Surprise!

Randy Picker has a great dissection of the Unbox licensing agreement. He finds three notable (mis)features: first, the software reserves to right to phone home to look for software updates and enforce the terms of the DRM software. Second, if you uninstall the software, Amazon reserves the right to delete all of your purchased movies and terminate your right to watch them. And finally, Amazon reserves the right to change your rights under the EULA unilaterally.

As Prof. Picker notes, these terms are not likely to be a big hit with consumers:

I suspect my tone sounds a tad hostile but I don’t really mean it that way. For better or worse, this is exactly the design we should anticipate with digital rights management software and therein lies the central market conundrum for DRM. Indeed, I am surprised that folks are surprised by the design. It may be sensible for the law to validate DRM as it does in the Digital Millennium Copyright Act, as I have argued before, but that is a far cry from saying the consumers will embrace it. The law should facilitate sales of purple shirts with pink and yellow polka dots, but no one should buy them.

Given that Amazon intends to support both online sales and rentals, it either needs to implement built-in expiration or some sort of phoning home to the mothership. The rental structure contemplates a 24-hour window in which to watch the download and a 30 day period in which to start watching.

I’m surprised that he’s surprised that people are surprised. (Sorry, I couldn’t help myself) I’ll explain why below the fold.

In mainstream policy debates over DRM, the pro-DRM side leans heavily on the analogy between physical locks and digital DRM “locks.” People have strong intuitions about what a lock is, how it works, and why they’re useful, and so it’s easy to tap into those intuitions to make your case for deploying DRM, and for giving DRM special legal protections. “We use physical locks to keep people from stealing physical stuff, right?” they say. “Why shouldn’t we have digital locks to protect digital stuff?”

This debate has been going on, at varying levels of intensity, for close to a decade now. Critics of DRM have failed to come up with an alternative way to frame the debate, so the pro-DRM framing has tended to dominate the discussion. Journalists, lawmakers, academics, and the general public have largely internalized the notion that digital rights management is like a lock for digital stuff.

OK, so now along come products like the Sony BMG CD-DRM and Amazon Unbox. It does creepy stuff like installing itself without permission, resisting removal, and phoning home to the mothership. And people say, “Hey wait a minute, this digital lock isn’t behaving like a physical lock at all! Sure, we agreed that digital locks are a good idea, but we didn’t want them to behave like this.”

But the problem isn’t that the digital lock was badly designed. The problem is that the concept of a digital lock is incoherent. In order to build software that approximates the behavior of locks in some respects, you’ve got to make design choices that make it very un-lock-like in other respects. The “physics” of bits is just different than the physics of atoms.

But most people don’t realize that. I suspect Tom Merritt is one of them. Based on his Wikipedia entry at least, I don’t see anything that would indicate he’d have a deep understanding of how DRM works. He probably has the same misleading mental model of DRM that most people do. So when he discovers that DRM software is doing creepy stuff, I think it’s perfectly natural for him to be surprised.

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