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DRM and Its Impact on the Music Industry
By Alako Myles
Digital Rights Management (DRM) is responsible for fundamental changes in intellectual property rights and access in the modern music industry. Its initial purpose of enforcing copyright laws has been superseded, via mechanisms which have situated its proprietors as key beneficiaries of its implementation. As such, it poses major challenges faced in the digital age of streaming and downloading music material. In doing so, it has imposed limitations on the creative music practice of musicians, and formed an unprecedented power imbalance of ownership and control regarding people's rights and freedoms when engaging with and producing musical material.
Initially, DRM could be considered as an umbrella term for restrictive measures such license agreements or encryption for digital files. Systems for encryption software and bundling with hardware had been in place since the 1960s by companies such as IBM (Smith, 2017), however the earliest example of a distribution system that used encrypted tracking was Ryooichi Mori's "Superdistribution", released in 1983 (Norman, 2010). The system worked by storing cryptographically wrapped digital files that could be sold to the consumer using a peer-to-peer architecture, tracking its redistribution and ensuring consumers' usage of the product conformed to the terms set by the proprietor (Norman, 2010). This system was adopted by IBM in the early 1990s for software distribution (known as "cryptolope"). Similar systems were later adopted by digital music platforms such as iTunes for downloading content (Vance, 2003). The latest forms of DRM can also exist in streaming platforms like Spotify, using cached files containing encryption that are decrypted through a proprietary client (Lee, 2011). Today's DRM can therefore be specifically defined by these digital "wrappers"; a means of enforcing control over files and the ability to remotely access, modify or remove them through proprietary software and hardware methods.
The following are two ways DRM directly impacts a musician's creative music practice. Firstly, when a musician, producer or record company distributes music to platforms which impose DRM on digital media content, they technically lose their own rights to that material. The DRM proprietor company is given the sole ability to mediate engagement with the material in any way it chooses – it is the sole owner of the decryption key and access terms (Robertson, 2018). Due to this proprietary nature of DRM, companies who impose it can avoid accountability for what the encryption process entails, with additional circumvention laws criminalising any attempt to expose any part of this process (Clapperton & Corones, 2006, pp. 663-664). While this could be considered as being separate from creative practice, it directly affects musicians' autonomy extending to their own personal access of online material they own. By outsourcing to proprietors that impose DRM, they effectively hand over the technical ownership over their material irrespective of what copyright laws may be cited in the process.
Secondly, music creation is a derivative process which requires access and utilisation of existing works (Johnson, 2020), which DRM inherently prevents. One of the benefits of music being stored either in analogue format or as DRM-free digital audio files is that the sound can be re-organised, altered or modified to create new sounds and styles. For example, a small section of vocals in Steve Jefferies Evil at Play (1986) is sampled in Aphex Twin's Xtal from Selected Ambient Works 85-92 (1992), which became critically acclaimed for its unique, futuristic soundscapes, later being named "the best album of the 1990s" by Fact Magazine (Sande, 2016). Because of it encryption methods, DRM streaming and downloading is illegal and technically impossible to sample from. Circumventing the DRM by recording the audio it contains externally is also illegal regardless of whether copyright infringement takes place (Clapperton & Corones, 2006, p. 661). By placing limitations on the usage of existing works, DRM limits the possibilities for new soundscapes and musical ideas to be explored in a musician's creative practice.
DRM poses fundamental challenges to the music industry. Musicians, producers, record labels and consumers are stripped of their legal rights and freedoms when engaging with musical material that imposes DRM. Only the proprietor that imposes encryption on a file has the ability to decrypt it, and is seen as common practice by the dominant platforms like Spotify and Apple (Young, 2015) (Defective by Design, n.d). DRM has, in this sense, transcended copyright laws it was marketed to uphold; providing a platform for specific corporations to have full technical ownership and control over the dominant format of sound recordings today (Clapperton & Corones, 2006, pp. 663- 664) (Hatton, 2021). Regardless of what the laws may state and what the financial outcome is, it fundamentally limits the true ownership of digital music files to a proprietary vendor.
This proprietary nature of DRM poses ethical issues involving remote access to files and controlling mass media, which is often overlooked due to the monopoly the proprietors hold over the industry (Armstrong, 2020). Proprietors that impose DRM have an unprecedented power imbalance over anyone who engages with the media they provide. For example, the protection laws enforced by the DMCA (Stallman, n.d) and methods of encryption allows applications to be embedded into streamed or downloaded files, which may analyse and report back through encrypted backdoors the contents of the users' RAM and display (Libreboot, 2016). Some DRM encryptions store their key on Intel Management Engine (ME), a microcomputer built into most Intel processors since 2006, which then uses the GPU to decrypt the media, transferring back to the user's computer via Intel ME (Libreboot, 2016). This allows DRM applications to access a backdoor to into every hardware component of a computer – what's stored on the RAM at any given time, hard drive, online activity (Libreboot, 2016). DRM applications within Intel ME can then observe activity and collect data packages of its observations via the wireless network card; essentially, a form of proprietary surveillance with total access to and control over a user's computer while bypassing the user's own operating system (Libreboot, 2016). The monopoly DRM streaming and download proprietors have over the music industry inherently puts pressure on artists and producers to distribute to the dominant platforms. It establishes an industry that forces participation and engagement within the commercial status quo by artists, producers and record labels to reach consumers, while ethics and intellectual property rights take a sideline.
