True Purpose Of DRM: To Let Copyright Holders Have A Veto Right On New Technologies

from the why-they-fight-so-hard-for-anti-circumvention dept

A whole bunch of people have been submitting Ian Hickson's writeup on the true purpose of DRM. Given how many people have submitted it, perhaps you've seen it already, but there are some really good points in there. His main thesis is that the debates over DRM tend to focus on the wrong thing. The anti-DRM crowd points out that DRM does not and cannot stop copying. Supporters of DRM say that's not true. Hickson agrees that DRM does not stop copying, but he argues that the purpose of DRM has never really been about stopping copying, but about gaining control over software and hardware tools that play content:

The purpose of DRM is not to prevent copyright violations.

The purpose of DRM is to give content providers leverage against creators of playback devices.

Content providers have leverage against content distributors, because distributors can't legally distribute copyrighted content without the permission of the content's creators. But if that was the only leverage content producers had, what would happen is that users would obtain their content from those content distributors, and then use third-party content playback systems to read it, letting them do so in whatever manner they wanted.

He provides a few examples, such as how DVD players force you to watch "unskippable" ads, how services like Netflix can try to limit you from watching the same movie simultaneously on two devices, and how if you buy a movie on iTunes, and want to then watch it on a non-iPhone, you'll have to buy it again. As he notes none of those things are really about copyright violations.

In all three cases, nobody has been stopped from violating a copyright. All three movies are probably available on file sharing sites. The only people who are stopped from doing anything are the player providers -- they are forced to provide a user experience that, rather than being optimised for the users, puts potential future revenues first (forcing people to play ads, keeping the door open to charging more for more features later, building artificial obsolescence into content so that if you change ecosystem, you have to purchase the content again).

If you're wondering why copyright holders are soooooooo desperate to have anti-circumvention provisions in copyright law, this is why. In the past, we'd pointed out that it didn't make sense for the movie studios and record labels to be so focused on anti-circumvention/digital locks, since if people are violating copyright law (such as by reproducing or distributing copies), existing copyright law already covers that. So why add in a separate provision all about circumvention -- and then be so focused on making sure the same provision exists in all laws around the globe? It seemed silly, because the only "additional" benefit it seemed to be providing was to outlaw legal forms of copying, since everything else was already covered under existing law.

However, Hickson's argument explains much more clearly why anti-circumvention provisions are seen as an absolute necessity. It has nothing to do with copying, and everything to do with controlling the players so as to limit the kind of innovation they can provide. It's basically a de facto veto power over new technologies. And, really, that puts a bunch of other statements in context as well. Remember how former Copyright Register Ralph Oman was saying that new player technologies should be illegal until Congress approved them? Yeah, same basic thing.

All of this shows a legacy copyright industry that is so focused on holding back innovation so that they have a veto right and control over the pace of innovation. That, of course, is bad for the economy, bad for the public and bad for society. Innovation is important in growing the economy, and due to silly laws around DRM, we are purposely holding it back.

Filed Under: control, copyright, drm, ian hickson, purpose

Fixing Copyright: The Purpose Of Copyright

from the holding-the-debate dept

Since the GOP decided to chicken out on holding the very necessary debate on copyright reform, let's keep the debate going without them, and hope they join in. As we've discussed, the Republican Study Committee released a fantastic report from staffer Derek Khanna, and then retracted it under lobbyist pressure. The RSC wants to claim that the paper didn't go through its full review process, but we've heard from multiple sources that this is simply not true, and that the RSC is pushing this story to appease angry lobbyists (apparently the US Chamber of Commerce has taken over as the leader of the cause on this one, following the initial complaints from the MPAA and RIAA). Either way, all this has done is draw much more attention to the report, which you can still read here.

But, clearly, some in Congress realize this is a debate worth having. So if they're too afraid of some industry lobbyists, we might as well kick off that debate for them. We're going to do a series of posts digging into Khanna's paper. The paper, of course, starts off by debunking three commonly believed myths concerning copyright law, which are often used by policy makers to justify bad policies.

The purpose of copyright is to compensate the creator of the content: It's a common misperception that the Constitution enables our current legal regime of copyright protection -- in fact, it does not. The Constitution's clause on Copyright and patents states:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article I, Section 8, Clause 8)

Thus, according to the Constitution, the overriding purpose of the copyright system is to "promote the progress of science and useful arts." In today's terminology we may say that the purpose is to lead to maximum productivity and innovation.

This is exactly correct, as we've discussed numerous times before. This is not to say that one of the results of copyright law is to compensate the creator. That's clearly a large part of how the law is supposed to function. The thinking behind this is not too complicated: if we can ensure greater compensation through limiting competition and supply via artificial monopolies, it drives up the price of those goods, leading to greater income.

But that theory includes several assumptions which may not be true. Let me present a hypothetical to make the point. I am not saying this is absolutely the case, but let's say we have scenario A and scenario B:

Scenario A
Artist's works are locked up under copyright, but he sells them for $1 per song downloaded.
Fans pay for and download 100 songs.

Scenario B
Artist frees up his work to the public domain, and encourages them to be spread freely. Thousands of copies of the song are downloaded. Artist sets up a Kickstarter to fund next batch of songs, and quickly raises $10,000

Again, I'm not saying that this is what happens in all cases. I'm just making this point: I don't believe that a single, sane person would argue that scenario A is better than scenario B. In scenario B the artist has more fans, more ability to make new music and more money. It's a much better position. But that income does not rely on copyright.

And that's the simple point that seems to get lost in this debate. Because copyright exists and is so prominent in the business model of artists, many incorrectly believe that it is the business model for content creators, and there can be no other. But, what we've really done is set up a crutch. Because the government has "picked winners and losers" by backing copyright as the core piece of a business model, most content creators have focused almost exclusively on monetizing via copyright. And thus, they argue, any attempt to change copyright is an attack on their incomes.

But, if we all agree that scenario B is a better scenario for the artist and for the consumer, then we've already shown that copyright, itself, may not be the best tool for artists seeking to make a living. I'm not saying that it absolutely isn't -- but that we have little evidence that copyright is actually the best such tool, and plenty of evidence that it can stifle and limit speech and creativity along the way.

There are many ways to make revenue as an artist. The Future of Music Coalition's Artist Revenue Streams worked out 42 different revenue streams for artists. Certainly, many of them rely on copyright, but a significant number do not. But content creators rarely get the chance to fully explore those other methods, because they're so wed to the idea that copyright is it.

Either way, if the idea is to maximize artist revenue, then we should be looking at what actually does that -- what actually results in greater artist revenue? Because there is no evidence that expanding copyright law seems to have that impact.

So all Khanna and the Republican Study Committee (briefly) were saying, was that the purpose of copyright law is to benefit "the progress of science and the useful arts." Part of that certainly may be to help artists make money, but that is not the ultimate goal, nor would it be reasonable as the ultimate goal. If we want to maximize artist revenue, let's explore that issue, but just assuming that's the goal of copyright is clearly faulty, leading to a very distorted market.

Filed Under: benefit, constitution, copyright, derek khanna, purpose, rsc