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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:
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.