There is often the economic case made that the restrictions DRM imposes are the most effective way of upholding copyright laws, so that musicians, producers and record labels can profit off individual sales without further redistribution (De Groot, 2018). However, this claim does not hold up when considering the microeconomic principles of the music industry. A study by Paul Petrick for the Berkmen Center for Internet & Society at Harvard Law School conducts a close economic analysis of the music industry, and concludes that DRM likely leads to a decrease in social welfare (p. 2). This is the result of extended monopoly pricing, limiting information available to music consumers, and reducing the potential for "positive externalities" to aid in the promotion and career building of musicians (pp. 23-24). Although written in 2004, it more or less reflects the present situation of the online music industry; proprietors such as Spotify holding the monopoly pricing over music distribution and consumption (Armstrong, 2020), the proprietary nature of DRM prohibiting users to know what is encrypted/decrypted in the streaming/listening process, and the inability to freely distribute copies of DRM encrypted music files as form of promotion for the artist. Petrick's analysis argues that from these limitations, DRM may lead to "losses in total surplus in the music industry" and that it impedes on "copyright law's attempts at curing various market failures" (p. 30).
DRM has clearly superimposed its marketed intention for upholding copyright and fair use laws, creating a power imbalance between the proprietor and the user. The limitations it imposes reduce creative engagement with existing musical material, and provides a platform for the proprietor to exploit the rights and freedoms of musicians, producers, record companies and music consumers on an unprecedented scale and rigor. It is designed to restrict the access of media outside the platform's proprietary container and to attain data about the user in the process, and therefore its purpose is specifically for the proprietor and not for the benefit of the music industry. Yet DRM streaming and downloading platforms haven risen to the forefront, now holding the monopoly over music distribution and consumption. For these reasons, DRM should be considered as a significant impact on the global music industry, and fundamental to many of the challenges within the movement towards online digital media access.
Armstrong, M. (2020). The world's most popular music streaming services. Statista Infographics. https://www.statista.com/chart/20826/music-streaming-services-with-most-subscribers-global-fipp/
Clapperton, D., & Corones, S. (2006). Locking In Customers, Locking Out Competitors. Melbourne University Law Review, Vol. 30. https://law.unimelb.edu.au/__data/assets/pdf_file/0008/1707920/30_3_2.pdf
Defective by Design. (n.d.). Apple is Defective by Design. Retrieved October 5, 2021, from https://www.defectivebydesign.org/apple
De Groot, J. (2018). What is Digital Rights Management? Digital Guardian. https://digitalguardian.com/blog/what-digital-rights-management
Hatton, C. (2021). IFPI issues Global Music Report 2021. IFPI. https://www.ifpi.org/ifpi-issues-annual-global-music-report-2021/
Johnson, G. (2020). All Songs Are Derivative Works: Copyright and the Reality of Music Composition. The Columbia Journal of Law and the Arts. https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/370
Lee, M. (2011). Spotify is Defective by Design. Defective by Design. https://www.defectivebydesign.org/spotify
Libreboot. (2016). Frequently Asked Questions: Intel Management Engine (ME). https://libreboot.org/faq.html#intelme
Norman, J. (2010). Ryooichi Mori Invents Early Form of Digital Rights Management. History of Information. https://www.historyofinformation.com/detail.php?id=2442
P. Petrick. (2004). Why Drm Should Be Cause for Concern: An Economic and Legal Analysis of the Effect of Digital Technology on the Music Industry. Berkmen Center for Internet & Society, Harvard Law School. https://dx.doi.org/10.2139/ssrn.618065
Robertson, D. (2018). The threat of government-run Digital Restrictions Management. Free Software Foundation. https://www.fsf.org/bulletin/2018/spring/the-threat-of-government-run-digital-restrictions-management
Sande, K. (2016). The 100 Best Albums of the 1990s. Fact Magazine. https://www.factmag.com/2012/09/03/the-100-best-albums-of-the-1990s-100-81/
Smith, E. (2017). The Incredibly Technical History of Digital Rights Management. Vice. https://www.vice.com/en/article/evbgkn/the-incredibly-technical-history-of-digital-rights-management
Stallman, R. (n.d.). The Right to Read: Author's Notes. GNU. Retrieved October 5, 2021, from https://www.gnu.org/philosophy/right-to-read.html
Vance, A. (2003). Apple adds iTunes DRM to one million Windows PCs. The Register. https://www.theregister.com/2003/10/20/apple_adds_itunes_drm/
Young, G. (2015). DRM on streaming services: The ultimate antifeature. Defective by Design. https://www.defectivebydesign.org/drm-streaming