Burningbird

Link to "docs'" post?

By the way, what Doc describes is not "how we got the Net."

We got the net, originally, because a big bad government defense department wanted a communications system that would survive a nuclear holocaust. And some clever folks figured out a) how to make an academically valuable resource out of it, and then b) how steamroll over the 'no commercial use aspect' to make money off it.

Oh the irony.

Shelley, DRM destroys value. Have a look at my APIG submission, or if you have less time 5 short arguments against DRM.

DRM, like almost every technology, is amoral. The argument, as I see it, is whether it is better to use copyrights to pursue legal remedies after infringement, or to implement a technological means to prevent it before the fact. I don't see much difference between the two positions. DRM only destroys value if you find value in copyright infringement.

Darryl, thanks I added the link.

Pascale, the irony has not been lost on me, indeed.

Kevin, you're saying that DRM destroys value because that's what you believe, not necessarily that there's an inherent truth in the belief. I've looked at your arguments, and I don't necessarily agree with them.

Take your statement that you own your computer, and no one has the right to control what you can or cannot do with your computer. True, you do own your computer. You also, or possibly could, own your home; however owning your home doesn't mean you can tap into your neighbor's cable line and run one to your house and have it be legal. Or that you can run a dish that taps into the cellphone conversations in the neighborhood.

If you want to go online, you have to most likely come to some agreement with an ISP. You don't have the right, even if you have the equipment, to tap into an internet connection without paying for this right. Chances are, you'll be physically prevented from even trying.

We are surrounded by limitations, legal and physical that follow us into our spaces, and have been since birth. What is it about our computers that make spaces somehow sacrosanct?

As for destroying value, your listed item makes little sense. You say that iTunes, which is a DRM, enables you to burn CDs and hence the value is not lost, so it is acceptable. What you're saying then either is that iTunes is not a DRM, or that it's a 'good' DRM?

Perhaps the issue then isn't the use of DRM, but DRM's that prevent competition, and isn't this what Shepard is discussing? That DRMs are here to stay and what we need to be doing is working with vendors to come up with DRMs that are cross-vendor compatible and palatable to clients. And to prevent DRMs from inhibiting free media.

"DRM, like almost every technology, is amoral. The argument, as I see it, is whether it is better to use copyrights to pursue legal remedies after infringement, or to implement a technological means to prevent it before the fact. I don’t see much difference between the two positions. DRM only destroys value if you find value in copyright infringement."

Charles, excellent argument.

Regarding "DRM only destroys value if you find value in copyright infringement.”

That's absolutely right. Such value is called "fair use".

Really. "Fair use" is what we call infringement where there is value in it. And DRM can forbid fair use. This is what has been argued to *great* length in the DVD and other cases.

So, we're back where we started.

Shelley, have you ever read my Greplaw Interview ? I discuss some of these issues at length there.

Now, about "what we need to be doing is working with vendors to come up with DRMs that are cross-vendor compatible and palatable to clients" - Sigh. I think this is going to be found in the same place as censorware that blacklists only obscene material, and the weapon shop which sells guns which can only be used in self -defense. Or maybe just the light bulb which never burns out. Vendors view DRM in part as a market monopolizing tool. And if they don't listen to us about business strategy for copyright, they sure aren't going to care about muttering concerning market share strategies.

But, sadly, I very much agree with you about the debate method of "He or she who ends up with the most attention (however attention is measured) wins.".

Because, double sigh, there is nothing else but attention to be had :-( :-( :-(.

Let me make one thing absolutely clear: DRM does NOT prevent Fair Use.
Let me hypothesize from my own point of view. My own video blog relies heavily on Fair Use, I often present videos I have seen on TV with scholarly, cultural or linguistic commentary (I frequently use Japanese TV clips captured from Satellite TV). I can easily import them from my TiVo, although quality is degraded, which has no impact on the quality of my commentary or on the quality of the overall presentation.
If those videos were encoded with DRM, I could still present those same videos. The original video is held in a non-DRM format by the copyright-holder. I could contact them directly and ask for an unecumbered copy and beg permission in advance of my Fair Use.
The "DRM destroys Fair Use" argument is disingenuous. It implies that once DRM is implemented, ALL copies of the source material are forever encrypted. This is utterly ridiculous. The source material was created without DRM during the production and editing process. As another example, today I can buy DRM-protected music from iTunes, or I can buy the same music unencumbered on a CD. If you don't like DRM, don't buy products with DRM. You have the choice.
It seems to me that the anti-DRM arguments are usually accompanied by anti-Copyright arguments, people want total freedom from ALL restrictions so they can infringe and steal music and videos freely. The rationale for this is that they are "sticking it to The Man" and the system that exploits the artists. But the same copyright laws that protect big corporations also are the same laws that protect individual artists' rights. I know because I have used copyright to protect my own work from infringement.
I really should write this up in more detail on my own blog. I promised Kevin Marks I would respond to his anti-DRM article, which has some major technical errors.

Regarding: "It implies that once DRM is implemented, ALL copies of the source material are forever encrypted."

No. It implies making use CAN BE MUCH MUCH HARDER, from burdensome to a PRACTICAL prohibition.

If you really care, there's plenty of legal argument to read on this topic. If you want to oppose strawmen with some strawmen of your own, I'll pass.

Seth, I'm interested in reading more about DRM and it's interference with Fair Use. If you have references, I'd appreciate you pointing them out. Same as I would be interested in reading what you have to say, Charles, in response to Kevin's anti-DRM article–here or in his own spot. I can add links as reference to this post.

I wrote a lot about it a while back, before I gave up on having any significant effect. For example:

DMCA vs. fair use

Users and losers in the conflict between DMCA and fair use

Dull Righteous Mumblement

That's a few quick pages, with links to more.

Don't bother with the marketing gurus. They aren't the ones poring over the legal cases, and they're optimizing for maximum attention (as you basically note).

Charles,

For one thing, I, like most scientists I've ever spoken with on the issue, reject the notion that technology is inherently amoral. One of those scientists I've spoken with worked on the Manhattan project, it is of the strongest opinion on this topic, you might like to discuss the topic with one of the few scientists who are left from there, they learned many things in the hard way.

DRM is IMHO not amoral, in that what makes DRM DRM is who controls the keys. Removing the keys from the individual who has the player is IMHO immoral, and so, the technology that has only that intention is immoral.

