Copyright

“My original plan was to buy the CD and then cause a fuss at the store and demand they refund my money when I couldn’t play it on my car stereo,” he says. “But it turned out to be such a trivial workaround I didn’t even bother.”

Cianessi’s trick turns out to be far from the only way to defeat the various forms of copy protection currently debuting on CDs all over the world. (Running a digital output cord from a CD player to a computer, for instance, is also becoming a popular form of circumvention.) But even as crackers continue to prove how easy it is to set information free, the backlash against intellectual property violation is continuing to swell.

Hollywood is on the march. Adding copy protection to CDs is just one tactic in a comprehensive onslaught. Media behemoths like Disney, Sony and AOL Time Warner are seeking full control of all methods of entertainment distribution; if their vision is realized, digital television sets, hard drives, personal video-recorders and wireless devices will all have some form of copy protection. In the most dire incarnation of the digital entertainment future, consumers of music and movies won’t be able to make any copies at all without explicit permission; you might not even be able to move, for example, a recorded version of “The Simpsons” from the digital VCR in your den to the one in your bedroom.

Many critics are convinced that copy-protection technologies are doomed to failure. No system is perfectly secure, and anything that works too well is bound to annoy consumers. Veterans of the consumer industry recall the late 1980s, when many software manufacturers abandoned various copy-protection schemes as bad for business. That cycle, they argue, is set to repeat itself.

But there are signs that the digital future will not resemble the past. Not only do the content companies enjoy access to much more sophisticated technology, but they also have a new tool at their disposal: Congress. The Digital Millennium Copyright Act of 1998 makes it illegal to distribute or even discuss anything that circumvents digital copyright control. And last month, Sen. Ernest “Fritz” Hollings, D-S.C., threatened to launch another bill — the Security Systems Standards and Certification Act (SSSCA) — that will mandate the inclusion of copy-protection technology in all digital devices.

Computer-savvy geeks will likely find a way around every technological advance delivered by state-of-the-art copy protection. But what happens when the law of the land is in direct opposition to mainstream consumer behavior and desires? As the content companies accelerate the deployment of every legal, political and technological weapon in their arsenal, that is precisely the showdown that looms.

Consumers of entertainment have long taken advantage of whatever technology is at hand to make copies of their favorite obsessions. Likewise, content creators have long struggled to resist this tendency. Copyright law, originally intended to balance the needs of both consumers and producers, existed in a middle ground between the two sides. But the advent of the Internet, which makes copying anything digital, anywhere, absurdly easy, vastly increased the stakes of the struggle. In response, the content companies have used their lobbying clout to aggressively redefine copyright law in their own interest.

“Over the past 10 years, many have come around to the view that, in a networked digital world, limitations on copyright owners’ control of their works are no longer desirable,” writes Wayne State law professor Jessica Litman in her book “Digital Copyright.” Intellectual property laws, she adds, have taken on a new meaning. No longer a balance between public and corporate rights, “Copyright is now seen as a tool for copyright owners to use to extract all the potential commercial value from works of authorship, even if that means that uses that have been long deemed legal are now brought within the copyright owners’ control,” she writes.

As a result, if the content companies continue to have their way, the once-freewheeling Net will be reduced to a glorified form of top-down broadcasting: “a digital multiplex and shopping mall,” in Litman’s words; “cable television on speed,” as Lawrence Lessig phrased it in “The Future of Ideas.”

Hollings’ bill, whether or not it passes, will likely accelerate the pace of change. Some of the world’s biggest technology companies are already scrambling to come up with forms of protection that keep content safe. The industry dwarfs Hollywood in size — domestic spending on technology goods and services totaled $600 billion in 2000, according to government figures, while Hollywood receipts equaled $35 billion — but companies such as Intel are still wary of letting Congress dictate their hardware designs.

They’re developing technology out of “a fear of legislation,” says David Touretzky, a computer science professor at Carnegie Mellon University and frequent critic of the DMCA. “Better to negotiate something they can live with than have something imposed on them unilaterally by clueless senators” in Hollywood’s thrall.

Other factors are also in play: Broadband providers and consumer electronics companies are worried that without copy protection they won’t have access to the kind of entertainment that would drive consumer adoption of new technologies. Software industry titans such as Microsoft stand to benefit both from enhanced protection of their own products, and from the sale of security services.

It appears unquestionable that hard-wired copy protection is on the way. But will any of it work the way its backers want? Touretzky notes that in the 1980s, copy protection “really pissed off customers, who found they couldn’t make backups, or recover easily after a disk crash.” Will the new push for protection be any different?

Hollywood will get what it wants, says Talal Shamoon, executive vice president of InterTrust, one of the first companies to pioneer copy-protection strategies for digital audio and video. Cable television, he notes, prevents consumers from accessing content they haven’t paid for; the future of digital entertainment will be equally secure. Get ready for what is increasingly being called “trusted computing.”

