April 19, 2014

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CDT Closes Eyes, Wishes for Good DRM

The Center for Democracy and Technology just released a new copyright policy paper. Derek Slater notes, astutely, that it tries at all costs to take the middle ground. It’s interesting to see what CDT sees as the middle ground.

Ernest Miller gives the paper a harsh review. I think Ernie is too harsh in some areas.

Rather than reviewing the whole paper, I’ll look here at the section on DRM. Here CDT’s strategy is essentially to wish that we lived on a planet where DRM could be consumer-friendly while preventing infringement. They’re smart enough not to claim that we live on such a planet now, only that people hope that we will soon:

While DRM systems can be very restrictive, much work is underway to create content protections that allow expansive consumer uses, while still protecting against widespread distribution.

(They footnote this by referring to FairPlay, TivoToGo, and AACS-LA, which all fall well short of their goal.) CDT asserts that if DRM systems that made everyone happy did exist, it would be good to use them. Fair enough. But what should we do in the actual world, where DRM that everyone loves is about as likely as teleportation or perpetual motion?

This means producers must be free to experiment with various models of digital distribution, using different content protection technologies and offering different sets of permissions and limitations. [Government DRM mandates are bad.]

Consumers, meanwhile, must have real options for purchasing different bundles of rights at different price points.

Producers should be free to experiment. Consumers should be free to buy. Gee, thanks.

Actually, this would be fine if CDT really meant that producers were free to experiment with DRM systems. Nowadays, everybody is a producer. If you take photographs, you’re a producer of copyrighted images. If you take home movies, you’re a producer of copyrighted video. If you write, you’re a producer of copyrighted text. We’re all producers. A world where we could all experiment would be good.

What they really mean, of course, is that some producers are more equal than others. Those who are expected to sell a few works to many people – or, given the way policy really gets made, those who have done so in the recent past – are called “producers”, while those who produce the vast majority of new copyrighted works are somehow called “consumers”. (And don’t say that big media produces the only works of value. Quick: Which still images do you value most in the world? I’ll bet they’re photos, and that they weren’t taken by a big media company.)

Here’s the bottom line: In the real world, DRM policy involves tradeoffs, and requires choices. Wishing for a magical DRM technology that will please everyone is not a strategy.

Comments

  1. Seth Finkelstein says:

    For further insight into this genre of
    of CDT policy papers, read my earlier post analyzing
    CDT’s Library Censorware Wish List (“Principles”).

  2. Edward W. Felten says:

    Seth,

    Thanks for the pointer. It’s interesting to see that the same kind of wishful thinking pervaded the previous CDT paper. It’s a surprisingly common problem in tech policy thinking: rather than making a hard choice, we’ll just postulate a magical technology that lets us have it both ways.

  3. David Sohn, CDT Staff Counsel says:

    Ed -

    Thanks for the feedback. As we say in the paper, this is intended as a basis for discussion, and we’re glad that is happening.

    On the substance: I think we are actually in enthusiastic agreement about the role of the public as producers/consumers/transformers/ etc. of content in the digital age. As we say in the paper, digital technologies “offer new and transformative uses of…content, which will promote expression, civic discourse, and economic opportunity.” We love our digital cameras and GarageBand as much as the next guy!

    We certainly didn’t mean our use of the word “consumer” to in any way imply a limited view of these creative possibilities. We meant “consumer” in a more generic sense, as the public — people who use both technology and content for whatever purposes they see fit, including creative ones. Perhaps in our future writings we should substitute phrases like “Internet users” or “the public.” In any event, nothing in our paper is meant to suggest that small scale or non-commercial producers are “less equal” than established commercial players. (If individuals want to use DRM to protect their personal photos, they should of course have lots of options to do that.)

    As for the harder question about whether our approach to DRM is just wishful thinking: we actually agree that DRM is about choices and tradeoffs. There is not likely to be some single, magical DRM that pleases everybody. Our point was simply that, if there is sufficient competition, choice, and information, the market may help sort through those choices and tradeoffs. People will vote with their feet (or more precisely, their wallets) for the tradeoffs they find relatively attractive, and against tradeoffs that strike them as bad deals.

    Can we create this kind of DRM marketplace? It won’t necessarily happen automatically. We think there is likely to be a role for critics to point out and publicize where they feel particular DRM technologies innovate and where they fall short, in order to help create market pressures for better solutions.

    Certainly, our paper doesn’t spell out the path on DRM in complete detail. Some have made this criticism more generally of the paper: that on the issues we discuss the devil is often in the details, and this paper doesn’t spell out the full answers, whether on DRM or secondary liability or enforcement. This is a fair point. However, our aim here was just to provide a general framework.

    On DRM specifically, you’ll be hearing more from us, we hope, in the not too far distant future. We’ll certainly be seeking your help in helping us get it right.

  4. Edward W. Felten says:

    David,

    If you had just said that policy should favor competition among DRM systems (where “no DRM” is one of the competitors), I would have agreed. A pro-competition policy means stepping away from DRM mandates like the broadcast flag, and scrutinizing anticompetitive DRM “standards”. (And I’m happy to see that you support those steps.) It also means removing limitations on DRM-related research.

    Part of taking end users seriously as creators is letting them experiment with DRM. I don’t mean just buying different off-the-shelf DRM systems, but building their own, stress-testing the ones they are offered, and generally doing the kinds of engineering (or paying others to do it) that one sees in other technical areas. In short, they need the freedom to tinker with DRM.

    Given the history and current state of DRM, we shouldn’t ask whether DRM can make everybody happy, but whether it can make anybody happy. No existing DRM system can keep files off the darknet. No existing DRM system allows broad fair use without having a big loophole for easy infringement. These two problems may never be solved. They may well be unsolvable.

    It’s fine to allow DRM competition, in case DRM turns out to be useful after all. We might as well let the market work out that issue, as long as the market is competitive. It’s fine to talk about what policy to follow in a future where DRM makes a difference. But it’s even more important to have a policy strategy for a future where DRM is irrelevant.

  5. James Donahue says:

    Well, I do support Government DRM that controls content providers, consumers, and all other sectors.

    This DRM is different than the media DRM. A Government can use the DRM to shut down a content provider if a content provider is violating a consumer’s right towards Fair Use. For instance, if a content provider does not give consumers an option to put the music to a portable player, the government can shut that down.

    Governments can also use this tool to shut down content providers if for whatever reason the content provider is making money for the purpose of crimes and copyright inringement. If that provider is providing a program that induces infringement, the government can shut that company down. Also, a government can shut down a company if the purpose for making money involves crime rings or harboring terrorism. This is the great security against violent crimes, and another tool to keep bad companies off the streets.

    Governemt DRMs can shut down consumers from using the Internet if a user is engaging in an organized crime, such as providing pornography towards children, filesharing copyrighted materials on sites not licensed by the Recording Industry, or other copyright infringement activities.

    Also, this DRM overrides the DRM that the content provider provides, so that if a DRM does not have the option on consumers to move content around the home network, the government can hack that DRM so that it will lock the files out of the content provider, and that content provider may be subject to court.

    So, Government DRM is different than the competitive DRM, as they basically use the DRM for consumer security, content security, and a new way of running laws in the US. It also adds a new tool to fight terrorism. That’s what I support.