Is DRM a Legal Barrier or a Physical One?

I think that both you are correct and wrong in some respects. DRM has aspects of both and is really, IMO, a hybrid of the two in the worst ways. This debate of yours made me go into a little detail about some of the major flaws, from a technical standpoint, with the starry-eyed idealism that DeLong displays about the future of DRM.

I’ve said before that I do not think that open market is compatible with the security requirements of effective DRM, and I think that the DVD market is a prime example of that.

I think that both you are correct and wrong in some respects. DRM has aspects of both and is really, IMO, a hybrid of the two in the worst ways. This debate of yours made me go into a little detail about some of the major flaws, from a technical standpoint, with the starry-eyed idealism that DeLong displays about the future of DRM.

I’ve said before that I do not think that open market is compatible with the security requirements of effective DRM, and I think that the DVD market is a prime example of that.

Sadly, The terminology is basically obscuring the points of contention.

DRM itself is a private mechanism, I’d say that’s true. HOWEVER, it is widely believed that the private mechanism will be ineffective in practice without government laws enforcing it, e.g. the DMCA. That’s the deep issue.

Libertarian-types are often put in a quandary by this, as it looks really bad to be calling on government force, on men with guns, to stop people from using their legally purchased physical property in legal ways, in order to support a clearly government-granted monopoly right. It’s just a tough position to support for a Libertarian. So *some* of them resolve this conflict by pretending that the issue is somehow about having a law forbidding corporations from using the private mechanism of DRM. They can then write the standard screed that makes them very happy, that business is good, and anyone who wants government to interfere is bad. The compulsion to write this article is driven by their cult need to chant their mantras, not by any connection to reality. So it often puzzles people who do not suffer from their religious dogma. The thing to understand is that it’s not analysis, it’s like a hymn, “God is great” (“Business Good, Government Bad”).

Now, some of them are smarter, for Libertarians. They are able to resolve the tension above in a slightly less silly way, by focusing on the property rhetoric. If the issue is framed as enforcing property rights, they’re also very happy, since that’s one of their few permitted uses of government. They don’t want to think deeper, since that would put them back in the tough quandary above. Alternately, they can write again generically that business is good, praise business, that’s also easy.

This Libertarian mentality problem being played out is what you see in the discussion on this topic. There are basically very few things a Libertarian will write (though endless variation). And the mental block they have regarding thinking about complex business-government interaction, onerous for debate in general, is particularly ill-suited here.

Sadly, The terminology is basically obscuring the points of contention.

DRM itself is a private mechanism, I’d say that’s true. HOWEVER, it is widely believed that the private mechanism will be ineffective in practice without government laws enforcing it, e.g. the DMCA. That’s the deep issue.

Libertarian-types are often put in a quandary by this, as it looks really bad to be calling on government force, on men with guns, to stop people from using their legally purchased physical property in legal ways, in order to support a clearly government-granted monopoly right. It’s just a tough position to support for a Libertarian. So *some* of them resolve this conflict by pretending that the issue is somehow about having a law forbidding corporations from using the private mechanism of DRM. They can then write the standard screed that makes them very happy, that business is good, and anyone who wants government to interfere is bad. The compulsion to write this article is driven by their cult need to chant their mantras, not by any connection to reality. So it often puzzles people who do not suffer from their religious dogma. The thing to understand is that it’s not analysis, it’s like a hymn, “God is great” (“Business Good, Government Bad”).

Now, some of them are smarter, for Libertarians. They are able to resolve the tension above in a slightly less silly way, by focusing on the property rhetoric. If the issue is framed as enforcing property rights, they’re also very happy, since that’s one of their few permitted uses of government. They don’t want to think deeper, since that would put them back in the tough quandary above. Alternately, they can write again generically that business is good, praise business, that’s also easy.

This Libertarian mentality problem being played out is what you see in the discussion on this topic. There are basically very few things a Libertarian will write (though endless variation). And the mental block they have regarding thinking about complex business-government interaction, onerous for debate in general, is particularly ill-suited here.

Seth,

There are a number of very basic libertarian objections to the IPCentral arguments:

1) Automatic contracts violate the spirit of good contract law and should be opposed. 2) The right to alter one’s property in a safe way (ie you couldn’t put a fission reactor in your basement) is nearly 100% absolute in libertarian thought. 3) IP is inherently inferior in terms of standing to real (or should I say, more radical) libertarians because ownership cannot be transferred to the buyer without destroying the IP system. Since I cannot own a song without destroying the value of the copyright to the record label, copyright is inherently inferior because it pits property stakeholders at odds with one another.

