July 31, 2006
All DRM Under the DMCA is Bad DRM
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
4 Comments
Well, at the risk of belaboring the point, I’ll just add that I entirely agree that there’s no economic incentive for content providers to use minimally restrictive DRM at present — indeed, I make precisely this point at some length in the last part of my paper. (And if you dig a little deeper into the economic angle, I think you come up with more, rather than less, support for my position — Apple captured 70% of the market by using a less-restrictive DRM system; why can’t some other company come along and advertise an even-less-restrictive alternative? The answer is: because the media companies upstream, who are the real bad actors in my view, wouldn’t license any of their content to them. A company that used less-restrictive DRM would have no content to sell, for reasons that have everything to do with the actions of content providers and nothing to do with the DMCA.) So perhaps, if we’re ever to get “good DRM,” we will need to use *noneconomic* tools to get it — perhaps in the of statutory compulsion, one flavor of which is currently being implemented under the EU Copyright Directive (which is what Urs Gasser’s article, and my original blog posting that sparked this discussion, is all about); or in the form of proconsumer judicial interpretations of the DMCA (as I argue in my post we may be beginning to see). I deal with the incentives problem at more depth in my paper; for now I’ll just say that I would be quite happy if producers of DRM systems were legally required to implement *exceptions* to copyright holders’ exclusive rights with the same zeal that they have been extending the sphere of those rights themselves. That, it seems to me, would solve what you rightly label the “bad DRM” problem without requiring what is presently both a political impossibility and a treaty violation, namely, repeal of the DMCA.
More to say here, but for now.
1. Again, before talking about “get[ting] ‘good DRM'” you have to define why you want DRM in the first place. All DRM under the DMCA harms fair use and innovation without doing anything to stop Internet piracy. So, regardless of whether its a better or worse implementation, it’s still all bad DRM under the DMCA.
2. Treaty violation? Given how the WIPO treaties are written, the Boucher bill seems compliant. Would love to see a balanced list of legit sources on this.
3. As Tim lays out in his paper, requiring certain exceptions would not cure DRM’s ills. For a little more, see here http://www.eff.org/IP/DRM/fair_use_and_drm.html and http://www.law.berkeley.edu/institutes/bclt/courses/fall05/ipscholarship/Von%20Lohmann%20Fair%20Use%20As%20Innovation%20Policy.pdf
Tim’s analysis says nothing about the DMCA’s incompatibility with reverse engineering and open platforms. Trying to “repair” the DMCA in a manner that focuses only on Fair Use, while leaving the freedom to tinker thoroughly curbed, would in my opinion be worse than no solution at all. Thanks but no thanks. The goal is to change the political climate and, if necessary, to void the offending treaties – not to let lawmakers off the hook for selling us down the river to narrow corporate interests.
Sigh .. a lot of this is the classic “Is your objection to absolute monarchy based in a critique of kingship itself, which is, in the most abstract theory, good/evil agnostic, or merely the abuses of specific bad kings? If we could have a perfectly benevolent dictator, would you still oppose the absolute monarchy? Perhaps we need only mandatory jesters and statutory pleas for mercy. Let’s discuss!”