Home Taping, Bill C-11, and the War on General Computation
In the 1980s the British Phonographic Industry produced an advertising campaign with the slogan "Home Taping is Killing Music". Latter-day copyright-geek hipsters have appropriated that slogan and its endearing skull-and-crossbones mascot, proudly wearing them on T-shirts.
The copyright-geek hipsters wear those t-shirts ironically. After all, we still have music -- commercial and otherwise -- and the technology of home taping is long forgotten. But tonight it occurred to me that the slogan is correct in an important way.
I realized this while looking at the endnotes of the book Ivan Illich in Conversation, by David Cayley. This book (assigned reading by my cult) was published in 1992, two or three years before the Internet went mainstream. The book consists of several conversations between Illich and Cayley for the CBC radio program Ideas. Several endnotes consisted of advertisements to purchase transcripts of the original radio shows, as in this example (p. 289):
"Literacy: The Medium and the Message," Ideas, CBC Radio, 1988. (Transcript available for $10 from Ideas Transcripts, Box 500, Station A, Toronto, Ont. M5W 1E6).
The idea of purchasing a radio transcript struck me as utterly alien. When I listen to Ideas these days, I don't use the radio. Instead, I download a podcast (for free) and listen to it on my MP3 player. I then have the ability (and I think the legal right) to keep that podcast on my computer and listen to it as many times as I want. Although I can see how a written transcription can be valuable (for example, when taking quotations for essays), I am not at all tempted to purchase such a transcript.
The world of 1992 was quite different. I did not have an MP3 player back then, and Ideas was not released as a podcast. My options for listening to Ideas were twofold: I could listen to it on the radio (arranging my schedule accordingly), or I could tape the broadcast and listen to it later. That is less convenient than getting a podcast, but I could still in principle listen to the radio show several times.
Now think of the world of 1962, before home taping was readily available.[0] If I heard a radio show that I liked, what were my options? I could hope for a rebroadcast of the program, or I could contact the CBC to purchase an audio copy or a transcript. In such a world, purchasing a transcript might make good sense.
In 1962 it was meaningful to talk about two kinds of audio. There was ephemeral media, which was broadcast over the radio. You could listen to the audio once, but it was difficult to listen to repeatedly. Then there was permanent media in the form of vinyl records (or transcriptions, if you cared about words more than sound). The same audio could be made available in both ephemeral or permanent forms, but it was infeasible for regular people to translate between them.
Many industries built their business models on this distinction. The music industry is a good example. Their goal is to make us crave their music. They broadcast this music free on the radio multiple times a day so that it gets lodged in our heads. Then we start liking the music, and we feel good when we hear it in rotation. Twenty years later, we might hear the music of our youth on an oldies station, and feel nostalgic.
The music industry hopes we crave the music so much that we can't stop thinking about it. So we might go to the record store and purchase a permanent version on vinyl, which is how the record companies made their money. We might also purchase tickets to see the musicians in concert, but that would give us another ephemeral experience.
In the world of 1962, such a model made good business sense. You could successfully bombard us with endlessly repeated radio hits for free, because it was difficult to make ephemeral radio more permanent.
Home taping destroyed that business model, because it provided a means of recording radio broadcasts on a permanent medium. Sure: audio tapes were not a great recording medium, but they were good enough that we could play them again and again and again until we had satisfied our craving for the music in question (i.e. we listened to the tracks so much we got sick of them). In this way we could overcome the assault of radio in our brains without paying the music industry money.
That is one sense in which the T-shirt is unironically true. But there is a deeper sense as well. There is no real distinction between ephemeral and permanant media. Anything that can be transmitted over an ephemeral medium (TV, radio, streaming audio) can in principle be copied and consumed repeatedly if the right recording equipment is available. [1]
Here's what home taping did: it gave regular people a concrete way to demonstrate that there is no real distinction between ephemeral and permanent media. The VCR just reinforced this understanding, and in this world of MP3s and digital media nobody really believes that there is a meaningful distinction to be made.
Unfortunately, the record companies (and the movie companies, and the television companies, and book publishers...) don't want to accept this reality. They want to live in the world of 1962, and want us all to make-believe that there is media that we consume ephemerally (radio, movie theatres) and media that is permanent. Most people focus on a different aspect of this delusion: that permanent media are difficult to copy, the way that it is difficult to take a vinyl record and reproduce it without expensive equipment. In my mind there is a spectrum: ephemeral works that are intended to be consumed once, permanent works that are meant to be consumed multiple times but not reproduced, and reproducible works that can be copied and shared with others. In fact all works are reproducible, but media companies like to pretend that the other categories are meaningful.
That, of course, leads us to federal Bill C-11, the third incarnation of the Conservative government's attempt to reform copyright. This bill passed third reading in the House of Commons on June 18 , and as expected it contains the "technological protection measure" clauses that have been so controversial. (So-called Technological Protection Measures (TPMs) are also known as "digital locks", "digital rights management", or "digital restrictions management" (DRM), which is the term I will favour.)
DRM is how companies attempt to return to the world of 1962. They consist of two components: some kind of technology that is intended to make copying media impossible, and legal protections so that if you somehow bypass the DRM you get in trouble. The DRM clauses of Bill C-11 are an attempt to strengthen the legal aspect of DRM, making it illegal to bypass their digital locks.
