A hundred years of EULAs

Publication date: 16 March 2011
Originally published 2010 in Atomic: Maximum Power Computing
Last modified 11-Dec-2011.


You may find this difficult to believe, but Digital Rights Management (DRM) can actually work.

No, really. I'm serious.

Look, for instance, at Valve's "Steam" system.

Steam doesn't look like DRM at all. It just looks like a big folder full of games, with a user-account login thing. You can install Steam on a new computer, network the new PC to your old one and copy the steamapps folder over, and all the games will be there, working. Steam even has its own, built-in, game-backup system.

You can also install Steam on a friend's computer, and copy all of your games over. And then, whenever you're not logged into Steam, your friend can log in using your account info and play all of your games. It may be a violation of some agreement or other, but it'll work. As it should, because otherwise you'd have to buy a new copy of Peggle if you wanted to be able to play it on your laptop as well as - but not at the same time as - your home PC.

This is where Steam diverges from the DRM we all love to hate. Because, you see, a system like Steam, that'll let you play a game on your laptop or on your PC but not both at once, does make it possible for two different people to play only one paid-for copy of a game. As long as they don't both want to play that game, or any other game that requires a Steam Internet login, at the same time.

It may be perfectly legal for two people to take turns playing the one game, depending on the jurisdiction and the interminable user agreement for the game and how drunk the judge that heard the precedent-setting case was. But most software publishers don't give a damn about what's legal. They gots to get paid, son, and that's all there is to it.

(Steam now has an optional feature, "Steam Guard", that lets you voluntarily lock your Steam account to one PC - but with the option to enable more, via e-mailed codes, thus offering protection from people who pinch your password while still letting you play your games on more than one computer. I suspect that the main reason Valve Corporation does worryingly sane things like this is because it's a private company, so it doesn't have to "maximise shareholder value" by selling its seed corn and torturing its customers.)

The two-people, one-software-license situation is exactly the sort of thing that attracts the content-company money-sharks. It, clearly, presents an opportunity for the media company to screw some more money out of a customer. So they must. No matter how much of an own-goal this always turns out to be.

Ubisoft's recent creation of games that only pirates can play is the most perfect form of DRM-restricted software yet seen. There are tons of other examples, though, and they all grow from the same short-sighted thinking. In a farming metaphor, the DRM-crazy content companies are yanking up every tiny new green shoot the second they see it, and not letting anything actually grow.

(This farming metaphor, for the benefit of the gamer demographic, also works as a Tiberium-farming metaphor.)

You might find yourself wondering how long this nonsense has been going on.

Licenses you "agree" to just by using the product, media companies threatening their own customers with legal action... surely these are just the birth pangs of the still-young software industry, right?

So does it go back to when games came on floppy disks? Perhaps all the way back to industrial process-control software on punched cards? Wait, wait - perhaps it's older than software. How about when LP records were pretty hot technology? Was that when it started?


Actually, Copy-Control Crap like this - especially the license you "agree to" by buying the product - started about a hundred years ago.

If not earlier.

There were license terms like this on wax-cylinder records.

Get an eyeful, for instance, of this Zon-O-Phone label-license from about 1912, when disc records were still a pretty new development and cylinders were still selling well:

Zonophone record label

For the sake of your suffering retinas, here's what the license says:

"This patented record is licensed for sale and use only when sold at retail at a price not less than the price marked upon this record [65 US cents, something like $US15 in today's money], and only for the purpose of producing sound directly from this record, and for no other purpose. The patents covering this record, and under which it is made, among others, are U.S. patents no 554,543, dated Feb 19, 1895, [...more patents...]. This license is valid only so long as this label remains on this record, unaltered and undefaced. A purchase is an acceptance of these terms. Universal Talking Machine Mfg Co. May 1, 1911."

That definitely has a similar flavour to modern software End-user License Agreements (EULAs). All it really needs is much smaller print, so they can fit in a few thousand more words-the-customer-will-ignore.

Unlike an EULA, though, the prickly language on this record label was not primarily directed at the actual customers. There wasn't what you'd call a thriving second-hand market for records at the time, and there was definitely no way for home users back then to copy records.

The angry license was, instead, aimed at other record companies.

Back then, you see, sound recordings were not actually copyrightable, since they weren't "writings".

(Similar inflexibility later led to movies being copyrighted as a very long series of still photographs, filed with the Copyright Office as strip upon strip of prints. Those prints were in some cases later very handy for recovering old, lost films. Piano rolls actually became copyrightable before sound recordings. That really irritated the recording industry.)

Because music could not be copyrighted, every record company back then was cheerfully ripping off every other record company's recordings, even though there wasn't really any way for even a record company to make a decent-sounding duplicate until the arrival of "electrical" recording in the 1920s.

Before electrical recording and moulded, "pressed" records, recordings were made by cutting them one at a time on a recording machine that was essentially a phonograph in reverse. The recorder's horn collected sound rather than emitting it, and the sound vibrated a diaphragm, which wiggled a cutting tool that scribed its line around the "wax". (Which was actually, for the commercially successful cylinder phonographs, one or another material much more durable than candle wax. Cylinder materials that actually resembled normal wax were only usable for things like dictation machines, where you don't need to listen to the recording more than a couple of times, and where being able to "erase" the cylinder by flattening out the wax was desirable.)

To make recordings in quantity, batteries of these primitive mechanical recording machines were aimed at performers, who played the loudest instruments they could find for the few minutes it took to fill a cylinder. Then the band had a brief breather while the freshly-cut cylinders were swapped out for blank ones, and then they played the song again. And again. And again.

