DMCA, DRM & Piracy

Assorted comments have filtered in concerning my DMCA paper, and I respond here:

SympathyI again underscore that I am sympathetic to Ed Felten and others caught up in litigation. My point was not to trivialize their concerns, but to put them in a larger perspective. The plight of a hungry person arrested for snatching bread is a real plight, but it is not an argument for abolishing the law in question. I am not an “act utilitarian.” I do not believe that every application of a rule needs to be optimal for the rule to do more good than harm. The courts are good at dealing with individual hard cases; forums exists for reform and for exemptions; but, still, in boundary disputes, lines must be drawn somewhere. If one has a strong concept of natural rights, that will be jarring. But I believe that rights need some flexibility or they will not survive the transformation of the economy into one where less value is bound up in physical capital and more in intellectual capital.

Piracy and more Piracy and Less PiracyYes, there is rather a lot of it, isn’t there? Offline, online, and so on. If DRM does nothing to impede it, and if keeping hacker/cracker tools in the realm of black market or grey market does nothing to inconvenience anyone even slightly, then that is certainly a problem. But I do think that there is a vast stretch amount of ground between failing completely and preventing all piracy of any kind. And although there is a great deal of piracy going on, there could easily be a great deal more.

A note about P2P. Of course the DMCA doesn’t do anything about that, the stuff is already decrypted. To address that problem, we have the Grokster case. Different problem, but similar analysis. Markets can contend with black-market P2P, fraught with viruses and other nasty things. The expectations of students are misleading here. Students are used to getting things for free from their parents and others. They generally do not buy the machines or software they use, and have little cash flow to spend on content. So they are not averse to risking giving their machines horrible diseases, and on the other hand “need” to get content for free. They have a great deal of time on their hands. Flash forward a few years; these same people have jobs, many of those jobs (an increasing number) will involve intellectual property (journalism, photography, science, trade secrets). They will be short on time and have more money. They will be much more wary of viruses. Their views are quite likely to evolve.

If DRM itself is all a waste of effort, well, one ought to see investors supporting business models that use something else. But, again, we see only a few small experiments. Very few. Very small. I find it extremely implausible that everyone across a wide range of content developers–games, music, movies, photos, books, and all their investors so on, should be entirely lacking in vision. There is money to be made here.

It remains possible that someone will come forward and discover how it is to be done without relying on any of the types of boundaries that have traditionally been used. The idea of voluntary compliance is attractive, but unrealistic in a large community. People do voluntarily comply with a great many laws. But how these norms came to be internalized is, in part, due to centuries of past enforcement patterns and the gradual evolution of human expectations accordingly.

It is also possible that some of the need for liability rules to take up the slack on the enforcement side would lessen if the Internet for other reasons evolves in the direction of being more friendly to enforcement. An infrastructure supporting identification, authentication, and reputation mechanisms might help. But bear in mind that should such an infrastructure develop, so will efforts to crack and spoof, and then we are right back at the problem of the DMCA again.

Beyond Short Papers and Hard Arguments The best response to my paper comes from Fred Von Loehmann at EFF, who brings the argument back to the question of whether the DMCA and/or DRM is needed at all. The larger point of my paper is that if the DMCA is necessary, the hard cases we have seen cannot justify its repeal, but rather call for tinkering or further explication from the courts; I underscore that my paper was not intended as a final or complete defense of the DMCA, it would have had to be much longer. But FVL’s argument takes us beyond the scope of the paper, where I think the debate is more serious.

To justify repeal, one would need to show that the DMCA is not necessary for the viability of markets. This argument can take two forms:

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My co-blogger Solveig Singleton has a new paper out about the DMCA. I’ll probably have some crticism of it in a future post, but I wanted to start off with a point I find pretty persuasive:

In the world of some libertarian DMCA critics (including a slimmer version of myself, some years back), legal barriers enforced in lawsuits against myriad copying individuals are a mainstay. More vigorous enforcement is sometimes presented as an alternative to the DMCA. With respect to my peers, this is non-responsive. The problem that the DMCA is intended to solve is in large part the limited usefulness of ordinary enforcement mechanisms; it does not solve the problem to invoke them…

The Internet lacks a dispute resolution mechanism appropriate to quickly resolve millions of small-value disputes, especially where the parties are geographically dispersed. The courts have serious limitations here; they are far too slow and far too expensive. They will work as a last resort in disputes where large value is at stake. This simply does not describe illicit personal copying by individuals. One sometimes hears commentators speaking as if it would work to just crack down on individuals in a few token, high-visibility cases. But this is neither fair to those individuals, nor will it deter. Study after study of deterrence suggests that harsh penalties do little or nothing if the probability of being caught remains below a certain threshold.