The second big issue here is whether an open channel can co-exist with DRMed channels. I believe it cannot, as it will always be possible to distribute copies of works with DRM removed through those channels if they are allowed to exist.

I may of course be wrong, but the opposite, that all channels of communication is DRMed, will be so disastrous for democracy that it requires careful consideration.

Your line "It seems to me that the anti-DRM arguments are usually accompanied by anti-Copyright arguments," is a straw-man of the worst sort, to which I can only respond that I feel strongly that there really is no reasons for any artists to support DRM. DRM is there only to protect the undoubtedly successful business model of Stock Aitken and Waterman of the late 1980-ties, and it will bring us only works of that quality if given legitimacy. I really see no good reason for it.

Seth, there's a big difference between Impractical and Impossible.

But I will save up this argument for my article.

Charles:

If you have to beg the copyright holder in advance for permission, you are not exercising Fair Use. You are asking for a license, free of charge. Fair Use does not require the assent of the copyright holder.

This is why there is a difference between implementing DRM* to prevent infringement before it happens, and relying on copyright enforcement to deal with infringement after the fact. With copyright enforcement, a court can review a defendant's claims of Fair Use and make a decision.
Since DRM* is algorithmic and Fair Use cannot be determined algorithmically, DRM* looks to be incompatible with Fair Use.

*DRM here refers to a largely-mythical entity that actually works - i.e. can't be circumvented by a person of ordinary skill in the art of using a computer.

Good Shelley
Bad Doc
Amoral DRM

From my perspective, DRM has not destroyed value, but created it. I've purchased and enjoyed more music since the iTunes Music Store opened for business than I have in the previous decade. I didn't transition to CDs until 1994, and even now my collection numbers less than 100 albums. I own more DVDs than I do CDs. iTMS makes it far easier for me to sample new music, buy only the music I like, and enjoy it pretty much any way I care to.

I don't believe Apple could have convinced the labels to offer their songs for sale online without DRM, so in that sense, DRM has created value for me, Apple and the labels.

Now with respect to Fairplay, I think people can have legitimate differences of opinion about how Apple is handling the licensing issue. But I also think it's worthwhile to point out that, in its current configuration, Fairplay is a fairly innocuous DRM. Just enough DRM to get the labels to play along. As has been noted endlessly before, the customer can burn their music to conventional CDs and re-rip those back to an unencumbered format of their choice. Somewhat easier, for my purposes, is to use a utility like Audio Hijack or WireTap Pro to simply intercept the digital stream before it hits the D/A converter and re-encode it to disk.

So, on the one hand, I'm happy that people bitch about Fairplay DRM ("Help! Help! I'm being oppressed!"), because it may help to contribute to the notion that Fairplay is some kind of genuine barrier, which keeps the labels from demanding something far more draconian. (Did I just spill the beans? Nobody copies me on any of the memoes.) But on the other hand, DRM has become an article of almost religious faith among some fairly intelligent people, and it just seems incomprehensible, to me, that someone could offer that DRM destroys value. In a perfect world maybe. But in a perfect world, markets would be conversations and hyperlinks would subvert hierarchy.

In the world I live in, DRM is another compromise in a world filled with compromises.

I have posted my response to Kevin Marks' Anti-DRM argument. I have restricted this document to rebutting Marks' arguments, one of his arguments is a technical Comp Sci matter, the other is a legal issue. My CS argument is stronger, as I am a computer geek (and I spent a lot of time studying Turing) but I am not a lawyer.
I may (or may not) make a further response regarding Fair Use, but that was not within the scope of that document. But let me just put out one interesting note about Fair Use.
I am currently using DRM to protect my ability to present materials under Fair Use. I have posted videos on my blog without prior consent under Fair Use. If I were to release those videos as freely downloadable content, I could be accused of promoting the piracy of that copyrighted content. However, since my streaming method allows viewing but prevents downloading, I am protecting the copyrights of the original authors, which protects me from lawsuits for contributory infringement.

Shelley, You may have missed the 'DRM Destroys Value' point; let me restate it. As Dave et al say, buying CD has a certain value - you get an uncompressed 16-bit stereo recording on a reasonably robust medium that you can readily transfer to iTunes, play on your iPod, edit in any audio editor, use as background music for your home movies, remix into something else and so on. So far, so fair use. Once you have done these things, you may be infringing copyright if you republish it, and you may be liable for punishment under the rather strict $150,000 per copy laws.
DRM attempts to enforce these laws through the blunt instrument of a computer. As Weinberger says, this is a failure of due process.
But that notwithstanding, lets consider it on its own. An iTunes DRM'd track can only be played on a few computers or iPods. You don't have a backup. You can only use it in approved audio editors, and people without your key can't play back the result. However, you can burn it to an Audio CD, at which point the above applies (though if you have good ears you may hear the compression artefacts - this is independent of the DRM, but removes some value too).
On the upside, you can get it much more quickly than ordering the CD from Amazon or going to the record shop.
So, the value destroyed is some convenience, the media and time cost of burning your own CD copy (if you buy anything from iTunes, do this at once - I always do) and the loss of album art and so on. This tradeoff is often worth the $10 per album you pay at iTunes vs the $16 you pay at Amazon.
However, other DRM schemes destroy much more value - You probably don't remember LiquidAudio or DIVX. They destroyed enough value to not be worth buying at all.
Other DRM schemes mean you can't make CDs, or you can't play on iPods, or you can't listen unless you are online. Each of these destroy more value, and unless they cut prices accordingly will be less and less attractive.

To see an egregious example, follow the SONY rootkit saga, where the pursuit of stopping people ripping CDs led to them shipping a self-installing, hidden rootkit that contacted Sony online everytime you tried to play a song on the CD, even if you declined the install.
So far this has cost them a product recall in the Christmas selling season, multiple class action lawsuits and some criminal prosecutions.

Copyright Infringement is a subtle thing. It's not something you can write code to check for, because it depends on intent.
As I demonstrated recently, it's hard enough for humans to determine each others' intent; computers have no chance.

I do not quote sources, generally, nor do I lean too hard on the arguments of others to decide what I think, although I do appreciate them when they're well thought-out, elegant or entertainting. Preferably all three.

I will say, though, that I do not and will not ever give a single freaking dime of my money to a company that pushes DRM. I will, on the contrary, actively try to subvert, crack and otherwise circumvent that DRM, personally and to whatever extent I have gained minor net-notoriety as a 'thought-leader' or whatever they're calling it this week.

