The Entertainment Industry Struggles With Digital Encoding
Earlier this year, Jon Johansen from Norway wrote and posted a program that breaks the encryption scheme on DVDs---Digital Versatile Disks. Because his program de-encrypts the DVD's Content Scrambling System (CSS), he named the software DeCSS. But fame often has its price, which in this case, came as a knock on the door by Norway's federal police. According to Johansen, the police raided his home, seized his computer and cellphone and indicted both Johansen and his father, who owns the domain (mmadb.
The police raid is the most dramatic in a series of legal meneuvers surrounding the protection of digitally encoded audio and video. Hollywood and the recording industry are discovering what the software industry has known for years: digital data is easy to steal. In video and film, a print of a print of a print will suffer obvious degradation. Make a tape recording of a record album, and the copy will contain noise not found on the original. That's not so in a digital recording. A CD copy of the Beatle's A Day in the Life has a definitive data structure---as precise as a spreadsheet or the the object code for Windows 2000. Consummers benefit from this precision in the form of crisper images, scratch-less audio, and no degradation from frequent playing. CDs and DVDs don't have to be rewound and have no moving parts. The industry also also benefits: the cost of producing a CD or DVD is much less than a tape or VCR cassette. It's already clear that tape rental companies will be stacking their shelves with DVDs, consigning tapes to collectors. Industry forecasters see the revolution happening in the U.
But the entertainment industry for also pays the price for digital encoding because piracy has never been easier. You can burn your own illegal CDs for the cost of a CD-R player, whose price sometimes dips below $100 in the U.
Naturally, the entertainment industry is not happy about all of this. They argue that creative artists in both the visual and audio mediums should be paid for their talents, time and risks. A filmmaker may love what he does, but he still wants to be compensated, and the same is true with the most obscure garage band, whose members dream of quitting their day jobs for a lucrative career. Even Shakespeare and Michaelangelo expected a profit from their work.
In the United States, the Congress has attempted to grapple with this brave new era by introducing a broad piece of legislation called the Digital Millennium Copyright Act., (DMCA), which President Clinton signed into law in late 1998. While the law does not extend outside the United States, it has been used by both film and recording industry interests to try and thwart the rampant illegal copying of their material.
In Johansen's case, the 16 years old says he wasn't thinking about piracy when he wrote DeCSS. Rather, he claims he simply wanted to view DVDs on a Linux machine. That's not ordinarily possible because commercial DVD deencryptors are only available via Windows and the MacOS. But the entertainment industry doesn't see it that way. And so, the real action surroundinig DeCSS is taking place not in Norway, but in the the United States, where the lawsuits have been filed under the DMCA against website operators who posted DeCSS. Last December, for example, the DVD Copy Control Association, which represents both film and consumer electronics industries, sued 72 programmers and websites in an effort to stop them distributing DeCSS programs.
In January, eight Hollywood studios followed with their own lawsuit in New York's Federal Court with essentially the same complaint. Jack Valenti, president of the Motion Picture Association of America, said in a statement that the posting of DeCSS is "no different from making and then distributing unauthorized keys to a department store." Plaintiffs are primarily films studios or their subsidiaries such as Walt Disney Company's Disney Enterprises Inc. and Sony Corporation's TriStar Pictures.
So far, the courts have been receptive. The New York judge, Lewis Kaplan, issued a preliminary injunction prohibiting any Internet website from "manufacturing, importing or offering to the public, or otherwise trafficking in DeCSS." In a later memorandum, he rejected the Linux argument, doubting that DeCSS was developed for the sole purpose of achieving interoperability between Linux and DVDs. The judge noted the merits of CSS---that it has been licensed to hundreds of DVD player manufacturers and DVD content distributors around the world, and, since 1996, has helped spur the growth of DVDs for copyrighted movies. More than 4,000 motion pictures have been released in that format in the United States alone, the judge said, with new titles coming at the rate of more than 40 each month. The judge also noted that more than five million DVD players have been sold, with DVD disk sales now exceeding a million units per week.
Kaplan said that, with pending court action in place, "members of the hacker community....
Not surprisingly, the judge's preliminary ruling was met with disappointment. "The motion picture industry is using its substantial resources to intimidate the technical community into surrendering rights of free expression and fair use of information," said Tara Lemmey, executive director of the Electronic Frontier Foundation (EFF), which has become the most visible organization defending the propigation of DeCSS. "These actions are a wake-up call for the technical community. The process of reverse-engineering and public posting and commenting of code that the MPAA (Motion Picture Association of America) is attempting to suppress is fundamental to the development of commercial and open source software."
EFF co-founder John Gilmore called the decision a major wake-up call for the Linux community. "If Judge Kaplan's reading of the DMCA holds, then it will become illegal to build open source products that can interoperate and/
Tara Lemmey also brought up the issue of free speech, a right protected under the U.
