Skip to Content
Skip to Table of Contents

← Previous Article Next Article →

ATPM 8.07
July 2002


How To



Download ATPM 8.07

Choose a format:

The User Strikes Back

by Ken Gruberman,

Who Controls Your Future?

Recently the Macintosh world has been in an uproar over copy-protected music CDs. The CDs—sold in record stores and through vendors such as—supposedly play on regular CD players but not on computer CD-ROM drives. The intention, as stated by the record companies, is to prohibit the extraction of audio tracks into MP3 files. The rationale is, if you can’t rip a song, you can’t trade it online. The problem with these CDs, however, is they totally lock up Macintosh computers when inserted (and to a lesser degree, PCs). Some people have even reported serious damage to their beloved Mac after inserting one of these CDs.

Dealing with such a situation is a topic for another column. Instead, I would like to talk about the philosophical and legal issues raised by the record companies’ copy-protection schemes. One reasons these topics are worthy of discussion is because we use Macintosh computers which, according to Apple and Steve Jobs, are now digital hubs in the “new digital lifestyle” that many of us are leading. If media companies get their way, however, the idea of a digital hub will become nothing but a pipe-dream.

My main complaint with record companies in particular is their methodology of obstructing consumer rights—along with the quiet elimination of “fair use”—in an attempt to protect corporate profits. The concept of fair use has been around for years, but recently it has been slowly and carefully eroded in the courts and in the halls of government by huge multi-national media conglomerates. It is also at the heart of why we, as Mac owners, have a right to use CDs, iTunes, and an iPod in the way in which they were intended. A Congressman named Rick Boucher is trying to protect fair use, and here’s what he has to say about it:

The American public has traditionally enjoyed the ability to make convenience and incidental copies of copyrighted works without the necessity of obtaining the prior consent of the owner of the copyright. These traditional ‘fair use’ rights are at the foundation of the receipt and use of information by the American public.

From the college student who photocopies a page from a library book for use in writing a report to the typical television viewer who records a broadcast for viewing at a later time to the prudent home computer owner who makes back-up copies of the information he has lawfully stored on his hard drive, we all depend on the ability to make limited copies of copyrighted material without having to pay a fee or obtain prior approval from the owner of the copyright prior to making the copy.

In fact fair use rights to obtain and use a wide array of information are essential to the exercise of First Amendment rights. The very vibrancy of our democracy is dependent on the information availability and use facilitated by the Fair Use Doctrine.

The time, in my view, has come for the Congress to reaffirm the Fair Use Doctrine and to bolster specific fair use rights which are now at risk.

How to Tell the Pirates From the Sharks

As someone who has made (at times) a good living in the music business, you would think I’d be firmly in the camp of the RIAA, the large trade association that represents the major record labels. Their position on the issue of file sharing, copying and the ripping of CDs for use elsewhere can be easily summed up: “Anyone who trades music over the Internet or rips CDs is taking the bread out of the mouths of our hard-working artists and their families!”

Oddly enough, I don’t agree with this position at all…probably because I know all too well how the music business really works. I’ve been in it long enough!

I’m not saying we should be able to make backup copies of CDs or download music simply because record company executives often flagrantly exploit their artists, but I feel it is important to understand the realities of how big record labels make their money—it helps to put the issues of copying and downloading in perspective.

Here are some concrete examples of the strange accounting practices in the music industry: after reading them, it will be hard to take the claims of the RIAA seriously. The first one is a rant by Steve Albini that’s a couple of years out of date, but you’ll get the idea. It shows, in gruesome detail, how a typical band can make $3,000,000 in profits for a record company while the band members themselves lose $14,000 instead. 150 years ago this was known as “indentured servitude.”

Last year, the infamous Courtney Love testified in front of Congress and laid bare just how the music business works in 13 pages of lurid deposition. Salon captured every juicy detail in the riveting Courtney Love Does the Math.

In addition, a recent article in New York magazine shows that things have gotten worse, not better, since Steve Albini’s article. Author Michael Wolff shows how the actual market for music is shrinking, even though record execs don’t seem to realize it. He states:

This glum (if also quite funny) fate is surely the result of compounded management errors—the know-nothingness and foolishness and acting-out that, for instance, just recently resulted in what seems to be the final death of Napster.

