Electronic Frontier Foundation ALERT (revised) -- Sep. 29, 2000
Please redistribute to relevant forums, no later than Dec. 1, 2000.
Several EFF staffers recently accepted an invitation to meet with members of the Secure Digital Music Initiative (SDMI) to discuss technical discrepancies between EFF's portrayal of SDMI-compliant devices/SDMI's current specifications and to open a dialog about the civil liberties concerns EFF has expressed regarding this technology. EFF would like to thank the SDMI representatives for an informative and thoughtful dialog exploring the technological and social issues surrounding this attempt to create a secure environment for the distribution of digital music.
The diligent efforts of SDMI to create a technology that secures content while allowing some potential to make personal copies is impressive. EFF, however, can not soften its stance against SDMI and continues to encourage hackers to boycott the "Hack SDMI Challenge" on the basis that the technology fundamentally restricts fair use, is anti-competitive and ignores previous lessons learned by the software industry.
SDMI is attempting to create a technical standard that will place a permanent watermark on digital content, starting with music, that will be used to strictly control its public use. At the core of SDMI's specifications is the requirement that SDMI-protected content can never exist in an unprotected state. Content containing an SDMI-compliant watermark will even retain its protection in an analog form, since the watermark is made part of the audio signal.
Under SDMI's specifications, content providers will have the power to code their content with a set of usage rules that will govern how consumers may use their music. These rules will then instruct the SDMI-compliant device as to the number of times content may be reproduced, if any.
SDMI compliance allows content providers to eliminate critical fair use rights, such as excerpting portions of music files in high quality audio and possessing multiple copies of music files that are not disabled. A school orchestra director can be prevented from providing students with musical excerpts through SDMI-compliant devices. Journalists with such restrictions can also be kept from making multiple copies for news stories. People who want to use content for parody or satirical purposes can be silenced, not able to disseminate their views through an SDMI-compliant architecture. Rap artists can also be severely limited from reusing the material of other artists without permission from the record companies. People can be kept from making backup copies of purchased content. Also, SDMI compliance gives content holders the ability to circumvent the "First Sale" doctrine: the right to actually own instead of simply licensing purchased content. Under SDMI specifications, content holders get to make determinations related to all of these rights.
SDMI states that its technology allows for unlimited copies of content. This statement is only true in a limited number of instances, however. When you already own a CD and have a working copy of that CD in your collection, an SDMI-compliant device will allow you to create unlimited crippled copies (crippled in that they now have a watermark and are copy restricted). If you download the music from the Internet instead of buying the CD, though, the content provider has complete discretion to limit the number of copies that can be made. While the record companies, who own the majority of the content, could set this number very high, that is quite unlikely!
What the good folks at SDMI do not seem to understand is that fair use is a right, not a privilege. Requiring people to get permission from content holders to criticize their work is an unreasonable (and we would argue unconstitutional) burden on their ability to exercise their free speech rights. Permitting unlimited analog copying is not an adequate solution, in that restricting protected speech to lesser quality technologies does not satisfy the First Amendment. Furthermore, EFF fears that anyone who circumvents SDMI's copy protection mechanisms or the digital rights management schemes enforced by SDMI will be opening themselves up to a lawsuit under the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).
If SDMI were merely an alternative music distribution scheme that offered artists a choice of protecting their works, as SDMI portrays itself, EFF would welcome it into the marketplace of ideas. However, when over 90% of the world's music content holders are together creating this standard, there is no room for legitimate competition. Everyone from artists to hardware manufacturers to consumers will be required to use SDMI standards if they want access to the vast collection of materials controlled by the recording industry.
The creation of SDMI as an organization has also given content holders a convenient scapegoat around which they can mandate public policy while maintaining an illusion of fairness. SDMI's policy has been to wash its hands of any potential abuse on the part of content holders. SDMI claims to simply set up an architecture in which content holders are later free to choose the usage rules. What they fail to point out is that SDMI and the content providers are the same people. When they step out from behind the thin curtain of SDMI, content providers will set the rules by which the world's public must passively listen to their music without the opportunity to speak back.
The computer industry learned a decade ago that copy-protecting all software was not an acceptable model for consumers. The software industry has almost universally embraced open models of software creation and distribution, like the open source movement. With consumers already demonstrating their desire to own unrestricted copies of their favorite music, one would think that the music industry would take notice of the software industry's hard-earned wisdom and put forth similar models of music distribution. Clearly, some artists who are engaging in alternative models are already receiving attention (and downloads!)
EFF again urges anyone with the technical expertise to compete for the "up to" $10,000 prize to refrain from doing so and to continue telling SDMI--and your friends, relatives and colleagues--that you are participating in this boycott and why.
If you are a hacker, reverse engineer, digital audio expert, cryptographer or other targeted by SDMI's invitation, refrain from giving SDMI free consulting on how to hack away at your rights. Please:
If you are an independent artist, you can:
If you are a "signed" artist, you can really help:
EFF's Campaign for Audiovisual Free Expression (CAFE)
http://www.eff.org/cafe
The "HackSMDI" site:
http://www.hacksdmi.org
The SDMI homepage:
http://ww.sdmi.org