Seth,

There are a number of very basic libertarian objections to the IPCentral arguments:

1) Automatic contracts violate the spirit of good contract law and should be opposed.
2) The right to alter one’s property in a safe way (ie you couldn’t put a fission reactor in your basement) is nearly 100% absolute in libertarian thought.
3) IP is inherently inferior in terms of standing to real (or should I say, more radical) libertarians because ownership cannot be transferred to the buyer without destroying the IP system. Since I cannot own a song without destroying the value of the copyright to the record label, copyright is inherently inferior because it pits property stakeholders at odds with one another.

Well, that’s a little better. Thank you. But I think there are two strands of argument here are getting tangled together:

–One is that the DMCA is at some level necessary to avoid DRM’s being widely compromised. (Jim and I probably disagree about the degree to which that is true, I’m fine with that). Analogy: the various rules that restrict the sale of tools designed to open locked car doors to the general public.

–The second argument is, what is the nature of the costs that are associated with DRM, as compared to purely legal mechanisms for enforcement. Analogy: what are the costs that would be associated with a world in which car doors did not lock at all, and the police or private parties had to catch and prosecute any and every casual theft, as compared to a world in which many casual potential thefts are prevented by locks.

Whether one insists on adding the cost of the tool regulations into the world with locks or not, pretty clearly those two worlds are not the same, and the one in which one is depending on the legal system alone is a pretty strange one.

For MikeT: Arguments against automatic contract there certainly are, but they are not libertarian, they are leftist.

The right to alter one’s property in a safe way certainly is a libertarian absolute that can be assumed for ninety five percent of policy discussions. The problem, of course, is that in a discussion about intellectual property, one can’t assume that as an absolute without hopelessly begging the question.

Your last argument strikes me as being similar to arguing that one’s right to sell one’s labor is inferior to real property because one cannot sell slaves. The thing that is exchanged is a contract–mutual promises. I believe another way of making your point would be to note that copyright is not self-enforcing in the neat way that a lot of simple physical transactions are. The interesting thing is, of course, that a certain type of DRM would make this assertion about copyright no longer true. A book, for example, that physically dissolved as you read it, could simply be sold the same way an apple is sold, without licensing restrictions.

Anyone who is interested in reading further on the question of the primacy of physical property, check out Richard Epstein’s recent paper and some of my blogs on IPcentral.

Well, that’s a little better. Thank you. But I think there are two strands of argument here are getting tangled together:

–One is that the DMCA is at some level necessary to avoid DRM’s being widely compromised. (Jim and I probably disagree about the degree to which that is true, I’m fine with that). Analogy: the various rules that restrict the sale of tools designed to open locked car doors to the general public.

–The second argument is, what is the nature of the costs that are associated with DRM, as compared to purely legal mechanisms for enforcement. Analogy: what are the costs that would be associated with a world in which car doors did not lock at all, and the police or private parties had to catch and prosecute any and every casual theft, as compared to a world in which many casual potential thefts are prevented by locks.

Whether one insists on adding the cost of the tool regulations into the world with locks or not, pretty clearly those two worlds are not the same, and the one in which one is depending on the legal system alone is a pretty strange one.

For MikeT: Arguments against automatic contract
there certainly are, but they are not libertarian, they are leftist.

The right to alter one’s property in a safe way certainly is a libertarian absolute that can be assumed for ninety five percent of policy discussions. The problem, of course, is that in a discussion about intellectual property, one can’t assume that as an absolute without hopelessly begging the question.

Your last argument strikes me as being similar to arguing that one’s right to sell one’s labor is inferior to real property because one cannot sell slaves. The thing that is exchanged is a contract–mutual promises. I believe another way of making your point would be to note that copyright is not self-enforcing in the neat way that a lot of simple physical transactions are. The interesting thing is, of course, that a certain type of DRM would make this assertion about copyright no longer true. A book, for example, that physically dissolved as you read it, could simply be sold the same way an apple is sold, without licensing restrictions.

Anyone who is interested in reading further on the question of the primacy of physical property, check out Richard Epstein’s recent paper and some of my blogs on IPcentral.

I agree! These are distinct questions and it would be good if we all did a better job of distinguishing between them.

I agree! These are distinct questions and it would be good if we all did a better job of distinguishing between them.

Solveig,

You are entitled to that opinion, but I couldn’t disagree more on automatic contracts. They are akin to secret charges and witnesses. They are bad for contract law’s public perception, and that seems to be something that you and DeLong care little about. Sometimes the views that the two of you hold go over the edge from principled to ideological, and the public is not ideological. You have to be practical in front of the public and getting rid of automatic contracts is a good way to preserve the principle of a good contract system.

