May 14, 2003
Copy Protection Is a Crime
Copy Protection Is a Crime
…against humanity. Society is based on bending the rules.
Digital rights management sounds unobjectionable on paper: Consumers purchase certain rights to use creative works and are prevented from violating those rights. Who could balk at that except the pirates Fair is fair, right Well, no.
In reality, our legal system usually leaves us wiggle room. What's fair in one case won't be in another - and only human judgment can discern the difference. As we write the rules of use into software and hardware, we are also rewriting the rules we live by as a society, without anyone first bothering to ask if that's OK.
The problem starts with the fact that digital content can be copied - perfectly - from one machine to another. This has led the recording and movie industries to push for digital rights management schemes. Buy a one-time right to play the latest hit song or movie, and DRM could prevent you from playing it twice.
Of course, to exercise such exquisite control over content, DRM requires deep changes to all parts of the equation - the hardware, the operating system, and the content itself. Sure enough, some in Congress recently pushed the FCC to add a "broadcast flag" to content which digital hardware would be required to honor. DRM is barreling down the pike.
The usual criticism is that the scheme gives too much power to copyright holders. But there's a deeper problem: Perfect enforcement of rules is by its nature unfair. For contrast, consider how imperfectly rules are applied in the real world.
If your lease stipulates that you can't paint without explicit permission from your landlord, you will nevertheless patch up the scratches made by your yappy little dog on the bottom of the front door. If the high-priced industry analyst's report warns you on every page against duplicating, you'll still hand out at your weekly sales meeting copies of a page with a relevant chart. You'd snicker at the very suggestion of doing otherwise.
But why The analyst report is stamped 'DO NOT PHOTOCOPY', and the bit in your lease about not painting really couldn't be any clearer. We chuckle because we all understand that before the law there's leeway - the true bedrock of human relationships. Sure, we rely on rules to decide the hard cases, but the rest of the time we cut one another a whole lot of slack. We have to. That's the only way we humans can manage to share a world. Otherwise, we'd be at one another's throats all the time - or, more exactly, our lawyers would be at each other's throats.
Yet we're on the verge of instituting digital rights management. What do computers do best Obey rules. What do they do worst Allow latitude. Why Because computers don't know when to look the other way.
We're screwed. Not because we MP3 cowboys and cowgirls will not have to pay for content we've been "stealing." No, we're screwed because we're undercutting the basis of our shared intellectual and creative lives. For us to talk, argue, try out ideas, tear down and build up thoughts, assimilate and appropriate concepts - heck, just to be together in public - we have to grant all sorts of leeway. That's how ideas breed, how cultures get built. If any public space needs plenty of light, air, and room to play, it's the marketplace of ideas.
There are times when rules need to be imposed within that marketplace, whether they're international laws against bootleg CDs or the right of someone to sue for libel. But the fact that sometimes we resort to rules shouldn't lead us to think that they are the norm. In fact, leeway is the default and rules are the exception.
Fairness means knowing when to make exceptions. After all, applying rules equally is easy. Any bureaucrat can do it. It's far harder to know when to bend or even ignore the rules. That requires being sensitive to individual needs, understanding the larger context, balancing competing values, and forgiving transgressions when appropriate.
But in the digital world - the global marketplace of ideas made real - we're on the verge of handing amorphous, context-dependent decisions to hard-coded software incapable of applying the snicker test. This is a problem, and not one that more and better programming can fix. That would just add more rules. What we really need is to recognize that the world - online and off - is necessarily imperfect, and that it's important it stay that way.
David Weinberger () is the author of Small Pieces Loosely Joined.
(via boingboing.net)
Posted by glenn at May 14, 2003 10:06 AM | TrackBackI was very disappointed in this article. It didn't make a single,
valid argument for why DRM would be *harmful* to anyone, it just
reiterated a lot of touchy-feely "information should be free"
platitudes right out of the Rich, White Libertarians Who Are Above the
Law handbook.
Look on the other side: I'm an artist whose work is distributed solely
through media. You copy and redistribute my work, you've stolen it.
THAT's what we need to counter, specifically, to have a valid argument
against DRM.
Now, we've all stolen in this way. I admit it's because I didn't want
to pay for the music/software...period. There was no "moral" rider for
my actions.
Can I think of "fair use" cases to argue Sure, for example:
--I want to send Grandma a copy of a special song for her birthday
--I want to make my own mix tape of romantic songs (that I've already
paid for) to serenade my girlfriend
--I want my class to view and discuss a film clip I don't own, its
rare, and the library doesn't have a copy (but a friend does)
What about the rest of my software simply not working properly due to
DRM Etc.
But this wasn't discussed. One might counter that all these problems
could be circumvented technologically, without needing to duplicate the
copy-protected media itself. So, these arguments need to be good.
I was most intrigued by the point about digital media being duplicated
perfectly. Degredation *was* the crucial factor in all the earlier
"allowances" that were made for unauthorized copies, and without such
degredation, there may be no case for bending the rules as before. If
I made a tape of the album or CD to share, I had an imperfect copy. In
that case, redistribution would probably serve more as advertising for
a work, driving the holders of the bootlegged media to purchase the
original in order to have a good copy. With digital, no need. When no
one could really copy a vinyl album, CD or videotape, no one really
much cared what you did with it. What we're facing now is the test of
the value of *media,* and not just original creation.
I think the notion of mediation and its value is a big problem in this
argument. If I make pottery, and you come along and take one of my
pots, I'm going to be livid, and no one is going to doubt you're
stealing. For any creator of anything less tangible than a pot or a
canvass, it's a difficult line to draw (writers have these same issues
unless they print their own books). If I make music, and that music
must be mediated through a device to be transported to you over time
and distance...are you stealing my *music* when you make a copy of that
device, or are you just tampering with the device If someone paid for
the original device, do they have the right to "display" it anywhere
they wish, even if that means transferring the data to another device
Conventional wisdom has it that no one cares about the shiny round
disks, or the bits & bytes; its what can be decoded *from* them that is
of value. But perhaps there is value in the shiny disk I provide you
(transportability, reliability, right of first access) that it should
be protected, and I (media-mogul) remain the sole purveyor.
I think there's also an emotional issue muddying the copy protection
argument. No one is really clear about who they're arguing against:
the poor, beleaguered artists/programmers who deserve to be remunerated
for their creations, or the mega-corporate *media* industries who wish
to control the methods of distribution because historically, they're
the ones who have profited most from it. No one wants to suggest that
the creators don't deserve to profit from their work, but we all know
they make the least on the current methods of distribution, so no one
wants to come down on the side of the media-industries.
BUT, we can't seem to disregard that the media-industries have the
right to make and *enforce* a contract with the creators, however much
we dislike it (or them).
I think the argument boils down to the fact that the creators have
licensed the media-industries to be their sole agents in purveying the
valued information. (And they now have a choice in the matter. Anyone
can start a home recording studio of virtually any mediated art--good
luck with distribution, though.) In return, its the agents'
responsibility to make sure that the creators get paid--with, of
course, their hefty brokers' fee taken out along the way. But control
of distribution is exactly what the media industries have been about
from the start:
1. You wanna be a rock/movie star
2. It takes money to put your pretty face out there
3. I have money
4. If you let *only me* resell your pretty face, I'll pay the money up
front
Why are we so surprised and upset now I say simply this: cause we
don't like the idea of having to pay for stuff we used to get for free.
So, you guys REALLY have to start coming up with some better arguments,
or we're all going to look cheap.
kate