Digital Rights Management, Part I

Copyright has always been a bit of a slippery concept, because it’s about intangible, intellectual property rather than, say, sandwiches — stuff you can get your physical mitts on. The digital sphere (internet, mobile technology, etc.) is also a bit slippery, occupying a bunch of code rather than an actual earthbound shopping centre you can drive a car to.

No wonder copyright issues in digital media seem like catching invisible butterflies with an imaginary net. A decade or more into the establishment of the internet as a secure, omnipresent yet virtual marketplace, and six years after the first P2P (peer-to-peer) lawsuits ground through American courts, we still don’t have a playground in which copyright owners (songwriters), businesspeople (labels, distributors, aggregators), and consumers can play well without shoving each other off the teeter-totter.

The economic value of music is in a bundle of rights, like arrows, which, all together, form your copyright quiver. Among these arrows are the rights to copy, record, sell, distribute, and generally exploit and make money (or not) from your songs where, when and how you see fit. All those rights are yours alone until you explicitly license or sell them to someone else. Every time you make a deal with your music (to record, or distribute, or play live, or put up on MySpace) you shoot an arrow from your copyright quiver into the ether. You need to keep track of those arrows. Without them, you don’t eat. Okay, if some joker is making copies of your CD and selling them on a street corner, it’s probably not that hard to put a stop to it. But when people first started grabbing songs off the internet (through file-sharing, P2P sites, and legal downloads), neither the industry nor musicians had a lucid response. On one hand, the promotional potential is fabulously vast. The downside is the anonymity of online transacting makes it all too easy for people to get your songs for free. It’s not like shoplifting from HMV. You can steal songs from the comfort of your own home. So who do you shoot with your copyright arrows?

As downloading and file sharing grew, traditional retail sales went down. So the industry responded with a hearty round of lawsuits, and by coming up with a variety of ways to make copying digital files difficult. Known as digital rights management or DRM, these are programs embedded in the file format that work by blocking operability between playback media, or by fucking up your gear: you download a file with a particular DRM code that stalls or crashes your music library. Or plants a program that spies on you. Or allows the file to work on your PC but not your iPod. All of which had the effects of both forcing pirates to evolve into much smarter pirates; and pissing everyone off.

The majors’ head-in-the-sand reaction to new technologies has proved damaging. While they bemoan the drop in music sales since the big boom of the early and mid-‘90s (which, arguably, was a false boom caused by people replacing old loves, from vinyl to CDs), common sense suggests (and studies have since proved) that file-sharing "illegal” downloaders are the industry’s richest target market — fans so hungry for new music they are willing to steal it. It’s not inconceivable that had consumers been able to buy the music they were sharing, sales would have increased rather than dropped.

The turf war for platform supremacy between Microsoft (and its prevailing audio file format Windows Media) and Apple (proponent of the MP3) has also caused confusion and a general slow-down in developing the internet as a legal market for music. It may seem as though Apple has won the battle: by making the iTunes library operable on PCs, Apple carved out a huge chunk of market real estate for the iTunes online music store. Microsoft, on the other hand, designed its Windows Media files to be compatible only with its own ActiveX servers. So while iTunes can run anywhere, WMA libraries will kick a Mac-based shopper out the door, which of course drives Mac users back to the Apple iTunes store. In plain English: Microsoft nearly entrenched itself out of the market.

But neither does Apple have a perfectly consumer-friendly slate. When you buy a song from iTunes, it is encrypted with a DRM program called FairPlay, which sends information about your computer back to Apple. When you transfer your music files to a new player or computer, that information is also collected and stored. You’re allowed to copy the files to up to five computers, unlimited iPods and unlimited audio CDs (which can’t be legally resold), but if you exceed that number, the file will… I don’t know. Explode or something. And, although songs you buy at the iTunes store will download to your PC, you will not be able to transfer it to any other MP3 player than an iPod. It’s a restriction that was designed to boost iPod sales (mission accomplished!) but has garnered itself a couple of antitrust lawsuits, as yet unresolved.

The needs of the industry, the artists, and the public must and shall be balanced: it’s a matter of market evolution. Major online distributor Puretracks launched on a Windows Media platform, but recently announced a library of DRM-free MP3s supplied by the International Online Digital Alliance (IODA, a content aggregator), and labels like Nettwerk and Arts and Crafts. "Unfortunately DRM has become the whipping boy of interoperability [of devices],” explains Puretracks CEO Alistair Mitchell. "The discussion around interoperability and DRM reached a certain crescendo where we heard from a number of our label cohorts, chiefly indie labels, that they wanted to be able to offer in an MP3 format, and we decided that we needed to be able to serve them. At the root of it really is choice: delivering choice for our suppliers, our labels, and the music fans themselves.”

Clearly, the industry is still struggling to find a coherent way to give consumers what they want — easy access to music — while still protecting their copyrights and those of their artists. Given that we can send a guy to the moon, this shouldn’t be so difficult. Everyone just needs to play along. Until that magical time, pay close attention to where you send your music in the digital sphere. When you upload your songs to any streaming or download-enabled site, read the legal stuff. If a site doesn’t offer a download agreement, do not put your music there. If it does, read the thing and look for language that states clearly that you are now and will ever remain the owner of the copyright in the songs; and that users of the site will not be authorised to copy your music for any commercial purpose. Above all, remember that you should be paid for your music, so if the site is collecting money from people who use your music, then you should get a chunk of it. Do not buy into the argument that all downloads should be "promotional”: that’s akin to arguing that musicians shouldn’t charge for live shows because they’re only playing to promote record sales.

Make sure your tracks are wrapped with an International Standard Recording or ISRC code. These codes ensure that your music is tracked for royalty collections wherever they apply. The Canadian Recording Industry Association (www.cria.ca) manages the assignment of ISRC codes for Canada. (Assignment is free, but it might cost a few bucks to have your files properly encoded in the mastering process.)

Coming in May: Part II, the latest skinny on performance and mechanical royalties from internet radio and downloading.