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by
Ted Landau
March 13th, 2006
The other week I had an ethical debate with myself. It didn't last long. But it started a ball rolling that led to this month's column. The subject: copying movies and music for personal use.
It all began when my wife and I went to see the last year's film adaptation of Pride & Prejudice. While we both agreed that Keira Knightley was nearly perfect as Lizzie, my wife insisted that the 1995 BBC version, starring Colin Firth, was superior overall. As I had never seen the BBC version, I could not comment. Naomi, aghast at this lapse in my viewing history, insisted that I see it as soon as possible, informing me that she would "get it out of the library." I confess that one version of Pride & Prejudice was more than enough for me for at least several months, but Naomi was not to be deterred.
Our local library had the two DVD set, but it was currently checked out. By the time they had it in, we were too busy to watch it before it would be need to be returned. What to do? Trying to be helpful, I suggested: "Why don't I make a copy of the DVDs? Then we can watch them later when we have more time." Naomi thought this was a great idea, so I set about to do it.
The first obstacle in my path was the discs' copy-protection(s). The freeware utility MacTheRipper took care of this, converting the dual-layer discs into two unprotected 8.5GB VIDEO-TS folders on my hard drive.
A second obstacle now loomed. To directly copy the folders to two DVDs (so we could watch them on our TV), I would need 8.5GB dual-layer discs and a DVD-RW drive capable of recording to such discs (older drives can only record to 4.7GB single-layer discs). Fortunately, I already owned an excellent dual-layer drive from LaCie. The real problem was with the dual-layer discs themselves: at a minimum cost of $4 a disc (often more), they defeated the purpose of borrowing the discs from the library. It would be cheaper to rent them from our local video store.
But there was a solution to this obstacle as well. Roxio's Toast Titanium (as well as its less expensive cousin, Popcorn, and a new product from NTI called DragonFliX) all sport a super feature that compresses the contents of a dual-layer DVD to fit on to a single-layer DVD, usually with only a minimal loss in quality. As top quality was not a key issue for me anyway, this clearly was just the ticket. Using Toast (as I already owned it), it took about 2 hours to complete the transfers. End of story.
Or almost the end. This is where the debate started. I asked myself: "Was this legal and ethical to do?" At one level, breaking copy-protection always makes me feel a bit like a criminal. Still, just because a company copy-protects something, that doesn't necessarily make it illegal to copy it.
But there was also the issue of making a copy of something I did not own. Yet, I could legally watch the library's copy without paying for it, so ethically was there much difference between that and what I did (especially as I never intend to view those discs again)? The truth is that there was not much internal debate here. I strongly believe that copying material that you own or otherwise legally possess, for your own personal use, fits in the definition intended by "fair use" legislation. [Note: I am no lawyer...so don't use my beliefs as a legal basis for whatever you might decide to do.]
But this segues into a much larger issue. You might differ with my conclusion in the above instance. That's fine. But while we discuss our differences, the entertainment industry is hard at work to make sure that we have no options to consider in the future -- because such copying will be all but impossible.
It's an odd moment in this ongoing conflict between the entertainment industry and consumers. On the one hand, consumers are increasingly demanding flexibility in their viewing and listening. They want to be able to transfer music and films to cell phones, iPods, and laptop computers. They want to be able to excise clips from a commercial film to incorporate it into a home movie, much as you can already do when creating personal music soundtracks. They want to be able to use TiVo-like devices to time-shift when they view shows and to skip through the commercials.
In contrast, the industry wants to place increasing layers of protection on media, with an ultimate goal to prevent much of this desired flexibility. The most immediate impetus behind this push is the impending arrival of high-definition DVD recorders (using the competing HD-DVD and Blu-ray formats). With these recorders plus a high-definition television, you can potentially make copies of films that are essentially equal in quality to the original. And as broadband speeds continue to improve, the ability to transfer movies over the Internet will become increasingly practical. This must be tempered a bit by the fact that HD movies are 3-8x times larger than the same movie would be in current formats. This tends to inhibit casual copying and sharing. Still, the obvious concern is that illegal file sharing of high-definition versions of movies will become commonplace. The problem is that, while barriers to prevent this are needed, the industry wants barriers the size of the Himalayas.
