By Tim Condon, Tampa PC Users Group
tim@free-market.net

What’s the latest in the digital copyright wars? These are battles that are remaking copyright in the age of the computer network.

They include battalions in Washington, DC, including lobbyists doing their jobs; venal politicians without understanding; venal, lying industry representatives who understand only too well; and industrious, idealistic fighters from think-tanks like the Electronic Frontier Foundation (EFF) and the Center for the Public Domain who try to foment understanding among others. Such as those making the laws.

First the bad news. When last we checked in on this particular battlefield, Napster.com had been vanquished. The music file-sharing service was attacked by a pile-on group of lawyers representing, among others, the Recording Industry Association of America (RIAA), the rock band Metallica, rapper Dr. Dre, and some musical has-beens like Deborah Harry and Aimee Mann.

Napster lost. It settled with some of the pile-ons, including issuing corporate apologies to some of the musicians. But the RIAA’s lawyers are still pushing. They want monetary damages for copyright infringement against Napster. This will not only destroy Napster as a business entity, one of the goals of the RIAA, but will also establish an important legal precedent to be used to attack the post-Napster file-sharing services.

Napster, down but not completely out, is fighting a scrappy rearguard action. The RIAA wants the federal district court in California where they’re appearing to rule as a matter of law that Napster is liable for copyright infringement damages. Napster fires back that the court hasn’t even been shown that the music industry companies backing the RIAA own the songs which Napster is said to have violated the copyright on.

The RIAA tells federal judge Marilyn Hall Patel that the court can take it as a "given" that the record companies owned the copyright on all those popular songs. Napster riposted that there’s no way to tell the truth of that unless the Napster lawyers have a chance to look at the contracts the record companies have with the various musicians.

OOOOoooohh. The RIAA and the record companies don’t want that to happen. Why? Simple. Because it would show that the entire modern music recording industry has been built upon wholesale exploitation and economic rape of young, idealistic musicians.

Why? Because it would open up questions about why people are forced to pay $15 to $18 for compact disks that cost 35 cents each to produce.

Why? Because it would open up questions about how each member of one band, a trio named "TLC," made less than $50,000 each in a year after they sold 16 million albums and toured nationally to sold-out arenas. Where did all that money go? Check in with the Dixie Chicks. Their first album sold 10 million copies; their second album has sold 7 million copies and counting. Well, at about $14 each (conservatively), that comes up to over $200 million. Dixie Chick Natalie Maines responds "I don’t even have a million dollars in the bank. Tell me where this money goes. I have no idea." And they’re said to be some of the luckier musicians, with "a great manager [and] great attorneys," says another of the Chicks.

What’s going on here? And what does it have to do with Napster and the Napsteronian services that are following?

On the one hand, it has to do with the viciousness and greed of the music recording industry. But on another level it is merely one "front" in a battle raging across cyberspace, across the legal landscape, and across an academic world concerned with economics, property ownership, and copyright. The problem is that the way the music recording business has evolved, the recording companies control distribution. If you control distribution of copyrightable work, you control a bunch of the economic infrastructure of an industry.

But wait! What about the publishing industry? In that business the authors almost always own the copyrights, and they almost always have ultimate say on who publishes what of theirs, and how. Well, then, how is it that in the music industry, the copyrights to the music and songs are almost always owned by the recording companies? Well, it’s partially because musicians are usually younger, less savvy, poorer, less educated, and more easily talked, scammed or cheated out of what they’ve created. (Feel free to read up about the numbers of old rock musicians who live penniless because they don’t control the music and songs that they created.)

What is going ON here!?! Simply put, the Internet is going on. All of a sudden, the record companies—not to mention the movie companies—can’t monopolize the distribution channels as they’ve been able to do in the past. Now it turns out that music and songs and books and tomes and movies, for gawd’s sake, can all be easily copied and reeeeeelly easily sent all over the world, to anyone who wants a copy. The distribution monopoly is being broken down by the onrushing Internet.

Bad news: Congress passes the Digital Millennium Copyright Act (DMCA), which includes "anti-circumvention provisions" relating to digital encryption coding. That is, it is made illegal to publish or publicize "hacks" or "cracks" of encryption coding that is used (by the recording industry and movie industry) to thwart copying and sharing.

Good news: The motion picture association comes up with an unbreakable encryption system to "scramble" digitized movies, to protect against the illegal copying and sharing of movies.

