May 1999

Electronic Frontier Foundation
Digital Audio and Free Expression
Policy Statement

Digital audio is in transition as the Internet becomes a viable medium for effective audio distribution. During this transition, the Electronic Frontier Foundation is working to retain all of the rights that individuals have in the existing society. Audio is a primary means of expression. "Speech" is audio, and without free audio, we would have no free speech.

Free Expression and an Open Society

Free expression is a fundamental right and requirement for an open society. When governments, individuals, or corporations infringe upon this right, open societies provide opposing forces to challenge and halt this infringement.

EFF has long believed that "Architecture Is Policy." The architecture and standards for how machines and people interact have implicit implications for social behavior and human-to-human interactions. In designing technology architectures, we all have a responsibility to build protocols and standards that are good for our society as well as for technology and business.

Why We Think This Is Important in Digital Audio Today

Society is making important choices about digital audio and free expression. In building an architecture for digital audio, participants have a responsibility to build an open architecture explicitly designed to permit and encourage a full flowering of individual expression, not a closed design that limits an individual's effective capabilities to be any less than his or her full legal rights.

Why We Are Concerned

Some representatives of the music recording industry, which for years has been a major distributor of analog and digital audio, are attempting to use their industry position, legal staffs, lobbyists, and coordinated action, to limit the ability of small players, using consumer gear, to reproduce audio. They coordinated the passage of legislation in 1992 that criminalized the creation of digital audio recorders that merely copy digital audio the way computers or Xerox machines copy expressive works. They coordinated the passage of legislation in 1997 that puts greater civil liability on ISPs who do not implement restrictive technical standards to prevent the copying of digital audio through the Internet (if and when adopted by the music industry). They would be happy to pass legislation to criminalize open Internet distribution of audio, and to mandate the adoption of locked technology--one that would effectively obliterate the freedom to distribute audio entirely. This group of "record companies" seems to be attempting to abolish or obsolete all open formats, eliminating competition and user choice in the market.

It Is Not Just About Music

All kinds of information flows in digital audio forms, including talk radio, political speeches, commercial speech such as advertising, private discussions recorded by the participants, telephone calls including conference calls, public meetings and speeches on myriad topics, and spoken books. Even in the realm of music, much music is "homemade" by consumers, hobbyists, and budding artists, and is not restricted by copyrights.

Copyrights and Piracy

The recording industry claims that a locked technology is necessary to prevent copyright "piracy"--the theft of intellectual property--over the Internet. Obviously, record companies are free to release music that they own or control in any format. However, EFF believes that given the choice, consumers would choose to purchase music in open formats. We believe that artists who allowed their works to be distributed in open formats would gain competitive advantages over artists who locked up their work.

We encourage the development of ways to safely distribute music through the Internet, as well as systems to enable commerce by automating payments. However, these methods of distribution must never replace, but only augment, ways for consumers to distribute audio without restrictions.

In Sony Corp. v. Universal City Studios (1984), the "Betamax" decision, the U.S. Supreme Court found that consumers have the legal right to "time-shift" works, or in other words, to record a show that is broadcast at 11 a.m. for viewing at 7 p.m. EFF also believes that users have the legal right, as a fair use of the material, to "format-shift" works, say from CD to cassette to play in their car, or from SDMI to MP3 to play in their Rio. Such translation is simple for a computer to do, unless somehow such conversions become practically or legally prohibited.

The industry should cease pursuing court cases against individuals, companies, ISPs, web sites and hardware manufacturers that merely use or deploy open standard format technologies. These cases clearly overreach copyright enforcement, squarely step on the First Amendment of the U.S. Constitution, and may tread close to antitrust and restraint of trade violations. We support the music industry's efforts to sue those who actually distribute copyrighted audio without the right to do so.

Current Issues

Current initiatives that run afoul of principles of free expression include:

• Requiring equipment producers to disable or not play open audio formats or to convert open audio formats to their closed format technology. The major recording labels, which control 90% of the current music distributed globally, appear to be insisting that anyone who licenses their closed technology will not be able to build equipment that handles free audio, as well. By contract, any such equipment would have to turn audio formats with freedom to copy (like CDs, MP3s, analog or microphones) into the most restrictive form of closed media. Or potentially, devices or companies would be forced to "time out" and cease to handle open formats after a certain date. Along with being anti-free expression, this is probably an antitrust violation.
• Suing producers of MP3 and other open format search engines. The International Federation of the Phonographic Industry (IFPI), working in concert with the Recording Industry Association of America (RIAA), has sued FAST Search and Transfer, the subcontractor that Lycos hired to provide a MP3 search capability to the public.
• Suing producers of MP3 and open format equipment. For example, RIAA has sued Diamond Multimedia Systems to cease distribution of its Rio MP3 player. The portable Rio, which is the size of a deck of cards, lets PC users listen to MP3 digital sound files while away from their computers. There have been other lawsuits and threats of lawsuits, as well.

If any format becomes the required technology for all audio distribution over the Internet, songwriters, recording artists and other audio copyright holders will no longer have the ability to authorize distribution of their works in a way of their choosing. The entities that would own this formatting technology (i.e., large record companies) would be able to control, by contract, who can authorize the copying of any particular work or class of works. Besides the censorship potential, there's the social impact in terms of raised prices, fewer viewpoints, and reduced volume of communications that results from monopoly control of such a means of communication.

Our View and Initiative

EFF is concerned about any attempts to make digital copying of all audio works illegal. Technology should not impede the freedom to copy audio files, in the same way that Xerox machines do not impede paper copying. The industry is making the assumption that all digital recording is a copyright violation, and that is an improper assumption. While preserving intellectual property rights is important, it must not be done at the expense of free expression. In fact, the U.S. Supreme Court clearly stated in the Betamax case that copyright concerns cannot be used to eliminate recording equipment from the market if the equipment has ANY substantial non-infringing function.

EFF supports the notion that competing technologies, both open and closed, are the strongest way to protect free expression in the distribution of digital audio. The storing, transmitting, or reproducing of audio should not be more burdened than the storing, transmitting, or reproducing of other forms of speech or publication. The Internet distribution of audio must not be crippled by regulation or industry standards that preclude the use of open technologies.

EFF is reaching out to others who share our commitment to free expression and to the proliferation of open digital audio technologies. We are convening the Consortium for Audiovisual Free Expression (CAFE) to discuss these issues. Members of CAFE include artists, technologists, and civil libertarians who will work together to create the challenges and market forces to ensure that free expression is maintained and protected in our society.

For more information about the EFF Consortium for Audiovisual Free Expression, see http://www.eff.org/cafe, e-mail us at cafe@eff.org or phone us at +1 415 436 9333.