My compromise is that I will find the same digitized material on the darknets, without rights-management crippling, or I will live without it. Which, of course, isn't any kind of compromise at all. So will anybody under the age of 40 (30? whatever — it's a sliding scale) who came of intellectual age with the internet or after it, and who remembers with almost coital glow the heartswelling promise of the now-archaic phrase 'information wants to be free'.

Free as in… whatever.

A datapoint, for what little its worth. And I'm astonished that I managed to say that without using the word 'fuck'.

Oops.

I think DRM can (not always, not definitively) destroy value, and I offer anecdotal evidence thusly:

When the Sony PlayStation 2 first came out, I purchased one so I could play games and watch DVDs on it. At the time that I purchased it, I lived in the US. I had it for several years and used it quite happily (with legally purchased or rented DVDs and games), when, by a silly set of circumstances I ended up on the other side of the world. Because Sony subscribes to the type of digital rights management where different regions of the world don't have the right to view content from other regions (e.g. region encoding), I had the following options when I moved:

1. Ditch my PS2 and games altogether, and find another means of watching my region 1 encoded DVDs, or possibly re-purchase everything for region 4.

2. Keep my PS2 and games, but only purchase new games from the US and pay large (sometimes prohibitive) shipping fees.

3. Attempt to modify my PS2 in such a way that it ignored the region encoding (modchip), which at the time was being contested by Sony in Australian courts (but is now legal to do, but still somewhat carries a stigma of attempting to copy games illegally, which is one of the things that modchips can allow you to do).

No matter my decision, my PS2 was going to cost me more money than if it had no region enforcement at all. Incidentally, for now I have lived with #2, so I only get new games every once in a while (which in a big picture way is sometimes a good thing ;-) ).

I think folks can find plenty of examples of situations like the above, where the industry's distrust of the public's use of their material keeps the customer from using the item in a perfectly legitimate way. I do agree that sometimes DRM arguments do get reduced to "it's evil" but I think because (at least from what I read and experience) we run into these frustrations more and more often and it becomes emotional.

What DRM would I find useful and helpful? I'm not sure. I think that watermarking PDFs is one example of DRM that I'm not opposed to. Rather than disabling functionality, it ties the original purchaser with the item, so that if someone else copies or prints it, it can be linked back to who actually paid for it. I'm not sure if that's strictly DRM. However, I think that's one way that we could use technology to help enforce copyright infringement without disabling the copyrighted material so the legitimate owner can't use it fairly.

One of the most depressing things about this argument is the oft-repeated stance (seen above from both Shelley and Dave Rogers) that iTMS uses DRM, iTMS is fun and good, works well and makes money, therefore DRM must be good too and not a destroyer of value.

But iTunes's success has nothing to do with DRM. It's despite DRM. Apple's victory is in coming up with a combined portable music player & online store combo that is so good that even its annoying DRM (which locks out 40% of the store's potential market as well as a huge amount of hardware and software) doesn't stop it being a raging success.

If DRM isn't a destroyer of value, what magical thing can FairPlay AAC files do that makes up for not being able to play them on my Treo, like I can with MP3s? The answer always comes back to the iTMS being so easy to use, which has nothing to do with DRM. It's easy to use despite the bloody DRM.

Dave's argument continues that DRM must be good because it means that the major labels part with their content. One could use the same argument about, say, the demanded sacrifice of virgins. Sure, it has no real use, doesn't achieve anything, is ugly and painful and wasteful, and the whole thing makes no sense beyond bizarre superstition, but the priests say that it makes the gods happy, so it must be good! Okay, it's not a perfect solution, but it's only the odd virgin here and there, so it's a worthwhile compromise to keep us fed. I mean, how else are the crops meant to grow?

I'm not saying that those faced with DRM-or-nothing decisions, such as poor Tom, should always stand firm on the moral high ground and never capitulate. There is plenty of content good enough that if the licence-holders demand DRM, it's worthwhile accepting that until they can be persuaded to change their minds. But really, there's a difference between that and trying to persuade oneself that, despite all the evidence and reason to the contrary, DRM is good and useful, that somehow being able to do less with content you've paid for is a feature. That's just Stockholm Syndrome.

A couple of quick thoughts.

1) Several jurisdictions around the world simply do not have the concept of "Fair Use". For instance in the UK, the copyright notice on CDs forbidding copying means exactly that. By copying for your own personal use you are breaking the terms of the copyright. So unfortunately we have to consider DRM in a global context. Which is particularly troublesome when >500k DNS servers were found world wide with an XCP rootkit infected PC behind them.

2) "we only have to turn our little eyeballs over to iTunes to generate an “Oh, yeah?" Does iTMS make any money directly? Isn't it rather a loss leader that bolsters the sale of iPods? What is unknown is whether the iPod would have been just as much of a success without Fairplay and iTMS. I rather think it would have been.

3) The most cogent argument I've seen against DRM is that it leads to spyware. Give someone the encrypted text, the algorithm and the keys and you can't control what they do with the plain text. In order to try to control them, you have to install spyware. And since no informed computer user will knowingly install spyware you have to trick them into it. So if it can always be circumvented, DRM will never work to stop counterfeiters. So by adding it, you do nothing to stop genuine piracy, while upsetting and hurting your genuine customers. Does that make any sort of business sense?

4) Why do the tech companies want to be in the content distribution business? The existing content distribution companies are hurting, their business models no longer work, and they are surrounded by a whole range of disruptive technologies that are changing the marketplace irrevocably. So why would any tech company want to get a piece of that failing action? The content owners appear to have this blind faith that DRM will save their existing business model and the tech companies, far from pointing this out, are actively encouraging them. Why? From an anti-DRM stance, every one of them including Apple, and now including Google, are part of the problem.

5) Perhaps what we really need is for DRM to fragment completely into a large number of incompatible "standards" with ever more ridiculous terms and activity. Maybe then the market will decide and back the one player that turns it's back on DRM. On that basis, Sony is a god send. Go ahead. Screw up. Please.

6) I will not buy any DRMed content unless there is a ridiculously easy work around. So I'll happily buy a multi-region DVD (available from any store in the UK) and buy region encoded DVDs. But I won't buy a "not a CD" ever again and I will never buy a crippled, low quality download tune when there's a dodgy Russian alternative that serves up uncrippled high quality at a 5th of the price.

