When we speak about "intellectual property" today, what people generally think about is protecting content currently owned and created by corporations. But that's not at all what really worries Sony, BMG, EMI, etc.

Those who are familiar with the music industry know that musicians are in quite a bind: the contracts being offered today ensure they barely make a penny off their music, and have to tour if they want to see a return on their efforts. Musicians readily agree to such draconian contracts, however, because they recognize that the big studios currently have control over the distribution channels.

Thus, this development is the "nightmare scenario" for top industry players:

Radiohead, by offering its forthcoming album as a digital download with no fixed price or copy protection, is testing a concept promoted by digital rights management opponents for years.

The British band announced this week that it will sell its new album, "In Rainbows," from its Web site and allow fans to decide how much to pay. The band will release the album via digital download Oct. 10. Radiohead will sell the album without DRM, allowing buyers to copy and import the songs onto as many devices as they wish.

NME, a music news Web site, reports that its readers have indicated they will pay an average of $10 for the album. While that's less than the going rate for a new CD with 10 songs, the band appears to have circumvented distribution costs and payments to record labels. The band had ended its contract with EMI before producing the album.

Radiohead figures that any money would probably be more than they've been getting from EMI. (Probably correctly.)

If you take a close look at Digital Rights Management (DRM) technologies and other copy protection schemes, you'll notice something odd: They don't actually work.

Well, they work against naive users, but not against sophisticated users. For example, EMI sells consumers "copy-protected" CDs which they can't play on their computer unless they install some suspicious-looking software. Nor can these CDs be easily ripped to create an MP3 for your player.

But if you happen to have a Linux system (or old CD player, and a digital recorder) you can easily get the music off the disk. A pirate would have no problem doing this, but Martha Q. Typical certainly would. Likewise, the entire album can easily be copied in Disk-At-Once (DAO) mode and reproduced en masse by a counterfeiter. Similar arguments can be made for DRM.

So why bother?

Well, the dirty little secret is that the Clinton administration passed legislation (DMCA) which actually makes it a federal to bypass or defeat any encryption scheme, no matter how lame. (This would probably include rot-13, for you old-time geeks out there.) Doesn't stop big-time criminals or hax0r k1d33z, but nicely criminalizes otherwise legitimate, moral behaviors among generally law-abiding users. (For example, it effectively criminalizes the entire range of "fair use" of media.)

In short, this is about controlling the masses, not the mob.

That's what happened to Jon Johansen, a Norweigan teenager who wanted to watch French DVDs on his Norweigan DVD player. He and some pals wrote some code to break the CSS so that he could do so. He's a wanted man here in America; in Norway the studios put the local fuzz up to bringing him up on charges of *unlawfully trespassing upon a computer system.* When his defense asked, "Which computer has Jon trespassed upon?" the answer was: "His own."

The same thing would apply to the a family who might download unlocking software from the internet after realizing the DVD they bought on vacation had the wrong region code. Or perhaps even a person who burns a CD from iTunes, in order to then rip it again to obtain MP3s for personal use. (I don't think this has actually been found illegal yet, but I expect the argument could be made.)

Likewise, in the failed-laws-are-good department

The very fact that DRM doesn't work is a justification for Hollywood's legislative agenda. "We need more laws because technology alone won't solve the problem." [1]

And, also, oh-so-usefully:

Selling content with DRM (even if the DRM is broken) means you aren't really selling anything at all, you are licensing it. A person doesn't "own" the music they "buy" from iTunes, what Apple calls "the product" is licensed to the purchaser, but that license may be changed at any time in the future.

And we're not just talking iTunes here. The next big move by the industry, something innocuously called "Trusted Computing", means that key industry players will be able to say what software and content you will be able to put on your computer -- and even your hard drives themselves will enforce such a scheme, at the hardware level.

A "trusted" platform is defined by what is known as the "root of trust" – which, inside a PC or a server, will likely be a Trusted Platform Module. TPMs were first architected by the TCG, which Microsoft helped form in 2003 in its bid to architect its Palladium digital-rights-management initiative... Microsoft's latest "trusted" disclosure has been to reveal that untrusted drivers will be blocked by Vista, its upcoming operating system.

The ultimate point here, boys and girls, is control of distribution. This is not simply about the owners of Apple Records making sure four seconds of the Beatles' "Help!" isn't used as an unauthorized ringtone on your support line. The point is to make sure that efforts like Radiohead's, above, cannot succeed in the long run.

Consider: what did studios used to do? They used to produce the records and movies in their multi-million dollar facilities. But now technology has enabled everyone and her brother to create half-decent music in their living rooms. So why bother with Viacom or Sony? DRM, Trusted Computing, broadcast signatures, and similar technologies will ensure nothing will be created, transmitted, recorded, copied, nor rewatched without their blessing and, might I add, profit.

Of course, though the goal now is merely money, Murphy's Law suggests this scenario could easily be conscripted as a means of political coercion, and probably will. The desire for one leads very nicely to desire for the other.

In the 20th century, modern weaponry and communications allowed dictatorships unprecedented levels of control. (In the past, you always had to convince countless factions to carry out your will.) In the future, we could end up with a system under which people who refused to agree to certain political ideas were actually prevented not only from executing financial transactions, but even communicating with the rest of society -- and thus disseminating their heretical views. Every fragment of digital information could effectively be brought under complete global control.

The British (mild as they were) were opposed in the American Revolution by the availability of cheap printing presses. The USSR was taken down, in part, by people copying outlawed speeches and news from one cheap cassette recorder to another. Future despots -- as long as they have control or influence over the world information and digital rights infrastructure (think China and Google) -- needn't have any such worries.

In the short term, however, I'm an optimist: I'd like to think Radiohead's efforts will succeed (or something like it, where they at least bother to ask a nonzero price). And other things are looking quite good at the moment: Amazon is selling unlocked MP3s (I plan to buy a few), which many say is a harbinger of good things to come, perhaps for quite some time.

But history is long, and nowhere near completion, and there will always be forces -- both business and political -- who relentlessly seek to concentrate power by any and all means available.

All for the greater good, you understand.