Opinion: Losing the Fair Use War
By Loyd Case
In the early 90's, two decades after the Vietnam conflict ended, an American delegation went to Vietnam. It
was the first tentative steps to re-establishing relations between the two former enemies. During that trip, an
American general found himself sitting next to a former North Vietnamese general. They spoke at length about
the actual conduct of the war. At one point, the American officer commented that the Americans had never lost
a major battle. To which the Vietnamese officer replied, "Yes, that's true. And totally irrelevant to the outcome."
This may be an apocryphal story, but clearly illustrates the point that tactical victories do not make up for
failures in grand strategy. This brings us to my next anecdote.
Recently, I received email from one of our writers, who shall remain nameless, because his
identity actually isn't relevant here. In it, he discussed the latest moves towards copy protection of music CDs,
and how the entertainment industry is rapidly moving to technologies that will make fair use a fond memory.
The email was witty, full of delicious irony and a very entertaining read. It was also a clear indication of what's
wrong with us. By "us", I mean the tech community at large -- especially those of us who oppose this type of
content protection because it restricts our ability to use content we actually buy.
Whenever anyone in the entertainment industry talks about issues such as copy protecting CDs, the more
vocal elements of the tech community rise up in righteous wrath… and post on Slashdot (http://slashdot.org).
That's certainly useful… not.
We're very good about discussing these issues among ourselves. We smugly pat ourselves on the back, and
talk about how any content protection mechanism will be broken in short order by smart, clever programmers.
Meanwhile, the entertainment industry marches on, tortoises to our hares, and is slowly, but steadily, winning
the battle.
Ultimately, we are irrelevant to the music and movie business. Sure, we buy movies and
music, but if you compare the volume of our purchases to those of the rest of the
population, it's probably a drop in the bucket -- and a miniscule drop as it is. What's
more, members of the tech community are actively working to improve the technology
behind content protection. You think maybe Macrovision is staffed only by marketing
types?
But it's not just the companies that create content protection technologies that are
participating in this. It's the entire tech industry, in one shape or form. Here's how it works.
Industry committees form to discuss key standards. Sometimes the committees are
ad-hoc, sometimes brought by formal organizations, and sometimes they're internal to
large companies that are key players in the business (eg, Intel and Microsoft). When the
committees involve security, engineers from the industries affected sit on those
committees. We're talking about hard core, technology standards groups, not teams of lawyers or marketing
committees. Everyone chips in with ideas, and slowly, slowly, slowly, standards emerge. Some of those
committees create standards for content protection. Or, if the technologies involved aren't specifically content
protection technologies, the standards call for implementation of security for holders of intellectual property.
Meanwhile, the lawyers and lobbyists for the entertainment industry are busy elsewhere, talking with the House
and the Senate, lobbying the FTC and FCC, having lunch with key players in the administration. The
arguments they make seem perfectly reasonable on the surface.
In the end, the work of the standards bodies and the work of the lobbyists come together, with the end result
being restrictions on our ability to use the media we actually buy. Some already exist: DVD regionalization,
Macrovision on VHS, DMCA.
What's worse is that technologies are moving forward that will replace the technologies we're used to using
today -- technologies that will have protections built in that make fair use, in private, a thing of the past.
Take CDs for example. So music companies want to copy protect CDs. The enthusiast community rises up in
arms and talks about boycotts. Yeah, sure -- and all those teenagers buying music will no doubt read tech
forums everywhere to realize a boycott even exists. Then the self-proclaimed hackers beat their chests and
boast about how they'll soon break the technology. So what? By the time it's broken, that music CD will have
already sold 2 million copies.
But again, that's irrelevant -- CDs will be going away eventually. Whether they're supplanted by DVD-Audio,
SACD or something else, CDs will eventually join the vinyl LP on the trashbin of old media. And you can bet
that whatever replaces it will not be so amenable to digital ripping.
Even now, SACD and DVD-Audio players only allow analog output -- no digital stream required. Sure, you
can then record the analog output -- the very clean analog output into digital format -- but how many people will
actually hassle with this. Similarly, when your analog HDTV will only allow you to view 480i images because
your Satellite dish network only allows HDTV viewing on newer HDTVs with built in content protection, you'll
have a really, really expensive NTSC TV.
So go ahead, feel smug the next time you see another press release or news piece
about Hollywood's paranoia about their customers. After all, you'll be able to break it,
and you'll be able to view what you want to view. Meanwhile, rights that most Americans
have taken for granted are slowly, but surely being chipped away. That's because those
who oppose our rights to fair use of content we buy have the passion and self-interest to
pound the pavement, shake the hands and write the checks.
There are things you can do. Join the Electronic Frontier Foundation is one that's usually
suggested, but it's not enough. You have to talk to others -- local politicians, your
congressperson, your senator. Learn more about what fair use actually is, and its limits
and responsibilities. And sure, go ahead and post on Slashdot. Just remember, that's not
enough.
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