Washington, DC, April 5, 2011 --  

Media companies love to repeatedly charge customers for the same content. Digital distribution is only making the problem worse.

When the Beatles finally appeared on the iTunes music store in November of last year¹, Apple's marketing machine went into overdrive to promote the Baby Boomers' favorite band. After years of holding out, executives at record label EMI must have figured that trying to sell ever more Beatles compilation CDs was akin to squeezing blood out of a turnip. Now, EMI and Apple can sell the more foolhardy Boomers their Beatles collection all over again as digital files -- just as the industry sold it to them all over again as CDs, cassette tapes, and 8-tracks to replace their original LP records from the 1960s.

Perhaps taking a cue from this kind of consumer abuse, the New York Times began its new digital subscription plan this month, becoming the biggest newspaper to charge for reading its content online -- and charge again, depending on how it is read.

It's cheapest plan of $15 per month isn't a bad deal -- more than half off the $46.80 price of having the Times delivered to a Manhattan residence printed on dead trees.²,³ The only trouble is that the Times put onerous restrictions on where and when you can read the paper in digital form.

Want to read the newspaper on your iPad? No problem -- you can do it through the web browser for no additional charge. But if you want to avoid the excruciatingly slow page load times from the paper's creaky web servers, you'll have to pony up an extra $10 per month⁴ for the iPad app that downloads articles to your tablet.

Want to read the newspaper on the plane on your PC laptop? Ditto the above. It'll cost you $10 more per month to get the Windows app.

Want to read the Times both on your phone and on your laptop? Well, get ready to dig into your pockets and pay $20 extra per month.⁵ Getting dead trees delivered is looking less and less bad all the time. You can read the news anywhere you want without restriction, and you get the bonus of free kindling.

Unfortunately, obnoxious restrictions on digital property rights are part of a wider media industry trend. Companies want to charge consumers multiple times for the same digital content that people have gotten used to owning outright in physical form. Years ago when you bought a book, it was yours. You could read it wherever you wanted, whenever you wanted. No group of marketing executives tried to charge you more for reading it on a train, and no group of lawyers sued you for reading it on the toilet, in violation of a 10,000 word terms of use.

Not so today. A few days ago, Amazon launched its Cloud Player service that allows its customers to upload their digital songs to its servers, and then stream them onto their computers and Android-based mobile devices. Pretty slick. But the record labels promptly threw a fit, claiming that Amazon didn't have a license to stream their content -- despite the fact that consumers already possessed the music they uploaded to Amazon. In other words, they don't really recognize the music as yours. Sony's spokesman concluded, "we're keeping all of our legal options open."⁶

Media industries' heavy hand over streaming content gets even more abusive when it comes to video. Consider the advertising-supported television shows that are broadcast free over the airwaves. These are often available for streaming on Hulu or network-owned websites, which are also free and supported by advertizing.

Yet in the past year, Hulu and some networks have begun to block streaming on mobile devices and set-top web-connected boxes like Roku and Boxee, unless users pay subscription fees through services like Hulu Plus, which launched in November of last year. ⁷ Charging users different amounts for watching the exact same show on different internet-connected devices sounds crazy, but that is essentially the same thing the New York Times is trying to do with its obnoxious digital subscriptions.

Such anti-consumer behavior is maddening, and reminiscent of attempts by the television industry to crush Sony's Betamax VCR a quarter century ago. It took a 1984 Supreme Court ruling in Sony Corp. of America v. Universal City Studios, Inc. to decide that recording TV shows for personal viewing was "fair use" under U.S. copyright law. Ironically, the same hero in that case, Sony, is now the villain threatening to keep all "legal options open" against Amazon.

What America needs now is an expansion of fair use and property rights to recognize the flexible and portable nature of digital media. The rule should be simple. If you purchase content, the content is yours, no matter where or on what device you want to view it, or from where you want to stream it. Given the deep pockets of media companies to spend on lobbying, however, don't expect Congress to ever pass such a law. If consumers are to ever see deliverance from the army of lawyers hired by media companies, it is going to have to come from the Supreme Court.

News From the Forest, October 26, 2010

An Exaggerated Death
The Growing Mess of DRM, May 29, 2007

1. Hollywood Reporter, Beatles Songs Finally Available on iTunes, November 16, 2010

2. New York Times, Posted subscription rate of $11.70 per week for home delivery in 10019 zip code after introductory offer expires, April 4, 2011

3. Ibid., Digital Subscriptions and Premium Products Help, As posted (four times the weekly price after the promotional offer expires), April 4, 2011

4. Ibid.

5. Ibid.

6. Reuters, Amazon Faces Backlash Over "Music Locker" Service, March 29, 2011

7. Wired, Hulu Plus 'On Track' To Exceed One Million Subscribers This Year, April 5, 2011