22 September 2003

Against Copy-Controlled CDs

There has recently been a shift away from the largely authoritarian prohibitions adorning CDs to a more ‘personal’ approach: rather than the familiar “All rights reserved. Unauthorised copying blah blah blah is prohibited”, recent EMI CDs have sported the spiel reproduced below.
Thank you for buying this music and for supporting the artists, songwriters, musicians and others who've made it and made it possible. Please remember that this recording and artwork are protected by copyright law. Since you don't own the copyright, it's not yours to distribute. Please don't use Internet services that promote illegal distribution of copyrighted music, give away copies of discs or lend discs to others for copying. It's hurting the artists who created the music. It has the same effect as stealing a disc from a store without paying for it.

Apart from the somewhat whining tone, this is a shift of focus away from what we might call ‘professional’ copying (pirating CDs en masse and selling them in shops as actual substitutes for the originals) to ‘casual’ copying (making copies for friends). The latter has apparently reached such proportions, and the copies such high quality, that it is considered the more threatening to the music industry, or at least threatening enough to warrant a direct appeal. This appeal is apparently to the better side in all of us, the side of us which is basically law-abiding, and the side of us which doesn’t really understand the implications of what we are doing when we copy a CD for a friend. However, I find it sentimental, patronising and on the verge of insulting.

That illegal copying and downloading have reached unprecedented proportions is beyond question. What is questionable is the explanation presented in the passage quoted above. You and I copy CDs because we don’t understand what we’re doing, how it’s hurting the poor musicians and ‘others’ (I wonder who they are? - perhaps the same people who were so afraid of releasing Terry Gilliam’s most famous film that he had to put an advert in the newspaper which read, "Dear XYZ, when are you going to release my film Brazil?" - in short, the pushers of pens). It’s like stealing from a shop, and you and I wouldn’t do that, now would we? Yet we copy CDs. The unavoidable implication of this is that the music industry regards the likes of you and me not so much as customers but as potential (or actual) criminals. How generous. And if we could only realise how it hurts (and don’t forget, as R.E.M. once said, that “Everybody hurts”), could let our hearts fill up with sympathy and empathy, instead of apathy, we could rise above the sinful temptation.

Do I go too far? Perhaps. But please note that there in no mention of the over-pricing and poor standards of commercialised music in the passage cited (admittedly, how could there be?). All the blame for the current proliferation of copying and downloading is the consumer’s responsibility. The music industry have (needless to say) absolved themselves of the need to produce quality music at a reasonable price - in short, of giving us value for our money. And so long as the blame is one-sided, and seen as solely the prerogative of the unscrupulous consumer rather than the unscrupulous producer, there will never be a solution to the problem.

Don’t get me wrong. I am not promoting the illegal distribution of CDs and I am not an inveterate copier of CDs myself (I own over 800 bought CDs). I most definitely agree that we should pay musicians for what they do. What I am disputing is that the problem lies where the music industry think it does (or better: where they are telling us it lies) and that it can be solved in the way they think it can.

So here, in a little more detail, are my objections.

1) The argument from stealing goes like this: if I copy a CD for a friend, I am depriving a store of the sale of that CD. If I hadn’t copied the CD, my friend would have bought it, and as such the shop would have made its €16, and thus I am effectively stealing. Fallacy #1: there is no reason to think that my friend would necessarily have bought the CD if I had not burnt it for them. True, they might have; but might have is entirely different from would have. They might have listened to it in the store, decided that there were only two good songs on it, taped them off the radio, and waited for the Greatest Hits to come out. In that situation, exactly how has the copying deprived the store of money? It hasn’t, and my point is this: even if copying CDs often deprives stores of money, it does not categorically deprive them of money, and as such cannot categorically be compared to stealing.

Which brings up to Fallacy #2: copying a CD for a friend is not like stealing it from a shop, for the simple reason that I bought the CD which I am copying. Naturally this does not give me copyright over the material. But I still paid my €16 for the CD, and even if the store has diminishing returns on that CD the more I copy it (one copy = €8, two copies = €5.33, and so on), at least there are returns. When I steal a CD from a store the returns are immediately €0 for everyone involved. True, the store doesn’t make its second €16, but it did make its first, and in this copying a CD is significantly different to downloading songs from the internet or indeed stealing it. To accuse the general public of effectively stealing a CD from a store when they copy it for a friend is over-simplistic and sensationalist.

However, it might be argued that even if what I say is true, when I copy a CD from a friend, the analogy with stealing is more appropriate, since I have paid nothing. But that still depends on whether or not the friend bought the CD or downloaded it from the Internet, since ultimately what interests the music industry is how many CDs are sold, not who buys them.

2) Why isn't the industry clamping down on second-hand record shops? Don't they re-sell CDs at reduced price and prevent people from buying them at full price from high-street stores? (Okay, that’s a bit pedantic....)

3) It is disingenuous to suggest that artists are only hurt by copied CDs, since it ignores the role that ‘burnt’ CDs can play in selling CDs indirectly, or at least judges it insignificant. To take an example: suppose I have two copied CDs of Ani Difranco at home. But I could qualify that by saying that I have eight bought CDs by Ani Difranco at home as well. If I hadn’t been given copies of those CDs by a friend several years ago, I would never have discovered her music and bought every album she has released since. So in this case, surely even if those two copies of CDs are comparable to stealing, the threefold returns of subsequent sales must offset that.

Ani Difranco has a far better slogan than the EMI blurb on her CDs:
Unauthorised duplication, while sometimes necessary, is never as good as the real thing.

