Adding To The Noise

It seems the band Switchfoot is quite a bit smarter than the Dave Matthews Band. The band’s new album Nothing Is Sound shipped from Sony with the ultra-convenient and super-friendly copy protection hacks that we’ve grown to love from our friends at Sony BMG. While this is no way surprising, I now have much more respect for Switchfoot in regards to this issue. Instead of hiding behind their label and blaming Apple for the problems that their fans were having (who has nothing to do with the fact that the fans are being tricked into buying something which is NOT actually an audio CD), Tim Foreman, the band’s bass player, actually took the time to post detailed information on the band’s discussion board (hosted by Sony) that explains how to import the album into iTunes, without any loss of quality or any DRM restriction.

I am very proud of Foreman for posting this information. As a musician who actually cares about his listeners, he realizes that the record label has unjustly restricted the use of the music that he has created and he has taken the proper steps to correct this. He even apologized for putting his fans through the annoyance of the copy protection scheme. That being said, Tim Foreman either has some large cahunas or is not too up-to-speed on the current copyright lawn in this great (yet sometimes misguided) nation of ours. (Or he’s not too bright, but I’ll assume that isn’t the case.)

You see in our land we have this pesky little law known as the Digital Millenium Copyright Act. This law, pushed through congress by the motion picture and recording industry cartels during the Clinton administration, severely limits the First Amendment rights of the American people by making several important actions illegal and punishable by huge fines and/or imprisonment. These huge fines were the basis for the $97.8 billion in charges brought against Dan Peng while I was in school with him. I gave him $20 from my Pay Pal account to help him out. I doubt he felt it.

The DMCA’s supposed intention is to stifle piracy of music and audio content. There are sections of the law that set the penalties for "primary infringement" at $150,000 a pop and introduces a new crime, that to my knowledge doesn’t really exist in the real world, "contributory infringement" at $125,000 a pop. The majority of Peng’s charge was for contributory infringement for running a web site that indexed the campus network. On top of that the DMCA also makes it illegal to circumvent any copy protection technology. The tools that Foreman links to in his discussion board post are most likely interpreted as circumvention devices by the RIAA.

By posting the aforementioned information to the internet, Foreman has just exposed himself to criminal prosecution by the RIAA’s army of lawyers. Right now Switchfoot is a relatively popular band, but they’re no superstars. Yes, they’ve sold over 3 million albums, but I’d be interested to see what the label does here. Do they try to shut up Foreman? Do they threaten to drop the band from the label? Are there contingents in the band’s contract that will penalize the band for what the label sees as aiding music piracy? I would think that if Bono decided to pull a stunt like this, the industry wouldn’t be able to stop him because he’s the frontman of one of the biggest bands in the world. Switchfoot, while a profitable investment for Sony, does not bring in U2’s cash.

My prediction is that within 72 hours Sony will remove the post from their web site and pretend like nothing happened. I would prefer if they just acknowledged the fact that the world doesn’t want this copy protection crap and stop wasting their money. I don’t even have to look myself in order to say in full confidence that the entire album is already available through the major file sharing networks. That is because no copy protection technology has ever prevented copying. There will always be a way around it. If someone wants to steal the content they will find a way.

I could go on about how the DMCA has already stifled innovation and academic progress in several key research areas (and we wonder why our country is falling behind in technology). Instead I will just say that while I predict Sony will take typical RIAA-style action, I hope they will instead realize that what they are doing is wrong and change. One can dream.