DMCA, DRM & Piracy

James DeLong makes a rather silly analogy between DRM and shopping carts:

Shopping carts [at my local grocery store] can be wheeled out to the trunk of your car in the parking lot. Much more convenient. The cart bears a notice: “Take this beyond the parking lot and the wheels will lock.”

Clearly, this is some kind of wireless ditigal technology–DRM, in fact.

So I began thinking. Don’t shopping carts want to be free? Shouldn’t it be fair use to wheel the cart to my home? After all, there are lots of them, so I would not really be depriving another shopper of the use of a cart.

This is, rather obviously, not true. If you wheeled your cart to your home, there’s a pretty good chance you wouldn’t wheel it back. Over time, stores would run out of carts and need to buy more of them. The marginal cost of a shopping cart is not (as he bizarrely asserts later in the post) zero, or anything close to it. So it’s economically inefficient for someone to take a cart home and lose it. Good public policy requires that taking a cart off the premises be treated as theft.

But how that relates to DRM, or the debate over the DMCA, is a mystery to me. Here’s a better analogy: a law that flatly prohibited anyone from disabling such anti-theft technology, regardless of the reason. So if, for example, I happened to park my car at the very corner of the parking lot, and the people who set up the technology goofed and made the wheels lock up before I reached my car, it would be a federal crime to drag my cart the last few feet to my car in order to unload my groceries. Or, as another example, if the grocery store sold me one of their surplus carts, should it be a federal crime for me to remove the wheel lock after the sale?

The argument against DRM isn’t that consumers have a right to infringe copyright. (well, some fringe critics make that argument, but not me) The argument is that it needlessly prevents people from doing things that are otherwise completely legal. Like transferring a DVD to your iPod to watch on the road. Or playing a DRMed song on a high-end stereo system that doesn’t support that particular DRM format. Or including a short clip from a DRMed song in a presentation.

“Stealing” music by uploading it to or downloading it from a P2P service always has been illegal, and it would continue to be so if the DMCA were repealed, just as stealing a shopping cart has always been illegal. The analogous Issue is whether we need blanket federal legislation outlawing all circumvention of wheel locks, regardless of the purpose. I don’t think that’s good policy, and I suspect DeLong wouldn’t either.

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The following passage is from the introduction to my forthcoming paper on the DMCA. I thought it was particuarly relevant to the discussion below about legal versus non-legal barriers:

As Robert Frost famously noted, good fences make good neighbors. Fences demarcate property lines, enhance privacy, and prevent unauthorized entry. No one would dispute that fences are vital to protecting private property rights.

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Solveig Singleton comments on my recent post about the dismal state of DRM standards.

She emphasizes that DRM, however imperfect, is a second-best solution to the problem of piracy. I think we just disagree about that: I don’t think DRM is an effective piracy deterrent, nor do I think employing DRM technologies is an effective business strategy. But since I’ve made that point in the past I won’t rehash it now.

What I do want to comment on, though, is this:

Physical or technological barriers, DRM included, are in a lot of ways preferable to legal ones. They operate by prevention. They are responsive to consumer demand. They operate across international boundaries. They don’t have associated policing or enforcement costs (though they aren’t free, either). Imagine if the police had to keep burglars out in an environment where no one had thought of or invented locks on doors, or even walls. It would be grossly inefficient, even absurd.

I’m not sure what to make of the contention that DRM has no enforcement costs, and is not a “legal barrier.” DRM gets its force not by technology alone, but by a legal prohibition on tinkering with that technology. It requires doing such things as punishing people who make unauthorized DVD-playing software, unauthorized streaming video players, and unauthorized iTunes Music Store clients.

Ms. Singleton may consider these restrictions to be a necessary cost of preventing piracy. But regardless, they are legal restrictions. They require the use of police and courts to enforce. They restrict our freedom to tinker with the electronic devices we legimately own–a right that may not be important to her but is of importance to a lot of computer geeks. And they should, I would hope, at least be treated with skepticism by libertarians.

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My ex-roomie Julian offers another example of how digital rights management technology is needlessly inconveniencing paying customers:

A politics professor at a small liberal arts college is bringing a class to D.C. in March and has asked me to talk to his students, who have been doing a seminar on protest music in American politics, about some of the ideas in this column. Naturally, I’d like to be able to illustrate what I’m talking about with some examples, short clips from songs by Metric, Rilo Kiley, Green Day, Radiohead, Mike Doughty, The Decemberists, and others. I own all the songs in question–bought them on iTunes rather than just downloading them from Limewire or Kazaa. But Apple’s DRM doesn’t want to let me extract these short clips–indubitably a fair use, and something I could obviously do legally just by cueing up the songs manually at the appropriate timecode.

I’d be curious to know what DMCA supporters think he should do in this kind of case. Should he write a letter to each of the labels that publish these songs and ask for permission to use the exceprts? Should iTunes have a feature where you’re allowed to purchase small song clips for a nickel a piece? Or is it just possible that the most sensible way to deal with this sort of thing is to legalize DRM circumvention in circumstances where the use would otherwise be legal.