In my paper, I cited lawsuits against file-sharers as one possible weapon available to the recording industry, but I did so half-heartedly. I fear SIngleton may be right about the futility of ever more lawsuits as a means of deterring casual infringement. When I was in DC for the Cato copyright conference, I had lunch with two good friends who are fresh out of college. When I told them the subject of the conference, the conversation soon turned toward their own experiences with peer-to-peer files sharing. They told me–with no apparent guilt–about the peer-to-peer programs they use to download copyrighted content.

Now, these friends would be mortified to be caught stealing a candy bar at 7-11. And in my experience, their attitude is typical of young adults their age. I didn’t ask, but if I had, I suspect they would have been nonchalant about the possibility of being hit by an RIAA lawsuit. The odds of being caught are pretty low, and for logistical and PR reasons the RIAA can’t be too draconian with the people they catch.

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Fred Von Lohmann criticizes Solveig Singleton’s new essay for failing to discuss the darknet critique of DRM. Ray [Gifford, I assume] at PFF had this reaction:

The talismanic authority of the Darknet paper baffles me. It simply proves too much; namely that because some can circumvent DRM and, in a sense IPR, therefore there should be no DRM. It is not a completely bankrupt argument–you can certainly argue that the net effect of, say, antitrust laws or drug laws is negative. With Darknet, though, it is treated at something of an instant QED. To the contrary, it simply makes the point that a black market will arise on the internet for illicitly copied content. The challenge of law (and the usefulness of property rights) is, through social norms and legal sanctions, to shrink the size of that black market so that productive activity continues and a market thrives. Seems to me, on balance, that’s what the DMCA is doing in its best instantiations.

I think this response misunderstands the darknet critique, and the nature of peer-to-peer file distribution more generally.

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Seth Finkelstein offers a reubuttal to Solveig Singleton’s contention that DeCSS wasn’t related to the effort to build an open Linux DVD player.

I’ve been out in Los Angeles this week attending “E3,” the video game industry’s annual trade show. It’s the first time I’ve been able to attend the show and I am finding it very interesting. Indeed, as I walk the halls of the L.A. convention center and chat with gaming companies and gamers themselves, I am struck by several things:

(1) This is one heck of an innovative industry. There are some remarkably creative minds working in the electronic gaming sector. As a life-long gamer who was part of the “Pong” and “Pac-Mac” generation, I am just flabbergasted by how much more highly developed games are today (in terms of graphics, narrative and gameplay) than they were 30 years ago when I first started gaming. There was a moment in my life when I thought that games just couldn’t get much more sophisticated than Activision’s “Pitfall” or Atari’s “Adventure.” What a fool I was! Some of the massive multi-player online roll-playing games (“MMORPGs”) I saw at the show were just jaw-dropping in terms of their graphical detail and narrative sophistication. And all of the new high-definition titles for the X-Box 360 and PlayStation 3 are nothing short of stunning. Old favorites of mine like “Madden” football and “Gran Turismo” are now rendered in ultra-crisp 1080p HD resolution. There are moments during those games when you really think you’re watching a live feed from a real football game or road race.

And even the games which featured a more simple premise were exciting. Consider “Table Tennis” by Rock Star Games. The same company that brought us the infamous “Grand Theft Auto” is now producing a decidedly less controversial title based on the classic game of Ping Pong! If you think it sounds silly, wait till you play it. It is addicting in a “Tetris-like” fashion. I hope they eventually make it for my PlayStation Portable!

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Yesterday I responded to Solveig Singleton’s comments about the Linux DVD player issue. Today I want to focus on the other major argument of her posts, namely that DRM is sufficiently effective that the DMCA is worth it even if it does have some disadvantages.

Unfortunately, the debate over whether DRM is effective often has a “Does not! Does too!” quality to it. I’m going to try to dig into the matter a little more deeply to see if we can get past that to some substantive discussion of when DRM is effective and when it isn’t. I apologize in advance for the length of this post.

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On Linux DVD Players

by on May 10, 2006 · 16 comments

Ms. Singleton has wrapped up her two-part critique of me and my paper. She takes a few more personal jabs at me than I think was called for, but she also make some substantive arguments. I’m going to keep my focus on the latter.

Singleton makes two broad points: first, CSS licensing is not a barrier to the creation of Linux DVD players, and in any event, Linux DVD players are a tiny market so we shouldn’t be too concerned about them. And secondly, DRM is a more effective piracy deterrent than I say it is. I’ll address her first point here, and come back to the second point in a future post.

I want to start by stepping back for a bit of perspective. In my paper, I claimed there were no Linux software DVD players. It turns out that isn’t true. There appear to be two DVD-playing programs for desktop Linux operating systems: One for the Linspire version of Linux, and the other for TurboLinux. (She also mentions LinDVD, which is designed for proprietary set-top boxes, not general-purpose computers, which was what I was talking about the in the paper)

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Just What Consumers Need

by on May 10, 2006

David Berlind points out a charming feature of the new BitTorrent movie-distrubtion network: its DRM scheme apparently isn’t compatible with the other DRM schemes already on the market. His reaction to that is about the same as mine:

To go with yet another proprietary DRM technology when the market is already full of exisiting non-interoperable ones that are screwing it up is quite an unnatural act and evidence that either Warner Bros., the Motion Picture Association of America (MPAA), or the movie industry as a whole have no clue how to right a ship that’s about sink as it floods with stupidity.

