Lichtman: Everyone Hates DRM
Friday, June 26th, 2009 by Patrick Ross
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UCLA Law Professor Doug Lichtman has a new essay (posted by The Media Institute) and podcast on a topic that seems obvious on its face: Everyone Hates DRM. That is mostly true, at least from a consumer standpoint. But that doesn’t mean it still isn’t relevant in today’s society, and I Lichtman understands that as well.
Some DRM most people don’t notice, even with access controls; it is my belief most Americans have never thought to make a backup copy of their DVD or play the DVD on a device lacking a CSS license, so they probably don’t think about the DRM and just enjoy (or don’t enjoy, depending on the consumer’s taste and the film’s quality) the movie.
But yes, if by definition DRM in some way restricts the consumer experience, it’s fair to say that that for anyone who encounters a restriction, if you don’t hate it, you could at least find it mildly annoying. I am mildly annoyed every time I realize I haven’t recently synced my Creative Zen X-Fi MP3 player to my Napster to Go service, and I’m told I don’t have a license to play the songs I’ve paid for (kinda paid for, I feel guilty sometimes that I’m paying relatively little to have so many songs on my player, but hey, it’s licensed so I’ll enjoy it while I can).
Lichtman in his short essay goes through three key DRM technologies: watermarking (although watermarking vendors hate being called DRM), fingerprinting and access control. The first two are the ones most likely to not be noticed by consumers, although they can also be the least effective at deterring infringement. The final one, access control, is the one we as consumers are most likely to notice, and the most likely to dislike. Certainly, the folks who testified at the FTC Town Hall on DRM that I also participated in were largely bent out of shape about access controls.
Consumer experiences with media — music, motion pictures, video games — developed with physical business models. Even when works were digitized — CDs, DVDs, by definition any video game — we usually “consumed” them in physical form, in plastic that went into metal and plastic devices. It was easy for us to think of “ownership” of these works because we held them in our hands. And it was reasonable to think if we could physically do something with them then there was no reason to think that we couldn’t legally do those things.
Do you know anyone who was ever sued or arrested for making a mix tape? If you said yes I think you are confused, because I’m pretty sure that never occurred. Was it legal or fair use? I don’t believe there’s a court decision that says definitively one way or the other. But while distribution was occurring without the consent of the rightsholder (the rightsholder being the owner of the copyrighted work, not the owner of the LP or CD), we are not talking about wide distribution. Distribution matters far more in a digital environment, when “sharing” can involve thousands or more.
This confusion between “ownership” and “licensing” is a serious one; it’s what leads the president of a prominent DC advocacy group seeking dilution of copyright law to argue that “If I’ve paid for something, I should be able to do whatever I want with it.” Hmm. The problem is, sometimes that use might enable massive infringement, but beyond that, a positive of access controls is that it can enable multiple rights clusters at multiple price points, where my father-in-law pays X for the one modest use he wishes to do on a single device and a techie in San Francisco pays X+Y to enjoy multiple devices and other flexibilities. Here the free-market advocate in me rises up.
I like consumer choice, and consumer choice doesn’t mean we take what isn’t offered to us, because the business model of the producer of that creative work may not be designed to support all of those rights models, particularly when expansive rights retard other potential market transactions. But Lichtman is right that when you have a “licensing” model rather than an “ownership” model, communicating terms to consumers can be confusing, thus the FTC’s holding of a town meeting ont he subject.
That said, DRM seems to be evolving in a consumer-friendly way. An individual musical track does not involve the same production cost as a major-release motion picture or robust video game, and correspondingly it doesn’t have the same retail price. CDs were released without DRM, DVDs didn’t take off until the tech industry and the studios worked out an access-control model all could live with, thus ensuring a market that has proven very healthy and very positive for consumers.
With the exception of music subscription models, which can’t work without DRM (pay one month, download 1 million songs, cancel — not a good business model), music is nowadays, in response in part to consumer concerns, distributed largely without DRM now. But access controls still enable DVDs and videogame cartridges and discs, and consumers are purchasing them in droves with only a small minority complaining that the access controls — which they only encounter when moving beyond the uses consumers have come to expect — are decreasing their enjoyment.
