May 28, 2004
The DMCA, Is-Oughts, and Piracy Rhetoric
EFF’s Fred von Lohmann posted recently on the iTunes-iPod tie, as I did two weeks back. Hopefully you didn’t miss this exchange between Ernest and a commentor at Copyfight. This post isn’t so much about the particulars of Ernest’s and Brad’s argument, as it is a way of tying together what I see going on there with the bigger picture and a few other posts that sprung to my mind. Queue a somewhat mystified, somewhat angry post:
Why is a world with the DMCA now presumptively right, with all alternatives shouldering the burden of proof? This is the is-ought fallacy at its worst. The world has a DMCA, therefore it ought to have a DMCA.
Even more disturbing, is-ought’s simplistic seduction trumps all other sensibilities that people would typically look to in these arguments. Right or wrong, many people will latch on to “free market” and “competition” as the defense against so many policies. At the very least, people will immediately and seriously consider these powerful concepts. But here, not so much. In what other case would people so easily defend government graced control instead of unfettered competition? As Lessig writes in Free Culture, if copyright’s harm to artists is a “crunchy-lefty story” of “free culture,” then you’re probably the type that should be turned on by a story of “free markets.” But with the DMCA, even those stories don’t always catch on.
To fit with other sensibilities about how the market works, the story of free markets is twisted into a story about theft. The DMCA may be “paracopyright,” but it’s led to more of the piracy-talk that copyright already produced. Now it’s theft and “freeloading” just to create a compatible player for iTunes music.
As I said before, I don’t doubt Brad Hutching’s point that the iTunes-iPod tie has some offsetting social welfare benefits. iTunes prices could be lower and it could have motivated them to invest in the biz in the first place. In this case, I would argue that that does little to offset the benefits we could derive from a non-DMCA world: more vigorous competition from current parties not having to compete essentially in both markets at once; more vigorous competition from more players in general; innovation and competition not dictated by incumbent players; lower prices from more competition; network effects from the elimination of format fragmentation; and more.
But that in some sense is beside the point (one Ernest made, too), which is that the law would typically deal with this issue in a much more complex, nuanced, and balanced fashion. We have anti-trust and misuse. We have patents, copyrights, trade secrets, contract. And yet the blunt instrument of the DMCA is presumptively so clearly right? Why?
That the answer is essentially “because” implies another cost of the DMCA (which makes me think of some of Frank’s writings). By altering people’s expectations of how things ought to be, it sets the stage for a very different, very dire digital media environment to come. By extending the piracy rhetoric, it simplifies the issue. Buying legally means buying DRM means buying the DMCA means buying into whatever the piracy rhetoric demands.
We don’t have to buy into that. To quote Lessig quoting the Supreme Court, we need “common sense to revolt.”
Filed by Derek Slater at 2:37 am under General news
3 Comments
Derek,
There is so much to say about your post! I’ll just make two points.
First, in advocating revocation of the DMCA, what you’re advocating in practice is legitimizing the reverse engineering of DRM and other registration schemes, as well as distributing automated tools for doing so — for whatever purpose. Going back to the “shareware” point in my exchange with Ernest… more generally, if a customer wants a good and has the option of paying for it or not paying for it with a minimal chance of any repurcussions, in aggregate, they aren’t paying for it. The gift/exchange mechanism described widely by Cialdini (with the Hari Krishna example) has broken down completely on the Internet, as people can take anonymously and with impunity. So if attempts to protect content from mis-distribution become legitimate invitations to break the lock, content creators and the people they delegate their rights to have no effective way to monetize their investment, and “honest” customers are treated and often feel like chumps. Why fork over $20 for something that everyone else is treating as free) Eliminate the incentive, and I won’t say you will have less intellectual creation available on the market, but I will say it will be markedly different. Many intellectual creations that we love and make our lives easier and (apologies to the Pope) more fulfilling will not reach the marketplace in the form that they have if they can be copied or accessed at will with no potential repercussions contrary to the wishes of the rights holders.