Several different approaches are in the works. The “broken media” method discovered by Cianessi on his “More Fast and Furious” CD is one example. Watermarking — incorporating a kind of digital label in a song or TV show or movie that uniquely identifies the copy — is another. There’s also the idea of “protection bits,” a tool currently used in digital audiotapes, which only permits users to make a copy of an original, and not of another copy.

The leading lockdown candidate combines several of these older software fixes with emerging technologies that focus on hardware. The Copy Protection Working Group (CPTWG), a Hollywood high-tech body charged with developing protection for digital television and other forms of video distribution, wants to make it possible for a broadcaster to physically stop users from sending a digital stream of, say, “Star Wars” to a VCR.

“There are two technologies that create secure connection devices,” says Shamoon. “One is called 5C,” named after the five companies that created it — Hitachi, Intel, Matsushita, Sony and Toshiba. “Then there’s another technology from Thomson Multimedia called “SmartRight.”

Both work by embedding a chip that has the power to shut down specific functions in a given entertainment device; such a chip would be able to instruct the device that sending digital output to another device is forbidden.

“Digital rights management” software takes over from there. “There will be something called a broadcast flag, which will be embedded in the digital signal,” says Fred von Lohmann, an intellectual property attorney with the Electronic Frontier Foundation who has attended several CPTWG meetings. “It will identify the content as copy once, copy always, copy never. TV receivers or set-top boxes will read the flag and comply. So if it says ‘copy never’ it will turn off our digital outputs.”

Media players in a personal computer could also be set to read similar “flags,” both for audio and video. And, says Touretzky, everything will likely be encrypted. “For example, instead of sending analog signals to your speakers, you send an encrypted stream of digital data, and the decryption is done in a sealed module built right into the speaker,” he says. “Video is done the same way: Encryption is done in a sealed module built right into the monitor, so you can’t bypass the encryption by tapping into the monitor cables. Disk drive encryption is built into the drive itself, etc., etc.”

There are advantages for both consumers and owners with this scheme, says Shamoon. “It supports the copy/no copy commands but it also lets you buy the movie you just watched at the end, or send it to 10 friends,” he says.

The new techniques, promises Shamoon, will be both secure and painless. “Having been around the block a few times, we’ve learned a lot,” says Shamoon, who once worked for the Secure Digital Music Initiative, creators of a vaunted protection scheme that was defeated in October 2000. “Our new products are as easy as buying something on Amazon, except you don’t have to wait for UPS to show up.”

But just as Shamoon overestimated the strength of SDMI, some experts argue, Hollywood and the digital rights management industry have failed to realize that the search for secure content is a Sisyphean exercise.

Today’s copy-protection technologies are less frustrating than those of the past, but they still threaten to enrage and alienate consumers. Take the case of Microsoft Office XP. The copy-protected software is full of problems, says Tom Cramer, 21, a server technician for Compaq in Colorado Springs, Colo.

“I have a licensed copy and I’ve had to call Microsoft to reactivate it several times,” he says. “When I reformatted my laptop, it didn’t pick up that it was the same machine. I’ve since changed laptops; and the license says that I can have it on one laptop and one desktop but when I bought a new laptop, I had to call again.”

“If this is the kind of protection that gets into a digital device, I’m going to be upset,” he adds. “If I have to call a record label to say, hey, my MP3 player broke, give me another license, I’m not going to buy the device.”

Even the tightest and smoothest forms of protection promise to be not just annoying, but also beatable, say experts. History is on the hackers’ and crackers’ side. Every attempt to handcuff content — even cable and satellite TV — has failed. And the reason is simple: If you can see or hear the content once, you can find a way to copy it. Episodes of “South Park” may originally only be legally available to cable television subscribers, but they’re also easily available via the Net. One digitized, uploaded copy opens Pandora’s box.

If users can’t decrypt the stream, reset the index of the CD or recode the television to allow for digital output, they’ll simply record another way, notes Touretzky. “People don’t care all that much about the superior quality of digital content, compared to price and convenience issues,” he says, pointing out that MP3s became popular even though they sound worse than CDs. “So, if people can’t grab the digital data stream, they’ll just set up a microphone next to their speakers and take the one-time analog quality hit in order to rerecord the data in an unprotected format. Granted, this is a lot less convenient than ripping CDs is now, but they’ll do whatever it takes.”

Ultimately, Touretzky and others argue, copy protection and the Net are technologically at odds, magnets repelling each other in opposite directions. “It’s the nature of the Net to pass information from anywhere to anywhere,” says Princeton computer science professor Edward Felten, who was threatened with legal action by the Recording Industry Association of America for planning to give a paper on how to reverse-engineer SDMI. “It’s the same with PCs: They can handle and process information in any way that you like. Copyright protection is the opposite.”

Society must either give up on copy protection or the general-purpose PC and the Net, says Felten. And no matter how hard Hollywood tries, Felten argues, society will eventually choose the latter because “the sheer value of the Net and computers is so much greater than any value that copy protection can provide.”

Not even Hollings’ Security Systems Standards and Certification Act will keep Hollywood’s content safe, some argue.