Professor Lichtman is a thoughtful analyst of copyright and technology, and has been conducting an interesting podcast series that contains a wide array of voices, some of which I find myself agreeing with more than others. It never hurts to reflect a bit more on DRM, even though in the grand scheme of things there seem to be far bigger concerns in the world for us as consumers to get worked up about.
June 26th, 2009 at 1:31 pm
DRM is on the decline. We have seen Apple remove DRM from some titles, and Amazon’s MP3 Store came out of the gate as DRM-free MP3s. As a software vendor, you should compete on making products more useful, not less useful.
You have never heard of a mix tape DJ begin arrested? Perhaps you should do some research on this. If you do a Google search for “mix tape dj arrested” you will find a story about DJ Drama arrested in January of 2007. Underground Hip Hop music breaks in the mixtape world, and then to the mainstream. Not radio, maybe not even p2p. But since organizations such as your own has whipped up such a frenzy about unlicensed uses on the edges, he was made a scapegoat so that the your pro-copyright intrestes could get some good press. In reality, it made him a martyr and a symbol of to stop organizations such as yours.
Let’s make this clear: licensing is for businesses, sharing is for people. You could make the argument that when a consumer buys a CD, they are really buying a license to play the CD on one devices at one time. However, this concept is so far outside of consumers’ use case. The last 40 years of music sharing, starting with reel-to-reel, then cassette, then CDR, and now MP3 is a consumer right granted to them by devices allowed under fair use (see Sony v. Universal Studios, aka the Betamax case) that no amount of “education” is going to stop consumers from doing what they want to do: share music with as a cultural expression. Consumers are not signing a contract when they purchase a CD or MP3 telling them what they can and cannot do. They don’t pay attention to EULAs written in legaleses. The FBI warning on CDs recently is just a way to scare consumers for their right to fair use.
DRM assumes the consumer is a going to infringe, Without the freedom to infringe, we are not truly free. Infringement should not be prevented since we live in a free society. There should still be consequence for infringement. But it only takes ONE person to break the DRM, upload to p2p, and then make it available to all.
It is incumbent on the entertainment business to capture the value they create in a consumer friendly, non-litigious manor or continue to hear voices like mine grow louder. There is no reason to expect that the content industry OR any other business should have their margins grow forever. What comes up, must go down. Perhaps the only future customers are ones that believe in patronage or like having a physical momentum of a music recording or movie, and the industry must accept that.
Don’t feel guilty that you are getting the value out of music that the market says it can bare, feel guilty about the actions of your sister organizations such as the RIAA are doing to consumers. The only reason it is illegal to copy a DVD is because of the anit-consumer, content industry sponsored, unconstitutional law called the DMCA. You can feel guilty about that, too.
RIP, DRM.
June 26th, 2009 at 2:07 pm
You refer to a commercial enterprise in which police seized over 50,000 “mix tapes.” A little different from the mix tapes I grew up with and that are lovingly regarded in “High Fidelity.”
You write: “Without the freedom to infringe, we are not truly free. Infringement should not be prevented since we live in a free society.”
Brave souls are risking their lives for freedom in Iran as we speak, staring down guns and clubs and tear gas. I find it unfortunate you choose to use the word “freedom” in reference to your desire to obtain copies of someone else’s creativity and “share” that someone’s creativity with others without you or others compensating that creator, or really even giving them a second’s thought.
We could all use a little perspective in life, it seems.
June 26th, 2009 at 2:51 pm
I believe I’ve figured out a good solution to the part of the problem with video makers on YouTube and other sites. If someone clicks on the purchase at Amazon or Itunes link and makes a purchase, give the creator of the video a percentage of the take.
Sincerely,
Cal Jennings
June 26th, 2009 at 3:33 pm
Mentioning Iran is a strawman and you know it.
If I copy a CD for a friend as a recommendation, and my friend does not like it, he may just discard it or throw it in a corner. I don’t think the right holding corporation (and oh yeah, and the poor artist’s and their 2%, I can’t forget them!) needs to be compensated for my attempt to get that artist a new fan. I have cut them out as a distortion. But, if my friend likes the artist enough, he will become a fan, buy their music, and go to their shows.
