A Copyfighter’s Musings

Tim responds to me here.

The principal — practically the sole — reason to use DRM is to restrict lawful uses and get a veto over innovation by third parties.  Certainly, Hollywood and content intermediaries today only use DRM for this purpose, but I cannot imagine what other purposes they would seriously seek to use it for.  It doesn’t stop the only illegal use that matters — “Internet piracy”; all the other illegal uses it could stop are so marginal, and I don’t think DRM would fair much worse at stopping them in a non-DMCA world.

So when Tim poses this as a choice between “bad” and “good” DRM, I think that’s completely wrongheaded.  The reason to use DRM is to use “bad” DRM and exploit the DMCA. A DRM system that “permitted the full range of” lawful use wouldn’t be worth implementing — it would have few if any practical uses. 

The DMCA only (or at least almost exclusively) supports ill purposes — that’s why it’s objectionable. A law of that sort ought not be on the books. Calling it “technology agnostic” is beside the point.  (Again, you can try to defend the DMCA as price discrimination and platform monopoly enabler, but I don’t see those as purposes we should support insofar as they depend on depriving the public of its rights in copyright, and I think Tim agrees on this point.)

Apparently, Tim thinks it’s useful to “shift the focus” from this bad statute to bad media company choices.  But, again, there is no reason for them to use this hypothetical “good” DRM.  Using “bad” DRM may be a rational choice for them (at least, but for other forces e.g. P2P), even though they’re bad choices for society as a whole.  The problem is giving those bad choices the protection of the law.

Tim thinks that attacking the DMCA wrongly deflects the blame. To the contrary, I think discussing the merits of hypothetical “good” DRM wrongly deflects attacks on the DMCA. Many people seem to think that we can just throw enough geeks at this issue, then DRM and lawful use will co-exist in harmony, just like DRM will stop piracy some day.  Surely, there are better and worse implementations of DRM, but all DRM under the DMCA is bad DRM.  The focus should remain squarely on that point.

[note: edited on aug 1 to make the opening to third paragraph follow first paragraph’s qualifications).

Filed by Derek Slater at 11:38 am under General news
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This week, Mashboxx announced a licensing deal with EMI. Over a year ago, it announced its first licensing deal with Sony.  The service is still not even in its first beta.  After many laudatory articles and nearly a year after a Snocap rep contacted me because I had called the P2P filtering and payment service “vapor” over at Paidcontent, Snocap’s announced its new Linx retail service. Yet, so far as I know, the P2P system still has not been implemented in a live service.

Meanwhile, Kazaa settled and will open up a new licensed service at a later time.  Given the above, I bet Licensed Kazaa will launch some time in 2009.

Now that’s what I call progress.

(To be fair, the implementation of Linx here is actually kinda neat, and I’m all for rights aggregation of this sort.  But it’s sad (and predictable) how slowly these licensed distribution services are being rolled out.)

Filed by Derek Slater at 6:16 pm under General news
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In the comments of a post about Urs Gasser’s new paper on anti-circumvention laws, Tim Armstrong made this rather peculiar statement: “[M]y
paper on fair use and digital rights management (linked from the blog
posting) is in some measure an attempt to show that the DMCA has gotten
a bum rap — the statute has been blamed, incorrectly in my view, for
some problems that in reality stem from particular choices among
competing technological designs.”

What is the rap that Tim is referring to?

The main rap on the DMCA is that it has been completely and utterly ineffective in serving its chief aim: preventing “Internet piracy.”  This rap is wholly deserved. A cleartext copy of any given DRMed song or movie will be practically as readily accessible if there were no DRM at all.  The DMCA has done nothing to keep unencrypted media off P2P networks and other darknet sources.  This all holds true in what I like to refer to as “reality” - not to be confused with the pre-Napster time warp that too much scholarship still resides in.

The DMCA has also stifled fair use and innovation.  It greatly expanded copyright holders’ rights.  I don’t see how that’s a bum rap simply because one can imagine DRM that does less damage.

Moreover, given the first rap, why do alternative technological designs even matter? If the DMCA isn’t creating its intended benefit, then any damage is a net loss for society.  Tim has done a lot of careful thinking about alternative designs for DRM that better accomodate fair use and his paper is a nice extension of scholarship on this subject, starting roughly 5 years ago with a paper by Dan Burk and Julie Cohen and many papers on so called “rights expression languages.” But before weighing whether and how to accomodate fair use, it seems appropriate to examine whether DMCA+DRM can achieve their intended goals. If they can’t, then “better” DRM is a moot subject.

Now, there may be some other illegal uses DMCA+DRM could limit. For those who are unwilling or unable to find and acquire unencrypted content from alternative sources (e.g. P2P) *and* are unwilling or unable to use circumvention devices *and* are unwilling or unable to use the analog hole to make an unencrypted copy, perhaps DMCA+DRM could have an effect.  If someone would like to try justifying all the damage the DMCA+DRM have done to fair use and innovation based on limiting these other unlawful uses, please go ahead. 

A more likely tact, taken by Randy Picker among others, is to defend how the DMCA+DRM can limit *lawful* uses in order to enable platform monopolies and price discrimination.  Note that it seems Tim would be very much against this line of thought, since he’s saying the DMCA would be fine if only DRM accomodated fair use.

Tim Lee has recently spent a lot of time considering this issue, and it’s also worth checking out Pam Samuelson and Suzanne Scotchmer’s article related to this subject from 5 years ago. While I’m in Lee’s camp here, there are some decent arguments on the other side. For the moment, all I’d like to say is this: I would love it if the policy discussion around the DMCA merely focused on this point.  Enough about whether the DMCA prevents piracy (it doesn’t) or limits fair use (it does).  Please defend the DMCA openly as an abrogation of fair use and celebrate a world in which upstarts can’t come along and create new
cool tools that help you get more from your music and movies.  Please defend it as a reversal of established caselaw, and explain why that caselaw got it wrong in the first place.

