I don’t remember exactly what I made my first mixtape, now buried somewhere in my parents’ basement. But I do remember the shock I felt upon learning during college that the record labels wanted to prevent me from placing Metallica’s “Seek and Destroy” next to Bela Fleck’s “Cheeseballs from Cowtown,” then giving the tape to a girl I was interested in, potentially executing brilliant musical romantic jiu-jitsu.
I can’t swear that those exact songs were arranged next to each other on a mixtape, but I could’ve done that, if I wanted. I plead no contest; I was a teenager in the early 1990s.
Fortunately for me and my peers, today’s playlist curators, the blank tape cruised through the decades mostly unmolested. Court cases in England and the United States failed to stop the use of blank tapes for audio or video recording.
But had the courts decided in favor of the record companies’ argument that a blank recording mechanism, and not rock ’n’ roll, was the devil, we still would’ve found a way to copy songs from tape to tape, and CD to CD, and eventually MP3 to CD or digital player.
Look no further than Apple’s ostensibly locked-down iOS, through which a DRM flaw let hackers install malicious software on iPhones in March. DRM does not prevent copying. DRM doesn’t increase software security. DRM, moreover, is not safe to use.
The labels tried to prevent music fans from copying by removing little tabs at the top of the cassettes. It didn’t take long, even in those pre-commercial Internet days, to learn by example that a well-placed piece of masking tape would enable us to copy the songs (and yes, sometimes the entire album) that we wanted.
People copy. Sometimes they copy in violation of copyright, and sometimes they copy in accordance with court-ruled copyright limitations. And as copying technology develops, so does the conflict between copiers and copyright owners.
Later in the 1990s, as the popularity of MP3s rose with Napster and other file-sharing services (which Apple eventually trumped after simultaneously launching the iTunes Store and the iPod in 2003), this conflict morphed into a battle over what we still refer to as digital rights management. Entertainment producers, as with tab removals on tapes, attempted to use DRM technology to prevent people from copying the digital works for which they held a distribution copyright.
And, naturally, as Cory Doctorow argued at the hacker conference HOPE in July, people found ways around those technologies.
To believe that DRM stops copying is as incorrect, Doctorow said, as claiming that human activity isn’t contributing to the melting of polar ice, or that vitamin deficiencies cause HIV, or that hackers wouldn’t take advantage of an encryption backdoor.
And as we’ve seen in just those few but prominent examples, believing in something known to be false causes harm. People taking vitamins instead of medicine for HIV have likely gotten sicker and died more quickly. Coastal roads are disappearing under a rising Atlantic Ocean. And encryption flaws can lead to catastrophic consequences.
Companies today are incorporating DRM technology in much more than music and video files. You can find it today in Web browsers to prevent the user from copying streaming media, in lightbulbs so to prevent users from switching to another brand, in litter boxes for Lord-knows-what-reason, and—as many have chuckled at—even rectal thermometers (again, only your preferred deity knows why).
Regardless of DRM’s use, which has at times undermined consumers’ privacy or physical safety, or led to legal shakedowns, it is covered by the Digital Millennium Copyright Act, which became law in 2000.
Because of DRM’s legally protected status, breaking it to investigate potential security flaws or even to scientifically analyze the real-world impacts of computer code can lead to a lawsuit under the Computer Fraud and Abuse Act, the same law that was used to prosecute Aaron Swartz, who eventually killed himself.
Doctorow gave a speech on the same topic the previous month at the Internet Archive. Sadly, his message, like early warnings about the greenhouse effect of carbon dioxide emissions, isn’t being taken seriously.
As a society, we’re fast approaching a critical moment when we have to choose whether to continue to believe in DRM falsehoods and accept that we are more exposed to electronic attacks because of it, or stop inserting it into the fabric of our digital lives. Look no further than Apple’s ostensibly locked-down iOS, through which a DRM flaw let hackers install malicious software on iPhones in March. DRM does not prevent copying. DRM doesn’t increase software security. DRM, moreover, is not safe to use.
It’s a bitter pill to swallow, especially for media producers. But once we started running everything on code, we signed away our ability to restrict copying. Code is just about the easiest thing to copy.
To be clear, you shouldn’t copy a song, video, software program, or political speech without permission. But DRM, like a rule prohibiting plagiarism, isn’t necessarily going to stop you. We have brains, as well as consciences. Let’s use them to execute some brilliant copyright protection jiu-jitsu.