Fighting Back: Taking on the RIAA April 22, 2002 Paul Sullivan

Introduction

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Some Background

There is this constant state of "battle" between consumers and corporations that has been going on as long as I can remember. Used car salesmen try to put the screws to the little guy, and a lot of people end up taking it on the chin. Gas prices rise for no good reason, but we still pay the price because we think there is little we can do about it. Movie prices rise to $8 or $10 a ticket, but like lambs to the slaughter, we keep handing over our hard-earned cash to "The Man". It looks like no matter what they throw at us, when it comes to entertainment, we have no will-power at all.

But thanks to the digital world, big corporations are taking it upon themselves to tighten the thumbscrews and take advantage of our ongoing complacency. Normally, I'd expect consumers to sit back and let it all happen because they are so busy with trying to eek out an existence on this Big Blue Marble they have time for little else. However, things are getting way, way out of hand, and it's put-up or shut-up time, ladies and gentlemen.

I've been writing about these topics off and on now for months, and things don't seem to be getting any better. I've been asked repeatedly, "What can we actually do to help?", and I have struggled with that question. I have suggested writing to our representatives, and have even written a letter to my own Senator. I have tried nudging where I can by pointing out the most extreme actions of entertainment companies, but ranting can only go so far. It's time to take the bull by the horns and take some more advanced steps towards getting their attention. That is what this article is going to be about. We are going to deal not just with the RIAA, but the MPAA and major software makers. We are not going to just "Talk the Talk", but this time, it's "Walk the Talk" time. Hang on for the ride...

First Stop: Organized Resistance

I realize individual protests only go so far, and with that in mind, I have been looking for organizations that have the right mix of attitude and professionalism, and I finally think I have found one. This group is not about piracy and not about "sticking it to the man" but addresses the issue of consumer rights in a mature, intelligent way. It may not be as "grass roots" as some may prefer, but it is a great place to start.

The organization I'm talking about here is DigitalConsumer.Org and they seem to be on the right track. Their initial mission statement is simply "Protecting Fair-Use Rights In The Digital World.” They are advocates of a Consumer Technology Bill Of Rights and with the endorsements of some impressive industry leaders, they hope to educate, inform and stand tall with the consumer in taking on the corporate juggernauts.

Their page is simple and well designed, with links to relevant happenings in Congress and other areas. It contains some helpful background material and even a "Get Active" link that helps guide you in the process of getting involved. They also have the full text of their proposed Consumer Technology Bill Of Rights and some information about this insane new law being proposed by industry lackey, Senator Fritz Hollings of South Carolina. If you thought the DMCA (Digital Millenium Copyright Act) was bad, just check out the CBDTPA (formerly the SSSCA, now the "Consumer Broadband And Digital Television Promotion Act"). I think we all know just how bad things can get when the government starts getting involved, so please visit the site.

One other site that I have been guided to is the Electronic Frontier Foundation. They seem to be a much larger group with a much broader focus, and their site is jam-packed with links and information. I have not checked out the site in-depth yet, instead saving it for a future follow-up after getting feedback from FiringSquad readers and exploring it to a greater degree. If you have any more information, please send it on to me. You may also wish to put it in the comments area for other readers.

Many voices speaking as one can have a much larger impact than individual complaints. For example, one or two mosquitoes may not bother you, but a swarm of them coming down on your campground is darn sure to get your attention and get you to act. It is that "group mentality" that I hope will make the difference.



SIDEBAR: If you don't bother fighting to keep your rights, you may very well end up losing them. Don't let that happen just because it is "inconvenient" to shake up your schedule a little bit. Use it or Lose it...

Fair Use

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Informing Yourself

I was lucky enough to get a very impassioned email from a visitor to the site dealing with the concept of Fair Use. He not only provided a link, he sent the key text in the same email right from the site. He even took the time to post it in the comments section for the Ramblings 6 article on FiringSquad. You may want to check out the specifics of that text

Another batch of text that I found while doing research can be found at MP3.com, where a way down the page the following paragraphs are proffered.

"A similar point can be made in connection with the doctrine of "fair use" and the creation of copies of legitimately-acquired songs for non-commercial, personal use. In a famous 1984 case, the U.S. Supreme Court rejected the attempt of the major movie studios to have VCRs declared illegal under the theory that they could be used only or primarily for copyright infringement. The Supreme Court held that the sale of VCRs was not illegal because VCRs could be used for "commercially significant noninfringing uses" such as creating copies of broadcast television programs for later personal, noncommercial use. The court viewed this type of copying as "fair use" under copyright law, even if the copying was not authorized by the copyright owner. "

"Many observers believe that this same "fair use" analysis applies to creating copies of legitimately-acquired songs for non-commercial personal use, such as encoding your own CD collection into MP3 files in order to manage playlists. (A 1992 law decreed that certain types of personal use copies are specifically allowed under copyright law, but this 1992 law was silent on the point of whether certain other, important types of non-commercial personal use copies are illegal.) Assuming that this type of copying is "fair use," can Audiojacker or Total Recorder be used to make these personal use copies if the technological protection measures surrounding a song would otherwise prevent copying? If the DMCA's statement that it does not affect the fair use defense is to have any real meaning, then the answer >must be yes. And, again, if these utilities can be used for legitimate purposes, then they should not be illegal."

