Berkman Center Diebold Briefing

The Berkman Center’s Mary Bridges wrote up a nice paper about the Diebold memos controversy, includings its timeline and implications.

Looking Beyond the Pew Report and The Present

Read through Frank’s links about the Pew Report on P2P downloading. A couple of thoughts I haven’t seen elsewhere

1.  What about services like Earthstation 5, and Morpheus with its proxy servers, and other similar services with privacy enhancing features that were left out of the report? For those who are still sharing, which services are they using?  Will we have a similar effect to when Napster was shut down?  First only some migrated to the new services, and then word quickly spread and all Napster users moved over.  Could there just be a lag in adopting these other services?

2.  Does the RIAA have a target number in mind?  What level of piracy would be tolerable?  Is one in seven good enough?  If we reach the target, what will happen with DRM?  If infringement is stalled to a tolerable degree clearly because of the lawsuits, then what need is there to pursue DRM, regardless of whether you see it as a futile solution?

3.  Will the effect last?  If people actually have been scared off now, would a lapse in lawsuits perhaps lead to some sharing again?   A related question: if the Verizon decision leads to fewer lawsuits, particularly over the longer term, will people respond to that?

Solum’s Notes on First Amendment and Copyright

Professor Solum took notes at the Association of American Law School’s section on Constitutional Law, Copyright, and the First Amendment, starring Neil Netanel, Ed Baker, Tom Bell, Jessica Litman, and others.

Follow-up to below: What is RealNetworks Doing?

At least the companies discussed below are trying to head in a better direction.  Does this market really need another proprietary format?  Can it handle that?  Can Real get away with songs that will not play on ANY current players?  Apple had the iPod to bank on; Real doesn’t even have that.  So with Rhapsody already out there, what are they doing?

Put Two and Two Together, and You Get MP3

Project Hudson, the Content Reference Forum, and Phillips’ as yet unnamed project are all billing themselves as better DRM – DRM that’s open, interoperable, and non-proprietary, with liberal usage rules.  They might even allow some sort of file-sharing in a limited form.  Kevin Doran has some particularly choice thoughts on the first; here are some older comments from me on the second. 

A quote from the article on the third exemplifies what is so perplexing for me about these ventures:

“‘The electronics industry recognizes that Microsoft is a formidable player, but consumer electronics makers do not want to become dependent on Microsoft. They need an interoperable and independent system,’ said [Ruud] Peters [Phillips’ chief executive of IP and standards unit]. ‘DRM is an accelerator which will boost digital sales of media, because it will convince media companies their content is protected. It should not be a competitive weapon,’ he added.” (emphasis added)

Someone should put that last point on a billboard somewhere – DRM should not be a “competitive weapon.” But why do they stop there?

Remember three key reasons for DRM that its proponents use: 1) Protect copyrighted content to prevent infringement, 2) limit and charge for consumer uses, 3) act as a “competitive weapon,” limiting interoperability and enabling tied products (e.g., iTunes with iPod).

At least on their face, all music services today talk as if (2) is not a goal.  Let’s accept for the sake of argument that they honestly mean that.

These new DRM standards also reject goal (3).  In today’s digital music market, it’s a surprisingly novel concept, a clear deviation from how DRM is being used right now (and in the future)(via Frank, for this link and others).  Now, almost there, they’re about to put two and two together…

and then they get all caught up on point (1).  They watch as DVD Jon creates workarounds for Apple’s FairPlay.  The analog hole is and will be there.  For the forseeable future, DRM does not seem to be the solution.  As Fred von Lohmann notes, “Every song on iTunes Music Store has been available on the Peer to Peer networks within four hours,” regardless of the DRM.

So how do they add this all up and get DRM?  They make DRM about apparent, not actual, protection given present circumstances.  They want to “convince media companies their content is protected,” even though that’s not the full story.  The equation doesn’t have to add up.

At least the digital music services out there seemed to have a reason for the DRM by pursuing goal (3). Ultimately, I think it’s a bad choice, both for consumers and the long-term livelihood of the market, but at least in that sense there was a rationale (or rationalization).  But now people are putting that goal aside.  If they’re going to pursue point (2), and frustrate consumers, then I think everything is pretty hopeless.  And point (1) seems pointless for the forseeable future. 

So why all this push for open DRM?  If the RIAA and music vendors are willing to go with that, why not just use MP3 and have a go of it?  To do that, you don’t need to invest any time, effort, and money into creating the standard, popularizing it, and competing with the others.  MP3 is already ubiquitous.

To me, it’s that simple.  So when I hear these tech companies talking about new open DRM standards, it’s all about competition. It’s got little to do with what will help move the music marketplace along, and everything to do with those tech companies duking it out.  For those that don’t see DRM as a competitive weapon, they probably would prefer it if the RIAA just let Apple sell MP3s.  But since those tech companies don’t have that option, so they have to keep fighting it out in the DRM market. 

Seems like a total waste to me, particularly when a better way remains out there.