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TARLETON GILLESPIE: As you could see from the last chapter, the balance that copyright tries to strike is already a tricky one. And that balance gets fundamentally more difficult every time a new technology changes the game.
Disputes on how to achieve that balance are opened and reopened every time a new technology of distribution or a technology of consumption arrives. And the internet is no exception.
Copyright law was premised on the information technology of the day, print. And in some ways, it's still best suited to it. A series of technologies have emerged since then that affect how copyright works in real practice.
Technology is a distribution, the internet just being the latest, railroad, postal service, sheet music, radio and TV broadcasting, cable and satellite, CDs, and DVDs. And the personal computer is just the latest innovation in the technologies of reproduction from improvements in the printing press, photography, Xerox copiers, audio and videotape VCR.
And certainly, a new technology may tip a precarious balance, especially if there were elements of that balance that turned out to be technology specific. So for example, audio and videotapes lose quality every generation a copy is made. So that created a kind of material barrier, maybe made it a little bit less important to prosecute casual copiers. Digital information loses no such quality every time it's reproduced.
Technology may also reopen old debates. Questions that were settled at one point get asked again. It may tease at ambiguities that weren't dealt with before. It may also provide a strategic opportunity for those who didn't like the balance that was struck to argue that the new technology justifies change, a change, obviously, in their favor.
But let's not just focus on technology as a key disruption. Along with a technology like the internet comes ideas about how information should move, new business models about how you can profit from that, new cultural paradigms about what we're trying to achieve and who should be doing it. So all of these things are changing at once, the technology, the politics, the commerce, the cultural norms.
And the internet and personal computing do change how information is reproduced and how it's distributed. The music movie industries have urged us to focus on two changes. It's very easy and very cheap to copy information with a personal computer, and it's very easy and very cheap to distribute that information over the internet.
These technologies also make it easier to sell your work without having to make a material form, like a book or CD. They make it easier to distribute information without middlemen, like the record industry. They make it easier to know and to cater to customer preferences. They also make it easier to track illicit circulation of content. And all of these changes argue for changes in copyright law.
These questions came to a head in 1999 with a little piece of software called Napster. Napster was designed by Shawn Fanning, who was an undergraduate at Northeastern University. He designed a piece of software that would turn your computer into a server for music. Once you're on the network, your computer would know where all the other music of all the other users were.
You could search for a particular song, or a particular name, or a particular artist. When you searched for that song or artist, you would get a list of every file that was on the network that had that. With a click, you could download that song.
Now, in some ways, this is not entirely different from what the internet promised to be. The internet promised to be a series of de-centralized, connected, and searchable computers where information would move from point to point.
But there's an important difference. The internet maintains a distinction between server computers that are able to deliver up information and client computers, like the one on your desk, that can call for and receive information.
What Napster did, and what the peer-to-peer network software did that followed it is it turned every computer into a server and a client simultaneously. Every computer became a peer.
Napster enjoyed extraordinary popularity. By February, 2001, just over a year after it was introduced, it had over 26 million users. And the technologies that followed Napster, whether it was Kazaa, or eDonkey, or Grokster, or BitTorrent have reached popularity peaks as high as 75 to 90 million users.
Just a few months after Napster was released, it was sued by the Recording Industry Association of America, the RIAA, which is the trade organization that represents the major music labels in the US and Europe.
Their argument was that for every song that was downloaded, for every album that was traded online, that was lost revenue for them. And they pointed to increasing slumping sales over the next couple of years as proof of their argument.
The courts agreed, and in 2001, they imposed an injunction on Napster that required them to filter out any copyrighted material. As soon as they imposed this filter, the network withered and passed on.
But a series of technologies that were designed to be harder to shut down and harder to sue cropped up in its place. So for the next couple of years, the record industry, and increasingly, the movie industry, has been turning to the courts to sue a whole host of players in this arrangement, from the peer-to-peer networks and the companies that support them, to internet service providers and universities, to the producers of consumer electronics, like the Diamond Rio, to end users, whether it was Verizon suing to get the names of users who were using these networks, or sending cease and desist letters and lawsuits to individuals themselves.
These industries were largely successful in the courts. But this violation of copyright is very difficult to prosecute, very difficult to locate people, and it has turned out to be very difficult to stop the widespread use of these peer-to-peer networks.
So the music and movie industries have been looking for other approaches to try to quell the use of peer-to-peer technologies. One has been a series of high-profile educational campaigns, often targeted at classrooms and universities, trying to reach young users. These are designed to teach young users about copyright law and about their risks in using peer-to-peer, legal risks and technical risks.