I see that Kevin Marks has responded on his blog. Unfortunately he is responding to some other argument, not the one I wrote up. Sometimes I don't know why I bother.

I agree with Yoz; I also agree with Kevin (the assumption that copying a commercially-published CD automatically equals copyright infringement drives a steamroller through copyright law).

I don't often disagree with Dave and Shelley, but there you go.

For sampling music without infringing copyright, incidentally, I can recommend last.fm.

Dave’s argument continues that DRM must be good because it means that the major labels part with their content. One could use the same argument about, say, the demanded sacrifice of virgins. Sure, it has no real use, doesn’t achieve anything, is ugly and painful and wasteful, and the whole thing makes no sense beyond bizarre superstition, but the priests say that it makes the gods happy, so it must be good! Okay, it’s not a perfect solution, but it’s only the odd virgin here and there, so it’s a worthwhile compromise to keep us fed. I mean, how else are the crops meant to grow?

"What are these 'virgins,' of which you speak?"

This must be what they call a "straw man," I'm not sure. I never win any of these online arguments anyway.

But where did I say "DRM is good?" I said I didn't think it was reasonable to unequivocally assert that "DRM destroys value." And I tried to show how DRM created value where none existed before, at least value that wasn't overshadowed by conventional moral and legal issues.

Stavros, I can certainly respect your position, but I think the affection with which you regard the phrase "information wants to be free" is a consequence of anthropomorphizing a physical characteristic of the universe, and making that into a moral characteristic of a non-existent perfect world, then suffering because it does not exist. (Of course, regarding information strictly as "property" is equally misguided, but it seems to be a more universally embraced misunderstanding that has acquired a privileged position as a cherished belief. How else to acquire advantage in competing for rank in the hierarchy? Which in no case will be unseated by just another misguided misapprehension. We're going to have to do better than that.)

There are many pernicious effects of DRM. Ideally, I'd prefer to enjoy music and movies and software without DRM. But I don't allow a "principled" stand against DRM to prevent me from enjoying a good movie, or listening to good music. (Well, movies and music that I like, who knows if they're good.)

Sorry to be so "depressing," but this is one gnat I'm not going to strain at.

I buy my MP3s from AllOfMp3.com, a site that would be illegal to operate in the US- but perfectly legal in Russia, where it lives.

I buy there because there is no DRM. I don't distribute the music- I don't do anything but listen to it. So why would I care about DRM?

Well, let's say I shop iTunes- and Apple goes under. FairPlay becomes an unsupported standard, and I'm SOL. It's called vendor lock, and I won't have anything to do with it.

Or, let's say my computer dies. I've got backups- but the DRM key can't be backed up- with an iTunes like model, I need to deauthorize the broken computer- impossible, without massive intervention from Apple.

Until recently, when I bought a CD, I owned that CD. What DRM does is apply the software licensing model to music- I don't own a copy, I own the rights to listen to the copy. I lose the right of first sale. I lose the ability to return the item. I lose the ability to pull clips from it for the purpose of reviewing (Fair Use).

The only reason DRM has been a commercial success is because of an uneducated public. DRM is bad for you, and the logical extension, Trusted Computing, as implemented, say, in Vista, severely limits the abilities of software vendors- to make a media player, you need permission from Microsoft. How is that good for anyone?

For those buying music at AllOfMp3.com in Russia, does the fact that the artists don't see a penny of the money from the sales impact on your decision at all? Or is it that the site benefiting from others work with little effort on their part AND the fact that it's 'not DRM' make up for that fact?

In other words, you don't see the harm in buying from a site that steals from the very artists providing the 'value' you want to preserve?

From the top:

Dave, it's "Bad, Doc. Bad!" That second bad makes all the difference ;-)

Kevin, you're saying that I'm missing the point on DRM destroys value. But I think what you mean is that you disagree with my views on this, not that I'm 'wrong', or 'have completely missed the point'.

On the one hand, you give an example of Apple's iTunes, which you say 'destroys' value because one has to burn a CD on one's own, or one doesn't get the Album art (which is false, because you can download the album art and I imagine print this with the CD, or at least include it with the digital image). You may have to use third party tools to get the same quality as a pressed CD (if I understand what Dave is saying–thanks for the utilities, Dave). So in this particular case, the DRM, which is Apple's AAC is not really 'harmful' — correct?

Forget for the moment that tech savvies will workaround the working bits: in this particular instance, the DRM is sufficient to generate trust from several different media companies leading to our being able to access the media through iTunes. And, as iTunes is relatively simple, and not particularly restrictive, it has achieved a high level of popularity.

You counter this with DRMs that are destructive, such the recent episode with Sony, uproar about being so strong, Sony has actually retreated from position in this regard (something that rarely happens with Sony).

In other words, you've helped define what could be 'good DRM' bits, as separate from 'bad DRM' bits. Now, wouldn't this make sense to work with companies such as MS and Google and Apple to encourage 'good DRM' bits, as compared to bad? Rather than globally say, 'All the DRM bits are bad! Bad, do you hear me?"

As Dave says: DRM is amoral. It is how DRM is used that introduces good and bad. Dave Rogers and I have tried to show that in regards to iTunes, some good has been introduced. iTunes is easy for non-techs to use. It reassures parents that they aren't going to be sued by the media companies for thousands of dollars. It gives kids a way to not only download music legally, but mix and match it and burn their own CDs, which adds their own creativity into the mix. Artists are paid. Yes, media companies are paid, too–but not all music can be produced in a kitchen using software.

Ultimately, I don't see that DRM is meant to enforce copyright. I think it's a way of assuring media companies, and parents, that there are legal ways of accessing music (and other content) online. And for those artists who don't want to copyright their material, more power to them — DRM shouldn't force them into these channels.

(cont in next comment)

"My compromise is that I will find the same digitized material on the darknets, without rights-management crippling, or I will live without it. Which, of course, isn’t any kind of compromise at all. So will anybody under the age of 40 (30? whatever — it’s a sliding scale) who came of intellectual age with the internet or after it, and who remembers with almost coital glow the heartswelling promise of the now-archaic phrase ‘information wants to be free’."

Free as in beer, Stav?

I am a book author. I just received my quarterly royalty check from O'Reilly. It's not enough to live on, but it is enough to make my car payment this month, and take Zoë into the vet.