Now I know that some of you remain unconcerned. You have faith that no matter what copy protections are put in place, hackers will quickly find a way around them and the status quo will ultimately be maintained. This has been largely the case so far. But that faith may be misguided this time around. Here are multiple reasons why:
- Both Blu-ray and HD-DVD discs will come with a new form of copy-protection called AACS (Advanced Access Content System). If a DVD player detects this protection, it will refuse to copy the disc. What's new here is that, as far as I know, there is no software (such as the afore-mentioned MacTheRipper) capable of removing this new protection. And the word is it will be much harder to create such software.
- To play these discs at full quality on your HD TV, you will need to connect an HD DVD player to the TV via a digital DVI or HDMI port, as these are the ports designed to work with the disc's copy protection. If you use an analog connection instead, the disc can instruct the player to "down-convert" the signal from the full HD 1920x1080 lines of resolution to 960x540 lines (see this article for more background). While this is still excellent resolution (comparable to current DVDs), it is less than it could be. This could also present problems for playing these discs on computers, where a DVD drive is typically connected via a USB or FireWire port, rather than a DVI or HDMI port.
- Speaking of computers, there is an as-yet-unimplemented proposal floating around that could result in copy-protection features built directly into hard drives, an extension of the current CPRM encryption used on DVDs. The encryption technology would be stored in a "hidden" area of the drive, where it would be difficult to tamper with. While you could supposedly transfer protected files to such a drive (at least if it was an internal drive), the protection technology would prevent copying such files from the drive to other media, such as external drives or MP3 players. This could also have the "side effect" of making it impossible to create a full backup of a drive. There is still confusion about exactly what will or will not be allowed here. With luck, the proposal may simply die (happily, computer makers are so far siding with consumers on this one).
- Last year, the FCC implemented an order providing for a "broadcast flag" scheme. The idea was for a digital flag to be attached to broadcast programming. Receiving devices, such as televisions, would be required to have hardware that recognized the flag and thereby prevent copying of flagged programs. If implemented, consumers could find that many of the programs they have set to record, via TiVo or other devices, suddenly come up blank. Related problems could affect computer television products such as Elgato's EyeTV.
In an unusual victory for consumers, a federal court overturned this FCC ruling. But don't rest too easy. The industry is still hoping for a successful end run. HBO continues to pursue a line of attack that would prevent any "on-demand" programming from being copied -- on any device, ever (see this article for more background)! Other proposals would place an "expiration date" on copied programs (so that you could no longer view them after a couple of weeks). And, while a flag mechanism is not yet "required," it can still be put in place "voluntarily." HBO, for example, already uses a flag-based copy protection (called CGSM-A) for its on-demand programming (see this HBO Web page); while it only works if recording devices are "compliant" with the flag, many current devices apparently are compliant.
- On a related front, the advertising industry wants to prevent you from skipping its commercials. It lobbied for a bill (pushed in 2004 but so far not passed) that would criminalize the act of skipping ads! While that may have crawled back under the rock it came from, there has been greater success in getting commercial-skipping features dropped or limited in consumer recording devices. The conventional wisdom is that this contributed to the bankruptcy of Replay -- a TiVo competitor that was sued over its ad-skipping feature (see this article).
- Not to be left out, the music industry is trying to shore up its own defenses. For starters, you are probably already aware of Sony's recent disastrous attempt at protecting CDs -- by secretly installing a potentially dangerous "rootkit" file on the user's hard drive when a protected CD is mounted. The industry is also promoting legislation that would encrypt broadcast radio transmissions, so as to prevent off-the-air copying (see this article).
Whew! To be fair, many of these technologies have not been implemented as yet, and hopefully at least some never will be. But this litany should make it clear that the entertainment industry does not intend to rest until it gets what it wants. The desired end result is ever increasing layers of "protection" between you and any "fair use" copy you want to make. There may wind up being protection built in to your TV, your DVD recorder, your computer, your computer's operating system (especially so in the forthcoming Windows Vista), your computer's hard drive, and of course on the discs and other media themselves. It's what the industry calls DRM (digital rights management). It's what the rest of us call an overly intrusive pain in the butt that will cause more problems than it will solve.
It's admittedly a delicate balance. Copyright owners need their rights protected. But not with Draconian measures. Look, every time you take a book out of the library, or buy a used textbook from a campus bookstore (or from Amazon for that matter!), or borrow a DVD or CD from a friend, or make a photocopy of a magazine article to save in your file cabinet, you are denying the author and publisher the money they would have received had you purchased a new copy instead. Yet all of this is considered to be fair and legal. As it should be.
