DRM and the Death of a Culture

Stone wall in Cornwall

I had the privilege of delivering a keynote at the Open Source Meets Business conference in Nürnberg, Germany this week (delegates will find my slides online as a PDF). I travelled there from an engagement in Paris, and took the Metro/U-bahn2 in both places. There was a very visible difference between the two experiences.

In Paris, I bought my Metro ticket and then used it in an automated barrier to reach the platform. I noticed lowlife furtively scanning the station and then vaulting the barriers, and I saw armed police at the station to catch the thieves doing this (they didn't catch any that I saw, and there were several of each at each station).

By contrast, the U-Bahn in Nürnberg has no barriers. I bought my ticket, boarded the train without fuss, there was no risk of being shot by a policeman targeting a barrier-vaulting cheat, and the system was still clean, efficient and well-used.

This all sprang to mind when a conversation about DRM followed the GPLv3 item up over on Stephen's blog. A comment writer (Christopher Baus) said of DRM:

I might be the only technologist on the other side of the DRM fence. To me it is like checking my lift ticket when I get on the ski lift. I might find that a bit annoying, but if ensures the resort can stay in business from collecting ticket money, then that is a net good thing for me. If the ski resort goes out of business I can't go skiing, and I would resent those who got on the lift w/out paying.

I think there are quite a few people around who have Christopher's view, which is unfortunately rather simplistic. DRM - the imposition of restrictions on usage of content by technical means - is far more than that. It's like checking the lift ticket, yes, but also the guy checks you are only wearing gear hired from the resort shop, skis with you down the slope and trips you if you try any manoeuvers that weren't taught to you by the resort ski instructor; then as you go down the slope he pushes you away from the moguls because those are a premium feature and finally you get to run the gauntlet of armed security guards at the bottom of the slope checking for people who haven't paid.

DRM's Collateral Damage

The problem with technology-enforced restrictions isn't that they allow legitimate enforcement of rights; it's the collateral damage they cause in the process. In my personal opinion the problems are (very concisely) that they:

  1. quantise and prejudge discretion,
  2. reduce "fair use" to "historic use",
  3. empower a hierarchical agent to remain in the control loop, and
  4. condemn content to become inaccessible.

To go into more depth on those:

Technology-enforced restrictions quantise and prejudge discretion
People talk of "fair use" but what they actually mean is that we all depend on the exercise of judgement in every decision. Near the "bulls-eye" of copyright we're all clear what is what, but as Lessig eloquently explains in Free Culture, in the outer circles we have to make case-by-case judgements about what usage is fair and what usage is abuse. When a technologist embodies their or their employer's view of what's fair into a technology-enforced restriction, any potential for the exercise of discretion is turned from a scale to a step and freedom is quantised.
Technology-enforced restrictions reduce "fair use" to "historic use"
The natural consequence of having the quantum outlook and business model of one person replace the spectrum of discretion is that scope for new interpretations of what's fair usage in the future is removed. Future uses of the content involved are reduced to just historic uses the content had at the time it was locked up in the DRM wrapper. The law may change, the outlook of society may mature but the freedom to use that content according to the new view will never emerge from the quantised state the wrapper imposes. The code becomes the law, as Lessig again explains in Code. As others have pointed out, "fair use" is forward-looking, "historic use" is ossifying.
Technology-enforced restrictions potentially empower a hierarchical agent to remain in the control loop
When use of content depends on a technology from a single vendor, as is currently universally the case, that vendor effectively becomes the gate to ongoing use rather than the actual copyright owner. A great argument for an alternative approach like the open source, distributed-identity-based scheme in Project DReaM. What's much worse, though, is that the restrictions don't go away when the rights they are enforcing do. Copyright eventually runs out, but technology-enforced restrictions never do.
Technology-enforced restrictions condemn content to become inaccessible
As DRM's outspoken critic Cory Doctorow points out, DRM condemns content to suffer the fate which for documents I call corporate Alzheimer's. Each of the problems above combine in a 'perfect storm' to create a content owner's dream world of built-in obsolescence and repeated opportunity to sell the same content to the same people all over again if they actually like it enough to use it. Meanwhile, our collective cultural memory gets locked up in instances which become inaccessible on the occurence of the first one of:
  • The content being 'turned off' by a usage rule
  • The implementation of the restriction mechanism is obsoleted by an "upgrade" of the host system
  • The original medium degrades into uselessness but couldn't be copied
  • A part of the "phone home for authorisation" chain goes out of business
  • The original license is no longer applicable (for example because your children have inherited the media but not the digital key)
Thus your children won't get to play your music, show your favourite films, share your culture, with your grandchildren because they won't inherit anything containing that from you that's usable.

Complacency leads to servitude

Christopher went on to express his complacency over the whole situation:

IMHO if DRM isn't good business it will go away. Simple as that. No need to worry.

