Mr. Valenti, Tear Down This Wall!

by on May 24, 2006 · 4 comments

Last week Ed Felten had the following summary of Larry Lessig’s comments at the Princeton-Microsoft Intellectual Property conference:

He starts by saying that most of his problems are caused by his allies, but his opponents are nicer and more predictable in some ways. Why? (1) Need to unite technologists and lawyers. (2) Need to unite libertarians and liberals. Regarding tech and law, the main conflict is about what constitutes success. He says technologists want 99.99% success, lawyers are happy with 60%. (I don’t think this is quite right.)

I think Lessig is misunderstanding the lawyer-technologist split. It’s not primarily a matter of ideological purity. Rather, I think there are two things going on. First, technologists are less likely to be fooled by “compromises” like Sun’s DReaM that are just the same bad wine poured into new bottles. They understand that because of the way DRM works, most proposals for kinder, gentler DRM won’t turn out to be so kind or gentle in practice. DRM is bad because it requires a central decision maker, be it Apple, Microsoft, Sun, or the DVD CCA, to oversee the design of all devices used with the platform. That’s going to produce lousy technology regardless of the details.

Secondly, I think technologists have greater confidence that we’re going to win in the long run. Our dislike for DRM is driven fundamentally by a conviction that DRM is bad technology, being perpetuated by the stubbornness of non-techies who don’t understand what’s going on under the hood. DRM will eventually fall into disuse because it doesn’t work, and because it puts the companies that use it at a competitive disadvantage.

From this perspective, “compromising” by endorsing efforts like Sun’s DReaM is just a bad strategy, because it lends undeserved legitimacy to bad technology–not just to Sun’s particular technology, but to the concept of DRM in general. To borrow Felten’s cold war analogy: Reagan’s biggest contribution to the end of the Cold War wasn’t the military build-up. It was that he was willing to stand up and say that communism was destined for the ash heap of history because central planning doesn’t work. That wasn’t news to anyone in the Soviet Union, but having the West’s most prominent leader saying so publicly made it increasingly difficult for Soviet leaders to continue the charade.

The same is true of DRM: it’s becoming increasingly obvious that DRM isn’t working as advertised. Sooner or later, the industry is going to start wondering if they made a strategic mistake. When David Berlind writes that “while I continue to campaign against DRM, you’ll have to excuse me for being realistic about the situation and wishing that if this crap is going to get forced down our throats, the least the entertainment industry can do is make it a little more palatable than it is,” he’s lending undeserved legitimacy to the labels’ strategy. He’s conceding that DRM is good for the labels, even if it’s not good for their customers, and that we should be focusing on having slightly less-bad crap forced down our throats instead.

I’m just a blogger at an obscure Midwestern think tank. It’s unlikely that the labels or the movie industry are paying any attention to what I have to say. But Berlind and Lessig are prominent figures in technology and business circles. When they say things that implicitly concede that DRM is good for content companies, or that what we really need is kinder, gentler DRM, they undermine technologists’ efforts to explain why DRM is bad for everybody. I think they’d do far more good in the long run if they adopted what we might call a Reaganesque strategy and focused on explaining why the DRM business model is bound for the ash-heap of history.

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