You buy a DVD, and then loan it to your neighbor. You shoot a video of your new baby and make copies to send to everyone in the family. Your college professor shows a short clip of a classic film in class. You’re on vacation so you record three weeks of “Desperate Housewives.” These are all rights we take for granted — but in fact everything you know about owning music and movies is up in the air right now, and where it will come down is anyone’s guess.
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That’s the message of J.D. Lasica’s excellent new book, "Darknet: Hollywood’s War against the Digital Generation," a comprehensive look at the current battle over how record and movie companies will protect their digital property from piracy — and what media consumers may lose in the process. “Darknet” refers to parts of the Web unseen by the public and specifically to the world of illegal underground file-sharing — the only option, in Lasica’s view, that consumers may have if content owners are overzealous in locking up their intellectual property.
It’s hard to deny, however, that big media companies have real reasons for concern: Thanks to file-sharing, millions of young people — the Digital Generation of Lasica’s title — have been taught that digital music is free, and they’re well on their way to deciding the same thing about movies and video. The record and film industries may be coldly calculating corporate behemoths, but they are also protecting the rights of artists. In the end it’s up to the musicians or film-makers to decide if they want to work for free.
(It’s worth noting that "Darknet" is a book rather than a documentary film. Writers tend to be less concerned about digital piracy than other content creators because, while e-books have some devotees, most readers still prefer to buy the paper version. Once good digital reading devices are available and writers make most of their money through e-books, they may also grow more concerned about rights protection.)
In short, an enormous struggle over the protection of intellectual property is underway between the media industry and a loose confederation of digital freedom fighters. Lasica details every aspect of how overly strict control on media could hurt consumers: The new generation of media users, who sample existing works to create new ones, would be locked out by copy protection. Restrictions on commercial content may impact how individuals can use self-created media — some new video cameras, for example, create files that can’t easily be distributed to others. Educators might not be able to take “fair use” snippets of films to illustrate classroom lectures, the way they currently quote from books. Lasica even shows how upcoming efforts to make computers safer from online scams could also give media companies more control over the content we buy.
Another example has lately been in the news, and illustrates the complexity of the issues: the “broadcast flag.” By the time television broadcasts become all-digital (probably at the end of 2008) broadcasters want a guarantee that people won’t be able to make perfect digital recordings of programs and movies and post them on the Internet (sans commercials, of course). The solution they’ve proposed is a bit of digital code in each television show that would tell any recording device — a PVR such as TiVo, a DVD recorder, a computer — that it’s not allowed to record the program, or else puts limits on the recording’s lifespan and portability.
The broadcast flag would require manufacturers to build recorders that will obey those commands — something the consumer electronics industry isn’t eager to do. So far, broadcasters haven’t had much luck promoting the broadcast flag (a recent court ruling said the FCC didn’t have the authority to enforce such a proposal), but it’s likely to show up in Congress at some point soon.
The broadcast flag could cause plenty of consumer headaches, but it’s also interesting to consider the potential impact if digital broadcasting is denied copy protection. Network executives have threatened that without a way to protect their shows, part of broadcast television might become a pay service. In that scenario, the free broadcast television Americans know and love might still exist for older, less valuable programming, but the newest shows and movies would now require a subscription. The networks may be posturing, but it reflects the flipside of the issue: if media companies don’t get acceptable copy protection they may adopt new business models that are also bad for consumers. There must be a reasonable compromise in there somewhere.
Lasica is careful to emphasize that he doesn’t condone piracy. At the same time, however, his inside look at the “movie underground” shows that there is a global network of brilliant minds who are obsessed with “liberating” Hollywood movies. While Lasica’s sources mostly claim that they crack encryption only as an intellectual challenge, they nonetheless make wholesale piracy possible. It’s no wonder, then, that studios want to make their copy protection rock solid and are reluctant, early on, to make consumer-friendly compromises. Until the shopkeeper knows he can lock the door, he’s not that interested in discussing whether to extend his hours.
Technologists argue that the door can never be locked — that the Darknet will always figure out how to crack encryption. That may be true — but the point is to make piracy sufficiently difficult that buying the product legally becomes a simpler alternative, even for those who might otherwise be tempted to pirate. The music industry has started down that path, and so far the results are mixed: illegal downloading is still popular, but as lawsuits against pirates continue, legal downloading is growing. Downloading sites like iTunes offer ease-of-use and convenience, and market forces are reducing both the price of music and the rights restrictions. In a similar strategy, the movie industry recently announced that it will also begin to sell movies online this fall (in addition to current rental sites like Movielink).
The solutions that Lasica offers in his conclusion are sensible, and should be required reading for media companies. But I’m not sure how responsive those companies will be. “The best defense against piracy,” he says, “is a good business model.” Or: “Media companies need to learn to let go.” But how does any business model compete against free? And how does a media company “let go” even as they’re watching BitTorrent and Grokster threaten to become the digital generation’s prime source of music and movies? Both sides of the copy protection battle have legitimate concerns and there’s tough territory ahead to negotiate.
What’s perhaps most striking is how little most consumers are aware of what’s at stake. The Digital Generation knows about the crackdown on illegal file-sharing, of course. And they’ve had a taste of awkward new digital rights schemes, such as those copy-protected audio CDs that won’t play on some CD drives. But relatively obscure measures such as the broadcast flag — which will likely be decided this year — would build an unprecedented level of copyright control directly into many of our digital entertainment devices. Web sites such as the Electronic Frontier Foundation (http://www.eff.org/) and DigitalConsumer.org (http://www.digitalconsumer.org/) are good places to learn more about — and possibly join — the battle over the future of digital entertainment.
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