This strikes me as much more honest. Ani Difranco is herself a fine example of what is meant by ‘while sometimes necessary’, since her career is built on the distribution of bootlegged tapes of her earliest album(s) during the early nineties, which built a following because of the quality of the music (pushers of pens take note) that allowed her to become a successful independent artist thereafter. Just how many artists have built their careers on great live performances and casual copying? My estimate would be many, although admittedly confined to the so-called ‘independent’ scene. A great British example would be the Ozric Tentacles, whose early albums are all 60 minutes long because that was the length of the cassettes they were recorded onto. But if we start talking about unauthorised copying possibly being more threatening to some artists than others - namely, more threatening to the commercialised, over-promoted artists who only have hits because we are told that they are good, than to those who eschew such machinery and consistently produce good music and live performances without top 40 hits - then we are entering a wholly different ball-game.

4) Someone may accuse me of having a deficient sense of morality: that just as stealing is wrong (=illegal), copying a CD is wrong (=illegal), and that, after all, something is either right or wrong, and there is nothing in between. The answer is that there are shades of grey. Remember the old commandment of Thou shalt not kill? Try explaining that it means in all cases to any God-fearing Christian of the crusades, or latterly born-again Christians like George Bush. My views about the war are irrelevant here; just that when even self-professed Christians believe that killing is acceptable in some circumstances, what compels the rest of us to accept that stealing is in all cases wrong? And furthermore, anyone who sides with the music industry should stop being an apologist, since surely no-one in their right mind thinks that the industry itself believes in black-and-white morality. Just watch the sliding standards of sex/advertising on any music TV station you care to mention if you don’t agree.

5) Copying a CD for a friend is vastly different to downloading music from the Internet or indeed posting music on the Internet for others to download. Such a song is readily available to thousands upon thousands of people, which is somewhat different to the limited number of CDs that could be burnt for a circle of friends that have similar music tastes. Internet sites which promote illegal downloads of music are more comparable to the ‘professional’ copying I mentioned earlier than to casual copying through the sheer magnitude of potential downloads.

6) I find the Apple Music Store, which recently celebrated its 10 millionth download amongst American Mac users alone, instructive in several ways.

i) The obvious: that it is commercially viable to sell music downloads over the Internet, if the price is reasonable, the service effective, and people have the right to do what they want with the music (such as burn it to CD) when they have downloaded it. All the previous solutions offered by the music industry were overly paranoid and incredulous, like suggestions that people could ‘rent’ the music on subscription or pay for the number of plays.

ii) The principle fear of the music industry - that such a service would promote ‘greatest hits’ or ‘Top-40’ downloading rather than downloads of complete albums - has proven unfounded. Now just why were they worried about that? Perhaps because the multi-media morass which is popular music sells mediocre albums on the back of two or three hit videos which are indistinguishable from all the other hit videos and promoted to the point of saturation, and that given the opportunity the public would judge the rest of the album for what it is and ignore it. After all, not everybody (hardly anybody) is, like Michael Jackson, capable of producing an entire album of viable hits (as was certainly the case with Dangerous). And Kaboom! all those low-quality-driven profits are out of the window. But for whatever reason - maybe we’re just too well trained - it didn’t materialise.

iii) The introduction of the Apple (iTunes) Music Store in Europe is currently planned for the euro-zone only. One wonders why. Administration purposes? Hardly. The truth is surely that the euro-zone, with its single currency, has a certain degree of price parity, while the main country outside the euro-zone, Britain, has no price-parity whatsoever with the countries within it. A new CD in Germany costs say €16 or €17, while it costs the same in pounds sterling. With a conversion rate of approximately £2 : €3, that means that the average British CD costs around €24. The excuse for this, as for all the extortionate prices of Britain, is import costs (which of course is why Guinness, imported from Ireland, is cheaper in Germany than in Britain). And here we have the real reason for euro-scepticism amongst British companies. After all, what self-respecting British company would willingly subject itself to a transparent pan-European enterprise which highlighted just how much they had been overcharging the British public for decades? The same is true of the music industry in Britain in relation to the Apple Music Store.1

7) Copy Controlled CDs don’t prevent copying. Any fool can copy a copy controlled CD, by simply buying a cable from a local electrical store, connecting the headphone jack on a standard hi-fi system or disc-man to the input jack on the computer and importing the sound with software like the open source Audacity. True, it won’t be a digital reproduction but an audio one, yet the point is this: Copy Control does not prevent anyone who actually wants to copy the CD from copying it. It simply takes a little longer (1:1 playback), and doesn’t even involve fancy software which can be outlawed, just around €3 for a cable.

8) They are intensely annoying. I don’t have a hi-fi system, or a TV, only a computer (I fell for the Apple propaganda about a digital hub, all right? You know, all that stuff about a computer being able to do what you want it to and not needing six different appliances to do what one thing is perfectly capable of doing?) The software that comes along with these CDs is rubbish, since it keeps jumping, stopping and utterly ruining the listening experience. So either I have to connect my disc-man to the computer every time I want to listen to a Copy Controlled CD, or for simple convenience, I am encouraged to employ the method described above to circumvent the problem in order to listen to the blasted CDs whenever I want to do so with the minimum hassle. In other words, Copy Controlled CDs may even encourage people to find ways of overcoming the inconvenience.


Those are some of my reasons for disliking the spiel now found on Copy Control CDs. It targets the wrong consumer problem (which is downloads); it treats the consumer like a criminal; and it ignores the responsibility of the music industry to produce things which are worth parting with our money for. It is a cynical, and above all frightened, manoeuvre. What is the music industry frightened of? Change in the face of technology. So far its response to the increasingly open and global scale of technology has been increasing protectionism, increasingly aggressive attitudes towards those who do not play the prescribed game. For the music industry the dot-com bubble never burst: it never even began.