So. Let’s see. I need PlaysForSure-compliant technology to playback content X, FairPlay-compliant technology to playback content Y, and Bittorrent technology to playback content Z. Why don’t we bring back BetaMax and VHS while we’re at it?

He mentions Sun’s DReaM as an alternative, but as I’ve written before it’s not clear to me how that would be an improvement. DReaM would simply be a fourth (or fifth if you count Google’s DRM) incompatible DRM scheme. The fundamental problem here is that Hollywood is prioritizing (ineffective) piracy-fighting higher than giving their customers products they’ll actually want to buy.

BitTorrent and Piracy

by on May 10, 2006 · 2 comments

Apropos the discussion of peer-to-peer technologies below, I have to say that the headline of this Forbes article, “WB Sails With Tech Pirate,” is rather obnoxious. Here’s how the article concludes:

However, BitTorrent raised $8.75 million last year in a bid to transform itself from the leading developer of piracy software into a legitimate company that distributes content on the Internet.

BitTorrent is a software tool for efficient file distribution. Do a lot of people use it to commit copyright infringement? Sure. But the same can be said of many other Internet technologies. Indeed, most users who download illegal files with BitTorrent find those files using web-based directories of files available for download. It makes as much sense to say that the web is “piracy software” because many people find illegal BitTorrent trackers using web-based search engines.

Just like the Web, BitTorrent has plenty of legitimate uses. Many open source projects, including SUSE Linux and OpenOffice, use BitTorrent to distribute their software to save money on bandwidth. Blizzard’s World of Warcraft distributes software updates via BitTorrent.

Finally, the Forbes article seems to have difficulty distinguishing between the company and the technology. BitTorrent-the-technology is open source software which anyone is free to use to distribute any type of content. BitTorrent-the-company runs a search engine that allows users to find Torrent files for download. BitTorrent removes links to illegal files as they’re discovered. The fact that some people use BitTorrent to distribute illegal files is no more the company’s fault than it’s Apache’s fault if somebody uses their web server to distribute infringing files.

Then and Now

by on May 9, 2006

Patrick Ross has a good post about the Warner Bros. announcement that they’d be distributing their content via BitTorrent:

Kudos to Warner Bros. for working out distribution of movies on BitTorrent. The BitTorrent technology truly is amazing, but unfortunately like so many new technologies in the digital world it was quickly embraced by those disrespectful of intellectual property before legitimate market forces could move in. Kudos also to the folks behind BitTorrent for working with studios to help its service respect artists’ rights.

That said, I won’t be using this new service, although I purchase Warner Bros. movies (I own all 4 Harry Potter DVDs). I want to watch movies on my TV, not my computer, and so far Warner Bros. is doing the same thing you find with the movie download services; recording permitted only onto DVD for backup, and the DVD can only be played on the original computer. The motion picture industry needs to move in the direction of the recording industry, which licenses services that permit the downloading of songs and the transfer of those songs onto other devices, including CDs.

I wonder if Ross realizes that the ease with which consumers can transfer their music between devices is primarily the result of the fact that the CD was invented before the advent of DRM technology. The recording industry did their best to outlaw the MP3 player, but that effort failed because without DRM on CDs, the DMCA didn’t apply. Once consumers got used to being able to play their music on the device of their choice, Steve Jobs realized that he had to provide similar functionality in order to get consumers to buy music online. The music industry didn’t give consumers that freedom on purpose, they were dragged kicking and screaming into doing so.

How would history been different if the industry had prevailed in Diamond? Although the recording industry would have eventually gotten around to licensing MP3 players, I think it’s hard to deny that the pace of innovation would have been hampered. The increasingly balkanized video marketplace gives us a hint of how the music marketplace would have evolved had the RIAA won. Hollywood is so terrified of piracy that they’ve failed to license any video-download services that actually give consumers what they want: an affordable, hassle-free way to watch content on their TVs. Hollywood will come to its senses eventually, but consumers will suffer from a depressed pace of innovation in the meantime.

Personally, I don’t think Ross should have to get anyone’s permission to watch he’s purchased on his TV. He should be able to download a conversion tool that would allow him to burn the movies onto a DVD for watching with any DVD player. Not only would that be extremely convenient for Ross and others like him, but it would also likely make the home video device market more innovative, as consumer electronics firms would have the freedom to build devices that use video content in new ways, just as the first MP3 players did to audio content in the late 1990s. Sadly, such devices are illegal under the DMCA, so we’ll probably never know what we’re missing.