Whether they come in the form of friendly cartoons or classroom exercises, they are quite often stark moral stories about right and wrong, pitching copyright law in a very particular way, a law that we know from the last chapter is actually trying to strike a very subtle balance. These campaigns have been received with a combination of disinterest and ridicule.
So with the limitations of turning to the courts and the relative failure of these education campaigns, the content industries have been looking for a qualitatively new approach. And the approach that they've settled on is a technical one, Digital Rights Management, or DRM.
Digital rights management depends on the technique of encryption. Once you turn information into digital data, zeros and ones, it can be treated as a very long number. And as a very long number, it can be mathematically altered, so that what it represented, the film, or the song, or the image, can no longer be discovered from that data. The only way you can discover that data is if you have the key that reverses that mathematical equation and restores the image, the film, the song. It's as if the content was cut up like a jigsaw puzzle and the pieces were scrambled. And the only way that you could unscramble it and figure out what that picture was was to know the mathematical key.
So when you go to Blockbuster and you rent a DVD, that DVD comes with encryption. That encryption makes it impossible for you to figure out what film is on the disk, except that your DVD player has a decryption key built-in.
This is the first step of DRM. But by itself, it would not be sufficient to stop copying. If your DVD player could figure out the encryption process and your DVD player allowed you to copy films, encryption would do nothing.
So the second step of the DRM strategy is that your devices, whether the DVD player or the DVD application on your computer, have to recognize that the content is encrypted and have to abide by a set of rules that stop you from copying or distributed that content.
The simple version of this is that your DVD player at home has a Play button, but not a Record button. When you log onto your iTunes application, you can play music. You can organize playlist. But you can't cut and paste from a song like you could in a word processing program.
The third step in the DRM process is to attach rules to that content. One way the content owners can attach rules is they can obligate manufacturers to not allow certain functions, to not allow a Record button.
Another way they can attach rules is to the content itself. So when you download a song from iTunes, that song comes along with what's called metadata, information that isn't the song, but tells you something about the song. That can include the name of the artist and the song title, the CD cover. It could have information about the file format that it's delivered in. It could even have information about the purchase, how much you paid, and who it was sold to.
Along with that information could be instructions to your computer about what you can and can't do with that file. Instructions could be as simple as, don't allow copying, or it could be subtle, like this song can be played a certain number of times on this computer, it can be played for a certain amount of time, it could be shared once or twice, it could be burned to a CD or not. Your iTunes application, your DVD player, your computer have to recognize, honor, and obey those rules.
Now, there are DRM systems in existence that combine these three features, encryption, obligations on the device, and rules attached to the content. But there are two other elements that are still in the mind of those who proposed DRM systems, but are very appealing as a next logical step.
The first is that if you have one DVD player or one application that stops you from copying, but you have another one on the market that doesn't, guess which one you're going to buy. So the ideal is that all devices would honor the same set of rules. This idea is called the Trusted System.
And the dream is that not just every DVD player, but every device that deals with digital content, from your computer, to your cell phone, to your gaming platform, to your camera, would recognize the same encryption, would abide by the same set of rules.
Along with the Trusted System, the proponents of DRM would also like to see a micro payment system. And again, these are largely still in development. Although, there are number of people trying to pursue a workable solution.
The idea is that rather than preventing you from copying, they might attach a small price to copying. So you pay $0.99 to download that song. You can attach your device to mine. And the next thing I know, I get a monthly bill that includes $0.99 as well.
So far I've been talking about this exclusively around entertainment, music and movies. But it's important to know that this is not exclusive to those domains. This is a strategy that regulates the use of information of any kind. And to the extent that it's successfully argued in the domains of music and movies, it could be deployed as a solution to all sorts of information, and information that clearly has public value.
The DRM strategy raises a series of questions. There are engineering challenges. How does this system work? What kind of demands does it make on the technologies it's being designed into?
There are legal challenges. If DRM is supposed to stand in for copyright, how well does it strike the balance that copyright was supposed to achieve?
But DRM also represents a fundamentally new strategy for the regulation of communication and information technologies, changing both the principles and the implementations of copyright.
In the next chapter, we'll examine those questions by looking at how DRM has been imposed on DVDs, and revealing the political underpinnings of what seems like a technical solution.
Join Tarleton Gillespie in examining the effect of copyright on digital culture, and develop insights into the ongoing negotiation about what the internet will be, what shape digital culture will take, and what role technology plays in the organization of society.
This video is part 3 of 5 in the Wired Shut: Copyright and the Shape of Digital Culture series.