Bad news: "2600," sometimes referred to as a "rogue hackers magazine," decides to publish DeCSS (De Contents Scramble System), the new decryption code for the unbreakable encryption system, above, and is immediately sued by the Motion Picture Association of America (MPAA), an industry group representing eight of the biggest Hollywood movie studios. The MPAA asks the court to issue an order of "prior restraint" against 2600, thus running squarely into the First Amendment, which abhors prior restraint.

Good news: The Electronic Frontier Foundation (EFF) takes up the case of 2600, arguing that the DMCA is being utilized and interpreted in such a way as to stifle freedom of speech and expression and is thus impinging on the First Amendment.

Bad news: The court grants the MPAA’s request, ruling that 2600 is enjoined from either publishing the DeCSS code or providing online links to anywhere the DeCSS code can be obtained.

Good news: Napster comes on the scene and becomes one of the most astounding success stories in the Internet’s short history.

Bad news: Napster gets piled-on in court and has to fight a desperate rearguard action or become extinct.

Good news: Napster’s rearguard action may bust open to public scrutiny the contracts in the recording industry where musicians are often little more than indentured servants, making about 10% royalties on their music even in the best of cases.

Bad news: The Big Five record companies backing the RIAA have announced that they’re creating a duopoly for online music. Sony Music and Vivendi Universal’s Universal Music are setting up a pay-me service called "Pressplay," while AOL Time-Warner’s Warner Music, EMI Group and Bertelsmann’s BMG are forming another pay-me service called "MusicNet."

Good news: In mid-October 2001 the U.S. Justice Department announces it is investigating whether the record companies are cooperating in order to kill off any competition in the still-evolving online music industry (such as...Napster).

Bad news: The RIAA and the MPAA gang up and file lawsuits against MusicCity, Kazaa and Grokster, three post-Napster file-sharing services that were beginning to share not only music files but whole movies too. In addition, similar legal actions were able to shut down Scour, another sharing service, and pushed Aimster, another such service, close to bankruptcy.

Good news: Swarms of other music-sharing services start popping up from all over the world. Besides Grokster, MusicCity, and Kazaa, there appear AudioGalaxy...Gnutella...Freenet... Gnotella...FastTrack...iMesh. "One, two, many Napsters!" seems to be the chant.

Bad news: The recording industry fights back and tries another technological fix. The Secure Digital Music Initiative (SDMI) produces uncrackable cryptologic coding to protect music files and other digital works from being copied and shared. The SDMI holds a "Hack SDMI" contest, daring hackers to try cracking what they call their new "watermark" system.

Good news: Six months later Professor Edward Felton, a Princeton University cryptology expert, and a few of his students announce they they’ve cracked all the watermark schemes. Prof. Felton prepares to present a formal academic paper at the Fourth International Information Hiding Workshop, explaining how the crypto watermarks were cracked.

Bad news: Professor Felton is threatened with a lawsuit by the RIAA if he presents or publishes his paper, based in part upon the DCMA anti-circumvention provisions. The threat is effective. Professor Felton withdraws his paper from the conference, noting that "litigation is costly, time-consuming, and uncertain, regardless of the merits of the other side’s case," and saying he and his group didn’t want to "expose ourselves, our employers, and the conference organizers to litigation at this time." The threat of lawsuits by the RIAA is thus used to stifle not only the free speech of 2600, but also academic freedom and research. Seems to work great!

Good news: Everyone realizes that Professor Felton’s work was already being distributed throughout the Internet anyway. And the EFF files suit on behalf of Professor Felton and his colleagues. Noting that the DMCA contains criminal provisions for use against individuals or companies that violate the non-circumvention provisions, and that parts of the DMCA interfere with academic research and scientific progress, the EFF asks the court to overturn as unconstitutional some provisions of the DMCA.

Bad news...

Where will it all end? Probably before the U.S. Supreme Court. But that may not even put a stop to it (think about the "final" abortion decision in 1973, and the battles still raging over that). Possibly before Congress again. The whole notion of copyright is being transformed by modern technological advances, and the "old system" is breaking down.

From this ferment, presumably, will eventually arise some kind of steady-state where creators of music and movies can be fairly rewarded for their creativity, while the old distribution monopolies wither away.

And you know what? All of this is merely prelude. It’s a prelude to a far more important issue that will come to the fore within the next year or so. As I’ve noted before, eventually, somehow, some hardware company is going to get it through their thick heads that there is a market for light, inexpensive, clear, electronic reading appliances with reasonable battery lives. That’s all it’s going to take. One company.