A SHORT HISTORY OF COPY CONTROL OR THE CURRENT HEALTH & WHEREABOUTS OF DRM

13 Mar. 2011

As far back as the late 1970’s, long before the digital revolution,  there were various technologies available that were meant to control the illegal use of music and video content. Some were designed to stop copying, some were focused on providing forensic information (i.e. not meant to stop illegal use through technology per se, but to allow such usage to be monitored so that offenders could be identified and prosecuted). None of these were particularly successful. There were various reasons for their failure. From the artist’s point of view, there were concerns about the sonic or visual artifacts in program material and the resulting compromise in quality. From the consumer’s point of view, there was resentment about the prevention of copying for personal use, especially given the price of the product. This was the “fair use” legal argument that came about after WW II with the advent of personal recording devices. But even through the fifties reel-to-reel recording devices were cost prohibitive for the average consumer so home recording did not really take hold until the 8-track cartridge and cassette appeared on the scene. In the end, the content owners pretty much conceded that the degree of alienation generated by their position on copy control was not worth what they might gain even if these technologies really worked well, which they often did not.

Now fast forward (soon to be expressed as skip to the next index point) and we arrive at the introduction of the Compact Disc in the early ‘80s and the Digital Revolution in the Recording Industry. As might be expected, the Recording Industry was eager to re-sell its catalogs in the nifty new digital CD format. And indeed their foray into new technology turned out to be hugely profitable.  Yet the seeds of their own downfall had been planted….they had been offered and had accepted a digital version of the Trojan Horse.  While In the ‘80s Compact discs could only be played on dedicated players, by the early ‘90s computers with CD ROM drives started to appear.  This was the game changer. It allowed the personal computer owner/ music consumer to distil the raw audio data on the CD into a perfect file copy.  Now for all intents and purposes there was no such thing as deterioration of quality from serial copying as in the analog domain. Now there was no limitation (since entertainment content had become merely data) as to how far and how fast it could be moved (over the Internet). Nor was there any way to control how it was used. This, as we have seen, was a very bad thing for the Recording Industry. And the Motion Picture Industry technologists were savvy enough even then to realize that they were soon to be in the same boat. They knew they were only temporarily protected by the greater size of digital video files VS audio files and the resulting increased coefficient of difficulty in manipulating and moving them.  Clearly there was a need to control/track the usage of entertainment assets, and the solution had to be found….fast.

Now we pick up the story in real time. The group of technologies called Digital Rights Management systems or DRM has been around since the mid to late nineties. DRM is pretty much an all-inclusive definition for any technology that is meant to control or track the use of copyrighted assets in the digital domain. Initially, it was thought that copying could be controlled by inserting a “marker” of some sort in a channel not containing but associated with the actual content (thus avoiding altogether any quality questions). It could then be recognized by hardware which would in turn copy or not according to preset rules. This type of double-ended system required cooperation from a lot of different groups with competing interests and thus (not surprisingly) didn’t work. Device manufacturers had little appetite to add the additional circuitry to their products (which was costly and degraded battery life) and which prevented their customers from doing what they wanted to do.  At this juncture “watermarking” came to the fore. It was a way of uniquely marking a piece of content so that its use, legitimate or illegal could then be monitored. This required “sniffing” of Internet backbones and reporting of activity by companies that specialized in providing such forensic service.   A good part of this work is now done through the use of another technology called “fingerprinting”. It involves creating a database from parts of the program material that are relatively easy to “automatically” identify using available algorithms.  This is presently a relatively successful business. The problem (given the nature of the Internet) then becomes one of enforcement after the identification of illegal usage. This often hinges on the interpretation of international treaties, corruption of government officials and other weighty issues that are beyond technological solutions.

There is some good news. A few “non-commercial” areas where DRM has been used quite successfully do exist.  They are: first, in controlling illegal usage resulting from “leaking” of pre-release content meant for review or promotion. This involves watermarking (or the use some other unique identifier) that is tied invisibly or inaudibly to a particular piece of content and also to a specific “first user”. Once this has been done, the threat of very unpleasant consequences for any unauthorized use of a particular “first user’s” content provides a significant deterrent to illegal behavior. Second: going beyond serializing/identifying only pre-release copies to using the same process for prints (or digital deliveries) for exhibitors.  This has resulted in the apprehension of well-organized “pirating” groups who bootleg a copy off a theater screen (which screen can then be revealed by the watermark) and then either upload or manufacture physical media, or both. Once the vulnerable screen has been identified MPAA agents can increase methods of physical surveillance and apprehend the “pirate”.  Today, moving beyond authorized “sniffing” by third party providers, some Internet service providers and equipment manufacturers are exploring a tiered technical approach whereby they can “sniff” data-packet traffic for potential patterns of abuse.  When these packet signatures are detected a secondary form of testing such as fingerprint or watermark detection can be applied.