You can find out how the Music Business is now like the Book Business (minus the literacy) by reading Facing The Music.

Finally, things are now so bad in the music business that the artists themselves are uniting in protest. Not against the copying of CDs or the downloading of free music, but against the record companies they work for and the RIAA! Find out what led Don Henley, Clint Black, and other musicians to form the Recording Artist’s Coalition.

What about the RIAA’s contention that music-swapping services like Napster have negatively impacted CD sales and wreaked havoc with the music industry as whole? Is it really true? Maybe not.

The Los Angeles Times ran an article by Jeff Leeds on June 20, 2001 showing that, when Napster was at peak popularity, CD sales actually went up, and that the dip in sales started almost at the same time Napster was cut off at the knees in March of 2001. (If you want to read the article, you’ll have to search the archives at and pay a small fee.)

Wired looked at the issue and also found the RIAA’s conclusions specious, mainly due to flawed research. Several instances are cited where CD sales have risen dramatically on various e-tailer sites like Amazon and CDNow when free downloads of songs from various artists and albums were offered.

Add up these facts and you get a different picture than the one the RIAA is painting.

Tripping (and Falling) Down Memory Lane

For those of us with long memories, this situation has a familiar ring to it. Didn’t we go through entertainment industry hand-wringing over new technologies before? Of course we did…several times.

For example, I’ve read in Musician’s Union publications about the panic in the music business when records first became popular, and the fervent belief that it would kill off live music.

The first time I can personally recall a full-blown technological media panic happened when audio cassettes became popular. I remember it well.

It was 1968 and I was attending Los Angeles City College while also spending time at KPFK. I spent a lot of time in the LACC broadcasting department, learning the audio skills I still use today. For a couple of years, I never went anywhere without my trusty Norelco portable cassette recorder; it weighed around 8 pounds but was much easier to use and less bulky than a Nagra portable reel-to-reel. I used it for interviews, documentaries, and other features during my “radio days.” At times, people would stop and ask me what it was. “A ‘compact cassette’ recorder invented by Philips” I would tell them. (Remember that Norelco was—and still is—owned by Philips.) For a while it remained an oddity, and then (it seemed like it happened overnight) everyone had a cassette recorder or player. In their home, their car, and after Sony’s “Walkman” appeared several years later, just about anywhere else.

It didn’t take long for people to figure out how easy it was to make cassette copies: just patch two decks together and hit the record button. (Portable boom boxes would come later with two decks built-in.) By the early 70s, homemade audio cassette copies of popular albums were as prevalent as homemade CDs are today. The record companies made the same noises then as well. “Stealing music is wrong!” they cried, and even came up with a cute “skull and crossbones” logo that was put on all the pop records of the time to remind people not to make illegal copies.

Yet, strangely enough, record sales continued to rise—at times, spectacularly—during the same period. The contention that cassettes were killing the music business was never proven.

Fast forward to the mid-70s, and a new technological terror is born: Sony’s dreaded Betamax video cassette recorder. Now people could make copies of their favorite TV shows (and in some cases, movies) all by themselves. The phenomenon became as widespread as audio cassettes, with the same predictable results. By the early 80s another “sky is falling” press release came, this time from Jack Valenti’s MPAA, which was soon picked up by the mainstream press. Screaming headlines such as “Video cassettes will be the death of the movie business!” appeared in the LA Times and other papers as Universal brought suit against Sony in 1984.

Universal charged Sony with contributory copyright infringement, saying it was illegal to tape certain broadcasts on public airwaves, a capability that Sony’s technology made possible. But the US Supreme Court ruled that if new technology had substantial, noninfringing uses, it should not be squelched, even though the technology may be used for illegal purposes as well.

This ruling, now commonly referred to as the “Betamax Defense,” is still being used today but is under escalating attack from an increasingly conservative judiciary.

The Oldest Trick in the Book

If all that weren’t bad enough, convincing the public that copying and downloading music is wrong goes against one of the cornerstones of modern retailing: the concept of “try before you buy!”