Should the information in the books I write be free, then, Stav? If so, who will pay for Zoë's tests? Should I pass the hat again? I would hate to, because each time I do, it takes away a little of my self-esteem. But when I get a royalty check, the opposite happens: my self-respect increases.

Those what create music are no different than those of us who write books. Where we differ is that it's easier to put their material online.

ARJ, yours is a good example where DRM has failed. So this goes into the 'What DRM should not do' bucket, which is make it so that people who move between regions don't lose additional value. There should be a way of 'porting' your tools between regions.

As for 'distrust', remember what Dave said earlier: DRM is amoral. What we're looking at is not the underlying industry's distrust of people–that's their problem to work through. What we're looking is what makes a 'good DRM' as compared to a 'bad DRM'. Which you did by looking at watermarking PDF files (and images).

Yoz, the argument about iTunes is that it provides just enough DRM. Just enough to reassure parents their kids are not going to get busted by downloading illegal music. Just enough to reassure the industry, which is running paranoia. And in the long run, artists even benefit from it.

On the downside is that it would be nice if other players would be allowed to access these formatted files. But then, it would be nice if I could buy a Dell laptop and be able to run OS X. Wouldn't it?

The key seems to be with iTunes is that one isn't trapped into the iTunes DRM. One can burn CDs. One can rip them into lossless mp3. At that point in time, then it does become a copyright issue, but iTunes is out of the game, and you the person are on your own. Seems to me, this makes a very effective compromise between pure control and no control.

Doesn't it?

Julian, your items in turn:

1) You have a very good argument in that copyright does differ around the world. However, if a DRM-based online service, such as itunes, works legally around the world (because the copyright holders grant such rights), this goes far in smoothing out the problems with differing regional interpretations of copyright. Wouldn't it?

2) As for iTunes making money, I'm assuming it is. I'll have to see if there's something online on this.

3) Your point on spyware is also good. But then, if spyware were incorporated into a DRM, and this information is published, then it's up to the users to determine if the DRM is 'bad' or 'good enough'. Just as with Sony.

4) Why do techs want in on this–probably because they want to diversify. Because it is profitable. There are many avenues to explore in providing media to clients through channels.

Regardless, whether companies make a profit or not doesn't make DRM good or bad–just makes the company's fiscal decisions good or bad.

Personally, I don't know why Yahoo is buying all the companies it's buying, and Microsoft has eaten the RSS pill, but that's beside the point.

5) and 6) what you're saying is that nothing but totally free content will suit you, so you're not willing to work with any of the company's to come up with a workable DRM. One that ensures artists are paid, parents aren't sued, media companies don't lobby governments until too many freedoms are restricted, and you and I still can make 'fair use' of whatever media we want to download.

In other words: no compromise. DRM evil. Debate closed. Correct?

Charles, I have the utmost confidence that Kevin will respond to what you wrote in your post, either here, or in his weblog. I'm sure that he's responding to my initial comments, first.

So please don't give up.

My concern is how to include yours and Seth's and other links in my "References" without having them duplicated and aggregators thinking they're spam.

(comments to be continued)

Phil, thanks for the link to last.fm.

Again, I have to return to iTunes, primarily because this is one of the more mature uses of DRM and one I'm used to.

With iTunes, I can burn five CDs of a playlist. If I modify it slightly, I can burn and additional five CDs. I can copy all the music to five computers and my iPod. I can convert to mp3 and use with my treo or whatever.

There is nothing in the tech to prevent this. At that point, it is only my understanding of copyright law and use that will come into play.

So iTunes is not enforcing copyright. It's just providing an avenue for legal downloads. Correct?

Dave Rogers, I agree in that we're not saying that DRM, as a concept is 'good'. What I'm looking at is what do we consider 'good' uses of DRM, as compared to 'bad'.

t3k, but did you pay the artist for downloading their music?

As for iTunes going belly up or something to that effect, I agree that one of the bad implementation aspects of DRM is lock-in, particularly if there is no way of getting the content without the implementation.

But you know, I have a ton of Photoshop PSD files that I created for printing photos. If Adobe went belly up, and didn't support Photoshop in addition to some virus coming along making Photoshop unusable, I wouldn't have access to these images.

Except…that I also have the original RAW format files. And I also have prints. And I also have additional digital files in JPEG format.

In other words, the DRM isn't 'bad'–it's the implementation of such that can be 'bad'. Then it's up to us to define what are good implementations.

Or continue to download music illegally.

Question to those who are anti-DRM: is downloading music without paying for it 'good'?

Shelley, the deep answer to your last question is called "Alternative Compensation Systems". Prof. Terry Fisher has a recent book on the overall topic, Promises To Keep.

There's a few poles of the debate, and we can all go around them, but will it do any good?

Let me try to state how I understand Doc's and Cory's argument.

It's based on the experience of copy-protection (which is DRM under another name) on games (and some other programs) in the 386 era. In those days, in order to play a game you'd bought, you had to do something — plug in a dongle, have the floppy the thing came on in the drive, type in a password which came with the documentation (printed in a non-xeroxable way) — for it to execute. In actual practice, this did not prevent copyright infringement. Patched versions of the games, patched to bypass the copy-protection, appeared on bulletin boards available for download. I had a patched version of Battle Chess, I remember. It still asked for the password, but then continued to execute anyway. All the copy-protection schemes were obtrusive. They marred the game's usability, even for permitted uses. You wanted to play the game, you had to hunt up the dongle, the floppy, the documentation, something external to the computer. Some game vendors, realizing that this was costing them money and not preventing copyright infringement, stopped using copy-protection. The marginal consumer, given the choice between games with copy-protection and without copy-protection, preferred the games without copy-protection. Other vendors gradually realized that they were paying money for copy-protection which not only didn't prevent copyright infringement, but actually cost them sales, and so eventually dropped copy-protection.

From this experience, draw some conclusions:

1. DRM doesn't, can't, prevent copyright infringement (this the the cry of "technology, technology"). All it needs is one person to break the scheme and a non-DRM copy appears. Copies of that copy circulate, copies of those copies circulate. People who don't want to buy the original protected version needn't.

2. DRM is always obtrusive. It always detracts from the user experience, even for permitted users. This remains true today. Dave Winer a little while ago complained about usability issues with the iPod. It was claimed that all his issues stemmed from Apple Music Store DRM.

3. In a free market, vendors which don't impose DRM, whose products are therefore more usable, will beat vendors which do.

