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Some background on a major transformation taking place in the music industry, even as most mainstream media organizations print not a word about it:

Reuters article, May 31: Sony BMG tests technology to limit CD burning.

As part of its mounting U.S. rollout of content-enhanced and copy-protected CDs, Sony BMG Music Entertainment is testing technology solutions that bar consumers from making additional copies of burned CD-R discs. … “The casual piracy, the schoolyard piracy, is a huge issue for us,” says Thomas Hesse, president of global digital business for Sony BMG. “Two-thirds of all piracy comes from ripping and burning CDs, which is why making the CD a secure format is of the utmost importance.” … Among the biggest headaches: Secure burning means that iPod users do not have any means of transferring tracks to their device, because Apple Computer has yet to license its FairPlay DRM for use on copy-protected discs. …

San Jose Mercury News, June 15: Music industry eyes `casual piracy.’ Major labels to copy-protect all CDs sold in the U.S. The story begins:

The record labels are in pursuit of a new class of music pirates – not the millions who download bootlegged songs over the Internet but those who copy music CDs for their friends. …

It’s surprising to me that the Mercury News has accepted the record labels’ terminology in this matter. Piracy refers to making unauthorized reproductions of digital media for financial gain – or, stretching the term, for indiscriminate distribution. It is not piracy – “casual” or otherwise – when you buy music and make a few copies for close friends.

As Jessica Litman, author of “Digital Copyright,” writes in her law review article “War Stories,” 20 Cardozo Arts & Entertainment Law

Journal 337 (2002):

Under the old way of thinking about things, copying your CD and carrying the copy around with you to play in your car, in your Walkman, or in your cassette deck at work is legal. Borrowing a music CD and making a copy on some other medium for your personal use is legal. Recording music from the radio; maxing different recorded tracks for a ‘party tape,’ and making a copy of one of your CDs for your next-door neighbor are, similarly, all lawful acts. The copyright law says so: section 1008 of the copyright statute provides that consumers may make non-commercial copies of recorded music without liability. Many people seem not to know this any more.

Now, this is not to say that individuals have a right to make an unlimited number of an unlimited number of CDs for their friends. But where is the debate on this issue? The Merc article goes on:

Sony BMG Music Entertainment, home to some of the music industry’s biggest acts, including Bruce Springsteen, System of a Down and Shakira, plans to copy-protect all music CDs sold in the United States by the end of the year. Another major label, EMI, whose artist roster includes Coldplay and Norah Jones, will introduce copy-protected CDs in its two largest markets – the United States and the United Kingdom – in the coming weeks. For consumers, it signals an abrupt change to the rip, mix, burn mania embodied by the 2001 Apple Computer ad campaign promoting the first iMac computer with a CD burner and software for creating custom music CDs. These new copy-protected discs limit the number of times people can create copies of music CDs or add individual songs to music mixes. … On the PC, a message appears that asks the buyer for permission to install a piece of software on the desktop. Answer no, and the disc is ejected. It won’t play. Once installed, the software regulates how often people can rip a full copy of the CD to the computer, burn individual tracks or make full copies of each album. EMI, for example, will permit the consumer to upload an album once per computer, burn individual tracks seven times and make up to three full copies of each CD.

Should we allow the record labels to define the extent of our fair use rights through the DRM they place on the CDs we buy? (Ernest Miller suggests that the labels are making a strategic mistake through this attack on copying/sharing among family members and friends.)

This latest bit of news comes on top of the restrictions placed on other uses of digital media:

– it’s a federal offense to back up a copy of your DVD;

– it’s illegal to copy a purchased computer game with DRM onto your laptop or desktop;

– the new generation of digital television may impose similar limits on how you can copy or burn Hollywood programming.

Will citizens balk at these kinds of restrictions, or come to accept them? My suspicion is that the Darknet will grow in direct proportion to actions that turn mainstream Americans into “casual pirates.”