DMCA, DRM & Piracy

The Wall Street Journal says ($) that EMI and Apple will announce tomorrow that “significant amounts” of EMI’s catalog will be available on iTunes sans copy protection. Fantastic. If this proves true, they’ll have earned at least one new customer—me.

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A very sensible video editorial from Walt Mossberg:

I agree with Mossberg that we need “a law written from the perspective of the consumer and the internet, rather than strictly from the perspective of the copyright holders.” But I think Mossberg is lumping together two things that it might be better to keep clearly distinct: the DMCA’s anti-circumvention language, and its notice-and-takedown provisions. As I’ve said repeatedly on this site, I think the former are bad news from almost every perspective and should be repealed. But I don’t think the latter is so terrible, and I haven’t seen anyone propose an alternative that I can get excited about. Clearly, if copyright is going to mean anything, Viacom has to have some cause of action when people upload non-trivial amounts of its copyrighted materials onto YouTube. For all of their flaws, the notice-and-takedown provisions seem to strike a pretty good balance. I would be hesitant to start lobbying Congress to re-consider that part of the DMCA before we have a clear idea of what ought to replace it.

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From Greg Costikyan of Manifesto Games, on DRM and information. From the “creators are getting screwed” genre, but makes some interesting points regarding the need of creators for DRM even if the intermediaries (distributors, marketers) are taken out of the game.

The “creators are getting screwed” genre is a subset of the larger argument that takes the form of “__A___ is doing it all wrong, they just need to __B__,” where A=some person with substantial experience in an immensely complex field (a football coach or the entire recording industry, for example) and B=some simple alternative arrangement that comes to mind in casual conversation. It is usually not nearly that simple, as I suspect Greg has the savvy to recognize (particularly since he notes that his own gameco that is more generous with artists, is operating in the red). Dollars do not lie around on sidewalks for long.

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Here’s another quote from How Progressives Rewrote the Constitution, on page 18:

The classical liberal joins the libertarian in a full-throated condemnation of state power used to create or perpetuate economic monopolies and private cartels in what would otherwise be competitive industries. The touchstone of the analysis that follows, therefore, is this: state power that may be used to limit monopoly power should never be converted into a force that creates or perpetuates monopoly power.

My last post probably came across as snarky, but I’m quite serious. Several DMCA defenders (although perhaps not Epstein himself) have argued that the DMCA’s lock-in effects are an argument in favor of the DMCA, a position that seems to me to stand in stark contrast to the sensible position that Epstein articulates here: that state monopolies should always be regarded with great skepticism. If it’s economically beneficial to prohibit people from building iTunes-compatible music players, would it also be economically beneficial to ban the sale of after-market auto parts? If not, what’s the difference?

I suspect the answer, in at least Epstein’s case, is that he doesn’t understand that prohibiting circumvention of DRM is equivalent to giving the DRM vendor a monopoly on compatible devices. Indeed, he seems to believe that it’s possible to “make it illegal for anyone to take actions that disable encryption devices” while allowing “for reverse engineering key elements of programs solely to insure ‘interoperability’ of some independent program.” As I’ve argued before, that’s not how DRM works: Prohibiting circumvention amounts to granting a monopoly over compatible devices.

To be fair, the error originated not with Epstein but with the drafters of the DMCA, who also seemed to believe (or at least hoped the world would believe) you could draw a meaningful distinction between circumvention and interoperability. Still, special interest groups often advance legislation that purports to do one thing but actually does something entirely different. Indeed, this kind of rent-seeking is one of the central themes of Epstein’s own work in other areas of the law. So it’s frustrating that he so blithely accepts the the copyright lobby’s fatuous justifications in this case.

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Richard Epstein in How Progressives Re-wrote the Constitution, page 15:

[The classical liberal legal regime protects] the freedom to engage in market competition—to make offers to business with others. The private voluntary contracts that may result are postiive-sum games for the parties to them, and whatever harm ordinary contracts of sale and hire wreak on competitors (and it is a real harm, no doubt) is more than offset by the gains to the parties and to consumers. We are all systematically better off, therefore, in a regime in which all can enter and exit markets at will than in a social situation in which one person, armed with the monopoly power of government, can license or proscribe the actions of others.

I wonder how he would apply this analysis to the market for iTunes-compatible music players.

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Don Marti fires back at our own Solveig Singleton and her post on “deconstructionism” and DRM:

“Fiddling with the language” won’t win the DRM debate, but getting the right terms into common use will help keep it from being harder than it has to be.

Framing does work. Archer Daniels Midland’s lobby groups help keep sugar quotas in force in the USA, even though they raise prices for sugar customers and hurt opportunities for mutually beneficial trade with sugar exporters. The winner? The corn syrup industry. Archer Daniels Midland can’t run its high-fructose corn syrup business at a profit unless the government puts heavy-handed restrictions on trade in sugar. And, no, this Decatur, Illinois company is not wasting its money on “deconstruction”.

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This post isn’t meant to prove anything, just to note something of some small significance–a data point, basically.

Digg is major gathering point for the pro-open source, anti-big company, anti-DRM crowd. To be sure, many others use the site, and most Diggers who hold these views are casual about their advocacy and not among the hardcore folks who hang out on more focused sites.

But sometimes I wonder whether among casual holders of this creed, the motivating factor isn’t political, philosophical, or ideological, but just to get something for nothing.

So note the current top stories on Digg:

Just a correlation, proof of nothing in particular.

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Todd Hollenshead is the CEO of id, the developer of the DOOM and Quake series. He gave a talk at GDC about piracy. Unfortunately no transcript or video are available, but here is a summary of his talk (warning, this page’s color selection is hard on the eyes.)

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