Information Overload

Yet another interesting paragraph or two can be found at the bottom of this page

Do I have the right to make a copy of my CD for my own personal use?

Yes. The fair use doctrine allows an individual to make a copy of their lawfully obtained copyrighted work for their own personal use. Allowing people to make a copy of copyrighted music for their personal use provides for enhanced consumer convenience through legitimate and lawful copying. It can also enlarge the exploitable market for the rights holders. The fair use privilege's personal use right is what allows an individual to make a backup copy of their computer software as an essential defense against future media failure.

Personal use also permits music fans to make "mix tapes" or compilations of their favorite songs from their own personal music collection or the radio for their own personal enjoyment in a more convenient format, or "format shifting." Another example of acceptable personal use copying of a copyrighted work is "time-shifting," or the recording of a copyrighted program to enjoy at a later and more convenient time.

As new media present new ways for people to enjoy music, the public's fair use rights accompany them into the electronic frontier. Now, music fans have the right and ability to copy their own music collection onto their own computer storage device and create customized play lists for their own personal use and enjoyment of their music.

It is important to note that while consumers have the right to listen to their own music collection for their own personal use, they do not have the right, however, to make their music collections available to others by uploading them onto the Internet for public downloading.

The RIAA

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Taking Back Your Rights

I have not been a piracy advocate at any point during my time as a writer, but as these jack-booted thugs that represent huge corporate entities like the RIAA have kept kicking our collective heads into the sidewalk, a fine line has developed. They are trying to shove copy protection down our throats, and are, in my opinion, now infringing on our rights to Fair Use.

Why is this important? I'll fill you in on a couple of things. I have found out that my insurance company, State Farm Insurance, has specifically excluded audio CD's from policy coverage. This means, if you have say 100 of your music CD's in a zipper-case in your car and they get stolen, you are out of luck. (side thought - I wonder if this change was sponsored by the RIAA?) The same goes with audio cassettes. Other insurance companies may have already taken the same steps. As a result, it is more imperative than ever to be able to be allowed to make the legal backup copies of your original disks as provided by law.

There are other issues about the RIAA that get under my skin. First, they have pushed to cease production of CD singles, hoping to force users to purchase an entire CD even if they wish to get only a single song. They are toying with an "Enhanced CD" that will contain say half the songs on a CD with enhanced content, but they will be between half and two-thirds the price. Hardly a bargain.

In addition, you are starting to see CD's produced with apparent malicious intent, such as the Celine Dion CD from Sony, which is specifically designed not to play on computers of any kind. According to people in Germany, where the disk has been test released, the new CD crashes your computer, causing you to lose data in memory, and perhaps data from unclosed files on your disks.

This entire situation is getting out of hand. There are honest and legitimate reasons why we should be allowed to backup our content, be it data or audio. Yet the RIAA is encouraging measures that are completely contrary to fair use and fair access. If you want only one song you must fork out $20 or so for a CD? I really don't think so. CD's designed to crash your computer and prevent you from making MP3's out of music you paid for? Please. Enhanced CD's? Like we are supposed to trust the record companies to install software on our PC's.

More Legal Talk

Before we go further, let's cover an important point. There is a concern about recording radio broadcasts for personal use. I have found a simple passage with some links to not-so-simple passages that explains things pretty well. Start by reading the question and the answer and following the links at the end of the paragraph.

What are the rules for recording copyrighted radio broadcasts for personal use, for listening to programs at a later time?

Nothing here should be construed as legal advice. Consult your lawyer or appropriate government agency. In the USA, recording radio broadcasts for personal use is arguably permitted under the "fair use" provision of copyright law, and seems clearly permitted for music broadcasts under the Audio Home Recording Act of 1992. For more information, consult the Copyright FAQ at

ftp://rtfm.mit.edu/pub/usenet/news.answers/law/copyright/faq/part3
ftp://rtfm.mit.edu/pub/usenet/news.answers/law/copyright/faq/part2

More RIAA

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Getting It Done

We've laid the groundwork. It is tentatively established that we have the right to make recordings of our LP's, Tapes and CD's, and we also have the right to copy music and broadcasts off of the radio and MTV, etc. So, that said, I'm taking the position (after much deliberation) that whenever these actions by record companies interfere with our rights to fair use, we should have the rights to circumvent them.

