Listen to the Stopped Clock

I’ve written before that Chris Castle is a technically clueless lawyer whose blog specializes in juvenile and mean-spirited insults of his ideological opponents. He and I clearly don’t see eye to eye on a lot of copyright-related subjects. Yet it seems that even a stopped clock is right once in a while:

I believe there is a good business case that can be made for selling in mp3. At the risk of stating the obvious, I would point out that the iPod, and almost every music player in the market, supports mp3. So the reason to sell in mp3 is not because DRM is bad. I completely disagree with Professor Lessig’s radical fringe that opposes DRM in all forms, and unlike many in the fringe, I support a copyright owner’s decision to sell in any format they wish–DRM or non-DRM.

But the business argument over selling in the unprotected mp3 format shouldn’t have anything to do with how you feel about DRM. The reason you sell in mp3, and the reason you sell in Fairplay, Windows Media and any other common format is because–they are common formats. A lot of people use them. It just happens that more people use mp3 than use Windows Media or Fairplay.

If a copyright owner sold an mp3 file, it could be suitably watermarked to carry identifiers that would allow accounting if an online service wanted to sell the tracks. The point is that if you sell in mp3 you are not giving a fan anything that they couldn’t make themselves if they bought a CD and ripped it.

I think he over-estimates the effectiveness of watermarking technologies. And Castle is wrong when he says that Lessig is in the “radical fringe” that opposes DRM in all of its forms. He’s not, much to my disappointment. But otherwise, this analysis is dead on. And given that Castle is clearly not an apologist for piracy or a critic of the music industry, maybe the music industry will listen to him.

I wonder if it’s occurred to Castle that it’s not a coincidence that MP3 is more widely deployed than FairPlay and Windows Media. The whole point of DRMed formats is to limit interoperability with third party devices. Hence, we shouldn’t be surprised that DRM is plagued by incompatibilities.

Update: I struck out the bit about Lessig’s attitude toward DRM, which on re-reading Lessig’s post clearly isn’t right. What I should have said is that Lessig is more sympathetic than me to the notion that some DRM is better than others, and that we should therefore settle for the least-bad DRM we can get, rather than focusing on persuading publishers to ditch it altogether.

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