Defending creators of digital media

Defending creators of digital media

Summary: I wasn't disappointed by the recent Supreme Court ruling that allowed content owners to sue file trading networks for failure to do enough to protect their copyrights. That shouldn't surprise anyone who caught my post last week where I defended content owners against the "fair use" militias who want to force them not to package their products in ways that would help to prevent file trading in the first place (namely, with Digital Rights Management (DRM) that restricts the way media can be used).

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TOPICS: Legal
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I wasn't disappointed by the recent Supreme Court ruling that allowed content owners to sue file trading networks for failure to do enough to protect their copyrights. That shouldn't surprise anyone who caught my post last week where I defended content owners against the "fair use" militias who want to force them not to package their products in ways that would help to prevent file trading in the first place (namely, with Digital Rights Management (DRM) that restricts the way media can be used).

This time, though, I want to explain why it's so important to defend content owners' rights to protect their media, by means both technological and legal. It all comes down to a future where artists don't rely as much on big media companies to distribute and produce their works, and where you, me, and the guys at the Pizza Hut down the street can make professional-quality media that we can sell to 6 billion potential consumers around the world.

I've been a fan of Thievery Corporation since a CD store in Dallas, Texas included "Sounds From the Thievery Hi-Fi" in its selection of the week. My brand of fandom, however, was to buy their albums while knowing next to nothing about the people making the music (I guess I'm more "fan" than "fanatic"), so I read with interest yesterday's article on ZDNet about musicians' response to the Supreme Court ruling.

Thievery Corporation created their own label (Eighteenth Street Lounge Music) in order to avoid having to sign with a major studio, which could have been difficult given the "mere" 150,000 - 250,000 records they sell each year. ESL welcomed the ruling because it was having an effect on sales, and as Matt Whittington, label manager at ESL, noted: "If we lose 30 percent, that's a big deal.

Thievery is no pop band, and I would have a hard time seeing them reaching the popularity of a U2 or Coldplay. Even so, I love their music, and am glad they managed to find a way to continue making it through non-traditional channels. Go back 20 years, though, and the band likely wouldn't have been able to afford starting the company because productions costs were so high.

Today, professional-grade digital recording equipment is well within the range of lots of people, and music labels / recording studios are proliferating. It's not uncommon for popular niche bands, like Thievery Corporation, to start their own label, thus providing a platform for other bands in similar genres to distribute their own music.

Distribution costs, however, are still a large barrier to entry. It costs money to stamp CDs and ship them to distributors. Digital distribution over the internet could theoretically change all that, provided the problem of "trading" in pirated music can be solved. The only way to solve it, in my opinion, is through the use of strong Digital Rights Management (DRM) technology, and that will only work if certain elements in society don't convince governments to prevent them from doing that.

We're standing on the threshold of a new era. The doors of creativity will be thrown open and anyone can make their own music/movies/books/etc. in the comfort of their home and sell it in a global marketplace to anyone in the world. Standing in the way are a bunch of people who can't see past the BIG MEDIA COMPANIES who currently control media distribution and insist, on the basis of novel interpretations of "fair use" principles, that content companies not be allowed to use the DRM that would make that digital future happen.

I want a world where people can make money from distributing a "mere" 5,000 records a year. Today, that means defending the rights of "big media companies" to protect their content however they choose to protect it. I do that because in defending the big media companies, I'm defending the guy in his basement music studio who will make the "niche" music I'll listen to - and collect - in the future.

Topic: Legal

John Carroll

About John Carroll

John Carroll has delivered his opinion on ZDNet since the last millennium. Since May 2008, he is no longer a Microsoft employee. He is currently working at a unified messaging-related startup.

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23 comments
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  • You got it mostly Wrong...

    First of all, you think that most of media these days is pirated and traded - Not True. Barring a few kids here and there most of media is still legally purchased. Now, for those who do download the media for free, these are the people who won't buy it anyway. So no revenues lost here !!!

    Secondly i believe the reason for decreased sales (if any ?) any not due to p2p trading. Its because of the pathetic quality of media coming out in last few years. There wasn't any good album which made me go to music store to grab it. At best the creativity in music and films has been lowered to mediocre levels, if not outright bleak.

    Thirdly your comments about DRM. Forced DRM is such a foolish concept. Kind of like saying - stop being intelligent. Digital content just can't be protected, period. If there is a player out there, someone can just reverse engineer it and break the protection. So are you saying that stop reverse engineering, stop learning science, and just become downright dumb (which our government will be so happy to see). Digital rights should be respected and it will be futile to force them because brilliant products will always be one step ahead of law and bureaucrats. DRM should be educated, not forced...
    low-life
    • Sorry but opinion is not proof.