Except the prior market power of huge corporations is being used to project it into markets in a way that distorts market forces and conceals the lack of ethics and the erosion of the social contract behind rights law. What if it's good business but bad humanity? What we're seeing here is the 21st century equivalent of enclosure - indeed, the comment by More from Utopia rings eerily true:

... not contented with the old rents which their farms yielded, nor thinking it enough that they, living at their ease, do no good to the public, resolve to do it hurt instead of good. They stop the course of agriculture, destroying houses and towns, reserving only the churches, and enclose grounds that they may lodge their sheep in them.

It's clearly right to "pay the labourer a wage" but is that enough excuse to also condemn culture into the memory hole and enforce an economy of constant repayment for the same stuff? Is there a solution?

If there is, it will surely involve a fundamental rethink of rights legislation - patents and copyrights - that goes back to the social contract on which both are based3, giving limited and temporary one-time rights in exchange for the enrichment of society. We've forgotten that was the root of the whole system, and corporations now have the sort of entitlement culture they deride in individuals.

We also need the invention of schemes like the Open Media Commons that allow the technological equivalent of the Nürnberg U-Bahn for content and OpenDocument that guarantees future access to today's documents. And we need to recognise the point at which schemes like iTunes finally funnel us away from circumventable almost-locks into real servitude and not give in to the intentional seduction4.

But whatever the answer, we need it soon, because we're rushing headlong into a world that will be doomed to forget its culture and history - if it doesn't keep paying the protection money. As a card on my wall reminds me, "the biggest enemy of freedom is a happy slave".

  1. The title is a reference to Rookmaaker's influential religious book discussing how modern art signals an inner decay of society.
  2. That's the subway/tube/underground railway - interesting how even in English there's no agreement what to call it. Just to complicate matters further, it was actually the RER that I took...
  3. As I have commented on Groklaw, in the US Constitution you'll find this social contract in section 8, clause 8. The core assertion in my article is that the beneficiaries of those monopolies have become addicted to them and now want to make the monopolies permanent without amending the Constitution (or equivalent elsewhere). Payment for creative work is still justified; requiring payment in no way necessitates junking the constitutional limitation on the monopoly of rights. But the sole focus of the technology industry so far has been to do just that, at the behest of customers who want to make temporary monopolies permenenat.
  4. James Governor has been hammering me on this one for a while. I'm happy enough to use iTunes all the time there's a way to get real MP3s of my purchases that's not too much fuss as it also makes me take backups. But I'm pretty close to giving up on them because of their "5 users" limit (as a household we have 5 machines so we have to keep a careful eye on authorisations), and I don't buy their videos because I can't get unencumbered versions that will live on when iTunes dies.

The problem with DRM is that it offers restrictions with no consumer benefit, and even negative consumer benefit. DRM needs to deliver benefit to the consumer, or it's a dead horse. I've had this discussion so much lately, and have been pegged as a "pro-DRM" idiot, which I'm not. I put together a pretty good description of what I think DRM should be in a recent blog posting (DRM: Assurances Not Limits), and I do think it's a perspective technologists should seriously consider. If the focus isn't on consumer value, why are we bothering?

Posted by Gary Wisniewski on January 28, 2006 at 08:14 AM PST #

The problem with DRM is that we have precious little proof that it is necessary. I haven't seen what I'd call good numbers indicating that this is an industry-endangering problem ("good numbers" would take care to adjust for economic downturns and shifts in discretionary spending -- perhaps people are playing more games, and listening to less music).

I have heard, from a reliable source of this information, that the record industry executives are somewhere between dumbstruck and furious at the market for cell-phone ring-tones. They see that as the kind of money that they could be making, if only they could lock down our music players in the same way that our cell phones are locked down.

By-the-way, if you have TMobile T-Zones, you can get some non-standard, legal, free ring tones at the website below. Except for the Dean Scream, they're either Creative Commons, or I recorded them. If your provider won't allow it, maybe you should switch. (My phone sounds like a red-bellied woodpecker, but that's me making non-historical fair use of a bird recording that I bought, and I cannot share it like this.)

Posted by David Chase on January 28, 2006 at 12:11 PM PST #

As an Architect (bricks and morter type, not computer Architect), I am very happy that architectural features were not patented as they were invented--imagine the flying butress existing only on one Cathedral, and all the others having to pay some royalties or use some other method. Secondly, the evolution of this feature was helped by its openness--the first several attempts at making the flying butress was not nearly as effective or as elegant as the feature as it appears, say in the Cathedral of Notre Dame. Thirdly, the ski lift analogy breaks down completely because if some one "copies" a work that I have done, I don't have any "less" of my work. In fact, I have MORE, because in the Architectural world imitation is a form of flattery and it will just add to my reputation, which in the end, is all you really have. So, in the actual instance where someone did create a design that was clearly derivative of my work, it helped me gain recognition. It was also the right thing to do from a design perspective--the design was in a campus, and the campus was developing it's own formal language. I suspect that in the world of computer code, these three effects also exist--an author writing for recognition; the openness of something making it more valuable (=useful) and the fact that someone codes in a context, as opposed to a vacuum, makes reuse of preexisting forms more appropriate than invention of a new form. Which brings to mind what I am really getting at here which is a pardigm shift. Right now, it seems that coders are conceived of as business entities (corporations, or parts of Corporations) I am suggesting that if we think of coders as craftsmen or artists rather than business entities, this reconceptualization would lead to a whole new line of thinking about DRm and IP in general..

