Yesterday, the Free Software Foundation launched a new anti-DRM initiative—in real space quite-cleverly in the yellow suits worn to manage toxic wastes and online at defectivebydesign.org (“There is no more important cause for freedom than the call for action to stop DRM from crippling our digital future”). As Peter Brown, Executive Director of the FSF put it: “In any other industry, such limitations or invasions would be considered major flaws. A media player that restricts what you can play is like a car that you won’t let you steer. Products containing DRM are defective—only, unlike other products, these defects are deliberately created by an industry that has long stopped caring about us.”
Earlier this month, I gave a talk on DRM for our alumni weekend (slides available here and a forthcoming paper here). I started the talk with a description of what we might label the three eras of copying technology. Think of these as monk time and the era of the scriptorium; the time of Gutenberg’s asymmetry; and the era of cheap copying, dated say from 1959 with the launch of the Xerox 914, the first automatic plain paper copier.
The key point to focus on defining these eras is the symmetry or asymmetry of copying costs between the author/publisher of the work and a person in possession of a single copy of the work. These are second-copy costs. Not the cost of producing the first copy, but instead, first copy in hand, how much does it cost to create a copy of that copy?
In the monk era—the pre-printing press era—all copying was done by hand. These were manuscripts copied one-by-one in the scriptorium. There weren’t real economies of scale in producing copies. All copies were expensive and the author/publisher, having produced one copy of the work, was no better situated to make another copy of the work than would be any holder of the work. To be sure, the technology of copying—the ability to read and write—may not have been widely distributed, so this was a key way in which copies were controlled, but presumably only the literate were much interested in copies anyhow, and for the literate, the costs of producing the second copy were high but roughly identical to the costs of the author.
The printing press changed all of that and introduced asymmetry in second-copy costs. The printing press obviously lowered printing costs generally, but it also introduced asymmetry as to second-copy costs. The author/publisher was much better situated than a copy recipient to produce another copy. That cost advantage served as an important way in which the effective rights of the author/publisher to control copies were made meaningful. This is not to say that we didn’t have piracy, but it was of a different sort, such as where a printer who printed the original copies of the book ran secret print runs for a pirate. (Adrian Johns’s The Nature of the Book has a good discussion of this at pages 162-64.)
The third era of copying is defined by cheap, symmetric copying technology. In the talk, I start in 1959 with the Xerox 914—which was far more successful than Xerox had anticipated—jump forward to Sony, with audio cassettes and the Betamax VCR in the mid-1970s, and then end with a late-1990s picture of Sean Fanning, the author of Napster, the original peer-to-peer file sharing program. These technologies decentralize copying ability and break the control defined by Gutenberg’s asymmetry.
Digital rights management has to be understood first and foremost as an attempt to vindicate the core exclusive right of a copyright holder, in the words of the 1909 Copyright Act, “to print, reprint, publish, copy, and vend the copyrighted work.” Changes in copying technology have severely weakened the effectiveness of that right. The Digital Millennium Copyright Act, passed in 1998, is an effort to bolster the meaningful effectiveness of the copyright holder’s core right to control the making of copies and to do so through digital rights management technology.
Larry Lessig is fond of saying that he would be delighted to have the copyright law that we had in the days of Richard Nixon. That law would not include the Copyright Term Extension Act or the DMCA. My guess is that the copyright industry as a whole would take that in a heartbeat, if (but only if) it came with the actual effective control over copying that existed in the 1970s, though even then that control was breaking down at the hands of Xerox. (We’d have to ask Disney where they come out, as they were the key backers behind the CTEA.)
The paper rights that have always been at the core of the U.S. copyright law have to be judged by their actual effectiveness on the ground. We shouldn’t be interested in theoretical rights that don’t actually implement in the real world. DRM and the DMCA are first and foremost about creating a framework to make meaningful the core exclusive right of the copyright holder to make copies.
We could just give up copyright entirely, and then we wouldn’t really need the DMCA either. My guess is that some on the copyleft say “yes, exactly the point.” Not my position obviously, but I understand the plausible coherence of the position. I am reading Yochai Benkler’s new book “The Wealth of Networks.” I will be interested to see how close he comes to that position; he kills off copyright for newspapers in just one page (p.40). You can also be rather old-fashioned law-and-econ about it as Mark Lemley and Tony Reese suggest: target actual copiers and boost penalties and probability of detection until copying is no longer worthwhile. Of course, that is a slow, expensive and in many ways unattractive strategy (highly disparate results and lousy publicity).
We can also acknowledge the difficulties of implementing a sensible system of DRM and DRM laws (the DMCA) and might conclude that the problems just are insuperable, especially if you are a darknet sort who thinks that DRM will likely be ineffective anyhow. So DRM could be used anti-competitively as a technological refusal to deal or a form of tying. In some circumstances, antitrust law targets those behaviors, and the fact that antitrust law is being violated through technology rather than paper contracts shouldn’t change how antitrust law applies. And of course we don’t bar paper contracts just because they can be misused.
The DMCA puts a lot of pressure on encryption researchers such as Ed Felten at Princeton and we need to figure out a sensible approach there. But again we have other regimes—that for classified information—which have to struggle with these issues, too. Difficulties in implementation aren’t necessarily dispositive. DRM also allows per-use charging and more price discrimination. Many people are opposed to that, but that isn’t an easy issue. And finally, as an alum asked me at the talk, how will DRM relate to fair use (worth a separate post).
But I don’t think that this is the heart of the Defective By Design critique. Instead, the point is really about whether DRM is, from the getgo, defective by design because it limits what consumers can do with the products, whether DRM is defective because, to quote yesterday’s Free Software Foundation press release, “products don’t respect the user’s right to make private copies of their digital media.”
Therein lies the core dispute. No such general right exists under U.S. law. Indeed, copyright has generally assigned control over making copies to the copyright owner. Not always to be sure, so that is an untextured statement, but generally. Sony would have been an easy case if there was a general private right to make copies, but as Justice Blackmun made clear in his dissent, in creating the 1976 Copyright Act, such a right was considered and rejected. Sony barely made it through 5-4—and that was for a case where the core copyrighted work in issue was given away gratis—and it isn’t clear that Sony would be decided the same way today in the current media environment.
The most direct consumer right to make copies was created in the Audio Home Recording Act of 1992 in Section 1008. That is limited in a number of ways—it only covers qualifying musical recordings—but, most fundamentally, all Section 1008 does is call off lawsuits for copyright infringement. That must sound like quite a bit, but Section 1008 doesn’t say anything about whether producers can limit copying through technology.
Cnet news.com has a story today about a London project to fit cars with devices to slow them down automatically if the car exceeds the speed limit. This will raise all sorts of issues: what if it is an emergency and I need to rush to the hospital? Consumers undoubtedly will be troubled by the devices, but might give in if having such a device sufficiently lowered insurance rates.
But you see the point I am sure: we can use technology and design to help enforce laws. Doing so involves lots of choices, but the fact that limits are imposed hardly makes the products defective by design. We need to decide what rules we want—about speed limits and about control over copies—and then figure out ways to make those rules work in actual practice.