      YOur opinion - "First of all, you think that most of media these days is pirated and traded - Not True. Barring a few kids here and there most of media is still legally purchased. Now, for those who do download the media for free, these are the people who won't buy it anyway. So no revenues lost here !!!"


      The truth - File swappers that have been caugh red handed had thousands of tracks without ever having bought any of them on their machines.
      No_Ax_to_Grind
      • Well! There you have it

        [i]The truth - File swappers that have been caugh red handed had thousands of tracks without ever having bought any of them on their machines.[/i]

        Thousands. That certainly settles it, doesn't it?

        We now know, thanks to Don, that illegal song swapping accounts for thousands of tracks, or maybe even hundred of CDs.
        Yagotta B. Kidding
    • ESL doesn't think so

      Read that ZDNet article I linked to in the post. They're a small company with much smaller production runs than big media studios, and they think they are losing lots of money from music trading. I think they are in a better positin to know that than people using Grokster (assuming they care).

      [i] Its because of the pathetic quality of media coming out in last few years. There wasn't any good album which made me go to music store to grab it.[/i]

      But, in spite of all that "pathetic quality music," file trading is skyrocketing. You're trying to justify something which the STUDIOS THEMSELVES (the ones making content) know to be wrong.

      By they way, my opinion, but there's so much variety of music out there due to the proliferation of production houses (a result of lower costs from the onward march of technology progress) that I would say there is FAR more GOOD media out there. You just can't go looking for it on the radio, and have to be willing to try out stuff you never heard of.

      As for DRM forever being breakable, I don't agree. But I have no more proof of that than you have of your position. I would just point out, though, that unbreakable DRM IS theoretically possible, assuming you have an end-to-end secure hardware chain and software that uses the latest in cryptography and has no serious errors (by itself a tall order). Granted, it's hard, but there's LOTS of money to be made if they get it right, so don't imagine they'll stop trying.
      John Carroll
      • Unbreakable

        [i]I would just point out, though, that unbreakable DRM IS theoretically possible, assuming you have an end-to-end secure hardware chain and software that uses the latest in cryptography and has no serious errors (by itself a tall order).[/i]

        That's a pretty tall order. Most of the hardware is fairly straightforward, but those last couple of organic steps are a tough proposition.
        Yagotta B. Kidding
        • Agreed

          [i]That's a pretty tall order. Most of the hardware is fairly straightforward, but those last couple of organic steps are a tough proposition.[/i]

          Yes, but there are BILLIONS backing it's development. I think it's going to happen, because there's so much to gain from making it happen.
          John Carroll
          • Good luck

            [i]"those last couple of organic steps are a tough proposition."

            Yes, but there are BILLIONS backing it's development. I think it's going to happen, because there's so much to gain from making it happen.[/i]

            Well, that explains what Bill is doing pumping all that money into medical research.

            As for me, I'm going to seriously resist any "upgrades" to my current equipment aimed at making the xxAA happy.

            You might want to watch an old movie from before your day, John, titled [i]The President's Analyst[/i].
            Yagotta B. Kidding
      • Re: ESL doesn't think so

        [I]"They're a small company with much smaller production runs than big media studios, and they think they are losing lots of money from music trading."[/I]

        They think they are losing lots of money. Its again without proof or numbers - the same fallacy that you or someone else above were accusing me of. Well its all they think, I think, you think.... Did you ever consider that many people actually decided to give ESL a try because of p2p and provided them an audience which would otherwise require so many marketing dollars.

        [I]But, in spite of all that "pathetic quality music," file trading is skyrocketing. You're trying to justify something which the STUDIOS THEMSELVES (the ones making content) know to be wrong.[/I]

        That still doesn't prove the worth of the media they are trading...People will put up with whatever is out there. BTW I NEVER justified trading. I only said, that these media companies are crying hoax whereas the reality is not what they would want you to believe. I don't download any illegal music. Neither my friends, family, or others i know. Just look around yourself and spot how many perople are illegally trading. In the absence of numbers, you'll find legal owners to far outnumber illegal ones. Now don't count China, Russia,... into this. And BTW even in analog era, people did share their tapes, LPs with others, so the sky has not fallen here...