There are all kinds of problems with this approach. Firstly, they attempt to propagate the delusion that some forms of media are ephemeral and some are not.
Secondly, there are a number of situations in which DRM locks users out of the media that they have purchased legally. As one example, the companies running the DRM licencing servers might stop running those servers, as Microsoft did with its MSN Music servers in August 2008.
Thirdly, this legislation promotes the use of weak digital locks. Although in principle all media can be reproduced, I can believe that there could be DRM that could make it very difficult for most people to carry out those reproductions. If companies wish to put DRM on their products (and those products are not mandatory for me to consume, and I have sufficient choice of other products that do not have DRM on them) then maybe they should be allowed to do so. But I do not like the idea that weak, ineffective digital locks should be protected with the full force of law, because that dissuades companies from implementing digital locks that are actually effective.
DVDs are a good example of this. They are protected with a copy-protection scheme called CSS (Content Scramble System) . CSS has been broken for years and years. But under Bill C-11 it still has the full force of law, and we all have to pretend that this "digital lock" is effective.
Maybe the worst aspect of DRM and this insistence on propagating delusion is the way it attempts to maintain a power imbalance between the copyright holder and the rest of us who are assaulted with their products. Think about the world of 1962 again. In that world, music companies played songs in heavy rotation on the radio so that we would all listen to them and become hooked. The companies want to get their products into our attention. The problem is that these techniques work, and copyrighted works become points of reference in our culture. But after being bombarded with their products, our ability to use copyrighted materials in our cultural vocabulary is heavily constrained, which I think is deeply unfair.
Here is a concrete example: Ferrett and his wife Gini have gotten into the hobby of beekeeping, and this year they have purchased a second beehive for their yard. Ferrett asked his readers to help name the pair of hives, and the most popular suggestion was the pair "Scum" and "Villainy". To many people this suggestion and its popularity would be mysterious, but Ferrett, Gini, and many of their readers are Star Wars geeks. The suggestion played on dialogue from one of the movies: "a wretched hive of scum and villainy". That is a cultural reference, but it is a copyrighted one. In some sense, reproducing such a quotation infringes copyright. People in personal conversation can get away with such infringement. By convention, an essay that properly references the source can get away with such a quotation. But a public statement (especially a commercial statement) is on much shakier ground, especially if it attempts to reproduce or reuse large portions of dialogue. Even works of parody and satire take care to avoid quoting their targets exactly -- for example, parodies of consumer products will often change the names of those products subtly.
To me, it seems that there is an element of cultural theft here. On the one hand, companies want to bombard us with their products, in the hopes of grabbing our attention. They want us to talk about their products and use them in our culture -- that's good marketing. But at the same time, they want to put strict limits on how we use that culture, which means that we cannot build on that culture to make new culture of our own. I doubt I am arguing the point very well here, but I still feel that asymmetry. In my eyes, DRM is an attempt for the copyright holders to enforce the ways they will and will not allow their products to be used more stringently, and therefore is an attempt to constrain how we may or may not use the culture that they themselves assaulted us with.
My last criticism of this delusion is the one I find most distressing. In addition to legally enforcing untrue delusions in media products, companies badly want to propagate those enforcements to delusions about computers. Computers are amazing, flexible devices. In my opinion, learning how to program and use them in unexpected ways is empowering. This is one of the reasons I like open source -- I see it as a form of liberation. But even as they exploit the flexibility of computers for their own benefit (what are MP3 players but little computers, after all?) they want to restrict the ability of others to use computers in innovative ways. In particular, they want to prohibit people from using general purpose computers to play their products, which is why one consequence of Bill C-11 is that you won't legally be able to play DVDs using open source software any more. Author and agitator Cory Doctorow gave a good talk on this subject, which is well worth listening to. By giving DRM the protection of law, the Canadian government has taken a big step towards outlawing certain forms of general purpose computing (namely, the computing that is capable of bypassing DRM). As an advocate for free software and Linux, I find that deeply troubling.
I don't know how any of this is going to work out. Clearly, we are moving away from easy reproduction and towards the delusion of ephemeral recordings again; our widespread embrace of locked-down smartphones and other mobile-computing devices is evidence of that. Such devices prohibit copying according to the wishes of the copyright holder. On the other hand, unauthorized copying of copyrighted material is still rampant. (Sometimes I worry that I might be the only Canadian who opposes Bill C-11 without routinely pirating TV shows and movies. Then again, I do archive interesting podcasts and web pages, so I am no saint.) I would like to think that we will understand that the business model of 1962 is dead, and that we have to adjust to the reality of home taping. But we are awfully good at enslaving ourselves in the name of convenience, so I am far from convinced.
[0] Originally I had used 1972 as the year here, not 1962. As of this writing, Uncle Wikipedia claims that the audio cassette was invented in 1962, so maybe people were killing music via home taping by the early 1970s.
[1] I suppose this is the point at which I am obligated to link to Matthew Skala's essay What Colour are your bits?.) and its followup. Skala talks about the issues involved in trying to treat the same content as different under the law much more effectively than I ever could.