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February 26, 2002
The Digital Rights Future (NOT)

So, I guess it is time for the copyright rant. Forbes has a story on the future of online music that they title The Digital Rights Future. After 4+ years of hearing the conventional wisdom that DRM is so clearly the way of the future that it most be the divine right of intellectual property owners to have it in the first place, I'm just sick.

It will never work. Well, to sound less like an absolutist, it will not work for non time dependent content. For those that understand the crypto, there is a protocol for key exchange that could make things like access to DirecTV costly enough to the individual trying to defeat it so as to render defeating it virtually worthless, but for pre-recorded content and duplication of any content to which a user can get one time access, DRM will never work. The fundamental reason is that there is no core science that allows matter or energy to be observed by humans in such a way that a human can not make a duplicate. Maybe some strange quantum effect will work, but then the real wackiness of quantum is about our interaction in direct observation in the first place. For the layman, you can't yet make something that is both accessible and inaccessible at the same time.

The bigger issue is the general public policy that DRM and laws that support DRM rely upon. Basically, the issue comes down to the legal theory of prior restraint. When you buy a good old fashioned pulp and ink book, there is no prior restraint on your ability to copy it. You as a citizen are considered innocent until proven guilty as far as copyright infringement is concerned. If however, it comes to light that you have copied it, and you can not rely on a fair use defense, then you are guilty of a crime, misdemeanor, or civil penalties. The original spirit of copyright embodied in the Constitution was that most people are honest, but those that were not could suffer some very severe consequences for being dishonest. Now Hollywood has pushed for a paradigm that assumes all copying and even most using for that matter is going to be done in an illegal way or could be done in an illegal way, so everyone should suffer restrictions to stop the minority who infringe. Funny that this policy in practice seems to largely be causing the balance of innocent to guilty to flip against the copyright owners...

There has been a mantra from the copyright maximalists that if the technology caused the problem, the technology should fix the problem. The next breath always includes DRM. The sad part is that the lawyers who make this statement - and almost all of the folks who set direction and policy for the copyright owners are lawyers - know just enough to be dangerous to themselves. Instead of trying to create a farcical piece of technology named DRM which amounts to little more than smoke and mirrors on a technological level, they should be leveraging the natural compression of time and distance that technology has created to use automated internet crawlers and databases to create large scale copyright enforcement using existing laws (anyone see any parallels to the firearms issues here?) Enforcement, however, seems too politically distasteful. Most of the intellectual property owners are to scared and too greedy, as greed begins where their fear ends and vice versa, to make a non DRM, inexpensively priced, legitimate service available to customers. Such a system is both a moral and political prerequisite to wide spread digital copyright enforcement against the direct infringers. EMusic is as close as anyone gets, and that's because the intellectual property owners didn't start or mature it.

Before I get an email about the big brother world I'm proposing, I want to make sure that the obvious is pointed out. The only people who will show up in said database or said enforcement action are those people who are making copyrighted material available without permission of the copyright holder. Right now, illegally publishing high quality, full length copyrighted works on the web, usenet, IRC, Gnutella, Kazaa, etc. is without risk to the publisher. Simply adding that risk while having a legitimate outlet for customer demands for intellectual property in liberal digital delivery systems will virtually end all of the risks to intellectual property in the digital age.

I actually have been making some inquiries of Congressmen on how one might implement a copyright speeding ticket whereby these enforcement systems would have a process that would allow the issuing of an infraction for the first two or three minor copyright offenses that had a fine in the neighborhood of $100 attached to the ticket. If the same person got more than two or three, then the criminal statues from the 1997 No Electronic Theft Act might take effect.

The Music Industry is the first intellectual property sector to have to fully face the "DRM dilemma" due to the small amount of data encompassed in the average enjoyable blob of data it creates. With just a few tech folks, some balanced lawyers sending DMCA notices, and an inexpensive downloadable music offering in unencrypted MP3 format, online music will become a multibillion dollar business and change the headlines from "Shipments Down 10.3% This Year" to "Happy Customers Laud Ease and Convenience of Legitimate Online Music."

Its so darn simple that it is just sad.

Posted by hoffmang | February 26, 2002 01:59 AM


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