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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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« What the Fox Proposes for the Henhouse, Part 2 | Main | This Is Your Brain »

September 11, 2004

Calling the DRM Bluff

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Fellow Copyfight author Wendy Seltzer has a new Legal Tags post responding to the news that TiVo and ReplayTV have agreed to hobble their products with digital rights management (DRM). Therein, she compares and contrasts the story the entertainment industry tells about DRM with what history teaches:

The story, as these entertainment producers tell it, is that without DRM, no recording at all would be permitted of pay-per-view. Or, if they couldn't control the tech to stop consumer recording, they wouldn't even broadcast some content in the first place...In that case, individuals are left with the choice between DRM-encumbered content and none at all.


Would mass entertainment cease to be if mass producers couldn't restrict the choices of their audiences? No, no more than musical composition stopped when courts ruled that the piano roll wasn't an infringing reproduction or sound recording stopped when audio artists had no public performance right. Scrappy upstart technology companies disrupted the business of producing music, but when producers couldn't control the technologies of distribution, they changed their business models instead.

So far, it looks like the entertainment industry is succeeding in doing everything but change business models. Indeed, it's working to persuade lawmakers to change the law to protect old business models, while supporting attacks on doctrine shown to enable new ones. Meanwhile, we -- the lowly customers without which the industry wouldn't exist -- get to "enjoy" less and less functionality for more and more money.

So what do we do about this? There's been plenty of discussion about, though little movement toward, building a "GeekPAC." But Wendy reminds us that there's a simpler, more direct route to influencing the industry: refusing to purchase DRM-hobbled products:

Too much of the public is willing to sell out the benefits of competition and creative destruction for the shorter-term promise of entertainment content. If we could instead commit ourselves to rejecting DRM, we'd force the entertainment industries to a test of whether they'd really shut down rather than offering open content, and we'd leave room for innovation in the creation and delivery of mass entertainment content.

To that end, Wendy is leading a project at EFF that could serve as a shopper's guide of sorts for innovative -- and because of that, endangered -- technologies; we plan to unveil it in November, just in time for the Thanksgiving/Christmas shopping season. Stay tuned.

Comments (7) + TrackBacks (0) | Category: IP Markets and Monopolies


1. Isiah Jones on September 12, 2004 12:14 PM writes...

I think the public could force companies to change and allow mass, open entertainment content. If we pay for it we should get what we want. I guess in the case of businesses the customer doesn't matter much as long as they're satisfied with how much money they're making.

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2. Jason Streeter on September 12, 2004 11:55 PM writes...

Considering this whole industry is driven by the consumer, I think the larger companies really need to take a look at what their audience wants! It is unfair to the consumers because they really have no choice - they either pay for the service, or just don't have any at all. They pretty much need the services though so in a way, it seems like the larger companies almost seem to be working as a monopoly! NOT FAIR!

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3. Crosbie Fitch on September 13, 2004 5:16 AM writes...

If MP3 demonstrates the value of portability over quality, then no doubt mass audiences will simply route around DRM and 'tune in' to online MPEG 'play it again/time shifting' services. Most people will probably do this whilst paying for the original content (retaining their halos), but because they've missed what they've been entitled to, e.g. "Oh dear Frank couldn't make the 100th episode of Cheers Again, so we'll e-mail him a copy from E-Jackass".

Of course, the obvious answer is to show the trailers of a series to audiences of umpteen million and invite the them to bid for the release of the show under a copyleft license.

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4. David H. Rothman on September 13, 2004 5:38 PM writes...

"There's been plenty of discussion about, though little movement toward, building a 'GeekPAC.'"

See Rx for Washington's bullying: An NRA-size group for all digital media users for a proposal going beyond hardcore geeks.

The white hats would do well to get off their rears. Looks as if Bruce Lehman is on the way back.

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5. Branko Collin on September 13, 2004 8:18 PM writes...

Yeah, let's all make an MP3 (licensed with Creative Commons) singing Kumbayah. Clap your hands! I am sure it will sell like hotcakes.

Perhaps we could even make a video: a bunch of shaggy geeks hovering over a guy holding a guitar. This will definitely sell better than Britney's tits.

("Hey guys, is something wrong with my connection? Nobody's downloaded our song yet.")

The suggestion that the 'industry' doesn't listen to its audience is preposterous. Granted, through all kinds of trickery the major publishers have managed to establish some kind of lock on the market, but so far they haven't been able to force people to buy their wares. N-Sync is popular because people like their music, Fox is popular because people like their programming, et cetera.

If you want an effective boycott, you need people with the same determination and numbers as those that have organized succesful boycots in the past. Or target a well-known artist who in reality does not sell that well, and who is supposedly represented by the RIAA, and tell the people: "This guy is getting little children arrested. Would you buy his records?"

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6. Donna Wentworth on September 13, 2004 9:09 PM writes...

I have no illusions about boycotting recording artists. I do believe there is a market for technology that does more for less.

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7. Alexander Wehr on September 15, 2004 1:02 PM writes...

"N-Sync is popular because people like their music, Fox is popular because people like their programming, et cetera."

please explain this to me.. i went through middle school and people hated boy bands.. i went through high school and people hated boy bands.. and i'm ready to graduate with a double degree now and still people hate boy bands.

I am a part of the generation whos'e music is supposed to "top the charts".. and yet the news reports that songs neither I or my friends have ever heard of are "hits". It underscores the manipulation of payola radio, and the scam of rating music by radio play.

As for consumer acceptance of "lock down", if that were true than the black box market and tools like "playfair" "decss" "un-cd ripper" and other protection breaking devices would not be so rapidly snatched up by more than willing people.

For every single DRM ridden download from an online store, there are literally 10 million so called "illegitimate" ones which are sought primarily because they are not encumbered by DRM, which exists because of a fundamental and insulting philosophy that we are thieves for making use of our own property.

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