Standards? What Standards?

By Russell McOrmond 10/05/05

A p2pnet article on October 3 describes how online music sales have tripled to make up 6% of total sales, according to International Federation of the Phonographic Industry (IFPI). This masks a growing problem they're creating themselves.

As they move from standards-based physical media to vendor-dependant file formats, they'll be excluding past customers from future sales, and systematically excluding independent creators from participating.

Breaking the Standards

Russell McOrmond

In the past, when customers purchased music, they knew they'd have no problems enjoying the music on any audio device of their choice. With records, you only had to worry about the speed, all 8-tracks would play in any 8-track player, all the way up to audio CDs which conformed to the Red Book standard (Compact Disc Digital Audio system, or CDDA), which would work in any brand of CD player.

But this has changed. Today, more and more audio CDs fail conform to Red Book standards. Instead, they're encoded in a so-called "copy control" format and because these don't conform to universally recognized standards, no one knows exactly how well, or otherwise, these CDs will perform on a wider variety of CD players.

Even if you can listen to a CD today, you don't know if it'll work at all in any player you might try to use at a later date. Whether a CD has scratches or deliberate defects, the effect is the same in that the media is less valuable.

It should be obvious that this technique can only harm sales in the longer term: many potential customers have decided to not buy CDs with this level of uncertainty, which itself will account for part of the decline in CD sales.

The market for downloaded music is worse than with the defective CD market. Online music 'services' marketed by lobby groups only work with very specific brands of audio playing software. This is achieved through the deliberate use of access controls where content is "locked" behind a technical protection measure, and the digital "key" is contained in specific brands of software. With iTunes, the keys are owned by Apple, meaning it can, and does, exclude competitors from creating devices able to play iTunes music. Puretracks, Archambaultzik and Napster use Microsoft Media formats, meaning Microsoft controls the market of devices which can play these songs.

The harm of tying the enjoyment of legally purchased music to specifically branded audio players has been lost on the industry.

Hilary Rosen, the ex-head of the RIAA, complained about the fact that music bought from iTunes wouldn't play on competing audio players. This is the intended purpose of the DRM (Digital Restrictions Management) she'd spent years lobbying the US government to protect under the DMCA, which p2pnet editor Jon Newton believes she may also have had a hand in crafting. And it's understood that was included in the copyright act she helped author for Iraq. As with the recent laughing at the activities of the recording industry, Hillary's unintended humour lost her considerable credibility.

I've written in the past how DRM won't deter people who want to infringe copyright, and how it's hard to understand how DRM is considered to be related to copyright at all. I won't repeat these arguments here. Suffice it to say that DRM only regulates the activities of law abiding citizens and can't achieve the claimed goal of reducing copyright infringement.

While the "Canadian" Recording Industry Association (CRIA) is lobbying Canada to import the same laws into this country, those who understand how the technology works have a hard time understanding why.

The recording industry cartel currently makes its money through a stronghold on the methods of distribution and marketing for recorded music. DRM technology providers will be able to easily replace that traditional roll, given the amount of market domination they'll achieve by controlling the keys to the digital locks. This means DRM vendors such as Apple, Microsoft, IBM, Intel, Matsushita, or Toshiba will eventually replace CRIA owners such as EMI (UK), Universal Music Group (France), Warner Music Group (WMG - US), or Sony BMG Music (US). (We should always remember how little "Canadian" content there is in the self-called "Canadian" recording industry association).

New Right of Access Control?

We need to be very clear about what's being lobbied for through the policy laundered 1996 WIPO treaties, and legal protection for "technical measures" which claim to protect copyright.

Legacy copyright holders are asking a massive expansion of the regulation of copyright to include a sui-generis right of access control (see also: In the Public Interest: The Future of Canadian Copyright Law, chapter 7: Anti-Circumvention Legislation and Competition Policy: Defining A Canadian Way? , Michael Geist, page 224).

Never before has the limited monopoly of copyright extended to issues of access.

