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Every year or two I upgrade to a newer, faster Mac laptop, and this means I go through a now-familiar ritual of hooking up the new machine to the old one through a cable or local area network and copying everything — software, data (including my MP3 music collection), and settings — to the new machine. So you can imagine my surprise and horror when I heard reports recently that a new standard for consumer hard drives would make this kind of copying difficult or maybe even impossible. The reports may have been at least partially wrong, as it turns out. But I think they raise important issues, and ones we ought to be thinking about now. The notion that hard drives might be hardwired to prevent copying first collided with my consciousness in January. That’s when I heard about a technology known as CPRM, which stands for Content Protection for Recordable Media. It’s being developed by an industry group known as The 4C Entity, with the backing of IBM, Toshiba, and Matsushita. CPRM, it turns out, was the basis of a flood of criticism against The 4C Entity after a single news story appeared in December in a British online computer journal called The Register. Titled “Stealth Plan Puts Copy Protection Into Every Hard Drive,” the article began with an arresting lead: “Hastening a rapid demise for the free copying of digital media, the next generation of hard disks is likely to come with copyright protection countermeasures built in.” Okay, that got my attention. The article went on to say that standard-setting bodies were being asked to adopt CPRM for hard disks. Each disk would have a unique identifier that would help prevent unauthorized copies. The article suggested that this padlock could be built into drives as early as this summer. The reaction was quick and harsh. By the next day, computer activists, including millionaire software entrepreneur John Gilmore, had circulated the story to mailing lists and other online forums. Gilmore called CPRM “the latest tragedy of copyright mania in the computer industry.” He warned that under the standard, users “wouldn’t be able to copy data from [their] own hard drive to another drive, or back it up, without permission from some third party.” Industry spokespersons were quick to respond that the protesters misunderstand the technology and that their concerns are overblown. The 4C Entity said that CPRM isn’t even designed or licensed for “generic hard disks.” It is instead meant for use with other digital media, such as MP3 players and writable DVDs. The group also says the technology will be optional for computer manufacturers. The standard would simply specify a common digital signal facilitating CPRM technology, but it would not mandate that the signal be present and turned on in a device. These qualifications have not mollified Gilmore and other critics, who raise the prospect that technologies like CPRM will push the digital electronics industry into producing only equipment and tools with little or no capability for unlicensed copying. Now, at this point you might say, “So what? What’s wrong with designing hardware in a way that prevents you from breaking the law?” I think the best answer to this is: Nothing, so long as it doesn’t block you from lawful stuff you need to do. Consider: It’s certainly possible today to build a car that will never go over the legal speed limit. Perhaps speed-related injuries and fatalities are enough of a reason for the auto industry to produce low-speed cars. But then it would be impossible for drivers to do things they legally have a right to do, and often need to do, such as accelerating safely onto a freeway or accelerating to avoid a road hazard. And a car that can do those lawful things can also break the speed limit. Yet we don’t assume that the owner of such a car is a likely speeder. Put more broadly: Technologies that empower people don’t discriminate between good uses and bad. So if we build constraints into our computer systems that prevent infringement, we’re also making it impossible for users to engage in all sorts of lawful copying. Except for the most ardent IP hard-liners, most people accept that it is a fair use to make private, personal copies of music and movies. But the proposed standard could prevent that sort of activity. It’s worth comparing these digital rights management technologies to the copy protection schemes that were the rage back in the 1970s and early 1980s — the first decade and a half of the microcomputer revolution. Back then, plenty of commercial software — not just games, but also productivity software like word processors and spreadsheets — was coded to prevent copying. Routine tasks like backing up a hard drive and migrating to upgraded systems were an incredible chore. With backups in particular, the software discouraged activities that normal, prudent computer users ought to be doing. As you may remember (and certainly can imagine) this caused a lot of users to gripe. Some developers responded by creating programs that circumvented the copy protection. In the long term, however, most software vendors moved away from copy protection altogether; they began to rely on copyright enforcement and the customers’ needs for support and upgrades to protect their interests. You generally need to own licensed copies of software in order to get support when you have problems. The vendors also began lowering the price of software so that it seemed both reasonable and equitable to pay for it rather than copy it. The primary reason that software vendors moved away from copy protection schemes is that they were confronted with competitors that offered similar products without copy protection and with lower prices. In other words, market forces (Microsoft was not yet considered a monopoly) pushed software companies into more rational setups and better relationships with their customers. But if copy protection is built into standard computer storage devices, whether hard drives or anything else, what competitors will I be able to turn to? Even my Macintosh PowerBook, which you might think is free from standards imposed in the Wintel world, relies on an IBM standard-issue hard disk. There’s another complication. The Digital Millennium Copyright Act expressly outlaws the dissemination of tools that can be used to circumvent technologies that control access to, or copying of, copyrighted works. I can’t even circumvent those technologies myself. Courts have said that it’s illegal even when the underlying purpose of the copying (fair use for a classroom presentation or permitted by license) is lawful. Even if the license of my word processor allows me to make archival copies of the software, it’s still illegal for me to use circumvention tools to do so. This combination of law and hardware means that there’s a real possibility that someday soon I won’t be able to choose between computer products that employ such schemes and those that don’t. If that day comes, I don’t know how the market will respond, but I know how I will. To the extent possible, I’ll stop buying new computer equipment altogether. I’m guessing at least some other computer buyers will make that decision too. This will mean I won’t have the fastest and best computer equipment anymore, but I’m betting I can stay afloat by haunting used-computer stores for a long time to come. And I’ll have the pleasure of knowing that the computer equipment, MP3 device or CD burner that I’m buying doesn’t have built into it the assumption that I’m a copyright infringer. Mike Godwin is chief correspondent of IP Worldwide, where this article first appeared. E-mail: [email protected]

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