Filed by Derek Slater at 3:37 pm under General news
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As a former California public school student, working to improve this bill was especially fulfilling and fun.  Here’s hoping that the curriculum turns out alright. Stay tuned….

Filed by Derek Slater at 2:46 pm under General news
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SethF sets the Deleting Online Predators Act in historical context.  Like CIPA, this bill would condition certain government funding for schools and libraries on the adoption of censorware — but this bill goes even further, targeting myriad communication tools including but not exclusively social networking. In its recent testimony, the ALA concisely explains the bill’s many problems.  The comments to this post are also instructive.  As the ALA points out, there are many reasons for kids to use online communication tools in the classroom or library, and here’s a heart-string pulling anecdote to cement the point (via Sivacracy).

Filed by Derek Slater at 2:37 pm under General news
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Filed by Derek Slater at 5:18 pm under Big Ideas
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So with the general review done, let me note one point from The Long Tail that is particularly relevant for copyfighters.  Some argue that draconian copyright legislation, while pushed for primarily by major entertainment companies, is actually about protecting the institution of copyright law as a whole and thus all artists, big and small, hit or niche.  But as Anderson points out:

In fact, while some artists from the Head and Tail certainly share Hollywood’s sentiments, many of both groups do not.

More broadly, such restrictions are bad for our economy as a whole and tremendously harmful to innovators and consumers as well.  We do have a lobby, but we all have to make our voices heard now.

Filed by Derek Slater at 2:27 am under General news
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Chris Anderson’s The Long Tail is coming out soon, and he was nice enough to send bloggers review copies.  You’ve probably already read his earlier article, so I won’t spend time summarizing it — in fact, if you’ve read his article and all his blog entries, you probably don’t need to read the book. 

Anyway, here’s a quick take: This may be the most important work on digital media written in the last two years.  That doesn’t mean the book says something wholly novel or that this will be the one book-about-the-future to rule them all.  Rather, Anderson has made a critical contribution by matching empirical evidence with leading edge cases, pointing out how a long-theorized future is now becoming the present while also recognizing how past projections now need to be rethought.

The Internet and digital technologies have made it far easier to produce and access niche content, changing the power held by traditional mass media gatekeepers — that’s a familiar notion by now.  As The New Yorker’s review points out, Alvin Toffler among many others have made similar insights. Anderson acknowledges such thinkers early on and throughout his book.

But many other authors have started from macro-trends and then tried to deduce particular effects on our society. In contrast, Anderson generally builds out from particular cases (e.g., Amazon, Netflix, and Rhapsody) to a theory of how business and culture as a whole will change. More than naked anecdotes, he presents the most in-depth look at these companies’ sales stats yet.  Anderson’s not just talking about some far off future world — he’s describing our world as it exists today and tomorrow.  In that way, he’s closing the loop on earlier futurists’ visions; at the very least, he’s helped put to bed once and for all many myths built around the mass media world and “hit-ism.”

At the same time, Anderson tempers and adjusts the futurists’ visions.  For instance, Anderson is quick to point out that abundant choice isn’t very useful if consumers can’t adequately navigate those choices with “filters” and recommendation tools.  He also notes that it’s critical to aggregate both the “head” and the “tail,” both hits and niches, so that consumers can start navigating from a comfortable place. All this may seem obvious, but go back just a few years to the time of the original MP3.com’s clutter of niches.  Certainly many of the articles about that site overstated how it would change the game for independent artists.

Most importantly, Anderson doesn’t confuse evidence that niches are becoming more prominent for evidence that mass culture is going to totally die off.

This is a key clarification, one many earlier writers struggled to make well and many critics of Anderson seem to gloss over. Sometimes even Anderson isn’t particularly clear — for instance, he repeats that we’re becoming a culture of niches and opens the book by describing a hypothetical typical teenager jumping effortlessly and continuously between mass culture and random niches, but it’s not clear to what role mass culture is playing.  By book’s end I think he makes clear that his analysis and predictions are actually more modest yet no less significant.

Anderson certainly doesn’t avoid some relatively speculative projections.  Because his stats derive from online entertainment content distributors, his predictions about other “long tail” businesses feel weaker.  The New Yorker’s right that the changes we’re seeing in the music industry won’t necessarily fit other businesses.  But by carefully considering these particular leading edge cases, Anderson’s focusing our attention on where to look next, and that’s quite useful.

I could make other quibbles (for instance, he could have made his chapter countering “Paradox of Choice” author Barry Schwartz much stronger, following thinkers like Virginia Postrel), but on the whole Anderson nails it.

Filed by Derek Slater at 12:32 am under General news
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Mike Gartenberg blogged some common sense on the HD-DVD v. Blu Ray.  Bottom line: like SACD and DVD Audio, these formats might never catch on and thus the format “war” may be entirely irrelevant. As Michael points out, HD and Blu Ray don’t offer significant added value compared to typical DVDs. With hardly any content available that can make the quality difference noticeable, consumers have no reason to shell out for new hardware.  The heightened DRM restrictions certainly don’t help matters.

A good friend of mine is a wholesale AV dealer, and he offered much the same conclusions. He pointed out that older movies look downright crappy on an HD or Blu Ray player — it makes imperfections far more apparent.  With that in mind, why are “Goodfellas” and “Blazing Saddles” among early releases on HD-DVD?

Filed by Derek Slater at 12:04 am under General news
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