If you accept this argument, it's hard to know what to say to Lloyd Shepherd,

we’re going to have to have some DRM. At some level, there has to be an appropriate level of control over content to make it economically feasible for people to produce it at anything like an industrial level.

This is a statement of faith. Experience, however, shows that vendors can drop copy-protection and continue to produce at an industrial level.

Doc and Cory believe that DRM will go away if people are given a free choice between DRM'd products and non-DRM'd products and if they understand the difference.

So they point out the deficiencies of DRM at every opportunity. The usability issues. That DRM prevents fair use. That DRM prevents full use of a product you've paid for. That DRM means you can't use a product you've paid for unless you happen to have some magical object at hand. (That's "Bad DRM")

And they point out that DRM can be bypassed and therefore affords no protection against copyright infringement at every opportunity.

And they hope (and agitate) for vendors (their "independents") to take the opportunity to compete against DRM'd products with equivalent non-DRM'd products.

Seth, but you have to buy the book through Amazon or Stanford press. I rather expected to be able to download it online and pay for it with an alternative compensation system.

Seth, I didn't read the chapter that is available for download completely. I did read though that the author seems to be advocating a government office to register art and provide filenames, which could then be tracked online, and the artist compensated accordingly.

I'm sorry, but this lost me right from the start. An artist would have to register their work with the government?

But you are right and there are poles: saying that downloading music for personal use is stealing is a pole. As is saying that all DRM, no matter how implemented and by whom, is evil.

So, let's keep the discussion somewhere inbetween. Can we?

So, let’s keep the discussion somewhere inbetween. Can we?

Doubtful. Because there's no points, no notice, no attention, in being in the middle. Just a lot of typing :-(.

Jim, when I was working on Peace Shield for Boeing back too many years ago, I was given access to one of the first 'portable' computer in existence, in which we loaded one of the first Lotus applications of Visicalc or some such thing. I can't remember other than the portable weighed close to 25 pounds, had an amber screen with black writing, and the hard drive would fail almost weekly.

We had an excellent support staff and I could replace the hard drive weekly. I also remembered to make backups (the true floppy kind — big suckers).

The problem is that Lotus would use some form of machine specific DRM to prevent illegal copying of the software. Even when we talked to the company, we couldn't get around the problem, so they'd have to send out new installations.

Yes, that was very bad DRM…

That was bloody 20 years ago!

I agree that in the case of those old games and ARJ's playstation, that DRM cannot be a hinderance to legal uses. And as we have seen, when it is, people won't buy, won't use, and competition will beat them out.

But times have changed.

I'm sorry, but I'm going back to iTunes again.

One of the problems with iTunes is that you can't download music again to a new PC, even one registered with iTunes. I agree–this is a pain in the butt.

I also agree that having to remember to unregister a PC when you do some forms of upgrades or no longer use it is also a pain.

However, it's so damn easy to use! I registered my Windows laptop and my two powerbooks and my roommate's laptop. I burned a DVD backup of my tunes. I copied my tunes between the two powerbooks using an ethernet cable and connecting. I just plug in my iPod. I've burned dozens of CDs. I've mixed my own special collections (one of which, 'all of the above' is a kicker I think).

And it's so damn easy!

I've even downloaded a Battlestar Gallactica just so I can see what it looks like on my iPod.

Cory and Doc's arguments will work iff (that's if and only if) the DRM proves itself to be an obstacle and there are alternatives developed that are easier, more open, legal, with just as much access to content, and profitable. Do we have successful examples of these?

As for techs working around DRM, that's not a case against DRM. That's a case for the FBI and interpol and the law. The DRM for iTunes is based on people not breaking the law. It goes so far to make the music downloading legal. When people do illegal things with the music, it's no longer the problem of Apple or the DRM.

In my opinion, saying that the DRM can be short circuited is not an argument against DRM. That's an argument against any online content whatsoever.

Contemplate this: can Cory and Doc's arguments actually backfire, leading to more restrictive laws, and less access to any media via any format?

Seth, I disagree. But it takes all participants willingness to consider all the ramifications of 'their' side, as well as the other. It does take acknowledging points made, even ones that don't support our view. It is based on compromise.

If there is no debate, then who do you think will win in this ongoing battle? Whose interest is best served by not having debate, not comtemplating compromise?

How about this statement?

"Section 1201 of the DMCA, the so-called anti-circumvention provision, is an evil law that should be repealed as soon as possible."

Is that a pole? That's my strong feeling. In my opinion, a lot of the strong negative feelings about DRM in general would quickly dissipate were this law to be stricken from the books. Perhaps advocates of responsible DRM would do well to speak out against this law, and in favor of HR 1201, sponsored by Reps Boucher and Barton,which would modify the DMCA to explicitly re-introduce Fair Use into the digital copyright equation.

The arguments against the DMCA anti-circumvention provision are widely available all over the Net. Any Google search should provide plenty of information on why his is a hideous law.

I would be in favor of any organized effort to defeat legislative efforts to "plug the analog hole." That goes far beyond simple "digital rights management" into limiting all uses of a technology, the overwhelming majority of which are non-infringing.

People can argue all day long about whether Apple or Fairplay or the iTMS is "evil," and about the most interest I can muster is that people get that excited about it.

But the "plugging the analog hole" initiative is something that deserves to be stopped; and I think it is an idea that would be easier to explain to a wider audience, and an argument easier to win, than arguing against the very notion of DRM.

Dave:

Nice to see you oppose the notorious "anal. hole" legislation. Do you have an opinion on H.R. 1201, which would esentially gut the DMCA anti-circumvention provision? After all, the big problem with the anti-circumvention provision is that it forbids certain technologies, regardless of intended use.

This is a test. If this works, there should be a link here that takes you to the Thomas record of H.R. 1201.

At the risk of being percieved as having a one track mind… I've noticed that NONE comments of the above have mentioned security. I believe that the imposition of DRM is a sure sign that we really don't have secure computers.

How is it that someone can silently install a rootkit, like Sony? Or silently bury features to prevent DVD playback from being copied to the clipboard? Because the systems aren't secure, nor does anyone intend to make them secure. If you look at the meta, spyware and DRM are the same thing.

DRM implies a frame, that CONTENT is far more important that anything else, including security or property rights of the computer's owner. A basic property right is control. DRM usurps that.

DRM is wrong, and I dare say, UN-American.

–Mike–

This thread is a lot to absorb, but here is what sprang to the front of my mind as I watched the tide toss to and fro.

