has suggested that copy control technologies have locked up a work that should be in the public domain.

No, that would come in the future. Inevitably. Perhaps when it's too late to rescue the work.
posted by Blue Stone at 9:19 AM on June 12, 2003

After reading some of the other comments, I have to mention that digital copy protection will never work for the simple reason that with gadgets such as these you can take the analog output fram anywhere in your system (line out on the CD player, or the speaker outputs on the amp, for example) and make an unprotected digital copy. With good equipment the loss in quality should be minimal, and the digitized copy can then be duplicated at will. Of course there are also the more high-tech workarounds, such as the magic marker trick magullo mentioned.
posted by TedW at 9:27 AM on June 12, 2003

Oppenheimer kept parroting the industry line that digital copies are perfect, when in fact most online trading is done using lossy compression such as MP3 that can sound quite poor on a good stereo.

I wonder, too, why they keep insisting that mp3s are "perfect digital copies"? Is it a necessary part of their legal argument that the copies be perfect? If so, why aren't defense lawyers using this?
posted by eustacescrubb at 9:44 AM on June 12, 2003

Nope, it fell flat on its face at last count.

I wouldn't draw too much comfort from those articles you link, magullo:

"companies have agreed ... to warn consumers that the CD doesn't work in DVD players, MP3 players or CD-ROM players."

Exactly what EMI and others are doing in Australia and increasingly in Europe: releasing copy-controlled disks and slapping a warning label on them. Since they have monopoly control over any particular release, customers have no choice in the matter if they want to buy it.

"September 3, 2002, 4:00 AM PT: Fearful of consumer backlash, major record labels in the United States have slowed controversial plans for making CDs more difficult to copy, even as tension over online music piracy mounts."

September 2002 was a longggg time ago. Things are really picking up steam in the rest of the world, and it's only a matter of time before America is next. The multinationals are trialing the technology in relatively small test markets, like Australia. When they figure they can get away with it, they'll roll it out everywhere.

And don't be fooled by the line about it being "easier for labels to introduce copy-protection technology without as much fear of a backlash" in Europe because PC use here is lower. PC use in Australia is almost as high per capita as it is in the US, yet music-buyers there are getting shafted regardless.
posted by rory at 9:59 AM on June 12, 2003

The multinationals are trialing the technology in relatively small test markets, like Australia. When they figure they can get away with it, they'll roll it out everywhere.

Yeah, this is definitely happening in other countries, in particular with Sony CDs. I bought a Towa Tei CD when I visited Japan, and I wanted to rip it to MP3 so I could put it on an MP3 CD with the rest of the Towa Tei stuff I have (I have an MP3 player in my car, and I often make CDs full of MP3 to listen to while driving.)

No luck, though, it was one of those "protected" CDs. Irony of ironies, I ended up downloading all the tracks from WinMX just so I could listen to it in the car. Good job, Sony, I'm sure that copy protection kept the music off the P2P networks... oh, wait, it didn't, it actually forced the end user to illegally download the tracks in order to make a 'fair use' of the CD!

The sad part is, there's nothing the record companies can do to stop people trading music. To me, the "mix cds are not allowed" comment from Oppenheim was very revealing - these people have no interest in reality, or in the ordinary, everyday uses that people have for their products. They only have interest in maximizing profits, but they don't seem to have any perspective on where their profits actually come from. This lack of perspective is reflected in their long term strategy, which seems to be to make it so annoying to own a CD that downloading actually becomes easier. In the end, they're going to destroy their user base that way... and somehow, I don't think I'm going to miss them.
posted by vorfeed at 10:36 AM on June 12, 2003

Thomas Jefferson once said:

"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation".

He could have almost been writing about digital media and the internet. I'm somewhat of an information anarchist, and in my opinion those words by Jefferson are some of the most beautiful ever written. Information wants to be free, but people want to lock it up. Somewhere, there must be a balancing point.

I think what irks me most about this debate is the conflation of copying with theft. Copying a song is not like walking into a store and taking a CD. If I copy a CD, no loss has been incurred by the owner of the original. Some might argue that a loss of potential earnings has occurred, but this would be tantamount to counting chickens before they had hatched.

I believe that people mostly copy music which they never intended to buy in the first place. Obviously there are exceptions: namely about ten percent each year, according to the RIAA, although its unclear how to separate that phenomenon from loss of earnings through increasing sales of other digital media (DVD, computer games, satellite TV), which are impacting the amount of time people spend listening to music. Also, there may be underlying economic conditions masking the real trend. However, I'll accept that some loss will occur.

Personally, I never download copies from the internet where I could purchase and rip the CDs myself. This is because I can't stand the shitty 128Kb copies being distributed on the net. Like the process of copying taped music from the radio, it's too slow and the quality is lousy. I know many other people who feel the same way, and I'm thinking that this condition will always exist, because it will always be quicker to hand over a bucket of water than to force it through a narrow pipe. I believe this places an upper limit on the costs, and that the market will eventually stabilise. So the pertinent question right now would appear to be whether the benefits of the internet as a delivery mechanism will outweigh that cost for the RIAA. I think they've guessed wrong, but time will prove it one way or the other.
posted by walrus at 10:38 AM on June 12, 2003

Blue Stone and jburka -

You know what the increased cost Oppenhiem refers to is? It's the ever increasing amount of money they are spending to try to maintain their power and control. In other words: legal fees, hiring people to scour the internet for "illegal" copies of songs, hiring tech companies to come up with new copy protection schemes, etc.

