We Want the Whole Loaf

Derek Slater and Tim Armstrong have been having a debate over the merits of agitating for better digital rights management technologies rather than agitating for outright repeal of the DMCA’s anti-circumvention rules. I think Derek’s take on the question is dead on:

I am not a lawyer, but last time I checked, Title 17 is the Copyright Act–it’s meant to encouarge creation and distribution of artistic (and related) works insomuch as it benefits the public. Title 17 is not the Medical Privacy Act, nor the Privacy in Embarassing Pictures And Emotional Distress Act, nor the Confidentiality Agreement Enforcement Act. It’s the Copyright Act, and it shouldn’t be turned into a Christmas tree on which everyone hangs a pet project that they think technical restrictions might achieve.
Tim already knows this, and when he teaches his students about the Lexmark and Skylink cases, I suspect this is roughly his sentiment will be. Why this insight doesn’t apply in Tim’s cited examples, I don’t know.

This insight is actually at the core of what’s wrong with the DMCA, and it applies with respect to restrictions on digital entertainment content as well. Consider the iPod-iTunes tie and similar situations. Reverse engineering for compatibility and distribution of compatible devices have been protected as non-infringing. And yet the DMCA turns Title 17 into a broad Compatible Device Restrictions Act, bootstrapping dramatically increased control over *devices* onto copyright holder’s limited control over *works*.

But what about actual infringing uses–wouldn’t it be worth using DRM to stop them? As we’ve already discussed, DRM doesn’t stop the only illegal use that matters–“Internet piracy.” The other infringing uses it could stop–heavily caveated in this post–are of marginal concern (please, come up with those hypos). Regardless, DRM would still have to limit non-infringing uses and innovation to stop such infringing uses. DRM that truly permits the full range of non-infringing uses wouldn’t be worth using, because it wouldn’t be practically useful in stopping any infringing uses either.

Therefore, saying “all DRM under the DMCA is bad DRM” is not merely a tautology. The DRM *that anyone would ever actually use* limits lawful uses, and, to the extent the DMCA prohibits circumvention for those uses and distribution of circumvention devices with substantial non-infringing uses, *that DRM is bad.* Absent the DMCA, the DRM would not necessarily be bad inasmuch as people could get around it to make lawful uses.

The “other infringing uses” he mentions are these:

Now, there may be some other illegal uses DMCA+DRM could limit. For those who are unwilling or unable to find and acquire unencrypted content from alternative sources (e.g. P2P) *and* are unwilling or unable to use circumvention devices *and* are unwilling or unable to use the analog hole to make an unencrypted copy, perhaps DMCA+DRM could have an effect. If someone would like to try justifying all the damage the DMCA+DRM have done to fair use and innovation based on limiting these other unlawful uses, please go ahead.

The problem with calling for better DRM is that it implicitly concedes the most important point of disagreement between the pro- and anti-DMCA sides: whether DRM is effective at reducing Internet piracy. If DRM is not useful for stopping Internet piracy, then all the talk about “balancing” the need to fight piracy against the need to preserve innovation, fair use, and the freedom to tinker becomes non-sensical.

Armstrong’s paper concedes the point in another way too: it implicitly assumes the copyright industries have any interest in expanding fair use. The fact is that the copyright industries have always been hostile to fair use and disruptive technologies. That’s why they sued ReplayTV and MP3.com out of business, and why they attempted to do the same with dual tape decks, the VCR and the MP3 player. It’s why they’re now lobbying to “close the analog hole,” mandate a broadcast flag, and cripple satellite radio. Hollywood and the labels have always been hostile to technologies that let their customer do more with their content. They’re thrilled that DRM allows them to place restrictions on their users that they were never able to impose (despite their best efforts) in the pre-DRM world.

I’m having trouble imagining a record label executive that saw the light, realized that traditional DRM was bad, and then decided to develop a less-bad version of DRM instead. What such an enlightened executive ought to do is release his products in open, unencrypted formats like MP3. That’s what independent record labels are already doing, and it’s working pretty well for them. It’s counterproductive to agitate for half a loaf when some labels are offering the whole loaf to their customers already.

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