“Congress may as well legislate that water has to run uphill,” says Dan Wallach, a computer science professor at Rice University. “All the legislation in the world can’t change the fact that you have this content and if you listen to it or see it, then you can copy it.”

“[New technologies and laws] won’t work any better than the Federal Prohibition Bureau for curbing illegal alcohol use during prohibition,” says Cianessi. “Society will continue to slowly evolve around legislative obstacles, just as it always has.”

But if the technology that Hollywood favors is defeatable, why are people like Wallach and Cianessi so worried? Why are geeks fighting so passionately against the shift toward copy protection?

The technology is not what bothers them — it’s the criminalization of the act of copying, and even worse, of the act of discussing copying, that critics find most alarming. Is it really in the public interest to continually increase the level of corporate ownership of ideas and expression? Who should Congress serve?

The DMCA — which has already been used to threaten Felten and to prevent Web magazines from linking to at least one program deemed illegal by Hollywood — and the so-called Sonny Bono Act, which extended the length of copyright protection by 20 years, forcing some Internet publishers to take down content that was once available in the public domain, are the leading legal offenders.

Both laws, say legal scholars, show how willing Congress is to comply with entertainment industry demands.

“In the 1970s and the 1980s, there were a substantial number of members of Congress who responded with skepticism when the movie or record business insisted that the threat of widespread unlicensed copying required new laws, and copyright owners who sought the legislation needed to draft it narrowly and make a persuasive case it was actually necessary,” Litman says. “That’s why, despite [MPAA chairman] Jack Valenti’s claim that VCRs spelled the end of the U.S. movie industry, Congress did not enact any of the videotape-recorder/copy-protection bills introduced in the 1980s.

“Twenty years later, thanks in large part to the massive increase in lobbying money spent by the entertainment industries, most members of Congress would agree that more copyright protection is always better than less,” says Litman.

The SSSCA fits squarely within this trend. The bill has yet to be introduced, but the draft that leaked to the Net last year would make it illegal “to manufacture, import, offer to the public, provide or otherwise traffic in any interactive digital device that does not include and utilize certified security technologies.”

Hollings, who has received $264,534 in campaign contributions from the TV, music and movie industries since 1997, has attempted to argue that standardized copy protection is the key to encouraging the continuing rollout of broadband Net connectivity. According to this theory, customers won’t sign up for DSL or cable Internet access if they can’t get top-notch entertainment via their computers. But Hollywood won’t make that content available unless it is confident it won’t be pirated.

“This is what he sees as one of the critical problems — the piracy of digital content,” says Andy Davis, a Hollings spokesman. “And this is the method he sees as a solution for that.”

But by outlawing any device that doesn’t comply, the SSSCA would potentially make, for example, software that moved your hard drive’s contents to a remote computer illegal. It would also make possession of devices and software already on sale a punishable offense.

Furthermore, argues Litman, the theory that broadband adoption is dependent on copy protection just doesn’t hold water. The entertainment and information industries made the same argument in the early ’90s as part of their lobbying for the DMCA, she notes, pointing out that they were wrong then, and are wrong now.

“In 1993, the White House was interested in developing what it first called the Information Superhighway and then the National Information Infrastructure,” says Litman. “Entertainment and information industries argued that unless they were given stronger copyright protection, they’d refuse to make their content available over the NII, and therefore nobody would want to use it, so nobody would build the network. The administration actually endorsed this position in 1994 and 1995 reports, and introduced legislation designed to respond to it. Meanwhile, of course, the Internet was growing by leaps and bounds. Despite the absence of Hollywood movies, Random House books and BMG records, the Internet enjoyed the steepest adoption trajectory of any comparable technological innovation, becoming common in the majority of U.S. households within a decade.”

Contrary to Hollywood’s claims, the battle is not over broadband — it’s over business models. Though VCRs, DVDs and other new technologies have all added to Hollywood’s bottom line, Hollywood is convinced that the world of digital downloads and streams will cost more than it brings in to corporate coffers. And so it has turned once again to Congress.

The legislature’s willingness to listen cuts across political lines. The debate doesn’t fit neatly into a liberal/conservative framework, says Lessig. It’s “controlled vs. free,” he writes in “The Future of Ideas,” or “old vs. new.”

Even Shamoon admits that we’re in the midst of an “ugly transition period.” Everyone is dreaming of a time “when content exists in the air and follows you around,” he says. “I want to be able to walk into a hotel room and have it realize it’s me and let me watch my movies from home.”

But that ideal seems a long way off, and in the meantime, despite Congress’ eagerness to do Hollywood’s bidding, there’s no clear sign yet as to who is going to win the intellectual-property wars.

Brian Cianessi figures that his CD will end up looking like some sort of omen — perhaps the thin end of the wedge that marks the end of the golden age of Net file-trading. But he’s not sure what will emerge.

“We currently exist during a turning point that will be considered historically significant to coming generations,” he says. “I can only hope that when they look back to this time they can see the stand we took on copyright as the fulcrum for the shift of power back to the people and away from big corporations.”

This story has been corrected.