Responding to the EU on DRM

CDG T2F

In response to a request from the European Union concerning DRM and interoperability, Sun has submitted a lengthy written response. Preparing for and reviewing the response with colleagues took me back to my earlier article, DRM and the Death of a Culture. My tendency is always to look for a guiding principle rather than to seek a set of rules, and in this case it's about quantization of discretion. Here's what I wrote:

People talk of "fair use" but what they actually mean is that we all depend on the exercise of judgment 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 judgments 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 quantized.

It strikes me that the inherent quantization of rights is what makes DRM at best undesirable and at worst a guarantee of cultural Alzheimer's. I was thus delighted when a very senior Sun executive insisted that the position paper include the following paragraph:

Before we discuss interoperability in detail, we would like to emphasize this last point. Sun believes that DRM should be a solution only when necessary. DRM should never restrict the user's ability to utilize the content in legally-permissible ways. With this in mind, any DRM system must be open, fully interoperable, and free from hidden IP licensing burdens that effectively re-close the system economically. Indeed, in the spirit of the company that supports OpenOffice.org, Sun believes that the Commission's stance should enable it to be possible to create a free version of any DRM system used in the EU!

Of course, I am personally among those who believe it is never necessary to apply Digital Restrictions to content, but I'm very pleased that Sun is taking a position that DRM should not be assumed to be automatically a part of the entertainment business.

Comments:

"DRM should never restrict the user's ability to utilize the content in legally-permissible ways."

Of course, DRM \*always\* restricts the user's ability to utilize content in legally permissible ways, at least in the US, since 'properly' functioning DRM precludes fair use. I realize the necessity, but it is a shame that Sun has to help advance the fiction that you can get DRM and fair use.

Posted by Luis on March 07, 2008 at 05:34 AM PST #

Step by step, Luis. I feel the way you do[1], but others at Sun believe that if no-one ever does research in the area of attempting to promote freedom via DRM we will neither be able to prove it's impossible nor discover a way to do it (depending on which is true). The executive statement above is actually a big leap from when DReaM was launched...

[1] http://blogs.sun.com/webmink/entry/is_dream_a_nightmare

Posted by Simon Phipps on March 07, 2008 at 05:50 AM PST #

I think I agree, but what do you think about the use of DRM in that recent aboriginal story about their cultural artefacts?

Posted by Kieron Wilkinson on March 07, 2008 at 09:05 AM PST #

I think it's a terrible tragedy that they've decided to restrict access to their culture, when what any minority culture needs to survive in a modern media-saturated world is more exposure and access, not less. I understand the historical reasons which drive them in this direction (a long history of exploitation by white Australians), but it's still a shame that they overreact in this way.

Posted by Luis on March 07, 2008 at 09:23 AM PST #

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