These comments of mine are in regard to the recent article on PyMusique in the NYT by David Pogue at
Almost every example of pushback by the community regarding 'lame' distribution restrictions is described by editorial as an exercise of a violation of copyright. I have to disagree. It was not the intent of copyright to let content providers restrict access to content. The intent of copyright is to enable access.
It is rather a function of the content provider's business model to employ techniques such as restricted access and restricted availability. It is an initiative taken by stakeholders of a copyright to try and get the rules modified to force customers to buy product entirely by terms controlled by the content provider. It is also a function of the business to employ convincing argument to get the rules changed.
Right now David Pogue appears to have personally bought into the propaganda of those content providers.
I've seen other business proponents push the heck out of subscription business models when it is marvelously clear that consumers are being driven away from listening to radio. Radio businesses spend a whole lot of time restricting access to content by providing it badly. You can not improve the implementation of the business model by simply increasing the number of channels, as is done by the two satellite radio businesses, if customers aren't drawn by your scintillating content on a small scale.
Consumers instead lean more toward control by copy ownership. The problem is that content providers believe that control by copy ownership is the crux of the problem. This belief is especially strong here in the digital era.
Content providers want to steer the market in a direction that gets away from distributing their content through making copies that linger. iPods violate this idea, so they really want to replace iPods with two-way radios that allow consumer to select a song and let the content provider send a copy their way right there and then, to be played immediately. The device is designed to store a few minutes of content, which is cleared after a period of non-use.
Content providers and especially phone network behemoths absolutely want a piece of the music-by-cellphone pie. They want to provide the aforementioned subscription model. Apple wants to put an iPod in a cell phone, but I think the content providers will attempt to be the first ones to really work with the cell phone service companies, bypassing Apple, to dictate to the cell phone manufacturers what to put into the phones first. Apple worked with Motorola first and then tried to work with the cell phone service companies second. That isn't going to work: cell phone service companies subsidize the phones, so they get to dictate what the phones get. Or so they think. The fact is, the current networks can't do what the content providers really want, but iPods would work fine. This will not stop them from trying. You'll be able to buy your own iPod phone, tho, for the full price of the phone.
A copyright infringer is seen as a constraint upon the legal content provider to free and clear access to the market. The intent of copyright is to allow a content provider the legal teeth to prevent distributors from providing copies of their works outside of their control for a period of time. The fair use terms of a copyrighted work used to be straightforward.
The minimal case is simple to describe. If you made copies for your friends, you're infringing. If you make it easier for you to use the copy you bought, you're not infringing.
The content providers are lobbying to prevent even that much freedom, in preparation of the day when they can forcibly replace the iPod with a mechanism that implements their distribution mechanism of choice which allows them two things.
The first is an adapted strategy in the digital era: content providers and their distributors have a stronger desire to control how people use their products. This desire became a whole lot stronger during the last twenty years because digital formats allow consumers to easily make perfect copies in volume with very little equipment.
The profit motive compels content providers to make content use law and media sufficiently restrictive that, for example, distributors can and will use single-use only mechanisms. If I can sell a single-use copy of my product, customers have to pay in order to experience the content each time! It eliminates the market for used product which siphons cash away from the content providers.
Subscription models are much like this, you pay for temporary access to content, and access goes away when you stop paying for it.
In many cases this is way, way inconvenient to the customer. Customers don't normally go for the most inconvenient way to use something if providers offer alternative and more flexible access. That, tho, is the consumer's problem.
The second is another adapted strategy where content providers and distributors attempt to restrict the availability of their products. They think that: there's so much content available right now, why don't we take a page out of the deBeers business model and restrict the availability of our product to the point where we can charge a reasonable amount of money for each item? Diamonds are pretty common, and can be manufactured artificially in large quantities, but deBeers worked very hard to restrict the availability of diamonds over the years in order to make diamonds worth much more to mine. They succeeded. What ought to cost 10 bucks a carat costs a whole lot more.
My personal reaction to deBeers is to not play their game at all. My wife does not have a diamond ring, nor do either of us participate in diamond bling wars of any sort.
Here's where conflicts of interest can occur between content owners and providers. The content providers think that they should restrict the number of different titles available to make it easier to keep the average sale price higher. iTunes flies in the face of this, however, by providing a venue for content owners to go direct to customers. If content providers get their way, they can end the iTunes threat and make sure that content they control is used as a way to control desire for access to their subscription system, and force content owners to go through them to get to customers, like it has been since before the digital era.
In the battle over Betamax, the content providers thought that recording preempts their absolute control over how people used their products, which they were entitled to because that's the way the laws were set up in the United States.
Except that it turns out it isn't how the laws were set up in the United States. It is, however, where the laws are going in the United States.
So, after all this, does PyMusique allow you to infringe? Absolutely it does, but then so did Betamax, cassette tapes, open real tapes, VHS, cameras and photocopiers. PyMusique more importantly allows you to work around the lame DRM mechanism that keeps you from freely moving the recordings to whichever players are convenient for you.
That's why PyMusique exists. We've had the opportunity to infringe copyright for years, and indeed that sort of thing has taken place since the first recording devices became available.
Can you easily make copies in huge volume and distribute them across the world? Yes. Does this make PyMusique illegal, and automatically make the intent of PyMusique a piracy tool? No, it doesn't. Digital representation is very flexible and powerful, and Apple is using a simple, easily defeated protection mechanism.
It is important for content providers to get enough of the government and the public to accept the meme that digital media is so flexible and powerful that they must provide content in highly restrictive ways to prevent what would otherwise become rampantly infringed properties and which would drive them out of business, that they are entitled to stay in business and maintain their old business model no matter how technology changes the playing field.
They are entitled to try. By the same token, it isn't automatically socially unacceptable or illegal for users to attempt to use their own stuff fairly. If they have to use other aspects of the digital era to solve these problems, they're more than welcome to do so.
Look, we've all seen content providers provide all kinds of incredibly convoluted ways to get the law and society to back them up, including shrinkwrap licenses, DMCA, propaganda and memes. The fact is that the providers are having a problem providing in the digital era using 20th century business models that utterly fail in the early going of the 21st.