I remember the famous music store at the corner of Sunset and Vine called Wallich’s Music City. They had several listening booths where customers could hear any album they chose: they could listen first and then decide if they wanted to buy it. The idea was wildly successful and the store remained a Hollywood fixture for decades as well as spawning imitators across the country. In the 1990s, the Music Plus chain of stores tried the same idea with CDs, but foundered. They tried to blame the “we’ll open and let you listen to one CD per visit” policy for their financial woes, until it was revealed that bad management was really to blame. Today, music stores such as Tower Records and Borders have listening stations, but patrons can only hear what the store and record label reps want them to hear.

The shareware community is also founded on the principle of try before you buy, and has flourished because of it. This is even more remarkable when you consider that, by and large, shareware authors use the honor system.

The Song Remains the Same

The latest record industry copy-protection fiasco is simply one in a long history of failed attempts to control what can’t be controlled, and only serves to antagonize the people who are legitimately buying music.

The RIAA’s logic is bizarre: “So what if a copy-protected CD won’t play in some PCs, all Macintoshes, and approximately 30 percent of all consumer CD, DVD, and even car players? It’s worth it to keep people from making illegal copies!” Call it their “musical scorched earth” policy.

The truth—as any kid will tell you—is there has never been, nor will there ever be, any copy-protection scheme that can’t be broken. History tells us this time and again. History also shows there will always be a segment of the public that refuses to buy your product: they will either make a copy of it or not deal with it at all, but they will not buy no matter what you do.

As to the question of why the current Internet music sharing craze is so popular, the answers are varied. Of course, the allure of free music is strong, as you might expect it to be, but that isn’t the only reason why Napster became so popular, and current file-sharing networks continue to grow. There are other reasons, all of which elude music executives with their heads firmly stuck in the sand…or elsewhere. Here are some other reasons why music-swapping won’t go away, no matter how hard anyone tries:

The economy—A more logical explanation for the rise and fall of CD sales over the last few years is the economy. When times are good, people will spend money on things they don’t really need, but when money gets tight they won’t. Add to that the steady rise in CD prices over the last several years and you would expect to see a drop in CD sales. And now that everyone knows a blank CD sells for $0.30 or less, the idea of paying $17.98 for a CD makes little sense. Yet that’s exactly what Tower Records charges for current releases, with some selling for even more, even though online e-tailer prices average around $12. No wonder the kids headed for the virtual hills.

The death of the 45 rpm record—Not every recording artist can produce 12 songs of pure genius: many pop records contain only one or two good songs on them at best. This is nothing new, but in the past, people got the songs they wanted on inexpensive 45 rpm records that typically cost $0.99 to $1.49. Today’s CD singles cost anywhere from $4 to $6, with the same one song that used to come on a 45 with some filler material thrown in. At these prices, three songs cost as much as a full album, which is why CD singles have never become as popular as 45s used to be.

Lock-step radio—I could write another article on what is wrong with today’s FM radio scene, but so many others have already done so. For a real eye-opener, try the Chicago Tribune’s Rocking Radio’s World.

Here is the first line: “Commercial radio may be in its worst shape ever, with listeners tuning out and legislators calling for investigation into corporate control of public airways.” Just as with the record industry, a few huge corporations have gobbled up most of America’s radio stations, the end result being the same dreary music being played in every American town and hamlet.

FM radio used to function as a medium that exposed listeners to new music of all types, which in turn spurred record sales. When there’s nothing to hear on the radio but the same songs over and over again, whether the station plays rock, country, or urban, there’s no reason to expect record sales to increase. You’ll notice I didn’t mention jazz or classical: stations that play this kind of music have virtually disappeared from American radio, except for the occasional college station. According to conglomerates like Clear Channel, there’s not enough profit in it.

Perhaps one reason sales increased when Napster came on the scene was that people were again free to sample new kinds of music, and if they liked something they downloaded, they could then buy the album already knowing they would like it. There’s that concept of “Try before you buy” again.

Interestingly enough, the latest rage is streaming Internet radio. If you have a copy of iTunes on your hard drive, click on the “Radio Tuner” and you’ll see a healthy selection of stations. Fueled by the proliferation of fast Internet connections in homes and businesses, Internet radio is another attempt by people to break away from the rigid playlists and formats of FM stations run by soulless automatons and bring back a sense of adventure and playfulness to radio. Not surprisingly, the RIAA has just announced a campaign to squash Internet radio as well.