Second, there are some downstream effects of DMCA and copyright law that bother me a little. I think the DVD-Jon thing is unfortunate. The CSS consortium could have been a bit more proactive in making DVDs play on Linux in a manner somewhat consistent with that market. I think that every story about a single mom making minimum wage being sued because her daughter shares copyrighted music with 20 million of her closest friends is unfortunate. I know I would find a way to inform the perp, threaten action, and track compliance before jumping to a law suit. Yet, assume that Ernest’s contention is true — that the DMCA is the lynchpin that makes the iPod/iTMS connection workable. As a longtime Apple fan, I have appreciated (and still do) their whole systems approach with the Mac because I like nice things. Same with the iPod/iTMS. If, in fact, the DMCA makes that possible by making individual song sales online palatable to rights holders and running the iTMS palatable to Apple, then I am all for it. Additionally, I don’t see who is hurt in the equation. There are competing services and players. If you don’t want an iPod and still want to use iTMS, there are easy enough ways of legally getting around the FairPlay hurdle to move music to those players. It’s like if you want a taco for dinner, don’t go to Morton’s.
So on balance, I see the DMCA as a positive thing, especially when it comes to my ability to protect my software from being pilfered. I’ve yet to write a DMCA letter to anyone. I think that the general public sees my reg code screen as a toll booth where they can decide to pay or decide to take another route, not as an invitation to drive through without paying and wave their middle finger. Without the DMCA, that is exactly what most people would do because it would be perfectly legal for them to do it and you can bet that circumvention software would be all over the place.
-Brad
Following drug decriminalization advocates, I might suggest “relegitimization” rather than “legitimization” (“Vault v. Quaid was rightly decided and Congress shouldn’t have tinkered with it”, etc.). Before Bruce Lehman got ahold of it, reverse engineering had often been recognized as one of the ways the public enforced the limitations on the subject matter and scope of copyright (e.g., 17 USC 102(b)). Of course, it’s awfully stigmatized today; I think the Linux critics at ADTI just recently used it in the same sentence with “copyright infringement” as though the two were equally illegal.
I find myself way confused by Brad’s position. As Fred von Lohmann noted earlier in this connection, Apple’s DRM has been useless (by its own design and also by the observations of people who monitor file-sharing networks) in preventing indiscriminate Internet redistribution of ITMS tracks on filesharing networks.
Various people who are either my co-workers or ideologically aligned with me said that the government should not try to stop people from making their own players that work with ITMS (thus, not enforcing Apple’s policies).
But Brad keeps referring to this as threatening the ability of DRM to remind people to pay for things, etc. Now the DMCA critics in these threads are all agreed that the DMCA isn’t relevant to whether people pay for ITMS tracks when downloading them from ITMS, only to what people do with the tracks afterward. (There’s an important similar distinction in terms of the encryption of cable and satellite systems; in the analog world you had encryption between the head-end and your house to make sure you paid for the access to the signal, and then a cleartext signal inside your house that you could use with any standards-compliant device from any vendor, with no relationship at all between the device makers and the cable or satellite company. The digital world and the FCC’s rules on cable compatibility have already blown away this status quo, but some people still refuse to notice that anything has changed. Of course, we could have a world where people pay for cable service or satellite service, and encryption enforces that payment, yet no DRM restricts how the programming can be used once paid for.)
So I’m puzzled. How does allowing people to attack ITMS DRM threaten people’s propensity to buy tracks? (I know it would actually get me to use ITMS because I would pay for ITMS tracks if I could play them using a free software client, something I can’t currently do, but I also know that no vendor has ever been persuaded by that argument. All I can prove is that at least one person who currently does not use ITMS would start.)
After all, nobody has shown how attacking DRM prevents ITMS from charging for downloads. I doubt anyone could show that. Perhaps attacking DRM creates more competition for ITMS, because people can get copies for free rather than buying them through ITMS. But we know that these works are already available through file-sharing networks and that ITMS has completely failed to stop this. (As Fred says, not partially failed to stop this, but completely and totally failed to stop this.) So it’s hard to see how ITMS could possible do any good here.
Is Brad suggesting that a number of people who don’t or can’t or won’t use file sharing networks to get ITMS tracks for free would start to get those same tracks from friends or acquaintances for free if DRM attacks were more widely available? Is there reason to believe that?
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