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Intellectual Property and Culture, tech web toys

EMI dunks it’s foot in the non-DRM waters, and the copyright issues therein

04.02.07 | 83 Comments

EMI has announced that, in partnership with Apple Inc, it will begin in May to offer it's nearly full catalogue - minus still the Beatles - for purchase without DRM from the iTunes music store. DRM stands for "digital rights management" and has been pervasively implemented in the digital sales of major label music. The driving goal behind DRM is to provide the content owners  a great deal of control over unauthorized use, and to do so by literally preventing use. DRM typically makes it theoretically impossible, and in reality annoyingly difficult, to burn more than a certain number of CD's, or listen to the content on certain portable media player, and whatever other technology based use the content holder wishes to proscribe. The copyright question embedded in this practice is, in essence, as follows: when one purchases content for private use, should not the purchaser be allowed to enact that private use in whatever way desired. The most obvious analogy is with a CD or VHS cassette: copyright law, as upheld in a number of court decisions, holds that private, unauthorized uses of recorded media are exempt from copyright control. When I buy a CD, I am free to play it in any CD player I would like, record the tracks onto a private  mixtape as often as I'd like, or even give that CD away to whomever I deem worthy. Likewise for recorded video. The exception for private use was reiterated in the Betamax case three decades ago, and again in the early nineties as digital recording devices proliferated. The 1998 Digital Millennium Copyright Act, however, legislated the legitimacy of owners control over private use. The act is the definitive basis of US digital rights policy, and among its statutes are a set of anti-circumvention provisions that make it illegal to circumvent DRM protections, or to produce technology that facilitates their circumvention.

The DMCA seems to be at the center of all focused discussion, and will be a major player in the final paper written on this research. For the purposes of the thinking here, it is the legislation that cemented the legal legitimacy of DRM. Rights management in this way, through embedding actual limitation in the content, is problematic for reasons beyond simply making it a pain to listen to music bought of off iTunes on a Rio. Within the practice is disregard for fair use. In fact, it often makes fair uses legally impossible. By embeding in content the technical inability to make unauthorized uses, fair uses are also excluded. //examples//  Fair use is central to cultural development and the public good, and so the new copyright regime represented by DRM is dangerous, and EMI's move will hopefully prove successful and spur other labels to do the same. 

Interestingly, EMI's move away from DRM is the result of the market, rather than courts or congress, raising an idea I had not previously considered: the activities of consumers and the market has a vast impact on the rights claimed by copyright holders. If their are sufficient options available to consumers, and consumers find the terms of use for a particular outlet unsatisfactory, than the loss of business to that outlet may cause it to change its policy. What seems unique about digital copyright, and the unusual role the market might play in its development, is the ready availability of identical pirated content without the embedded use limitations of DRM (which,again, is not limited to music). EMI may have smartly come to the conclusion that consumers, when faced with the choice between interoperable content from p2p networks or DRM'd content from online music stores, the prevalence of privacy may not be so much a question of price than dissatisfaction with the limitations on music store content.

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« Information Bill of rights?
» Microsoft will soon ditch EMI DRM on its Zune Marketplace.