Response to Patrick Ross

by on March 23, 2006 · 4 comments

In my initial response to Patrick Ross’s critique of my paper, I said that he appears to have failed to engage (or to simply not have grasped) my central arguments. Here is an example:

The paper also appears to embrace piracy. Take this example: “Shipping a carton of bootleg videotapes across state lines is expensive, time-consuming, and legally risky. Uploading a bootleg movie to a file-sharing network, in contrast, costs almost nothing, can be done in minutes, and is unlikely to lead to jail time. In the Internet age, people can infringe copyright from the comfort of their homes.” This is all factual. It also seems to be a compelling case for government to re-exert its traditional role of defining and enforcing property rights to ensure a functioning market. But the author seems to believe that this ease in piracy–and the decreased risk in jail time–means that the copyright owners should be willing to surrender some of their rights that were more easily enforced in an analog world.

I have no idea where he gets that conclusion. I do not in any way shrug my shoulders at piracy or say that peer-to-peer file sharing is just fine. I don’t claim that copyright holders have to give up rights they enjoyed in the analog world. This appears to be another example of question-begging on his part. He believes that permitting circumvention would increase piracy, so he projects that assumption on me and concludes that I’m also soft on piracy.


But that’s nonsense. As I’ve said repeatedly, DRM is not an effective piracy deterrent. If I thought that DRM could prevent peer-to-peer file sharing of copyrighted files, I might be more inclined to support the DMCA. But I don’t.

The rest of that paragraph continues in that same vein. If we were to assume that DRM were an effective piracy deterrent, then we would indeed have to ask what impact permitting circumvention might have on companies’ willingness to offer their content online. But since unscrambled versions of DRMed files routinely show up on peer-to-peer networks within hours of their release, I don’t see how changing the DMCA would have any impact on the labels’ willingness to offer their content for sale.

Next he takes up the issue of Linux compatibility. After making the dubious (and completely unsubstantiated) claims that you don’t need the DVD CCA’s permission to build a software DVD player and that the DVD CCA has in fact approved a software DVD player for Linux, he tells us:

[Tim Lee raises] the specter of Blue-Ray, which he fears also won’t be compatible with Linux. At the core of his Blue-Ray concern, however, is that it is a standard. He fears it will become a universal standard, and other manufacturers could be “frozen out of the market.” Again there is a lack of comprehension of markets here. Nowhere in the paper does it mention that Blue-Ray currently is in a race to market with another high-definition DVD standard, HD-DVD. That is market competition, two standards competing both for studio adoption and consumer adoption. Note that these are all market decisions, based on market entrants and consumer preferences and choice. Laws such as the DMCA aren’t relevant here, at least not relevant in that they don’t suppress competition.

My concern is that it’s unlikely that either Blu-Ray or HD-DVD will give Linux users permission to watch movies on their computers, just as they refused to give them permission to watch first-generation DVDs. And under the DMCA, that means that doing so will be a federal crime. How on earth can he say that “laws such as the DMCA aren’t relevant here?”

I’ve re-read this passage several times, and I can’t figure out how what he wrote is a response to my concern. It doesn’t seem like a difficult point to understand.

I almost get the feeling that he’s arguing, not with me, but with a generic anti-IP left-winger. His arguments would make a certain amount of sense if he were arguing with someone like Richard Stallman who really does want to abolish proprietary software and commercial music. But I’m not an anti-IP zealot, and he undermines his own case by pretending that I am.

  • http://crescatsententia.org PLN

    I’m also a bit puzzled by his use of the term “market.” On the one hand, this passage makes it seem that so long as you have two companies competing at some level with reasonably substitute goods, you have a market, and there’s nothing more to be said. In other words, the implication is that there’s no noteworthy difference between two companies versus twenty or two hundred, and the fact that we have given legal weapons to content providers that make it two rather than two hundred is of no relevance to its “marketness.” It’s a binary property.

    On the other hand, all of his criticisms of Tim are premised on the idea that there ARE levels of “marketness”, and that anything that in any way interferes with content providers maximizing their revenue decreases this “marketness”. Because contract is useless against 3rd parties, contract isn’t enough … for the sake of “the market”!

    But clearly these two views are incompatible. Even a complete revocation of copyright would still result in -some- production of content, and you would clearly have -some- companies competing to bring this content to customers (just as plenty of for-profit publishers make money on public domain works, despite the existence of libraries and Project Gutenberg). If competition between two government-backed cartels is enough of a market for him, why wouldn’t that be?

    Baffling.

    Actually, it’s not really baffling. The explanation, of course, is that the use of “market” is pure rhetoric. The bottom line has to be something what content would actually be produced and delivered to people. And Mr. Ross clearly has rather implausible views along the lines of “without DRM, no digital music would ever reach consumers” … but misusing the term “market” lets him avoid making clear the absurdity of the causal mechanisms he has in mind.

  • http://crescatsententia.org PLN

    I’m also a bit puzzled by his use of the term “market.” On the one hand, this passage makes it seem that so long as you have two companies competing at some level with reasonably substitute goods, you have a market, and there’s nothing more to be said. In other words, the implication is that there’s no noteworthy difference between two companies versus twenty or two hundred, and the fact that we have given legal weapons to content providers that make it two rather than two hundred is of no relevance to its “marketness.” It’s a binary property.

    On the other hand, all of his criticisms of Tim are premised on the idea that there ARE levels of “marketness”, and that anything that in any way interferes with content providers maximizing their revenue decreases this “marketness”. Because contract is useless against 3rd parties, contract isn’t enough … for the sake of “the market”!

    But clearly these two views are incompatible. Even a complete revocation of copyright would still result in -some- production of content, and you would clearly have -some- companies competing to bring this content to customers (just as plenty of for-profit publishers make money on public domain works, despite the existence of libraries and Project Gutenberg). If competition between two government-backed cartels is enough of a market for him, why wouldn’t that be?

    Baffling.

    Actually, it’s not really baffling. The explanation, of course, is that the use of “market” is pure rhetoric. The bottom line has to be something what content would actually be produced and delivered to people. And Mr. Ross clearly has rather implausible views along the lines of “without DRM, no digital music would ever reach consumers” … but misusing the term “market” lets him avoid making clear the absurdity of the causal mechanisms he has in mind.

  • http://www.commonsmusic.com/blog Commons Music

    “I almost get the feeling that he’s arguing, not with me, but with a generic anti-IP left-winger.”

    I got that same feeling, especially since throughout all the posts he kept referring to you as “the author,” rather than by your name.

  • http://www.commonsmusic.com/blog Commons Music

    “I almost get the feeling that he’s arguing, not with me, but with a generic anti-IP left-winger.”

    I got that same feeling, especially since throughout all the posts he kept referring to you as “the author,” rather than by your name.

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