        [I]"I would just point out, though, that unbreakable DRM IS theoretically possible, assuming you have an end-to-end secure hardware chain and software that uses the latest in cryptography and has no serious errors (by itself a tall order)"[/I]

        John, are you really that naieve. What if I have a DRM friendly player and record the sound out of the analog output of my sound card with verry tiny loss of fidelity. Are you going to invent a DRM for analog signals. please....
        low-life
        • Close

          [i]What if I have a DRM friendly player and record the sound out of the analog output of my sound card with verry tiny loss of fidelity. Are you going to invent a DRM for analog signals. please.[/i]

          Not far off. If you look above, his reply when I made the same point (that installing DRM in the listeners would be difficult) was to point out

          [i] Yes, but there are BILLIONS backing it's development.[/i]

          Maybe he was joking. Then again, it would explain all that money from Gates to medical research.
          Yagotta B. Kidding
  • RTFR, John

    [i]I wasn't disappointed by the recent Supreme Court ruling that allowed content owners to sue file trading networks for failure to do enough to protect their copyrights.[/i]

    No doubt you weren't, but alas that wasn't what the ruling held. Pity you didn't read it.
    Yagotta B. Kidding
    • From the ruling

      [i]"There is no evidence that either company (Grokster or StreamCast) made an effort to filter copyrighted material from users' downloads or otherwise impede the sharing of copyrighted files," Souter wrote. "Each company showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users."[/i]

      In other words, to show they had no intent to encourage illegal trading, they have to ACTIVELY attempt to prevent people from trading in such product. Sounds like it [b]allowed content owners to sue file trading networks for failure to do enough to protect their copyrights[/b] to me, though I'm sure lots of people are trying to interpret it in as loose a fashion as possible, depending on their opinion of music copyrights and fair use.
      John Carroll
      • Oops, you've been spanked Yagotta...

        It didn't really hurt that bad did it?
        No_Ax_to_Grind
      • Context, John

        That paragraph came after two pages of evidence that they were actively courting the infringers. It was specifically addressed at countering a possible defense that Napster used.

        The Court rejected the Ginsberg thesis that manufacturers have an affirmative duty to prevent infringement -- exactly what you were claiming the Court supported.

        Instead, the Court went out of its way to emphasize the fact that they were [b]only[/b] reversing the District Court on its assumption that the [i]Sony[/i] ruling insulated distributors from all liability in the presence of "substantial non-infringing use."

        Since the Lower Courts had relied on that assumption in issuing and affirming a Summary Judgment, the facts of liability were never raised. The Supreme Court took no position on the issues of fact mentioned except to point out that they were material; the Supreme Court is not a trier of fact.

        It remanded the factual issues back to the District Court with instructions to try them under the standards of contributing and vicarious liability which are well-established in patent law (from which the Court states the [i]Sony[/i] decision stems).

        Those standards do not include any affirmative duty to prevent infringement. As always, you're welcome to contest this point. I would suggest that you start, as the Court did, with the settled patent law on the subject. Alternately, point out where the Court suggested a change to the [i]Sony[/i] standard, or where the [i]Sony[/i] standard contains any affirmative obligation on the part of the distributor.

        Not that I'm holding my breath.
        Yagotta B. Kidding
  • Much more to it John...

    Everyone keeps talking about music (RIAA?) and video (MPAA?) but he fact is it goes much, much further than that.

    As a small software house I can not afford the luxury of people taking my products without payment. And yes I offer a trial period for testing/evaluation so that bogus argument simply doesn't apply. Heck I've even refunded payment when I thought there was a legitimate reason to do so.

    Being a small development house I get to mix with a lot of other small for-profit developers and they all say the same thing, the pirating must be brought to a stop and those that facilitate it must face the consequences.

    As we move forward in this brave new world few would argue that knowledge/data/IP is truly where the power lies. With it we build the future. If knowledge (IP) truly is the currency of tomorrow, then it deserves the same protection any property has enjoyed through out the history of the US.

    That includes things like AutoCAD drawings, PowerPoint presentations, Word documents, etc., etc. DRM isn't just a feature, it will become the foundation for the movement of knowledge/data/IP securely in the future.

    For these reasons the Supreme Court ruled correctly and set a precedence that we all need, even those that cry about no more free music downloads...
    No_Ax_to_Grind
    • one question though....

      how does one unlock the drm so that future generations can learn from it? Say the company goes under... The DMCA does allow for reverse engineering but it only takes on person with deep pockets to stop that in the current atmosphere. How does one compete with that?
      If as you say its the new currency it should be open for all to accumulate, legally. Locking it down does nothing except construct barriers to all but the most knowledgable and most wealthy, which according to most would be 1% of the population of the US, let alone developing countries.
      And i couldnt care less about movies and music. Im thinking digital archives, like google and what the French are doing for Europe with literary works.
      There needs to be a better trade off for society as a whole..
      icorson1
      • You don't get it, do you?