Posted by enigma_foundry@eml.cc on January 29, 2006 at 04:17 AM PST #

The first DRM I was aware of was Macrovision. I remember a call from a friend of mine who remembered that I was knowledgeable in video editing and she contacted me to help her with a problem they had with a student project. (that was back in 1994) They were student who selected very short extracts of scenes for their project for the last 20 sleepless hours and they wondered why they couldn't make copies of many of their extracts. When I finally arrived all I could do is explaining what was happenning and tell them to find some other scenes (Macrovision had a cyclic effect in which a few seconds would be copied all right) I didn't have any video filter at that time to go around it and it was too late to go and find/build one. CONCLUSION: It's simple, DRM prevented those kids to express themselves correctly, it was damaging their possibility to create. Now, with DRMs much more insinous than Macrovision nowadays just try to imagine the artists who have been prevented to express themselves, imagine also the art forms that have been crushed before their own existences by these DRMs. DRM is bad, it is evil, it MUST be banned for the sake of the human spirit.

Posted by Denis-Carl Robidoux on January 29, 2006 at 12:54 PM PST #

I maintain that DRM for non-interactive content is a waste of time and that it will never work. See my blog post at http://nextrelease.blogspot.com/2006/01/digital-rights-management-drm-is-waste.html for the complete argument.

Posted by Alan Langford on January 30, 2006 at 03:01 AM PST #

DRM is just one more way of screwing those without the $$ for lawyers to fight it. Remember SCMS? Copy a DAT once, and those copies CANNOT be duplicated digitally. As one who used to own my own studio, it really annoys me to have to pay Michael Jackson and the like to record my OWN music! Michael Eisner of Disney pushed through a copyright continuation bill a few years ago, so that they can keep making money on things that he didn't have a thing to do with! If the guy can't properly run a company like Disney without screwing the rest of us, why is he allowed to run ANYTHING? DRM just makes all that possible. DRM is a total sell out to the big music and movie companies, nothing more. It keeps you from even being able to call "fair use" for anything other than what THEY think you should be doing. I am sick of corporate control, they have no more morals than anyone else, and in most cases, less (and SHOULD have less rights, not more). The reason that CD sales are down is that most of what is out there is total crap, garbage, and swill. Plain and simple. You can't even get KIDS to buy music that isn't worth listening to, when will the idiot lawyers realize that music as a business only works when people who LOVE MUSIC are in charge, NOT LAWYERS! Lawyers know LAW, otherwise they'd be called MUSICIANS! Lawyers should stick to doing LAW, and leave the music business ALONE (and the rest of them, for that matter). DRM should be abolished, but that won't happen as long as money is calling the shots.

Posted by Will Morrison on January 31, 2006 at 04:00 AM PST #

If you are a musician, I encourage you to make a statement. Fire your label. They aren't doing you any good. Cut the labels out of the picture all together. Offer your albums for download at a reasonable charge, free of DRM. Full albums, including cover art in full color PDF, including the artwork to be printed on the CD with a CD printer. Remember that the band is getting 100% of the proceeds here, not the 10% or less that you would get from the big labels. The band doesn't have to have CDs pressed. Doesn't matter if you sell 1 license or a million, there is no media cost involved (from the band's end of things). No distribution channels. The ASCAP and BMI licenses will still be in effect to compensate the artists for Air-play. The purchaser gets to decide whether or not to devote a jewel case to the album and make it look professionally done, or just scribble the name of the band with a sharpie on the disk, or somewhere in between. -- Indy/DIY to the extreme.

Posted by Tony Hoover on February 01, 2006 at 06:21 AM PST #

I liked your article very much. Lots of detailed thought about the whole ownership of 0's and 1's. But let's take this a step further. Let's say natural law states that knowledge cannot be owned in any form. Let's say that Libraries have the right idea. Let's also say that the purpose of Knowledge is to serve intelligent organisms. At what point in this chain does restricting access to information serve anyone. I'll tell you what I do personally. I pay people that provide good service. Whether is be physical or information based. I pay for things that I get to keep. I don't rent information or physical items. I will not buy restricted items. In the world of information, it's a matter of evolution- not creation. To say that you created this when 10000 others stood before you is hubris and arrogance. And I spend my money with this in mind. Closed information or physical items serve no purpose in the long run. They are deprecated before they are concieved. And they can be life-threatening if they are of any importance.

Posted by Thoreau on February 01, 2006 at 05:15 PM PST #

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Thoughts and pointers on digital freedoms and technology markets. With a few photos too.


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