They had to do it this way, because when recording was still an entirely mechanical process, it was impossible to connect a player to a recorder in a satisfactory way. You could point a playback horn at a recorder horn, or you could connect a playback stylus to a cutting stylus with some sort of pantograph, but the quality of the resultant copies, even by the low standards of the day, was terrible. The mechanical process also made it impossible to make durable "master" records from which many copies could be pressed; you need electrical amplification to turn the feeble vibrations of a diaphragm into motions of a blade that can cut a material more durable than "wax".

The fact that you couldn't make decent copies didn't, however, mean that record companies didn't copy each others' records, all the time.

I refer you now to "RECORD PIRACY: The Attempts of the Sound Recording Industry to Protect Itself against Unauthorized Copying, 1890-1978", by Raymond R. Wile, writing in the 1985 edition of the Association for Recorded Sound Collections Journal. The article is on the Web in PDF format right here. (The rest of that issue of the ARSC Journal is here.)

As Wile's article explains, during this wild-west copyright-free period at the beginning of the music-recording business, the record companies tried to corner at least some of the market by each patenting the broadest possible range of record-related technologies. It was, for instance, arguable that Columbia Records had a patent on all needle-in-groove recording techniques, and thereby owned all of the then-current copying techniques, too. This was the basis for one of the dozens of lawsuits between all of the early recording companies, which played out very much like miniature versions of today's software-patent idiocy.

The record companies weren't above hypocrisy, either. In the early 1890s Columbia was hotly attacking the United States Phonograph Company for making recordings of acts that had signed exclusive contracts with Columbia. But at the same time, Columbia was copying United States Phonograph Company records, and selling the lousy copies as original Columbia master-quality cylinders. This sort of thing went on for decades, long after disc records became the standard.

As soon, for instance, as Emile Berliner managed to navigate between the very broad existing record patents of Columbia and others, and create the first disc records that were worth buying, one of his employees left to start a bootleg operation that'd sell records made in the same way, through... Columbia. The bootleg business also sold a gramophone that ripped off the new Berliner patents. It never really got off the ground, but not for want of complicity from Columbia.

And then another ex-Berliner employee started his own shameless copy outfit and promptly sued Berliner for violating Berliner's own patents, and formed an alliance with, you'll never guess, Columbia...

And oh, yes - some records were made with painful rights-management features that stopped the product from working properly, like manufacturers' stamps right on top of the grooves. (At least, at the time, there was no way for pirates to get a version of the same product that lacked this experience-ruining copy-control "technology".)

Today, of course, music recordings have been copyrightable for a long time. The major problem with copyright these days is there's far too much of it. But there's still a strong connection between today's EULAs and DRM and those record licenses from before the First World War, because all of these contrivances try to do the same thing: Stop people from doing what they have a legal right to do.

It might not have been fair that it was impossible to copyright a music recording in the olden days, but that was nonetheless the law. Telling your customers that "a purchase is an acceptance of" an agreement to do stuff which the law does not require is just as shady as telling a software-buyer that they've agreed to toss away their rights by clicking "I Agree" to a wall of legalese, or even by putting the license inside a box that says on the outside that by opening it you agree to a license which you haven't yet read.

The modern content companies came up with a clever way to shore up their defenses against traditional content-consumer rights like first sale and fair use. They wrapped their products in one cack-handed form of DRM or other, and then lobbied rather successfully for laws that make it illegal to circumvent that DRM.

The idea here is to prevent your customers from even getting to argue that they should be able to do the same things with a computer game they buy that they can do with a book they buy, not by specifically striking down any rights, but by making an attempt to exercise those rights artificially difficult, and a violation of a whole new different law, like the Digital Millennium Copyright Act.

Whole new different laws that attack codified rights are, generally, clearly at odds with the very notion of codified rights. But if you pump enough megabucks into your lawyers, you can keep your leaky legal life-raft inflated indefinitely, or at least until your customers all wander off and your money-flow stops.

The hell of it is, many people clearly aren't very concerned about first-sale rights (the right to resell a legally purchased copy of some copyrighted work). You can't, for instance, resell Steam games. They're locked to your account. (You could sell someone else your actual Steam account login info so they get every game you've bought, but this, of course, violates the Steam EULA.)

And you don't get a box and a disc and a manual with your Steam games either, even though new games on Steam sell for the full retail price.

And yet Steam's users, two to three million of whom were logged in while I wrote this, clearly don't care. Possibly because an unresellable digital copy of a game, which you can play again any time you like, beats the theoretically-resellable physical copy of a game which you can no longer play, because you can no longer find Disc 1.

(And being unable to sell your old games is compensated for by the ability to buy old games, cheap and DRM-free, from a place like Good Old Games.)

Steam's biggest competitor should be Games for Windows Live, but that actually appears to be some sort of demonic joke, and Microsoft doesn't really seem to even understand what's wrong with it. Direct2Drive are probably Steam's closest competitor that functions, but Steam remains a lot more popular.

Steam, in short, works. (Yes, yes, as long as you're not one of the lucky few whose accounts get locked because of some PayPal error or something.)

Valve haven't encrusted it with computer-breaking fascist-DRM, or developed the screaming hatred of fair use that today characterises the huge, idiotic and self-destructive content companies.

To be fair to the old-time record companies, as far as anybody can figure out, they never actually did sue a customer.

So, if anything, the modern content companies are going backwards.

Fortunately, though, there's a very promising light at the end of this tunnel. I talk about it in this column.

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