25 March 2002

In case you missed it, the recorded-music-buying public is in for a treat: some newly-released CDs, and likely many more to come, have an advanced type of data encryption built into them. The encryption is designed to prevent consumers from doing anything with the CD other than listening to it; if you have ever copied music you own (CDs, tapes, records, whatever) in its their entirety, or perhaps converted it into another format - made a cassette tape from a record, for example, so that you could listen to it on a portable tape player - then you are a part of the collective target at which the music companies are shooting. With this simple act of encryption, these companies are looking to take away - and totally destroy - the long-accepted legal notion of "fair use."

Fair use describes the legal exemptions to copyright law - the allowances that are made for the duplication of copyrighted materials. Students who copy materials in order to do research are considered to be making those copies under the fair use rule. Similarly, copying a page from a book you love is perfectly legal, if you want to stick the page on your wall, or put it in your wallet to carry with you; even copying the entire book is legal, if you want to make notes on it, and don't want to ruin the original. Since you are deriving no further profit from its duplication, and therefore not depriving the author or creator of any further royalties, your act is considered a "fair use" of the object in question. For as long as recording technologies have been available to consumers, the same has been true for music: copy it for yourself, and in whatever form you choose; in buying the work, you have paid for that right.

Now, that right is under serious attack, and although other industries have data protection worries, the biggest anti-consumer push is coming from the music industry - because their products are so easy to copy. (Copying most books is labor-intensive and unlikely to yield a product as useful as the original. Copying software is simple, but fair use copies of software are probably uncommon occurrences; most of us load the software and forget about it, and if we copy it, it is to give it to someone else.) With MP3 technology and CD burners in many households, making literally perfect copies of music is incredibly easy, inexpensive, and produces copies that are indistinguishable from the originals (packaging aside).

The music companies are afraid that the potential for piracy is undercutting their sales, but in the process of loading these discs with encrypted music, they are undercutting our rights as consumers. The point is not that consumers will not know - although the discs are incompatible with some systems, they also come labeled, to tell consumers that the music is encrypted. Rather, the point is that as a consumer, the inherent flexibility we should have once we have purchased a product has been taken away. If you buy a vase, you can use it for flowers, photograph it, or even smash it - all within your rights as an owner. If you purchase a car and choose not to maintain it, let it rot in your garage, or alternatively, decide to soup it up and add new components to it - these are also all things within your rights as an owner. Apparently, however, a CD full of music is deserving of special protections.

The major music companies are aided in this belief by the Digital Millennium Copyright Act, or DMCA, a group of laws passed by Congress several years ago that significantly bolsters the process of safeguarding copyrighted materials - undercutting standard, fair use guidelines. In the case of music specifically, companies will be relying on the component of the DMCA that forbids anyone to reverse-engineer an encryption program used to protect material. So if the kid next door figures out a way to get around the copyright protection on one his new CDs, he'll be breaking the law - even if he never does anything to profit from his ingenuity, either from the software or the resulting, encryption-free music.

As far as I can tell, these companies hope that this whole effort will simply force people to stop swapping music and go back to buying CDs of music they want; they want to change what it means to be a music consumer. This is a story of corporate laziness, and of intellectual weakness. Instead of trying to discover intelligent ways of selling music to audiences with growing interests in new technologies (like MP3s that could be downloaded for a price), and accepting that a reduction in CD sales did not have to mean a vast reduction in profits, the music companies decided that they have only one goldmine, only one source of income, and that this source had to be unbreachable. They have moved from an industrial model that supported technological innovation (however mildly) and development to one that has the staggering-behemoth attitudes of the old Ma Bell telephone companies: you use our product or none at all.

Now, that just doesn't seem likely, does it? Not to this music consumer, anyway. The genie of new music technologies is out of the bottle, and I do not anticipate that it can be recaptured and recorked so quickly. To paraphrase the refrain from a famous song by the Dire Straits, "I like my MP3s." More importantly, I do not anticipate giving up my fair use rights quite so easily, and after all, I do have options - and the best one may be to stop buying new CDs completely.