What I want to see is a copyright system that coerces copyright holders into physical property norms. Meaning that they cannot automatically contract or force their buyers into a transaction type that isn’t a social norm for physical property. At the same time, I would have no problem outlawing, at the penalty of imprisonment, John Q’s copying of movies and music that he/she hasn’t bought so as to create a true standard analogous to physical property.

I see no pure libertarian solution to IP. Every libertarian I know does not support automatic contracts, and most of the people around me are (l)ibertarians who voted (L)ibertarian in 2004. Maybe academic libertarians support it, but not the average ones I’ve met.

Make no mistake, what I want is a system that makes copyright behave like real property. What I find unacceptable, however, is the tendency of supporters of strong copyright law to ignore the very real signs that the major copyright holders are very antagonistic toward the property rights/interests of their customers. Again, it’s time to step outside the realm of theory and acknowledge that most Americans’ understandings of property can be summed up as: “I bought, it’s mine, not yours.” I for one am not willing to sacrifice property rights as an institution on the alter of nuance and ideology.

If it means anything, I find your views far more reasonable than DeLong’s apocalyptic rants about the end of DRM. DVD DRM was broken a long time ago, and there were programs that allowed easy copying (they sucked, but still), and yet DVD sales are far better than VHS.

Solveig,

You are entitled to that opinion, but I couldn’t disagree more on automatic contracts. They are akin to secret charges and witnesses. They are bad for contract law’s public perception, and that seems to be something that you and DeLong care little about. Sometimes the views that the two of you hold go over the edge from principled to ideological, and the public is not ideological. You have to be practical in front of the public and getting rid of automatic contracts is a good way to preserve the principle of a good contract system.

What I want to see is a copyright system that coerces copyright holders into physical property norms. Meaning that they cannot automatically contract or force their buyers into a transaction type that isn’t a social norm for physical property. At the same time, I would have no problem outlawing, at the penalty of imprisonment, John Q’s copying of movies and music that he/she hasn’t bought so as to create a true standard analogous to physical property.

I see no pure libertarian solution to IP. Every libertarian I know does not support automatic contracts, and most of the people around me are (l)ibertarians who voted (L)ibertarian in 2004. Maybe academic libertarians support it, but not the average ones I’ve met.

Make no mistake, what I want is a system that makes copyright behave like real property. What I find unacceptable, however, is the tendency of supporters of strong copyright law to ignore the very real signs that the major copyright holders are very antagonistic toward the property rights/interests of their customers. Again, it’s time to step outside the realm of theory and acknowledge that most Americans’ understandings of property can be summed up as: “I bought, it’s mine, not yours.” I for one am not willing to sacrifice property rights as an institution on the alter of nuance and ideology.

If it means anything, I find your views far more reasonable than DeLong’s apocalyptic rants about the end of DRM. DVD DRM was broken a long time ago, and there were programs that allowed easy copying (they sucked, but still), and yet DVD sales are far better than VHS.

Tim,

I’m in Geneva, at WIPO, and I am literally SURROUNDED by people who think DRM ought to be outlawed. So I don’t know what circles you move in, but you apparently aren’t interacting very much with the activists.

Oh, and by the way, thanks for your naive rants about Peter Ferrara and IPI.

Tim,

I’m in Geneva, at WIPO, and I am literally SURROUNDED by people who think DRM ought to be outlawed. So I don’t know what circles you move in, but you apparently aren’t interacting very much with the activists.

Oh, and by the way, thanks for your naive rants about Peter Ferrara and IPI.

Since I’m not at WIPO, I’m not in a position to argue about what people there are or aren’t saying about DRM. But I read about this issue quite a bit, and I can’t recall reading any respectable DRM critics arguing for a law outlawing DRM. Perhaps you can point me to a couple of examples on the web?

And I’m not sure which “naive rants” you’re talking about, specifically, but I certainly don’t apologize for criticizing those who damage the reputation of free-market think tanks by accepting cash to write op-eds favorable to a particular interest group. I don’t think it’s “naive” to insist that think tanks should be genuinely independent policy organizations rather than thinly disguised lobbying firms.

Since I’m not at WIPO, I’m not in a position to argue about what people there are or aren’t saying about DRM. But I read about this issue quite a bit, and I can’t recall reading any respectable DRM critics arguing for a law outlawing DRM. Perhaps you can point me to a couple of examples on the web?

And I’m not sure which “naive rants” you’re talking about, specifically, but I certainly don’t apologize for criticizing those who damage the reputation of free-market think tanks by accepting cash to write op-eds favorable to a particular interest group. I don’t think it’s “naive” to insist that think tanks should be genuinely independent policy organizations rather than thinly disguised lobbying firms.

If you don’t like, DRM, just strip it off. Lord knows there are enough programs out the now that will do it.

If you don’t like, DRM, just strip it off. Lord knows there are enough programs out the now that will do it.