Welcome to Orcmid's Lair, the playground for family connections, pastimes, and scholarly vocation -- the collected professional and recreational work of Dennis E. Hamilton

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Must DRM Go Away?

IPcentral Weblog: FOSS & the Content Industry.  I have been quite taken with some of the recent posts by the folks at the PFF Center for the Study of Digital Property.  I don’t accept all of the rationales and positioning, and there are recent analyses, including around patent-system concerns and events, that I find carefully-reasoned and thought-provoking.  The articles have me think outside of my automatic mind set, as do the observations of Gary Becker and Richard Posner (and Malcolm Gladwell and the Freakonomics duo also).  Truman Capote described himself as a courtroom junkie, and I must confess to being that way on the subject of Intellectual Property, going back to the run-up to the 1976 revision of the U.S. Copyright Code.

The angst over Digital Rights Management (DRM), the Digital Millennium Copyright Act (DMCA), and related extrapolations about trusted-computing platforms leave me mainly at a loss.  I see little light but much heat and thunder.  Then a post by James DeLong got me thinking about the different unexperienced hazards that the parties in the DRM debate blame each other for.

{tags: intellectual property economics DRM DMCA open source Richard Stallman PFF orcmid}

Commenting on an interview of Richard Stallman in Forbes, where Stallman is quoted as declaring that the DMCA is unjust and that DRM should be banned, DeLong considers that

“The obvious consequence of this view is that mechanisms of payment for content would be disabled, which would mean the abolition of markets, which would mean a reliance on government funding. So Stallman's view of funding is that your taste in music and movies would be (like your hope for drug treatment) at the mercy of bureaucratic whim.”

I first thought that the comment was addressed to Stallman’s creation of a DRM-free GPL v3 enclave as the Free Software Foundation response to DRM.  Maybe Stallman does see GPL v3 as fostering such a successful and popular DRM-free zone that DRM will fail. 

If Stallman is saying that no software that prevents circumvention of a DRM-conveyed license can touch the lips of a GPLv3–licensed platform, so be it.  The market will indeed determine whether people will prefer systems where they can legally use DRM-licensed content of their choosing and whether there will be market segregation between DRM-using and DRM-rejecting software users.

I also don’t see how non-circumvention protection of DRM-honoring software is a threat to the free-software movement unless they consider themselves to have failed if not all software is free, something that Stallman appears to claim as the “only ethical course for software developers.”  (In that case, I do not want any of Stallman’s crowd working on my car or my phone system.)   Perhaps the fear is that all/most software will be arbitrarily distributed in DRM-mediated wrappers, creating a moat that FOSS software cannot cross.  I don’t see that as particularly likely either.  Perhaps we simply need more light on the way technical DRM solutions work and what they have nothing to do with.

With regard to the legal or socially-successful banning of DRM, I don’t find DeLong’s extrapolation of consequences to be compelling.  I think the enforcement of a limited license and any payment mechanisms (e.g., rents) are more separable than that.  I don’t see how markets are abolished, though I can see producers unwilling to deliver into a situation with 0–priced substitutes (including pirated replicas of their own product).  But then, producers are as capable of finding substitute products as consumers are in a free-market situation.  Something tells me that it is self-correcting either way.

There are government chartered/mediated mechanisms already in place that do not involve recourse to government funding (and it seems to me that only government purchase of creative work makes it free, depending on where the government puts it or maybe how they publish/distribute it).  I am thinking of mechanisms like

• mandatory licensing (and fees) for on-air performance, juke-box plays, etc.
• systems like ASCAP, BMI, and others for collecting royalties
• the Copyright Clearinghouse mechanism for licensing copies of published works

These all seem to rely on centralized authority/mediation and are chartered in various ways.  I thought the Copyright Clearinghouse was an interesting idea when it started, but I now see that extraordinary payments are demanded for licensed copies of many articles in journals.  I presume that those amounts are rarely paid and that institutional “site licenses” and “master agreements” now provide for most of the stream into (or around) the Copyright Clearinghouse.  (These weird price settings remind me of medical bills that have startling prices shown next to the amount actually settled for from an insurer, i.e., the real price.)

While some of these schemes tend to be bothersome, I don’t think they have been all that terrible when they work.  Whether there are effective alternatives to DRM in the case of digitally-carried content is not so clear.  But I think both sides of the debate, with their concern for extreme consequences, are not yet listening close enough to important and legitimate concerns.  There is great room for creativity as well as creation of new market approaches.

I am not adverse to DRM, and I think I’ll let the GPLv3 jousting be carried on by others.  I do create and use open-source software (none of which imposes any barrier against DRM that I can see).   I avoid GLPv2 already, so I have little personal stake in how GPLv3 plays out.

posted by orcmid at 3/24/2006 12:33:19 PM