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.

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This entry was posted on Friday, June 26th, 2009 at 9:21 am by Patrick Ross and is filed under FTC, copyright opponents, creators, drm, fair use, licensing, market forces, p2p, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.