In the ongoing debate about cynicism and the broadcast flag, see here (More on Cynicism, Indecency, the FCC and the Broadcast Flag), Freedom To Tinker (Dare to be Naive), and Furdlog (Cynical or Naive?), one point has come up that I think deserves a more indepth answer. If, as I argue, the broadcast flag doesn’t inhibit widespread internet distribution of HDTV broadcasts, why are the broadcasters pushing so hard for it?
In the comments on the Freedom to Tinker posting (Dare to be Naive: Comments), frequent IP blog poster Cypherpunk asks:
What, then, is the motivation for the movie companies? Why are they expending their political capital on a measure which would not benefit them? If they don’t think the BF is going to reduce the quantity or quality of piracy, then I don’t see why they would be pushing it so hard.
A similar question was raised yesterday on Sellout Central. Brad, of Brad Sucks fame, considers why some might want to use DRM even if they know it will be cracked (The point of DRM). His thoughts come in response to a claim on The Register that all current-generation DRM will be cracked (DRM ‘will be cracked’ says iTunes hacker).
These are pretty good questions. I don’t believe that DRM can be successful in keeping widely distributed content off the filesharing networks. If I’m right, and content owners aren’t simply dumb (they’re not, or at least not entirely), then why do content owners continue to push DRM? Take Apple’s iTunes … please (ba-dump-bump). Everybody knows that every single song on iTunes is available for free via P2P. Every single one. Why then have DRM at all? It certainly isn’t adding value. There has to be a good reason … and there is. Read on for my answer …
The straightforward answer is that DRM provides the content industries benefits that are unrelated to or only loosely related to stopping content from getting onto filesharing networks.
DRM works, just not for piracy protection. However, claiming you need DRM for piracy protection seems plausible on its face. If you haven’t really thought about the issue it makes a good public justification for insisting on government support of DRM (“Gotta have it to stop them no good rotten pirates!”). But what are some of the real reasons one would support DRM if it doesn’t stop internet piracy or even slow it down significantly?
DRM Doesn’t Work … Today
It is clear that DRM doesn’t work today, but that doesn’t mean that DRM won’t work in the future … at least that is what Hollywood is hoping. The content companies still believe that a legislative/technological solution can be found that will make DRM work as an anti-piracy device and many tech companies are encouraging them in this belief. Between trusted computing, broadcast flag treaties, Super-DMCA laws, and other efforts along these lines, the content companies are really counting on DRM actually doing what is claimed sometime in the next few years.
Until Hollywood enters the content lockdown nirvana, they will continue to use DRM that they know doesn’t work for a number of reasons:
- The very fact that DRM doesn’t work is a justification for Hollywood’s legislative agenda. “We need more laws because technology alone won’t solve the problem.”
- Once you start selling content without DRM it will be hard to go back – how will you justify it? The broadcast flag permits consumer copying (for home use only), not because Hollywood wants to permit it, but because it would be too difficult to fight entrenched consumer expectations. Better not to let expectations get entrenched in the first place.
- Selling content with DRM (even if the DRM is broken) means you aren’t really selling anything at all, you are licensing it. A person doesn’t “own” the music they “buy” from iTunes, what Apple calls “the product” is licensed to the purchaser, but that license may be changed at any time in the future. This means that when effective DRM is available the content companies can force those with the old, ineffective DRM to upgrade. This is an even more prominent issue with, for example, Microsoft’s Janus, which can be set to terminate access to content after a set period of time. They say Janus will let people “rent” content, but the truth is Janus does nothing but let people “rent” content. Bonus: You still get to reserve all your copyrights. Copyright and contract, what’s not to like for a content owner?
- In the case of the broadcast flag, you set a precedent for controlling technology that has otherwise been uncontrolled. Furthermore, bureaucracies tend towards increasing control over time. The longer the broadcast flag exists, the more likely that the DRM restrictions will gradually increase.
How much would you pay for DRM now? Don’t answer yet, there’s more!
It’s All About the Control
What happens when you let people have content without DRM controls? Even if people don’t violate copyright, you lose control over the content. People can do all sorts of things, like exercise fair use, and other people will build them the tools to do those things with no input from Hollywood.
As awful and overextended our current copyright regime is, it still permits people to do things that the content industry doesn’t like, which is pretty much anything that doesn’t involve forking over more cash to Hollywood.
For example, copyright doesn’t support region coding (tagging DVDs so that they only play in certain countries). Traditionally, if you bought a book in the UK, you could read it in the US and there was nothing the copyright industry could do about it. Today, if you buy a DVD in the UK (even if you’ve got the whole PAL/SECAM thing straight) you will likely not be able to play it on your US DVD player, thanks to DRM.
Want to skip those FBI warnings at the start of your DVD? Forget about it with DRM. This may not sound like a big deal, but the DRM to enforce this capability prevents a lot of other cool things from being done, such as automatic synching of alternative commentaries to a DVD. Furthermore, if forcing people to watch the FBI warning is not big deal, why is so much technology required to enforce it?
Content owners don’t like fair use. If they could, they would ban every bad review, critical comment or parody. Soon-to-retire MPAA president Jack Valenti has been wont to say “What is fair use? Fair use is not a law. There’s nothing in law.” DRM is great at inhibiting fair use.
In combination with the DMCA, DRM becomes a devastating legal weapon, even if it is a pathetic technological one. Note that copyright infringement is already illegal (with potentially enormous liability attached) but the DMCA allows people to be punished for doing things that are perfectly legal under copyright law. For example, not only is one subject to civil liability for distributing an unauthorized DVD player, one is subject to liability for merely playing a lawfully purchased DVD on an unauthorized DVD player. Nice to have that threat hanging over people’s heads, isn’t it?
Of course, the DMCA threat isn’t aimed so much at consumers (though they are definitely in the crosshairs) as it is aimed at consumer electronics and software companies, which is the final point of this section.
What happens if the content industries start selling content in an unencumbered format? Well, technology companies are going to start developing products that use that content in new and innovative ways. Some of these ways may very well undermine the existing business models of the content industries. Without DRM the content industry would have very few levers with which to influence the consumer electonics and software companies. The content industry could still sue to prevent the development of certain technologies under theories of contributory or vicarious copyright infringement, but such lawsuits are a crude tool of influence at best. Furthermore, thanks to Sony v. Universal, many disruptive technologies will be legal *cough*DiamondRio*cough*.
However, by insisting on proprietary DRM (well, under the DMCA it might not have to be proprietary), the content industries are in a much better position in negotiating how technology will be permitted to develop. If the content industry thinks that a particular new device is too disruptive, they can lock it out of using their DRM’d content legally, something that copyright law would otherwise not allow. If CD’s had DRM and the DMCA had already been passed, there never would have been a Diamond Rio portable MP3 player.
Of course DRM is valuable to the content industries. It just isn’t valuable in the fight against widespread internet filesharing.