Copyright Follies.. Part 5... Issue #3

In the earlier posts, I have examined some of the law behind copyright infringement and why the RIAA has continued to file suits when the evidence mounts against its effectiveness. The RIAA has chosen to file lawsuits rather than to stem physical piracy, enhancing global intellectual property rights, stop piracy from within (especially with respect to movie downloads, where the majority of movie piracy is from studio sponsored screeners) and most importantly give consumers the option to legitimately buy music. Now when buy music online (and movies) you buy it encumbered by a digital rights management scheme. So I will pose issue #3 like this: with copyright law failing to stop mass downloading, companies are trying to implement Digital Rights Management programs and what are the effects? What is DRM, why do they use it, does it work and why this further pushes people to download. This will be an exploration into the mind of a legitimate user and their descent into the world of copyright infringement.

As a starting point let's explore why copyright is ill suited to deal with downloading issues. From Douglas Lichtman:

Copyright law has had a hard time discouraging illegal activities of this sort, the primary reason being that the large number of bad actors makes normal legal process prohibitively expensive. The law could in theory still deter either by significantly increasing the penalties associated with these illegal acts, or by finding some strategy to lower the cost of bringing each individual case. Neither approach, however, holds great promise.

Further more Mr. Lichtman says this:

This landscape changed significantly, however, with the introduction of digital rights management and related mechanisms that allow content owners to opt out of copyright law and instead rely on encryption and monitoring technologies to control access to their work. Encryption and monitoring allow a content owner to package content such that it (say) stops functioning after a predetermined number of uses, or can be accessed only from a specifically licensed geographic location. The implication is not merely that authors can use the technology to expand on copyright law's default package of rights while rejecting copyright law's policy-motivated limitations, but also that authors can use it to assert control over phone books, databases, and other subject matter that the copyright system would leave in the public domain.

So copyright owners are moving out of an ill-suited (at least for mass infringement) scheme in favor of another ill-suited scheme.

Digital rights management simply put is a method for controlling how a digital copy will be used. In many cases, it causes a song to be played only within certain programs or on certain players. Cory Doctorow gives an example here:

If you buy into a proprietary platform where the music industry gets a veto, you're screwed. Every time you buy an iPod, you are financing legal and technical countermeasures aimed at taking away legitimate features that enable you to do more with your lawfully acquired music and hardware.

In other words, Apple saw that there was a program out there that they didn't want to be associated with the Ipod. So they had their lawyers shut down the sites hosting the program and then engineered Itunes so the program wouldn't work anymore. Very nice tactics.

Let's check out another telling example(this time from the TV industry):

Read your review about AnyDVD. Sounds great, but here's my problem:

I purchased a $2,000 Gateway Media Center PC a few months ago for the express purpose of 1) recording my favorite HBO shows (Sopranos, Six Feet Under, etc.) and burning DVD's for my private collection; and 2) converting my home videos to DVD. All has been going fine, until 2 nights ago.

I recorded Six Feet Under and then opened up Sonic MyDVD, as usual, to import the video, edit out the beginning and ending junk, and burn a DVD for my personal use.

I got a message saying it couldn't be done because the file was copy protected! Huh?
...
So, what is this person to do? I told him about Overnet/EDonkey, and now the P2P service has another happy customer, and he has his shows, burned to his personal DVDs for his personal use.

So instead of changing their business models, the content providers have decided to offer that content with lots of encumbrances. How does this help the every day user and stop professional pirates? It doesn't. Again from Cory Doctorow:

Here's the social reason that DRM fails: keeping an honest user honest is like keeping a tall user tall. DRM vendors tell us that their technology is meant to be proof against average users, not organized criminal gangs like the Ukranian pirates who stamp out millions of high-quality counterfeits. It's not meant to be proof against sophisticated college kids. It's not meant to be proof against anyone who knows how to edit her registry, or hold down the shift key at the right moment, or use a search engine. At the end of the day, the user DRM is meant to defend against is the most unsophisticated and least capable among us.

So let's be clear here, the content providers go out of their way to hamper the personal use of their products without stopping piracy at any level. In other words, a legitimate user at some point will get tired of trying to stay within the confines of the DRM system and go outside of it.

If music was sold without DRM encumbrances would there be continued piracy? Probably, because there are consumers who will continue to flaunt the copyright system and will continue to illegally download music. But then again most people speed. Is it still illegal? Sure is, but we haven't started putting speed governors on people's cars yet? As we have seen, all digital rights management is a speed governor on copyrighted material. Just as people figure out how to defeat speed governors, so to will they figure out how to circumvent digital rights management systems. But when legitimate consumers have a chance to buy music and movies unencumbered and play it on any device of their choosing they could make lots of money. Unfortunately, considering the RIAA's past track record this isn't likely.

So ultimately, the RIAA and its ilk are trying to control the way people are listening and viewing their content. Instead of providing a means for legitimate purchase they go out of their way to encumber it with DRM. They want to charge for every conceivable future use of their products all in the guise of bolstering sales. Will it work? Only time will tell. The key is recognizing what is happening and choosing to do something about it. That's all for the series.