All [commercial] markets are artificial, when you get down to it. I can "just" pluck an apple off of a tree and eat it. But if I buy an apple from a grocer or farmer's market, those are artificial layers between me and the act of eating an apple. Throughout the world, we have created artifical markets for the purposes of rationing, propogation, employment, and survival, to name a few.

So it is from this point of view that I can understand the "_____ wants to be free" argument.

On the flip side, if everything is free, which is to say that nothing may be used for commerce, how might we propose that survival (and beyond) is assured?

Another question, specifically related to media: How does Time magazine do DRM? What is to stop me from "just" photocopying the whole thing? Or what prevents me from buying a copy and "just" giving it to someone sitting next to me on an airplane?

And with that asked, how does Time manage to keep producing magazines, in the face of these inherent risks?

I'm still absorbing all of this, so my questions may be teh lmae.

Looks like a good bill to me. But IANAL, and your mileage may vary.

5) and 6) what you’re saying is that nothing but totally free content will suit you, so you’re not willing to work with any of the company’s to come up with a workable DRM. One that ensures artists are paid, parents aren’t sued, media companies don’t lobby governments until too many freedoms are restricted, and you and I still can make ‘fair use’ of whatever media we want to download.

There's a huge non-sequiter in there. DRM is not necessary for all those things. That's a tall tale being put about by the DRM proponents to justify it. I happen to believe that artists can be paid, etc, etc, without using DRM. So as long as "totally free" mans "totally free of DRM", yes.

In other words: no compromise. DRM evil. Debate closed. Correct?

My view, belief, whatever, is that DRM can never work. It can't stop counterfeiters. So all it can do is to limit ordinary consumers who don't know any better but who weren't responsible for the big losses anyway. So the best it can do is to upset the primary market without having any effect on real piracy. This seems to me to be a *bad* thing. So for me. Yes. Case closed. However I haven't yet convinced you…

Re AllOfMp3. I understand the moral arguments about whether you should use that specific site. However it's very interesting from the point of view of a potential business model that appears to work and doesn't involve DRM. It's an existence proof that it is possible to make money from selling a quality product with no DRM at a price that competes with free. I'd love to see an official site in the west that used the same model with approximately the same pricing. And I'd further like to see a Project Gutenberg like attempt to digitise every piece of audio ever recorded and make it available though that site. And I'll bet that such a site would make a ton of money and make serious inroads into P2P sharing.

Which is another way of saying that I believe that the usability of iTMS can compete with free, without DRM, providing the pricing is not extreme. P2P sharing has a significant effort cost and I believe people will pay to avoid that effort. Just not $0.99 per track.

There's an assumption in here that means the debate will never reach a conclusion.

A: DRM is bad
B: Yes, DRM is bad. But without some DRM, artists won't get paid.
A: DRM is still bad, no matter how minimal
B: Yes, DRM is bad. But isn't there a middle ground where it's not too bad? Because otherwise artists won't get paid
A: No. DRM is bad.
B: But artists won't get paid Look at iTMS, the DRM isn't that bad, is it? It's so easy to use.
A: iTMS would be great if it wasn't for the DRM.

Can you see the assumption yet?

I think the onus is on the anti-DRM lobby to start coming up with business plans that work without involving DRM. I think the onus is on the pro-DRM lobby to come up with arguments as to why DRM is necessary for artists to get paid.

I'll apologize in advance for muddying the waters a bit here. But it seems to me that every argument for/against DRM always brings up the fact that hardware/Software manufacturers will be including a means of enforcing DRM in the "next version". They also always using music and video content as the poster-children for why DRM is bad. e.g. "I can't play my ITMS files on my Treo!" or "I can't make a copy of my DVD in case my cat pees on it!". But what about the flip side of DRM?

Let's say Intel and Microsoft jointly provide a way for a document to be tied to a certain machine (or machines, say in the enterprise). Would you feel safer knowing that your finanacial records, which you store on your machine, can't be viewed by anyone who isn't using your machine or a machine you have authorized? Even if they embed a WMF file in their popup ad? ;) How would you react if your medical provider called you to tell you that they had accidentally emailed your medical records to your insurance company, just after you noticed that your premium was raised? How would you feel if they said, "But it's OK because they were protected with Fairplay DRM."? Aren't there grey areas of DRM?

Re AllOfMp3. I understand the moral arguments about whether you should use that specific site. However it’s very interesting from the point of view of a potential business model that appears to work and doesn’t involve DRM. It’s an existence proof that it is possible to make money from selling a quality product with no DRM at a price that competes with free.

Wow! You'll have to run that one by me again. It's pretty easy to "make money" selling a product that you get "for free." If they're not paying the artists, then are they paying the labels? If not, what is the cost of "raw materials?" I'm not familiar with this company, but I'm not sure it's a "proof" of anything.

I can also get behind the anti-anti-cirumventing law of DMCA, so I think we're all in agreement on this one.

Ethan, magazines and books are based on one copy rule, which means you can give your read copy to others and this is not a violation of copyright. It's duplicating the material that enters into fair use and copyright violation.

Time doesn't care if I photocopy a story for my Aunt Matilda. Time does care when I recreate it online for all to access, without getting permission. It especially cares if I try to sell the story.

Julian, your points are good — why am I assuming that DRM is the only way that artists can be paid.

In a way, I'm not making this assumption. I am seeing a situation where I know artists are being paid and DRM is involved. I also see where DRM is not being used, and artists are not being paid.

Seth pointed out one alternative compensation model, but it's one I couldn't get behind. However, I'd love to see and hear of others.

Even with these, though, I think what we're seeing is those who have the power to enforce what happens are going with versions of DRM. So parallel to explorations of how non-DRM solutions could work, I think we also need to explore what are 'good' DRM implementation as compared to 'bad'. With this, as Google et al implement DRM, we can then, at a minimum, at least have some universal input into the direction the company takes.

My concern is that we contine with 'all DRM is bad', while the buying populace continues to purchase through DRM, we'll end up with DRM implementations that are grossly restrictive, rather than just barely restrictive. Does what I'm saying make sense?

Scott, I agree there are gray areas of DRM. But I'm afraid I got lost a bit in your example. Can you expand your scenario?

PS: Ditto what Dave Rogers said about AllOfMp3.com. I'm not sure this is a good business case for anti-DRM.