Additionally, DRM systems can be and are being used to manage legitimate internet commerce. For instance, in the sale of encrypted media files acquired by a consumer from a Website a separate “key” is required to unlock the file before the content can be played. Thus the media file is downloadable for free, but the content owner is then compensated when the consumer purchases the key, though the sequence of events is not always in this order. Third party service providers are often used to confirm payment to the content owner.
Even considering all these advances, the challenges of “commercializing” any type of DRM system in the age of the Internet, i.e. going beyond somehow connecting a limited number of unique pieces of content to unique users (or at least a limited number of users) and into the brave new world of millions of file-sharers worldwide remain formidable. They are further complicated by that “Internet ethos” that rationalizes “everything up here is available and available for free”. The French Government, to its credit, has decided to try. Their Parliament recently passed a tough anti-piracy law that says if you download pirated movies “frequently” you can:  a) lose your Internet connection, b) be fined up to $500,000, or c) go to jail. It remains to be seen how strong a deterrent this proves to be. A little more good news….there are other quite technologically advanced applications being made in this area that could be covered in another editorial, perhaps called “DRM & Internet Commerce.”

My personal opinion is that the protection of the intellectual property of “creators” essential, so that there will remain an incentive to create. And I believe that the “behind the scenes” worker in Hollywood, i.e. the little guy, has a right to be protected against illegal practices that really do threaten his livelihood just as the workers in any other industry in this country.

I doubt anyone would argue the statement that the very structure of the recording industry is being tested by the onslaught of illegal music usage on the Internet. MP3 started the trend, and although they have settled with the “majors”, others like Gnutella, Napster, Scour and their ilk have continued the drive to electronically distribute the intellectual property of artists and their record companies free of charge. In my mind, and in the opinion of the courts so far at least, there is little doubt that this type of activity is both legally and morally wrong. And I believe that on this issue the courts will ultimately uphold the concept that intellectual property, like tangible property, has real value and therefore must be paid for when taken or used. Now the crystal ball comes out for the other more problematic issue -- “so what”.

By that I mean that, at least at this point in time, it appears any legal judgement against this type of activity, while possibly enforceable on a specific case basis, will simply be unenforceable if one considers the big picture. Shut down Napster, up comes Snapster, or Bapster or whatever. And remember Napster had a central site that could be shut down. Others like Gnutella are completely de-centralized and really only facilitate the free sharing of files among users. How do you shut down something like that? It appears that legal remedies may not work as well here in the future as they have in the past.

Many of the people who are pushing for free distribution of music on the net have said the record companies are dinosaurs that insist on trying to make an outmoded business model work. In other words, they would like to be paid by the people who use their product. Not cool in the brave new world of Internet distribution, they say. Better to give the music away and get money from advertisers and merchandizing possibilities on the “give away” site.

It’s clear that the record companies are not yet ready for this. On the contrary, it seems that they are ready to fight tooth and nail to sell their music, like it or not, by distributing it on physical media of some sort or delivering it electronically, and getting paid directly. There was a point early on, I think, where the “if you can’t beat’em join’em” approach might have been used. Some deals among the record companies and the free Internet music companies might have been made, and some reasonable business precedents might have been set. That time seems to have passed, due at least in part, some say, to the arrogance of the major entertainment companies.

So what now? Can the surging tide of free data (including music) on the Net be stemmed? Can technology on its own supply the answer? Can any digital rights management system ever work? What would seem to be necessary is the ability to inaudibly and indelibly mark music in such a way as to enable its identification and control no matter what the user does or doesn’t do. On this front, the SDMI group is still trying valiantly to develop a secure architecture in which the traditional business model of sale and payment would work. I’m afraid that’s a bit like trying to climb the proverbial slippery slope. And this particular slope is one on which the business terrain, complicated by multiple industries each pushing its own self-interest, changes by the minute. I have my doubts it can be done, but I sincerely hope they prove me wrong.

Answers? Not surprisingly, there aren’t any easy ones. In my opinion, one possible solution, other than accepting the proposed new “free music” business model, is to offer the consumer something that is so completely new and so great (DVD-Audio?) that he has to have it. And the only way he can have it is to pay for it. There are no player legacy issues here, so at least that’s out of the way. But it has to be a LOT, not just a little, better. That’s at least a possibility on the physical media side, but it requires some assumptions about security.

If music is delivered electronically, it will might well have to be non label-specific because that’s the way things already are, and that’s the way they like it, these new customers. If they pay at all, they aren’t going to pay for a whole album to get the two or three good tunes. Oops, there’s another very basic change. And again it will have to be, as on the physical side, so new, so great that web users will be willing to pay for it instead of waiting a while and simply grabbing it in OK quality for free, unless some security system can prevent it. I don’t think many of them will be dissuaded by fear of the music police. All indications are that it will be very difficult to dislodge the peculiar sort of “snag it for free mentality” that seems to be endemic when it comes to music on the web.

Clearly, this is a very serious problem. It could well be the most serious one ever faced by the recording, or for that matter, the entertainment industry. I personally believe that people have a right to get paid for what they create. Not just collaterally, but directly if they choose. But can this traditional concept be made to work in the brave new world? That’s where the crystal ball gets very, very hazy.