Today, I will switch from the Superuser article to describe a short article I have co-authored entitled The Analog Hole and the Price of Music: An Empirical Study, which will be published imminently in the Journal on Telecommunications and High Technology Law. The citation will be 5 J. on Telecomm. & High Tech. L. 573 (2007).

I talked briefly about the article last month while guesting at Concurring Opinions, and I'll try not to repeat much of what I said over there.

My co-authors — Doug Sicker, Assistant Professor of Computer Science at the University of Colorado, and Shannon Gunaji, a recent graduate of the University's Interdisciplinary Telecommunications Program — conducted a series of experiments and surveys initially designed to test various aspects of the Analog Hole, but which ended up being much broader in scope.

The first result, which appears last in the paper, is based on a survey of people who reported that "most of [their] digital music collection was obtained through illegal file sharing." (Note, the older draft hosted on SSRN contains an inaccurate definition of the class of people in this survey.) We also limited our survey to people who reported not to have purchased music from an online store in the previous six months. I've learned this week to prepare to be called to task for terminology, and I'm sure many of you will let me know why we shouldn't have called these people, "so-called pirates."

Our surveys explore the price of music. Some have complained that 99 cents is too much for a song, especially for students and other people with low incomes. They have argued that given the low costs of online music distribution, music companies should experiment pricing below 99 cents. Swirling around this discussion is the question: would pirates be willing to pay anything for music? Or are we dealing with a subset of people who would rather download music for free than pay anything?

Our 90 survey respondents were asked at what price point they would be willing to pay for music. They split into a bimodal distribution. Twenty percent were not willing to pay anything for music. The remaining 80% were willing to pay from 20 to 40 cents for a legal download, instead of obtaining copies from non-paid sources.

We also gave the respondents space to comment on why they would prefer to purchase instead of pirate. Aggregating these answers, they appear motivated by three things: the desire to own legal content, the convenience of being able more easily to find songs, and the guarantee of a high-quality product. Finally, we asked the survey respondents for their thoughts about DRM. Eighty percent indicated that were they to purchase music, they would want the flexibility to move the music onto different media players or to control and access it in various other ways.

Second, we looked at the analog hole. As I said in the other blog post I have written about this paper:

Point a video camera at a television screen, aim a microphone at a speaker, or run a cable from the "line out" to the "line in" ports on the back of your computer, and you're ready to exploit the so-called analog hole. Just press "play" on one device and "record" on the other, and you can copy a movie, television show, or song, even if the original is supposedly protected by digital rights management technology designed to prevent copying.

This is known as the analog hole, which as I say in the paper, "arises as an inevitable byproduct of the interface between computer technology and human biology." If we humans are to see or hear relatively-easy-to-protect digital content, it must first be converted into harder-to-protect analog signals.

The analog hole comes up in the DRM/DMCA debates in interesting ways. For example, many debate whether the DMCA's prohibitions on DRM circumvention should be amended to add exceptions for the exercise of First Amendment and Fair Use rights. Is the law unconstitutional without such exceptions? Those who oppose new DMCA exceptions for fair use (content owners, mostly) point to the analog hole in response. Don't worry, they say, because you can always exercise these rights by exploiting the analog hole. In litigation, in the face of Constitutional challenges to the DMCA, courts in 321 Studios and Corley accepted similar arguments.

Others have fired back, arguing that the Analog Hole is a poor substitute for DRM-protected content, because it is too complicated or costly to exploit. (See footnotes 17 and 18 of the article for citations to legal scholars who have made this argument.) In other words, exploiting the Analog Hole requires a Superuser.

Our research suggested otherwise. We created analog copies of digital songs in two ways: first, by running a cable from a computer's "line out" jack into the "line in" jack of another computer; second, by placing one computer's high-end speakers next to another computer's high-end microphones. In the latter case, we needed access to expensive hardware, and in both cases, we had to install software that did not come bundled with our computers. Furthermore, both tests were somewhat time consuming. Still, neither case required much technical know-how.

Although this result probably does not surprise any VC readers, we thought it would be helpful to publish our anecdotal, qualitative observations.

Tomorrow, I'll talk about the loss of sound quality which results from exploiting the analog hole. Do consumers notice or care about this loss of quality? Would consumers be willing to buy music with degraded sound quality for less money? I'll also talk about what all of our results may say about the recent EMI/Apple announcement. Here's a teaser. What's the analog hole worth? Exactly twenty-four cents. (of course, the article is short, so you can quickly learn the punch-line today.)