Shelley,

That DRM can be circumvented is Apple's problem because Apple is spending money on the DRM. To the extent that Apple intends for it to prevent copyright infringement, that money is being wasted.

Julian,

Yes. We see the assumption. The assumption is that DRM is necessary to ensure that artists get paid. We deny that assumption. Historically game vendors stopped bothering to copy protect their games and game creators continued to get paid.

Creators (and more especially the companies who sell the works of creators) fear that without DRM they won't get paid. But there is a great difference between fear of an evil and the evil itself.

Speaking of AllOfMp3, there's a digg discussion on this, for what that's worth. And there's also an interesting take on this from the Sydney Morning Herald.

In Russia, I imagine artists don't take their kitties to the vets.

Julian says "My view, belief, whatever, is that DRM can never work. It can’t stop counterfeiters. So all it can do is to limit ordinary consumers who don’t know any better but who weren’t responsible for the big losses anyway. So the best it can do is to upset the primary market without having any effect on real piracy. This seems to me to be a *bad* thing. So for me. Yes. Case closed. However I haven’t yet convinced you…"

I'm not worried about couterfeiters, though. I want DRM to protect my rights to my identity data. I want DRM so I can sue the pants of Big Business, Inc. when they aggregate, amalgamate and re-sell my personal identity data. Now, tell me why that's a bad thing.

Historically game vendors stopped bothering to copy protect their games and game creators continued to get paid.

Hmm. Is a PS2 disk copy-protected?

I’m sorry, but this lost me right from the start. An artist would have to register their work with the government?

Shelley, change the registry from a government agency to some quasi-governmental monopoly, and you've the *exact* situation we have with ASCAP and BMI.

Try writing some music and getting paid for it playing on the Radio without going through these orgs.

Not that I'm saying this is a good solution. Far from it. I'm saying that your arguments against a government registry apply equally to the current arrangement.

There are artists out there selling un-DRM'd music and getting paid for it. The 'darknet' distribution that circumvents them getting paid? It's free advertising.

"I also see where DRM is not being used, and artists are not being paid." Are you talking about AllOfMp3 here? P2P file sharing? or what?

Allofmp3 shows to me that it is possible to sell music downloads without DRM at a reasonable price in competition with free via P2P file sharing. I know from my own exerience that there is a price where ease of use and charged outweighs effort and free. Is it possible to do the same thing and pay the artists rather than allegedly paying a Russian performing rights society? I don't know, because nobody has tried. I suspect it is possible but not at the sort of rates currently demanded by the western performing rights and copyright societies. Would they make more total revenue if they reduced their per track demands? Again, I don't know because nobody in the west is prepared to test the price elasticity of the market.

If the quasi-legality of AllFoMp3 upsets you try three other sites that are attempting to sell music without DRM. http://www.emusic.com and http://www.bleep.com/ and Magnatune. They're fully legal. Are they also complete failures? Do the artists get paid?

Julian Bond insists that without some DRM, artists won't get paid.

That statement is false.

Artists have been getting paid for years with music on non-DRM CDs for years. It's my understanding from my own experience, and various studies that Napster, for instance actually INCREASED the sales of non-DRM music CDs.

Insisting persistently that it's necessary doesn't change the moral standing of DRM. DRM will always be evil, even if it turns out to be profitiable, because it is equivalent to extortion.

Sony even went so far as to silently install rootkits to enforce its DRM. This had the effect of rendering a machine wide open to a host of unwanted side effects and damage. How is adding rootkits to CDs supposed to help sales? I'm not EVER going to buy another new CD now, because they've just added a new HAZARD to the mix. I don't have a secure PC, so I can't trust that new Bare Naked Ladies CD won't lunch the system.

As stated above, it's all about who owns the keys. The DRM "frame" is that the copyright holders concerns trump all other use of the computer, its security, or the property interests of its owner.

I will call DRM what it is, EXTORTION. I refuse to endorse it.

–Mike–

Julian, the ethics of allofmp3.com bothers me.

Michael, the alternative payment system was such that you were not copyrighted unless you registered each piece of work–and then it had to go through the copyright office.

I do agree with the current practice that work is copyrighted by default. It is a deliberate action that then alters the copyright, say specifically donating to the public domain.

As for payment, my concerns with registration with the government had nothing to do with payment, and everything to do with censorship. I didn't want to have to go through the government just to get a filename that would then work on the internet.

Michael, Julian, I agree that you, and Seth, and others on this thread that a person can be paid as an artist without going through DRM. And I think this is very cool. However, there are artists, media companies, what will not go through these routes.

Can't we have both?

I signed up for a trial period with emusic.com, Julian. It is not DRM, and the costs are quite reasonable (though I prefer a per song rather than subscription).

But I repeated my last ten purchase searches from iTunes in emusic.com and did not connect once.

But I did find some music (hey Zappa!) I am interested in, so I plan on having some fun. Best of all, I can import these songs into iTunes and upload to my iPod.

Can't I have both?

My concern is that if we continue with "all DRM is evil", we may not be able to have both someday. In other words, barring useful input into what is acceptable DRM, and through music distribution such as allofmp3.com, the music and other industries will overreact (which they are) and implement draconian measures such that I don't have options.

To me, 'good' implementations of DRM may prevent this. Is this unreasonable?

Actually, Mike not-Seth, Julian didn't say that. I think he was paraphrasing me. Julian is very anti-DRM. I just wanted to clarify that.

Another non-DRM music site is Mperia, which uses BitPass as it's payment mechanism. I particularly recommend the insightful and entertaining essay by Joshua Ellis on Mperia's About us page.

One of the important points he makes is that for the most part, money given to the labels generally does not actually make it to the artist.

Since freeloading disproportionately impacts 'hits' negatively, and actually benefits the smallest artists, DRM should really be seen as a way for the music labels (and other holders of many copyrights) to maintain their current business models, rather than an actual effort to support artists in general.

My position is thus:

1) Copyright infringement is wrong.
2) DRM is a bad tool (in every sense)
3) I do not violate others copyrights
4) I do exercise fair-use
5) I create and utilize tools that allow me to exercise fair-use
6) When the major copyright holders get their collective heads out of their asses and stop trying to shove DRM down our throats through regulatory capture as a way of ostensibly combating infringement, only then will I condemn other people who infringe the copyrights which these corporations own.

Meanwhile, the market for sans-DRM music, movies, etc. will continue to expand.