“High Fidelity” could never get remade today because of the polarization on the topic of sharing music, not to mention the idea of a “music store.” Luckily I still have one in my neighborhood, and yes, I do buy CDs and vinyl there when I discover artist I like in both “authorized” and “unauthorized” manors!
June 26th, 2009 at 4:02 pm
[...] Here is the original post: The Copyright Alliance Blog … [...]
June 29th, 2009 at 11:59 am
Patrick, re your analogy to Iran, I could just as easily say, millions of poor souls have lost their livelihoods in the recent financial collapse, including pensions and investments they have earned with the sweat of their brows over decades. I find it unfortunate that you, Patrick, use the word “rights” in reference to your benefactors’ desire to regulate every aspect of the use of media down to the consumer level. You, too, could use some perspective.
Incidentally, you too are a DC advocacy group (”prominent” I don’t know) seeking dilution of copyright law. Specifically, you seek to dilute the rights that the existing copyright law grants to users of copyrighted works.
July 20th, 2009 at 5:34 pm
DRM prevents causal disk to disk copying, not p2p copying. Patrick,can you tell me why the current media business model(for all forms of media) is best from your opinion? I am really confused who’s right and who is wrong about the business model argument . All the best.
Thanks
Jeremy
July 21st, 2009 at 9:16 am
Jeremy,
If a DVD copy is on p2p, somebody ripped it without authorization to get it there.
I think the notion of a “best” business model (you imply a singular one) is what got some media companies in trouble; they’d find one that fit most consumer demand and offer it. The digital age forced these industries to offer more models, but that’s good for the industries and consumers. The folks in creative industries I know are trying to figure out where consumers are and reach them there in ways that are both legal and affordable, and they are increasingly succeeding (look at what a big hit Hulu is).
As for motion pictures, I go to the theater when I can’t wait to see a movie, I buy Blu-Ray for movies I want to watch repeatedly (most DVDs now include a free digital version you can download online), I will do on-demand (sometimes it’s included in subscription like HBO, sometimes it’s per-charge) when I want to see a movie right away but not own, sometimes if I can wait a couple of days I’ll use Netflix, or I’ll stream a Netflix film from my laptop to my HDTV, sometimes I’ll do Redbox if I can’t see paying more than a buck for it (I’m taking a chance) and don’t mind having to return it the next day (sometimes for convenience sake I take another day, it’s only one more dollar), sometimes when I’m bored I’ll watch part of a movie on cable or broadcast that I come across. All of these models work on different price points and different levels of protection. I like them all. The studios would prefer I always buy Blu-Ray and never do Redbox (they don’t get any revenue from Redbox rentals unless they strike a special deal with the company), that maximizes their revenue streams, but they’re all legal and I enjoy all of them.
August 30th, 2009 at 10:51 pm
also a lot of people claim drm violates fair use,is this true? I don’t see how it can since fair use is for reporting,parody and ext. also has drm been effective over the years and has it been curbing piracy? because from the way i see it anyone can copy files to p2p using cracking software, i think drm is not very restrictive, Ive never had a problem with it since i use itunes for my music. I also am curious on how effective it is at preserving revenue for the copyright industries. I am also worried about the impact of file sharing on the music industry, file sharing is a huge problem, and is really stealing even though some people don’t think so. please contact me as i am a high school student curious about ip law.
thanks
August 31st, 2009 at 5:05 am
actually i going to be a litter harder on u guys, look I support the copyright industry but DRM is bad, not for me but for alot of america and europe, i did alot of research and it turns out that your revienew streams should not be the price of not fair use per say but for uses that are fair. Apple has dropped the drm skeem, subricptions services are carppy anyway and on top of all that even though I am against the whole robin hood filesharing thing litigation doesnt help. you people have lobbied to get us 3 terrible acts in the 1990’s net,bonoand of course the famous dmca, the reason i am writing this to you is for you to admit that you are an industy a $$$ making buisnees , artits are the least of your concerns, but i will admit they do rely on you guys. but please you are just trying to hard latley, the riaa will be dead in 5 years anyway and the mpaa is still making billions while you exeuctives drink your 500 dollar wine each day, the only reason us fellow democrats give you money is for to reasons 1 to promote the arts which is good , 2 to have more campain money but i a true leftwinger believe in the arts and also what is best for the public, which is not piracy of course. after talking ti my dad who is a lawyer a mangaed to answer some of my own q’s. i do support you guys but just try to lay a little cooler, Also you are right that drm does not affect most fair uses such as reporting,parody,education and ext.