For instance, if they create audio CD's that cannot be played back or "ripped" using standard PC drives, I'm advocating that users go out and purchase an excellent audio card like the Hercules Game Theater XP and plug their home CD player into it, play the CD using the necessary "Oversampling" technology to defeat the copy protection measure and record the results to your hard drive.

One of the most insidious methods of copy protection currently in use involves technology that introduces "pops" and "clicks" onto the CD audio recording so that when it is ripped from a CD or DVD drive to the PC, the resulting file is of an impaired quality. They may play back in standard home CD players with oversampling and error correction, but they will not in most CD or DVD drives. If that is the case, you can do as above and record it through the soundcard.

Online Options

Once, there was Napster, and it was cool. Now, Napster is virtually dead for good, so where are you to turn? Well, you don't want to use Kazaa because of that horrible embedded distributed-computing software built into the download, which could be triggered at any time. You don't want to use Morpheus because of the turmoil with the system and also their decision to work towards redirecting web traffic to sites it makes money from. Certainly cannot trust them. So what to do?

Well, there is still BearShare and AudioGalaxy, though they are getting less and less useful as time goes on. Still, they are there and they work. Or, you could go the personal route and host your own share with all kinds of tunes to trade. But before you do that, you may want to be aware of that one million dollar settlement the RIAA forced on Integrated Information Systems in Arizona. It seems they ran a server that allowed workers to swap music files over their internal network. Some disgruntled employee spoiled the whole deal by telling the RIAA and the company got hammered. Be sure that whatever you do, you don't charge for it or criminal penalties go up.



SIDEBAR: I kind of miss Napster. AudioGalaxy is not bad, but it is a pain to do a web based interface with a separate download client, even if they do have a good selection. BearShare used to be much faster and searches more comprehensive, but that service seems to be shooting itself in the foot.

Backups

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It's All About Personal Use

Technology is so interconnected in today's world. As a result, it is hard to limit yourself to dealing only with digital music and not dealing with other digital content. Bottom line is that the law has established consumers have the right to make backup copies of software and other digital content, but copy protection being foisted upon us by these large corporations makes this difficult to do.

Kudos to Microsoft for at least understanding that point. Yes, you may have to register Windows XP in order to use it, but they don't stop you from making a legal backup copy of the disk by slapping copy protection on it. Yes, it may be a pain in the tail, but you can still put that product into your CD-RW drive, fire up Easy CD Creator and make a fully functional backup to a 50 cent CD-R so that if your original is ever damaged, you can use your backup disk. That is what the law provides for, and at least in the case of XP, you are still covered.

Getting Around The Protection

My position is again, that anything these corporations do to prevent us from exercising our rights, we have the right to undo or to get around. So, I set off to figure out how to tackle this problem and have a very good solution that should work for just about everybody.

There are a number of different copy protection methods, used mostly in games, that actually try prevent you from exercising your legally protected rights to make backups. Protections like SecuROM, LaserLock and SafeDisk are designed to prevent easy copying from the original to a backup and they do a pretty good job of fouling up the works. The majority of CD-RW drives cannot produce a working backup of these protections, but with the help of FiringSquad readers who have taken the time to Email me, I've found one that does it about as good as you could hope for.

There is a specific manufacturer named Lite-On that has made OEM drives for a while now. While they have just started releasing their own branded drives, perhaps the most common way these drives have reached the market is as an OEM for Cendyne. You have probably seen Cendyne drives in many stores like Office Max, Circuit City and Best Buy; they are pretty ubiquitous. The specific model that I am going to be talking about is the Cendyne 24x10x40 CD-RW drive. While Cendyne uses a variety of OEM parts to complete this line, one of those happens to be the Lite-On 24102B.

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Conclusions

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Going Soft

The Lite-On drive comes with a very nice copy of Nero 5.5, which is really coming along as an easy to use and stable product. This great software, however, is not the one you need to make clean backups of protected disks. You might also be surprised that I'm not going to recommend Clone-CD either. Nope, the magic software that I'm talking about is called CD-MATE. This friendly, easy to use software can be downloaded from their web site at for free 30 day trial of the fully functioning package. It is much more than a CD cloning package and only costs $30 US. It’s an amazing bargain.

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The Last Word

There you go. I've told you in the past about SmartRipper, which helps you backup your DVD's, and now I'm going forward to tell you about taking care of the RIAA and copy protected data CD's. It's all about walking the talk, and the actions of the big companies have helped prod me into stepping it up a notch. I hope this information helps you get a handle on things. Feel free to send me information via Email and I'll do what I can to act on it. I can't respond to all the mail that comes in, but I'll do what I can to acknowledge helpful tips.


SIDEBAR: Have you had it up to HERE with all of this copy protection? Have you taken a stand by deciding not to spend another dime on CD's that contain low-quality, damaged music? Sound off about this mess in our Comments Section so others can hear what you have to say.