On the other hand, taking a DVD, making a thousand copies of it, and selling those copies as bootlegs -- is and should be clearly illegal. Putting an HD-quality unauthorized copy of a movie on the Web, where anyone can download it for free, should similarly be prohibited. The problem is: Where do you draw the line between these extremes? How do you create a system where consumers have the personal freedom they deserve while preventing rampant piracy? How does the publisher find the path that permits making a healthy profit without trampling over the rights of consumers? It ain't easy (although it's worth noting that even with just the current lesser protections in place, DVDs are still a huge source of profit for Hollywood).
Ultimately, the goal should be to limit piracy, not eliminate it! Metaphorically, I see it as similar to treating some forms of cancer. There may be an aggressive treatment that eradicates 100% of the cancer cells. But, in the process, it also destroys so many healthy cells that the patient dies anyway. Not the treatment you want, whether for dealing with cancer or piracy.
Happily, there are some successful models to use as a starting point. Apple's iTunes Music Store is a one such example. It succeeds while maintaining respect for both sides of the fence. True, Apple's system is not constraint-free. You can't play protected items on other (non-iPod) MP3 players and you can't burn a CD containing protected items via third-party software such as Toast. But it's not reasonable to expect piracy regulation to depend entirely on the honor system. As protections go, Apple's is fairly mild. Even so, the content providers are doing well. One recent bit of evidence: The availability of episodes of The Office via iTunes has been credited with increasing the television ratings of the show!
Hopefully, the entertainment industry will come to realize that things can't return to the way they were twenty years ago -- before the invention of digital recorders and broadband Internet access -- and agree to some reasonable compromise. Unfortunately, given Hollywood's current extreme attitude, its deep pockets, its continuing efforts to lobby Congress, combined with a largely pro-business anti-consumer administration, I am not very optimistic. For now, the battle continues -- and both sides are in danger of being the losers.
Ted Landau is the founder of MacFixit, and the author of Mac OS X Help Line, Tiger Edition and other Mac help books.
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Observer Comments
I record several programs on Cartoon Network that are on between 12:30 and 3:00 AM. My wife records a couple Soaps that are on while we are at work. We watch both of these in the evening and skip the commercials. If the industry were to get what it wants, i.e. the prevention and criminalization of ad skipping and time shifting then screw-em, we just would not watch their shows. They would lose out. It wouldn't hurt us too much though. There's getting to be enough content available via DVD rental, and on the web that we would just go elsewhere. This is the crux of the issue IMO. It is impossible to prevent, ban, criminalize, outlaw, activities people want to do. The recording/movie industry has a choice; they can either embark on a decades long war akin to the war on drugs that will only alienate their own customers and send them elsewhere for content, or they can accept some healthy compromise that protects their rights while not preventing the public from doing what they want to do.
Mon Mar 13, 2006 10:52 am Subject: Time is on their side
Literally. The biggest protection against mass pirating of high definition content is the file size. A 25GB HD-DVD, on what today is around the fastest broadband connection (6Mbps) available to consumers would take over 9 hours to download under ideal conditions. In practice, the time required would be some multiple of that. Some some small subculture will "trade" these large files, but it won't reach the mass of MP3 trading.
Broadband will get faster, but it'll have to get much faster before this becomes an issue. And by then, don't be surprised if an even larger format has arrived. An average album in MP3 format is around 50 MB, or 1/500th the size of a 25GB HD-DVD. Roughly speaking, then, 750Mbs (500 times faster than the typical 1.5 Mbs connection) broadband or faster would be needed before high definition movie trading would reach the epidemic level of music trading. The studio's probably have at least a decade (and probably much longer) before that becomes a worry. Time really is on their side.
In other words, they don't need to do much of anything beyond the protection that's on standard DVDs.
Thank you, Ted, for this clear and non-rabid look at the entire issue. You cover the desires of the consumer and the rights of the artists and publishers very well and, finally, contrast them precisely with the pirates and what publishing companies are up against. As the companies and artists fight the real bad guys, people like us get caught in the middle.
iTunes's DRM works fairly well because for the most part it allows quite a lot to be done. The honest folks can feel they are staying honest. There is less of a need to debate how grey one is being -- if the debate even occurs. I sometimes wonder how many people even give it a thought now... but I digress.
