February 2006

Here’s a link to my assessment of Cory Doctorow’s take on Google’s video offering over at ipcentral’s blog. I think I’m becoming a smart-ass in my old age.

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Douglas Lichtman of the University of Chicago has a sensible paper on digital rights management technology:

Legal rules in every area of human interaction are implemented through a combination of powerful public mechanisms and weaker but less costly private ones. With the advent of DRM, copyright law is today no different. The task now is not to legislate DRM out of existence, but instead to follow the model adopted in every other arena: calibrate copyright law such that it harnesses the very real advantages of technological enforcement while at the same time keeping an appropriately wary eye on what might turn out to be overly aggressive uses.

This is exactly the way the issue should be approached. My only quibble is with the idea that there are people trying to “legislate DRM out of existence.” All we DRM critics are trying to say is that it ought not be singled out for special legal status in statute. There isn’t a federal fence-hopping statute, and there shouldn’t be a federal anti-circumvention statute.

In particular, I hope that Prof. Lichtman pursues this line of inquiry further:

With respect to DRM in the form adopted by iTunes, meanwhile, maybe copyright law should adopt nuanced rules like those that today limit the scope of the privilege of self-defense. The commonality here is that in both instances self-help ought not be allowed to become too common. Frequent self-defense would give rise to a vigilante state; widespread iTunes-style restrictions would reduce hardware competition by in essence making it impossible to enter the hardware market without simultaneously entering the relevant content business as well.

This is, I think, the most compelling critique of the DMCA: not that it gives content owners too much control over their own content, but that it needlessly balkanizes media technologies into mutually incompatible platforms controlled by companies like Apple and Microsoft.

Prior to the enactment of the DMCA, we had “nuanced rules” governing the intersection of copyright and technology. The Supreme Court, in its 1984 Sony Betamax decision, stressed the need to insure that the monopoly granted by copyright law did not interfere with “the rights of others freely to engage in substantially unrelated areas of commerce.” The courts were doing a pretty good job of striking that balance.

But the DMCA threw that evolving body of law out the window, replacing it with a blanket anti-circumvention rule. That rule has allowed the monopoly granted by copyright to bleed into monopolies in “substantially unrelated areas of commerce,” such as MP3 players, DVD players, televisions, etc. All repealing the DMCA would do is restore the courts to its proper role of fashioning “nuanced rules” that properly balance competing interests as the Supreme Court did in Sony and Grokster.

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James DeLong makes a rather silly analogy between DRM and shopping carts:

Shopping carts [at my local grocery store] can be wheeled out to the trunk of your car in the parking lot. Much more convenient. The cart bears a notice: “Take this beyond the parking lot and the wheels will lock.”

Clearly, this is some kind of wireless ditigal technology–DRM, in fact.

So I began thinking. Don’t shopping carts want to be free? Shouldn’t it be fair use to wheel the cart to my home? After all, there are lots of them, so I would not really be depriving another shopper of the use of a cart.

This is, rather obviously, not true. If you wheeled your cart to your home, there’s a pretty good chance you wouldn’t wheel it back. Over time, stores would run out of carts and need to buy more of them. The marginal cost of a shopping cart is not (as he bizarrely asserts later in the post) zero, or anything close to it. So it’s economically inefficient for someone to take a cart home and lose it. Good public policy requires that taking a cart off the premises be treated as theft.

But how that relates to DRM, or the debate over the DMCA, is a mystery to me. Here’s a better analogy: a law that flatly prohibited anyone from disabling such anti-theft technology, regardless of the reason. So if, for example, I happened to park my car at the very corner of the parking lot, and the people who set up the technology goofed and made the wheels lock up before I reached my car, it would be a federal crime to drag my cart the last few feet to my car in order to unload my groceries. Or, as another example, if the grocery store sold me one of their surplus carts, should it be a federal crime for me to remove the wheel lock after the sale?

The argument against DRM isn’t that consumers have a right to infringe copyright. (well, some fringe critics make that argument, but not me) The argument is that it needlessly prevents people from doing things that are otherwise completely legal. Like transferring a DVD to your iPod to watch on the road. Or playing a DRMed song on a high-end stereo system that doesn’t support that particular DRM format. Or including a short clip from a DRMed song in a presentation.

“Stealing” music by uploading it to or downloading it from a P2P service always has been illegal, and it would continue to be so if the DMCA were repealed, just as stealing a shopping cart has always been illegal. The analogous Issue is whether we need blanket federal legislation outlawing all circumvention of wheel locks, regardless of the purpose. I don’t think that’s good policy, and I suspect DeLong wouldn’t either.

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