The part where Oppenheim really lost me was when he talked about it being illegal to distribute mix CDs to your friends. Me making a mix CD and giving it to friends is some of the best advertising the RIAA could hope for - a sampler of various artists' best songs that spurs other people on to buy more music.
posted by pitchblende at 11:27 AM on June 12, 2003

"Let's face it -- taping off the radio is time-consuming and quality is lousy. On the Internet however, it is extremely easy to download and the audio quality is near CD. Millions of people now mistakenly believe it is legal. The RIAA, among others, has been trying to educate people that downloading recordings from unauthorized services on the Internet is, in fact, illegal."

So now a crime is defined by it's difficulty, or quality? If I were to steal a shirt from the goodwill, is it not the same crime as stealing one from macy's? And how is that more difficult? I mean, 3 minutes to tape a song on my tape deck, or 15 minutes to download a song over dial up, plus time to burn the cd..
posted by quibx at 12:18 PM on June 12, 2003

Pitchblende, you're right that Oppenheim is probably referring to what the record companies see as the increased cost of doing their kind of business. Except that you forgot to include the bits about modern payola (payments to indies for playlist adds) and the incredible subsidization that goes on in the record industry.

But that's not what Oppenheim said. Let's quote it again (because it really is that silly): "Given the increased cost to produce and distribute copyrighted works..."

It's not about the increased costs of producing and distributing copyrightable material. It's the increased cost of being one of these ridiculous, monstrous record companies.
posted by jburka at 12:35 PM on June 12, 2003

Except that you forgot to include the bits about modern payola (payments to indies for playlist adds) and the incredible subsidization that goes on in the record industry.

I also forgot the high costs of lobbyists and campaign contributions to insure they have friends in high places...
posted by pitchblende at 12:40 PM on June 12, 2003

with gadgets such as these you can take the analog output fram anywhere in your system (line out on the CD player, or the speaker outputs on the amp, for example) and make an unprotected digital copy

Does providing this advice contravene the DMCA?
posted by rory at 3:00 AM on June 13, 2003

I'm curious here, if anyone knows: Is it legal (under the "fair use" doctrine) to download music, software, etc., which I already own in another, less convenient (or copy protected) format? If I decide it's better for me to download an mp3 of a song I only have on vinyl, rather than recording it on the computer directly, or if I want to make a backup copy of GTA Vice City, which would require at minimum a cracked .exe to disable the copy protection check, am I within the law?
posted by arto at 4:11 AM on June 13, 2003

According to Oppenheimer in that article, it is illegal for you to download a higher quality copy of music that you own in another format. However, he stated that you have a right to rip the CD.

You may argue that the vinyl is better quality than the shite mp3s you would find on the net, but since the RIAA are lost in their own little world where everyone can transmit perfect digital copies in an instant, you would find them difficult to convince.

I really hope that a judge would throw it out of court if they tried to sue you for downloading something which you own a copy of, but you never can tell with judges, as many of them appear to live in a completely other different world again.

The no-CD crack sounds like a circumvention of copy technology and would probably be illegal under the DMCA. Many people believe this does breach your right to fair use, and that's what much of the fuss is about with the DMCA.
posted by walrus at 5:07 AM on June 13, 2003

However, he stated that you have a right to rip the CD.

Only in relation to US law, though. Australians, for example, have no such right; converting tracks to digital format without explicit permission became illegal in Oz a couple of years ago. Just before Apple started advertising on Australian TV that we could use their gear to rip, mix, burn. And in the UK, we've got the new European copyright directives to dread look forward to.

As for the DMCA, yeah, I was just pointing out that even telling people that they can make digital copies using the line-out from their stereo might be illegal under the DMCA. So watch out, TedW.
posted by rory at 5:28 AM on June 13, 2003

True enough: in the uk it is illegal to make a copy of a recording for personal use, even if you bought the original. But I think I'm right in saying that such a case has never been brought to court, and that nearly everyone who owns a car does it. As Matt Oppenheimer points out: they have no interest in prosecuting people for enjoying music they've actually paid for. I just think they're more than a little confused about the quality of internet downloads and are thereby vilifying the whole mechanism.
posted by walrus at 7:24 AM on June 13, 2003

Oppenheim. I'm sure he'll forgive me, if not for trying out Napster when it first arrived.
posted by walrus at 7:49 AM on June 13, 2003

[Jefferson] could have almost been writing about digital media and the internet.

Except that he was talking about ideas. Not completed works. Ideas are cheap and easy to come by, but completed works are not mere "ideas" nor are they mere "information." Would you refer to your favorite song as an "idea"? What about your favorite novel, do you like it so much because it is "information"?