But Kaplan has so far rejected the free speech issue, writing that the U.
Napster: A giant pirate bizaar?Just as the film industry is up in arms about de-encryption schemes, so is the recording industry upstet about pirated music in the form of MP3 files. The RIAA lost a lawsuit attempting to ban Diamond Multimedia's Rio MP3 player and now appears to have accepted the MP3 as inevitable. Now, it is directing its legal attention to two technologies that make it easier to download MP3 files, both authorized and pirated.
One lawsuit is against Napster, which was invented by Shawn Fanning and provides a single interface for locating and downloading MP3 formatted music. ("Napster" was Fanning's school nickname, inspired by his curly, "nappy" hair). "Imagine....
The idea behind Napster is that you don't need a central server to store MP3 files. Rather, a community of users can themselves become a widely distributed MP3 music server. With Napster, you designate one folder on your computer as a network-readable location for MP3 files. When you log on with Napster, you make those MP3 files available online to anyone logged on at the same time. Type in "Sisters of Mercy" and if someone online has them, you can download them.
After you disconnect from Napster, pointers to those files remain in Napster's central database---but the files themselves are shown as unavailable. The Napster chat facility makes sense because the users you contact probably have similar musical tastes, and this user-to-user connection means that communitites of like-minded individuals will quickly form. But there is nothing in Napster or the MP3 format to distinguish between a freely downloadable MP3 file and one that has been pirated from a copyrighted source.
Like Jon Johansen, Fanning is a teenager, aged 19, and like Bill Gates, a college drop-out. He started Napster Inc. last year, leaving Boston's Northeastern University as a freshman where he was majoring in computer science. Napster was the first Windows program he ever wrote. Since then, investors have put money down on his software invention and are unlikely to be dissuaded from a mere lawsuit. Fanning has said that he didn't envision Napster as a catalyst for exchanging pirated music. Instead he simply saw it as an extention of the MP3 format, a way for unknown musicians to get a following that bypasses the traditional distribution method of record stores and radio stations. Napster also argues that it is protected by the Digital Millennium Copyright Act, which shields ISPs from being legally responsible for the content they carry.
The RIAA counters that Napster functions as a "giant online pirate's bazaar" and is seeking up to $100,000 for each copy protected song that allegedly exchanged using Napster software. The organization says that, in practice, Napster "maintains a continuously updated database of links to millions of pirated recordings along with software that allows fast, efficient identification, copying and distribution" of those recordings. "Because Napster creates its links from the personal collections of Napster users, without Napster, these infringements would not be taking place at all."
"It is the single most insidious website I have ever seen. It's like a burglar's tool," said Ron Stone of the recording artist agency of Gold Mountain Management, in a written statement on RIAA's website. Another recording artist manager, Simon Renshaw, said that while he and his clients are "huge fans of the Internet and its possibilities," that tolerance doesn't extend to piracy. "If the Internet thieves are not stopped or better regulated, it not only robs current artists, but might have even more serious repercussions for the next batch of artists."
Writing on Salon.
Rosenberg and others suggest that the RIAA is going to have a particularly difficult time successfully suing Napster because the company simply acts as a clearinghouse, not as a policeman. Unlike MP3.
The Napster story has gotten more intricate because several universities have blocked the service---not because of piracy, but because of demands on bandwidth. Moreover, David Weekly [see Pacific Connection number 55 interview ] has published Napster's underlying protocols---which he reversed engineered. A more exensive effort is underway through the OpenNap project. Both efforts mean that if Napster is shut down, a comparable service could rise in its place.
The recording industry is also going after MP3.
The RIAA argues that MP3.
As for the entertainment industry, it sees trouble ahead and wants to squash it quickly. These lawsuits were filed quickly, broadly, for literally billions of dollars---not because anyone thinks there's billions of dollars to be had, but because the recording and film companies want to send as strong a message as possible. But legal action may not be enough---as the software industry has already learned. Indeed, the current situation that the software industry finds itself in may represent the future for the entertainment industry. Mass piraters are sued, but piracy continues, in the form of bootleged copies and companies that buy one copy of a package then illegally propigate it on many seats. These actions have certainly put a dent in software company profits, but hardly drove anyone out of business. For many people, the moral code is to steal first, and if you like it, buy it: effectively transforming all software into shareware. That's a deal that many software vendors can live with, though few will admit it publically.
The entertainment industry makes a different product, one that doesn't require support, bug patches, or incremental upgrades. If you overlook the newer CD issue, The Beatles' Sargeant Pepper is still version 1.
"Whatever the moral objections, I don't care," says Trevor Mery, an Northern California IT professional and enthusiastic Napster user. "The record companies have made millions a minute, and now they're finally facing something they can't control. The Internet is a completely, uncontrollable vehicle for the free-flow of information---it can't be stopped. And I love that."