When someone bought a book, most uses were entirely unregulated, including any method of access (with or without contacts or eye glasses, no matter what brand of light bulbs were used to light the room, etc) as well as other uses (books used to hold up furniture, etc).

Now the incumbent copyright holders want to, at least in the digital world, have the legally protected right to control all of these things, down to mandating the specific brands of tools which audiences would use to access works.

Equal copyright for young creators!

As a creator, I've been frustrated by the arguments used to justify expansions of the scope and term of copyright. As all creativity builds on the past, the limited scope and term of copyright needs to be understood as not being a limitation of the rights of creators, but as a recognition that the rights of future creators are protected by limiting the control of the past. Those who like to throw the term "theft" around should remember it applies far more correctly to expansions of the scope and term of copyright to the detriment of new creators than it does infringing the copyright of past creators.

The idea that "if some copyright is good for creators, more is better" is entirely false. It's far more correct statement is to suggest that copyright is to creativity like water is to humans; too little and you dehydrate and die, too much and you drown and die.

The idea that the limits of copyright are an expression of creators' rights isn't new. On September 27, I attended a Torys LLP Technology Law Speakers Series with special guest speaker Abraham Drassinower (Torys LLP). The lecture was entitled "Taking User Rights Seriously", and discussed how limits such as "fair dealings" and the limited term of copyright were necessary to equally recognize the rights of future creators.

Drassinower also discusses this theme in chapter 16 of In the Public Interest: The Future of Canadian Copyright Law.

I'd like to expand this theme, suggesting a prohibition on the use of technical measures which control access would also be an expression of creators' rights.

I'm primarily the author of software, specifically communications software. For my software to be commercially valuable, obviously, it must be compatible with other software, allowing potential customers to substitute my software for that of my competitors.

I consider any technology or law which stops me from creating compatible software to be an infringement of my rights, and it's this direct attack on my creative rights which caused me to get involved in copyright reform to begin with. And it's this fight to protect my creative rights which led to my strong opposition to the 1996 WIPO treaties and Bill C-60.

Existing groups that claim to work to protect creators' rights such as the Creators' Rights Alliance aren't yet advanced enough in their thinking to recognize this attack against their rights. Not only are they not fighting against legal protection for technical measures, they're lobbying in support of it. This has meant independent creators who recognize these problems are not only not supported by these groups, we're forced to lobby against them.

An example of the type of dialogue was seen at Cinéfest Sudbury International Film Festival. I was a participant in an industry panel on digital distribution. For various reasons the panel ended up composed of independents including musicians, film and myself representing independent software authors. As independents we mostly agreed, except where it came to technical measures.

I expressed how I, as someone who was a competitor to and not a customer of either Microsoft or Apple, could not legally purchase content encoded in these file formats and enjoy them without circumventing a technical measure. I was bluntly told it was my choice to not be a customer of these companies, and that they believed they had a right to control what tools audience members used to access their works.

This isn't a valid choice. I believe their choice to be an independent creator should be protected, rather than being forced into becoming a passive audience member of the works of others, or an employee of the majors where employees do not enjoy copyright related rights at all. They were effectively saying I shouldn't be allowed to be an independent software creator.

How can it be that at least one member of this panel of independent creators thought that it was appropriate to entirely lock out independent software authors from being able to access his works? You would think that independents would support each other, not directly promote the existing monopolies in each market. While I was hit with one of the most offensive things that can be said to a creator, a complete rejection of his/her creativity, I realize that far too many people simply don't realize the consequences of what they are asking for.

In the current political debate we have photographers claiming they want "equal copyright" with other authors, picking the most expansive scope and term of copyright from the variety of different terms and scope of copyright offered. While I disagree that what they're asking for is "equal copyright" given photography (where the photographer is most often unknown) is very different than books (where author information is contained in the book), I have to wonder if the rhetoric of "equal copyright" can be used by independent creators.

As an independent software and non-software author I believe that our equal rights are expressed in the following ways:

Russell McOrmond, the editor of Digital Copyright Canada, is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons).


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