As SF writer Larry Niven has reportedly said, if you give him an idea for a story, and he turns it into a bestselling novel which earns him millions, he owes you a beer. The role of the artist in the act of creation is so overwhelmingly large that the moral rights of a creator over his work are essentially exclusive and virtually unlimited.
posted by kindall at 8:06 AM on June 13, 2003

I just think they're more than a little confused about the quality of internet downloads and are thereby vilifying the whole mechanism.

I wouldn't say they're confused, walrus. Disingenuous, perhaps, in the claims they make for rhetorical purposes; but beneath those claims lies a genuine fear for their own livelihood. Sure, 128kbps mp3s sound shitty on a decent stereo, but they sound good enough on computer speakers, or burnt onto a CD and played on a low-end boombox or in a car surrounded by traffic. And for those who historically have bought music in the highest quantities - teenagers - these are the more likely listening conditions. So mp3s are good enough for them, and they're acting accordingly.

What's worse (for the record companies), 192kbps or even 256kbps mp3s are now within acceptable download times for the increasing numbers of people with broadband connections, making the need for the higher quality of CD audio less compelling. The record companies are this close to their main product - plastic disks in plastic cases - becoming completely superfluous for the great majority of their traditional market.

It doesn't matter that mp3s aren't as good as CDs if they're good enough; and it doesn't matter that you can't always find what you want on p2p if most people can. Teenagers looking for the latest hit song by the latest flavour-of-the-month band can probably find it, and take away the sales of hit songs and flavours-of-the-month and your profit margin collapses.

So the record companies turn to copy protection, in the process alienating older music fans like me who actually do buy CDs, because they're desperate to convert the mp3-downloading teenagers into CD buyers. But the imperfect nature of copy protection means that mp3s remain available to download, and what teenager in their right mind would choose a copy-protected disk over mp3s, when they've shown no interest in unprotected CDs? And what long-time CD buyer - the kind who actually owns a high-end stereo, who owns a bunch of different CD-playing devices - is going to be happy with a disk that won't play on all of them? Is there a move more guaranteed to alienate both extremes of the music-loving market, leaving only the uncommitted middle to muddle along with their one album purchase a year?

The CD is dead, 1983-2003 R.I.P.; replaced by copy-protected doppelgangers and inferior-quality mp3s. The losers are those who actually appreciate the difference in audio quality that CD makes, who bought into the whole convert-to-CD argument ten or fifteen years ago and have been propping up the record companies ever since, and who now have nowhere to go but up into the over-priced realms of SACD and DVD-Audio, or down into over-compressed mp3 hell.

Dammit.
posted by rory at 8:56 AM on June 13, 2003

Alternately you could go back to vinyl.
posted by niceness at 9:05 AM on June 13, 2003

Would you refer to your favorite song as an "idea"?

Yes. I can hear it and then play it myself. No two times will be the same, even by the same artist. The idea of the song is what informs the implementation. But both versions are recognisably the same song.

A novel is somewhat different, in that we rarely see "covers" produced.

I know where you're going with this, and I agree to a certain extent (in a pragmatic sense) with what Larry Niven is saying. However, I find it difficult to arrive at a universal separation from idea to end result. And I still believe, although this may prove worth revisal, that it's ultimately the same thing. Information does not become something other than information, when elaborated upon. One version is just detailed in greater complexity.

And ultimately I do love books and songs because of the information content. They are both forms of communication, as is all art when you get down to motivations. Of course I also have favourite styles, and can be struck by originality of approach, even when the "message" leaves me flat.

I could also ask whether a Leonardo sketch is considered a work of art if he never filled it out with oils and canvas? It obviously isn't completed. But maybe there is someone out there with greater brush skills who could excel the Mona Lisa. Would their "completed work" contain more value than Leonardo's "idea" in the Louvre? Should it?

I think we're into relativism, when we talk about what is art. Given that you claim it's something different from an idea, perhaps you could provide a little more justification for your position? I'm asking from interest rather than competitive pique, on this occasion. This is a fascinating subject for me.

I wouldn't say they're confused, walrus. Disingenuous, perhaps

No, that was me :-)

Or perhaps both. Thanks for your long reply to my quality remarks. I don't really have time to get into depth, but I agree in part: it will become slowly more realistic to pirate music than to buy it. Information-wise, the big bucket still wins over the narrow siphon, but of course there is a limit to what the ear can distinguish, and we'll probably end up with more than enough bandwidth to sneak under it. I suppose I didn't think it through enough. As kindall has obliquely pointed out, I am an information evangelist. Phear my communist pinko tendencies, oh money makers.

Double dammit. I too have an anachronistic collection, and it's technically illegal for me to convert, although I'm happily taking the risk. What's the betting that I'll be buying certain recordings for the third time, whenever they settle on a digital format and have invested in cameras that can see into my living room?
posted by walrus at 9:12 AM on June 13, 2003

I'm asking from interest rather than competitive pique, on this occasion.

(meaning that on many occasions when I see people asking for justification for a claim, it's a device to end the discussion, whereas that is not my motive here)
posted by walrus at 9:15 AM on June 13, 2003