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Ars highlights an interview with Microsoft executive Jim Allchin about how computer hobbyists are being frozen out of access to the next generation of digital video:

Although as a platform Vista has been approved by CableLabs at this point, an important step that will still be necessary for the PC/CableCARD reality is CableLab’s approval for finshed individual OEM PCs as well. Although Vista has been approved, OEMs will in fact still need to get their individual machines certified by CableLabs as well.

What that means in plain English is that if you want to view cable TV content on your computer, you’ll need to choose a computer model that’s been individually inspected by cable labs. What if you assembled your own PC from scratch? It’s a safe bet that CableLabs won’t consider it worth the time to talk to you.

This is a problem that will only get worse. What the DMCA is doing, in essence, is making users of non-proprietary hardware and software systems second-class citizens. Already, most DRM schemes exclude open source operating systems like Linux. Now, they’re beginning to exclude custom-built hardware as well. That might not seem like a major loss to the lobbyists who got the DMCA enacted–most of whom have probably never written a line of code in their life. But for those of us who enjoy the freedom and flexibility of being able to tinker with our hardware and software, it’s a major loss.

Update: Boing Boing has more.

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Patrick Ross calls out DRM critics:

During the Grokster debate we always heard how P2P was simply a technology; it wasn’t evil. That’s true; the problem always was with the piracy on P2P, piracy encouraged by P2P software makers. Here a movie label is using P2P as a distribution tool. I’ll say this to all those opposed to DRM; if you can convince me this service would exist without DRM, I’ll make a donation to the Electronic Frontier Foundation. This new service, it seems, is further market innovation, driven once again by technological protection methods.

Ross is repeating an old refrain. In 1982, Hollywood’s top lobbyist, Jack Valenti, told us that the movie industry wouldn’t survive if Congress didn’t outlaw the “record” feature on the VCR:

But now we are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. And it is like a great tidal wave just off the shore. This video cassette recorder and the blank tape threaten profoundly the life-sustaining protection, I guess you would call it, on which copyright owners depend, on which film people depend, on which television people depend and it is called copyright.

Valenti said that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” Valenti told us then–just as Ross tells us today–that if consumers were given the unfettered ability to make copies of movies, it will bankrupt Hollywood.

Valenti turned out to be spectacularly wrong. The videotape aftermarket grew to rival ticket sales as a revenue stream. It turns out that consumers value the convenience, legitimacy, and positive experience of purchasing legal content, even if they have the physical capacity to engage in piracy. Recording movies off the TV and editing out the commercials turned out to be too big of a headache for most Americans to bother with.

That was the experience in 1982, and there’s every reason that it would happen again in 2006. Legal downloads are better organized, more convenient, of higher quality, and less legally hazardous than piracy. The vast majority of consumers are likely to choose such legal downloads even if it’s physically possible for them to break the law.

Ross assumes, against all evidence, that DRM is an effective piracy deterrent. Peer-to-peer services already offer almost illegal copies of any movie on the market. All the DRM in the world isn’t going to make those networks go away. So what exactly is it supposed to accomplish besides pissing off paying customers who discover they can’t play their Warner Bros. movies on their iPods?

Update: Mike says that Warner Bros. will be charging as much for downloads as it does for the corresponding DVD, despite the enormous savings the studio will be enjoying on packaging and transportation costs. Why would any consumer pay the same price for the same product in a less convenient and untested format?

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Ars reports that Amazon.com is planning to roll out a video-download service in April:

Amazon’s vision includes a try before you buy model, where you could download or stream a movie for a fee, and apply that fee as a credit towards the purchase price of the corresponding DVD, should the content tickle your fancy. Another idea is to provide free downloadable versions along with regular DVD purchases, to draw in those who would rather swing by the closest Wal-Mart or FYE for their movie needs, because they just can’t stomach waiting a couple of days for their DVDs to be delivered.

This is eerily reminiscent of MP3.com, the audio-streaming service that was unfortunately struck down as copyright infringement. The difference, of course, was that MP3.com was founded on the radical notion that once you purchase a CD, you have a right to do as you please with it as long as you don’t share it with others. If the last few months are any indication, Amazon’s service is likely to be quite different: sure, you’ll be able watch the movie right away, but you’ll only be able to do so with the official Amazon player, and on devices that adopt Amazon’s DRM format.

It will be interesting to see if Amazon releases yet another DRM format, or decides to piggy-back on one of the existing ones. There are already three major video DRM formats (Apple, Microsoft, and Google), all of them incompatible. The last thing we need is a fourth. At some point, consumers are going to start getting headaches when they have to keep track of which of their movies play on which of their devices and applications. Hollywood seems to consider irritating their paying customers a good business strategy.

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Declan wonders if the video iPod will spark a DMCA revolution:

In 1998, politicians bowed to pressure from the entertainment industry and voted overwhelmingly for the Digital Millennium Copyright Act. Part of that law made it a federal offense to sell or distribute software that can rip DVDs.

In other words, believe it or not, Apple CEO Steve Jobs would be guilty of a federal felony if iTunes transferred DVDs to an iPod as easily as it can music from a CD.

While these Draconian penalties have angered digital-rights types for years, the prohibition really hasn’t affected a broader audience. But the recently released video iPod changes this and–if we’re lucky–will prove to be a flashpoint that sparks actual reforms.

We can hope.

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