July 18, 2002

Framing the DRM debate: Does Hollywood get to "manage" your rights?

- By Grant Gross -

A public workshop on digital rights "management" sponsored by the Technology Administration of the U.S. Department of Commerce Wednesday operated on several flawed assumptions. First, let's recognize the name, digital rights "management," as a euphemism, kind of like when military people say "collateral damage," when they mean, "we killed some civilians."
Digital rights "management" is a nice way of saying digital rights "control" or digital rights "revocation." The movie and recording companies seem to think that your right to sample artistic works, to make copies and to share those copies with friends is something they have the authority to "manage." This attempted power grab -- in which some friends of Hollywood are trying to outlaw all "unauthorized" uses of computers -- flies in the face of years of copyright law. Copyright law up until now generally accepts that copyright is an agreement between the public and content creators where the public willingly gives up some of its copying rights in exchange for the public good of artists getting paid for their work.

What happens when a large number of people no longer accept this "copyright bargain?" As John Perry Barlow of the Electronic Frontier Foundation has asked, what happens when a majority of Internet citizens believe file sharing isn't wrong, despite attempts at laws to the contrary? If a majority of citizens are disobeying a law, is there a problem with the people or the law?

But I may be getting into a faulty assumption myself.

Faulty assumption No. 2 (No. 1 was that we're talking about digital rights "management"): There's a problem with people "stealing" digital movies and music. Phillip Bond, undersecretary for technology for the Commerce Department, noted Wednesday that "piracy is rampant" because one-fifth of the public has downloaded music.

I'm not sure that qualifies as "rampant," and I'm pretty sure that a significant amount of music downloading online can't legitimately be called piracy. To illustrate that point, all Bond had to do Wednesday is look across the room at Rob Reid of Listen.com, a "legitimate" (meaning non-free) music download service.

Furthermore, even the music label reps at the Wednesday meeting admitted that one friend sharing a copy of a CD with another friend falls under the public's fair use rights. So if I email you a copy of a music track, and you download it, even the music labels can't call that piracy. So Bond's one-fifth number may not exactly measure the "problem."

Is there even a problem? If we go back to the copyright bargain explanation of copyright law, do we see movie and recording companies going broke left and right? Sure, there are many musicians barely scraping by, but there's a growing sentiment among the artists that the recording companies are screwing them, not the downloading public.

So when MPAA president Jack Valenti whines about people not paying for products, ask him how much the presidents of the major movie companies made in salary and bonuses in the past year. And ask him to compare those salaries to a proven figure on how much the movie companies have lost because of "piracy."

Faulty assumption No. 3: DRM is the way to fix this "problem." There were no dissenting voices among the invited guests at the Wednesday panel about whether there's a need for some digital rights "management" system. This group of 23 IT people, Hollywood people and government people are no longer debating the need for DRM, they're debating how to implement it.

So while there's still no consensus in the real world over whether there's actually a problem or not, this group of industry insiders is pushing ahead with a way to fix it. There was a lot of lip service paid to "what the public wants" during the workshop, and you got the feeling that a couple of people on the panel actually believed it, but for the most part, this is a Big Business panel that sees the public as the enemy -- a bunch of lawbreaking malcontents who need to be "managed."

Faulty assumption No. 4 (or maybe 3A): DRM will work. Robin Gross, intellectual property lawyer for the EFF, seemed to smirk when Andy Setos, president of engineering for Fox Entertainment Group, talked about efforts to watermark digital video. Gross is intimately familiar with how well watermarking technology does the job.

And actually, there was some debate among the panel about the impact of current DRM initiatives on current fair use rights. Bob Schwartz, a lawyer representing the Home Recording Rights Coalition, noted there will be some "collateral damage" to the public's rights in any DRM scheme. But that point didn't seem to bother the Hollywood types on the panel.

If sharing one copy of a CD with your friend falls within your fair use rights, as EMI v.p. for new media Ted Cohen admitted, how do you stop someone from sharing a copy with 1,000 friends without also taking away that right to share one copy? While some of the technology people on the panel seemed to wrestle with that question, the Hollywood types certainly didn't. For them, there's no question about who should get the benefit of the doubt: They should.

So at best, DRM and laws like the proposed Consumer Broadband and Television Promotion Act are the equivalent of using a nuclear warhead to kill a mole in your backyard.

We'll exempt Listen.com's chairman Rob Reid from being a Hollywood type. He provided a counterbalance to the MPAA's Valenti whining, "How can we possibly compete with free?" Reid noted plenty of examples of products competing with free alternatives, including the four or five bottles of bottled water sitting on the tables during the workshop, and the Free Software people in the back pointed out that Microsoft still believes it can compete with free. In Reid's company's case, Listen.com tries to provide a more convenient interface, better customer service, a bigger catalog, and higher quality recordings than the free file-sharing services out there.

Reid didn't quite say it this bluntly, but this was his underlying message to Hollywood: You'll never be able to put the free services out of business, so beat 'em at their own game. And if you can't compete, maybe you really are a bunch of dinosaurs who need to be put out of their misery.

Faulty assumption No. 5: What we're talking about is static "content." Content is an easy word to use to describe information that's traded online, but content implies something that doesn't change. Seth Johnson, of the Information Producers Initiative, points out that people online "want to collaborate and do interesting things." So a song you've downloaded may later be used as a sample in another song you're writing. The movie clip you've downloaded gets set to music and shared with a couple of friends. Three news articles you've read get pasted into term paper you're working on.

All those uses are your right under current fair use exemptions to copyright law. But most DRM efforts, including Microsoft's proposed Palladium, would make those uses much more difficult, if not impossible.

Faulty assumption No. 6: The DRM debate is about doing what's right. Let's look at how this is playing out:

The movie and recording industries have sued services like Napster while dragging their own feet in providing similar services.

Big Hollywood would rather restrict your fair use rights than come up with business plans to compete on the Internet.

If producer-based DRM schemes don't work, Big Hollywood wants Big Technology to change how computers work so you can't make any "unauthorized" copies. Some IT companies, such as Microsoft, are ready to go along with this.

Big Hollywood companies are now asking Washington to give a second ownership of digital content they've already legally sold to you once. They want to get paid a second time after they've pocketed the profits from the first sale.

All this is happening despite what appears to be the public's desire for near-unrestricted access to digital content. Because of the wishes of a few content producers with well-placed friends, some kind of DRM is likely to be forced down the public's throats.

This is about the money Big Hollywood executives see on the Internet. They lack the drive and the creativity to create a working business plan, so they're asking for the government to step in and prop them up. They're asking that the copyright bargain -- this agreement with the public that has turned them into rich men -- be revoked and the agreement turned into a one-sided enforcement action.

This is about corporate greed, nothing more. And the sad thing is that a majority of the public won't notice until that greed has overrun their rights.

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