The trick will be allowing the honest folks to stay honest with as much freedom as possible, and yet be able to catch the mass duplicators/distributors and for-profit pirates. It's a bit chaotic now, but I think the iTunes model and these more draconian hardware measures will eventually all even out to be fairly workable. It'll take a while and it'll be ugly along the way, though. The main thing is that we want entertainment and the providers want our money and viewership, so something will have to work out somehow. 
We're in the midst of the battle now where people are asserting themselves rather than coming to common ground and understandings. Eventually the businesses will have to give some or they just won't sell anything; and consumers will give in since a critical mass of them will accept this or that in order to keep getting what they want. I don't often have faith in "the marketplace" but this time I'm thinking it will even things out...
Mon Mar 13, 2006 11:40 am Subject: Read a book . . .
Mon Mar 13, 2006 2:48 pm Subject: TV-free and loving it
All this talk about “DRM” is just software copy-protection revisited. That failed in the 1980’s, and this too shall fail for the same reasons. In the end, the content providers will realize they have more to gain from giving up a little hypothetical profit to piracy than by annoying the customer with all sorts of absurd restrictions. Those who don’t learn from history are doomed to repeat it.
The only TV show i watch (over the air) anymore is 60-Minutes. Everything else comes off DVD. The shows of the past far exceed anything being produced today, IMO. TV, i have learned, is an addiction. But being free of broadcast TV – especially the nightly “news” – is a wonderfully detoxifying experience. I no longer worry about recording a program, or time-shifting, or commercials.
I stopped going to movie theaters years ago. Just can’t deal with the stupid chatter one hears in the theater anymore. I watch all my movies on DVD now. And live theater (i.e. plays) are wonderful.
And as ireid2k observed, books are wonderful too.
Mon Mar 13, 2006 7:22 pm Subject: Obviously not a lawyer...
I strongly believe that copying material that you own or otherwise legally possess, for your own personal use, fits in the definition intended by "fair use" legislation.
Well, your strong beliefs are totally meaningless, because there is no such thing as "fair use legislation". "Fair use" is a defense against a copyright infringement lawsuit. It is not a right.
The scenario you laid out... You didn't have the right to do that. You really have nobody to thank for DRM more than yourself. DRM is not about stopping all people from copying illicitly. It is about turning the marginal copier into a buyer. Some may call it "greed", but really, it's just business. Obviously, the DRM did not turn you from marginal copier to buyer (borrowing from library not withstanding). Expect the next round to do it. So what does this movie cost on Amazon anyway? And couldn't you wait 4 days for super saver shipping? It almost has to be cost competitive with gas for the Escalade + your time to go to the library, no? I mean really, Ted... It's tough to read your column without thinking, "not only is he so cheap that he borrows DVDs from the library, but he's doubly cheap for making an illicit copy when he doesn't schedule 90 minutes to watch the flick!" And it's not like you're a teenager or college student who has to put all his money toward beer and pizza. I'm not saying you're a bad guy, though. But your article sure makes you come off as one!
Mon Mar 13, 2006 7:51 pm Subject: Re: Obviously not a lawyer
Well, your strong beliefs are totally meaningless, because there is no such thing as "fair use legislation". "Fair use" is a defense against a copyright infringement lawsuit. It is not a right.
I was simply making use of a term commonly used elsewhere to refer to instances when copying of copyrighted material is considered to be legal. See this article for example:
http://www.ala.org/ala/washoff/WOissues/copyrightb/fairuseleg/fairuselegislation.htm
Ted... It's tough to read your column without thinking, "not only is he so cheap that he borrows DVDs from the library, but he's doubly cheap for making an illicit copy when he doesn't schedule 90 minutes to watch the flick!"
Actually, the flick was more like 4 hours (spread over 2 DVDs). And, sure, I could afford to buy the DVDs if I wanted to. But that was not the point.
To some extent, I just cited this example to raise the ethical issues involved. Beyond that, my wife makes very frequent use of the library for books, CDs, videos and whatever. While she could afford to buy any one of the items she borrows, the total cost for what she would otherwise spend is considerable. It was in that context that she went to the library to get the DVDs. FWIW, if it had been just up to me, I would have rented them. In any case, I hope it is not gotten to the point that using the library, all by itself, is something to be criticized.
Mon Mar 13, 2006 8:14 pm Subject: Re: Obviously not a lawyer
Ted, that is proposed legislation, not passed law. I'm not a lawyer either, but I'm pretty sure that "this is covered by proposed legislation" is not a defense for anything.