August 31st, 2009 at 8:00 am
Jeremy,
Fair use is not black and white, it is specifically ambiguous so as not to curtail future uses not yet conceived. Many uses now claimed by some as “fair use” weren’t technically possible when fair use was added to the law in the 1970s; imagine if lawmakers had instead added a list of uses that were fair, the digital world would be oppressive indeed.
Some fair uses have been defined generally through frequent use (I had a sense of boundaries as a reporter) and others are part of common law now because of court decisions (fair use is actually an affirmative defense one can make if sued for infringement). Often what one views as “fair” is not legally fair use, or at least it hasn’t been settled as such in a court. That said, the DMCA calls for a triennial review at the U.S. Copyright Office, and in each one the Office has issued exemptions allowing circumvention of DRM in cases where they felt fair use was threatened. That is a process in which the public participates.
If you read a little more on this blog, you will learn that (1) various copyright industries use different DRM, based on their method of delivery, cost of production of the work, etc., (2) that DRM creates business models that allow people to buy different uses of works at different price points, and that (3) DRM can never rid us of piracy, but it can help create the affordable legal alternatives, the absence of which infringers often claim is their excuse for taking without paying.
It’s important in this debate to differentiate one’s hostility toward corporations and how protecting rights encourages creativity and the production of creative works. It is hard for many, I know.
August 31st, 2009 at 8:39 pm
the problem is that DRM or ”tpms” do limit fair use of the betamax doctrine, or most judges would say so without the dmca, to make backups games when it comes to consoles or computer games or to simply rip a legaly purchased dvd to an ipod. also the first sale doctrine is at risk as youy cannot selll drmed music or videos. Another thing to consider is how much of a waist of resources the riaa lawsuites have been. there has been just as much filesharing. As a responible copyright holder you must acter to the legitimet neds of ther consumer. as for drm businnes models price drexrimintaion is bad, just look at region locked dvds or if someone wants to watch a dvd of harold and kumar on his player and his ipod, or someone who has 5 computers but a copy of spore for pc(remeber how well that worked) let me ask u a question, if millions of files are shared online all of them which drm is cracked, does it help, also the dmca was also unnecessary due to the fact that copyright infringment is already illegal, the wipo treatys did require protection BUT allowed non infringing breaking of drm which actually is not a fair use exemption. i have looked at proposed legilation in congress by the industry all which extremely limits the consumer ie broadcast flags and the waist of the govs money on the pirate act, the outrages spending on campains is the main reason congress will give in due to your lobbying and your ”financial gifts” lobbying (of all kind) serves corporations not consumers when involving ”donor” but unfortuanlty it is legal due to congresses need for campain fincases, but unluckly for you guys it is very likley that there be limitation on campain spending. You are right that fair use is not black in white BUT it is easy for judges to base such uses on the betamax doctrine. the only piracy that can be at least somewhat curbed is that of hard goods for commercial purposes.
September 1st, 2009 at 3:26 pm
the problem is is that he rule making process is insufficient, Europe does not have this problem due to an exemption of non infringing uses
September 1st, 2009 at 3:34 pm
I do support the copyright indsustry and I do like you guys, infact i think it is necessary to have stricter laws to protect artists, but if you really want to win over everyone you would not do this silly lobbying. DRM does cause some variation of models, only with access control NOT with TPMS. dont get me wrong i do love copyright and i do support you guys, but i guess we have some disagreements, I guess we could both agree that artists and the public benefit from ip law. We also can both agree that piracy is bad and evil. It is steeling and people should be discouraged from doing it. RIAA education on college campuses might help a bit. One effective way to help online piracy is by suing sites such as bittorent or mininova. EFF argues that p2p is an innovative technology, i really dont see that which is another thing we could agree on. I would like you guys instead of doing commercial lobbying to do nonproftit public education.