Time to Take a Stand

If you think all this sounds grim, it’s going to get worse. The RIAA has won a few skirmishes, most notably the hobbling of Napster, and this has emboldened them—and other industry trade associations—to go after the Ultimate Dream of Hollywood: the complete and total control of everything you see, read and hear.

In an article called Hollywood Wants to Plug the Analog Hole, you’ll find out what plans major entertainment corporations have for you, your computer, and your future. As the article says, “[Hollywood’s] three-part agenda—controlling digital media devices, controlling analog converters, controlling the Internet—is a frightening peek at Hollywood’s vision of the future.”

If you would like to take a stand on these issues and preserve the idea of the Digital Hub and everything else the Macintosh excels at when it comes to multimedia, I urge you to join, as I have, the Electronic Frontier Foundation. They are one of the oldest organizations promoting the rights of consumers and individuals over the forces of corporate greed. They will make your voice heard, and they will stand up for your rights. If you do nothing—if you believe that all of this will be sorted out by others and that there is nothing you can do about it—one day you will wake up and find your rights have vanished. Your once vibrant Digital Hub will have become nothing more than a Digital Doorstop.

The choice is yours.

Also in This Series

Reader Comments (7)

James Arnold · July 2, 2002 - 04:23 EST #1
The RIAA is stupid. If they licensed their music to sites that charged by the download or by a monthly fee, they would make money. They would not make the same money as they are making now but they would make money. (Making $5.00 off a $15-20 product is just wrong anyway).

There are sites like that right now, but they either don't have all the record labels signed on or you download an exclusive format that only plays as long as you subscribe. This is wrongheaded, and they mostly don't work with Macs. They need to get their collections online and they need to make it so the quality is guaranteed and the price is reasonable and they need to use an open standard like MP3 or the new MP4. Then, I believe people will be happy to stop the pirating of music. As long as they keep their head in the sand and just try to protect the old way, the situation will get worse and worse.
Lee Bennett (ATPM Staff) · July 2, 2002 - 20:51 EST #2
James - largely true on all points. Only one err in your rationale. It wouldn't make a hill of beans difference if all the record moguls agreed to only earn a nickel profit from each CD, you will always have those who pirate music and annoy the rest of us who have to pay for their selfishness. It doesn't matter if a CD is $15, $5, or 2 cents, people will pirate music simply because they can.
SlotcarBob · July 4, 2002 - 11:26 EST #3
Granted that stealing is a bad thing. Granted that CD burning is scarier than any prior incarnation of a recording device because it has no "loss" of quality.

The record industry is missing Economics 101. They want to charge $18 for a product that is worth $8. Charge a price that the public will freely and easily pay and they won't bother steaing your goods.

Look, I do not condone thievery. Downloading and burning songs is just that. No excuses. Yet, I can't help but recognize the cause and effect. People would much rather go into a store, pick a CD off a shelf, enjoy all the cover art and literature that comes with it, and never even think about doing it themselves. Oh, BTW, don't forget to give the musician his fair share while we're at it.

Note: Same thing for software.
Laird Popkin · July 5, 2002 - 20:36 EST #4
We've been through this before, many times...

Remember when software publishers introduced copy protection? They wasted millions on technologies that annoyed their customers, eventually proving that the vast majority of people are honest and will pay for their software, and that a few people will illegally copy software even if it has "copy protection" and that the cost of the copy protection, both directly and in lost sales, made it a bad business decision. You'll notice that there is no copy protected software any more.

Also, we should be careful about terminology. Terms like "piracy" and "theft" are being intentionally misused by the RIAA, and really only apply to physical goods. If you steal a load of bread from someone, the original owner has no loaf of bread. Ideas (like a song) are infinitely reproducable, and everybody gains by having more access to the idea. The only thing "stolen" is the hypothetical profits of the company who makes money selling access to the idea, money extracted due to an artificial monopoly granted by the government for a limited duration. That's not to say that people should copy copyrighted music willy-nilly, but let's not put the illegal copying of data in the same category as an actual theft where somebody loses something real.
Ken Gruberman (ATPM Staff) · July 15, 2002 - 13:36 EST #5
Laird Popkin said "'ll notice that there is no copy protected software any more."