        [i]There needs to be a better trade off for society as a whole..[/i]

        We're supposed to be better off because the publishers are making more money. Once they get Shakespeare locked down again, there'll be much more money in publishing his works and therefore there will be more copies in circulation.

        Don't laugh -- that's exactly the argument that the US Copyright Office bought in denying exemptions from the DMCA.
        Yagotta B. Kidding
  • it's not about the copyright issue, it's about stifling innovation

    The problem with the current version of the digital rights "solution" is to put it in the cpu, where it will be closed to developers, and anyone who hasn't got really big bucks (read:microsoft)won't be able to develop operating systems, since they won't be "trustworthy" enough to deal with the issue or responsibility. I am not against protecting peoples work, although I believe any effort to stop the spread of commercial free music will ultimately fail, due to consumer demand, and ultimately black market outlets. I hope that a solution can be reached that will not obsolete all the computers in existence as far a media goes, as I believe this too will enhance a black market. If digital rights is done in some way that can be an addition at a reasonable cost (say by replacing a PCI card) then it seems more likely to succeed. The fact is the consumer electronic economy is in for a bit of a hit due to the higher price of gas, and the coming conversion to hdtv (mandatory it seems in 2008) people are going to be hard pressed to buy another computer. If I was going to guess, it will be 2010 before the next buying spree could really occur, plenty of time to work out the bugs in many systems, and hopefully to come to a reasonable solution to the copyright issue.
    pesky_z
  • Well, I was. Apparently gun stores aren't liable when a customer uses

    their product for a knowingly illegal use.

    But for software? Oh, well, lock 'em all up for they've committed a heinous crime.

    Sorry, the "Court" is bought and sold just like anyone else.

    I'll also find a better way to make a living; these patent and other laws get so ridiculous that somebody will soon patent breathing and sue the pants of us all...
    HypnoToad
  • Not very nice.

    Perhaps I am wrong, John, but I would have thought that by having your articles granted some degree of credibility by ZDnet giving you your own space that you would take up the special ethical responsibility of not attacking your readers.

    "'fair use' Militia"? Really now. Just because the foundation of your opinion in your previous article about content control turned to dust does not, in my opinion, entitle you to use such language. You were not attacked, only your opinion. Sure, this is the internet and personal attacks happen all the time. But really you should hold yourself better than that. I try to, anyway.

    You argue like someone who has something to sell and not someone who is trying to seek the truth in the matter. You really should be ashamed of yourself. It is one thing to disagree, it is another to attempt to discredit others through negative associations.
    Zinoron
    • Yes, you're not

      It looks like posting has stopped on this thread so I can safely sneak this in.

      You sure are easily offended.

      I read John's blog post, and his responses to the responses, and didn't even notice that he was attacking his readers.

      The use of the word "militia" offends you? You consider that an "ad hominem" attack?

      Consider your own post here:

      "by having your articles granted some degree of credibility by ZDnet giving you your own space" -- in other words, John's credibility is affected by his platform, and his readers aren't capable of recognizing a worthwhile article without that platform? Are you attacking John's readers who without ZDNet's assistance wouldn't know what was worth reading?

      "Just because the foundation of your opinion in your previous article about content control turned to dust" -- that's NOT an ad hominem attack? You may be right, but it sure sounds like an unsupported and NASTY evaluative statement.

      "You argue like someone who has something to sell and not someone who is trying to seek the truth in the matter." -- Don't MOST arguments attempt to lead people to a conclusion and, in that sense, resemble "selling"? If you think John's arguments are bad, show them to be so, and you will be "selling" him on YOUR argument. Does that mean either of you is less concerned about the truth? If you CARE about the truth, you can't help but SOUND like you care, and that sounds like "selling." An intellectually honest person (which I think John is, since he wrote over 50 articles for ZDNet for FREE), is not invested in his/her argument.

      "You really should be ashamed of yourself." -- That's an incredibly strong, judgmental statement, particularly in a world that isn't embarrassed by most of what's on in prime time TV. Wouldn't it have been NICER to have written your whole post to John IN PRIVATE instead of publicly attacking him PERSONALLY on a point no one else even noticed?

      You seemed capable of writing some high quality stuff in response to John's "Programming as Art" post. What happened overnight?
      mrterryc