As to whether using the library is to be criticized... No, not criticizing it. It's perfectly legal and an established institution in all of our towns and cities. But consider... Library vs. Barnes & Noble... B&N typically has more titles than a public library. Service is much faster and friendlier. You can drink coffee and eat croissants in the B&N. And patrons of B&N never whine about availability of books, or waiting lists, or how the condition of the books is a crime. The 2nd biggest library user I know (for books) makes 6 figures (so he could afford his reading habit), has a grown son, and sneaks into movies. I have no idea why I see that as entirely consistent with never buying a book.
Tue Mar 14, 2006 5:20 am Subject: Guest, RTFWP (web page)
Clive posted it above: http://www.copyright.gov/fls/fl102.html
Section 107 says nothing about "fair use" being copying for purposes of time shifting because you have to return your copy of the DVD to the library. Also, "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include..." It is not up to each of us to determine fair use according to our situational ethics or uninformed feelings about legislation that does not exist. It's up to a judge if you get sued. "Fair use" is a defense, not a right reserved to individuals as the First Ammendment is. Pull your head out.
Tue Mar 14, 2006 7:25 am Subject: Considering to what length corporations
are going to protect their profits (how much of that DVD goes to those who actually produced it as opposed to the distribution company's executives' salaries, attorneys' fees and R&D into DRM), I have no problem with pirates. I don't pirate for profit; I downloaded a lot of music back in Napster and Kazaa's heyday, but haven't done so in years. I always did it for my own collection, I never sold anything.
These days I still copy movies from the library. But they go onto a hard drive or a dvd-r in my closet.
How about the 100+ dvds I've bought? I started collecting movies, and now I get to collect them again at HD quality? No. I am mostly happy with the quality of the dvds I've purchased, but you can bet those same über-corporations will be advertising "If you thought Revenge of the Sith was exciting on dvd, wait until you see it at 1080p HD, only $39.95! (for a three day license, license doesn't allow copying or archiving for later use, time limit not extendable, see website for complete disclaimer, disclaimer property of HBO and the Motion Picture Association of America, HBO and MPAA logos are copyright their respective companies and may not be reproduced in any form...)"
BTW, to hell with HBO. I always subscribed to them when I had cable, never again. If they want to be fascists with my AV equipment, they've lost a customer.
QuoteGuest wrote:
So was the BBC version better??
As long as you asked...I thought the BBC version was better mainly because it had the needed time to tell the story properly. The current movie version had to rush through the last part of the book so quickly that I had trouble "buying" the idea that Lizzie and Darcy could go from "enemies" to "lovers." That said, I liked the overall atmosphere of the movie version better -- and much preferred Kiera Knightly as Lizzie.
QuoteBosco wrote:
It is not up to each of us to determine fair use according to our situational ethics or uninformed feelings about legislation that does not exist. It's up to a judge if you get sued.
I agree. But I also believe there remains enough ambiguity as to what is or is not legally fair (especially when the use is confined to what you do in your own home with property you own and do not share with anyone else) that some self-decision comes into play if you are not in court getting sued. Even so, the library example was not an entirely clear call for me (as I did not own the property), which is precisely why I chose it as an example.
I also don't want to leave the impression that, because this is the only example I cited in the article, that this is a common behavior on my part. It isn't. The truth is that this was the first (and still the only) time I copied a library DVD. In contrast, I own several hundred DVDs, regularly rent DVDs at Hollywood Video, and pay a monthly fee for cable (including HBO). And yes, I understand that is not a defense of copying the DVD.
Tue Mar 14, 2006 8:32 pm Subject: RE: My Opinion - NOT fair use
In retrospect, the Pride & Prejudice case may not have been the best example. The attention it has received may have undermined the larger point I was trying to make - about the potential DRM restrictions that go way beyond what I believe is reasonable.
Perhaps a better example might have been this: A DVD I own and wish to make a back-up copy of, in case the original gets damaged while I take it on a trip. Should this be allowed? Even here, it is not crystal clear to me. One could argue that the copying should not be not allowed. After all, to use the book example you cited, one wouldn't typically make a backup copy of a book before a trip. Still, there are reasonable arguments that would support backing up here. For starters, books are not likely to "go bad" on their own for no apparent reason. This can and does happen to digital media. Shouldn't users be allowed to protect themselves against this? The vendor typically does not offer a free replacement disc in such cases.