Apparently Laird doesn't hang out with musicians or script writers, because -- sad to say -- copy protected software is still alive and well. Sibelius 2, the hot music notation from Europe now chipping away at Finale's dominance, uses "hardware protection." That is, each copy is hard-wired to a user's computer CPU chip via the Sibelius web site. Likewise, MOTU's Digital Performer and Mosaic products use traditional key-protection.

And FinalDraft scriptwriting software uses it to. Just thought you should know.
Bill P. · December 30, 2004 - 20:38 EST #6
Laird: The duration is very unlimited, look at copyright lengths over the past 40 years and see where they have gone.
Ken: Your correct, the only copy protection left is all hardware, but Sibelius 2 is cracked already, but you can only find the real thing if your connected to the underground, so it was a bad example. Find something with a real hardware key, such as a USB device with an anti-tampering bit on it, you cannot crack those accurately yet. I say yet for a good reason, everything is meant to be broken.
James Donahue · July 19, 2005 - 18:26 EST #7
The RIAA may do all that bull they want. They want to say: "Copying is stealing".

Of course that sharing music without the authorization is wrong. We do need "some" security against copyright theft, such as some dirty pirate uploading thousands of song, downloading thousands from songs from illegal sites knowing that they want to get that music for free, or making 30,000 copies to sell them on our streets or 20 copies to give to our friends (casual piracy).

But not allowing consumers to copy their music for personal non-commercial use, such as ripping their CDs for their i-Pod, or importing these MP3s to their games on the computer (such as putting that MP3 file as a custom Soundtrack to "The Sims 2"), or being able to edit the tracks for our listening pleasure, is not only infringing on our rights, it should be downright immoral and unamerican. This is America, and we want the freedom to do what we want with music as long as we don't give copies away to our friends without the author's authorization.

And furthermore, by not allowing us to copy our music for our flexibility not only stagmates the market, it hurts innovation and puts tech and programming careers at risk. It's time for the RIAA to stop that whining about the new technology and instead, take advantage towards our way we listen to music.

Why not let users do a file-sharing program with a fee (say, you upload a music towards the internet for free, but another person pays $.99 to download that song. Users can download that song for trial, but would pay the price to keep it perminently on the hard drive.

Do I support copy protected CDs? long as I will still be able to import these tracks to my hard drive, import these tracks into games and my iPod, and be able to re-use my license to put it on another iPod if I want to get a new iPod. Also, a good standered for copy protected CDs would be this:

You can burn up to 1 shared CD (CD-R) per month on a track. These CDs can be played up to 10 times, and these people must pay a certain fee if we were to upgrade that CD to a fully functional one.

You cam burn each track on up to 3 personal CDs at a time (only on a CD-RW). Though these can be played an unlimited amount of time, they won't work on non-DRMed CD players or DRMed CD players that arn't yours. You can renew that license by "checking in" the CD, so that these can be burned again to another CD-RW, or the same CD-RW that you checked out.

You can copy the DRMed files an unlimited amount of times as long as they are on your licenced computer. These files won't be accepted on another machine, but you can upload these files only on to licensed sites (be it a licensed file-sharing site, the song's website, or a music store).

You may edit that song for these purposes: "Listening pleasure, criticizem, or for your own personal melody". However, edited tracks can't be burned for shared use, and you can only post these edited tracks for reviews or criticizm. You can also change the format for the purpose of compatibility.

You can install these CDs on up to 3 computers at once. These license can be renewed if you uninstall the software, allowing you to shift your program from an old computer to a new one.

These CDs, once you install it to your computer, has plug ins that allow you to rip the CD in any way you can chose for your best possible results in performance, according to the plug-ins you have on your machine.

Now, that's perfect copy protection on the CDs that I do accept.

As far as downloading, I can adjust the license to the needs I can, by having a base price for the track (say .50 a song), and adding additional licensing (.15 more per portable audio device, .10 per PersonalUse CD burning), .20 per computer). Each track has 1 shared burn per month. With DRM, it provides me flexibility for purchases and use of the music, while it stamps out piracy.

Furthermore, people have rights to circument the DRM technology for reserch purposes only so that security is better and more consumer friendly, as technology improves.

I think that they should do it this way.

Add A Comment

 E-mail me new comments on this article