With his kind permission, I am republishing Simon Phipps' article on DRM and the Death of Culture here on Groklaw. To set the mood, here's a photograph Simon took, Stone wall in Cornwall. You'll see.
The article was orginally posted on his blog earlier today, where you find this disclaimer: "Remember that this is all written by Simon and not by Sun..."
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DRM and the Death of a Culture
~ by Simon Phipps
I had the privilege of delivering a keynote at the
Open Source Meets Business conference in Nürnberg, Germany this week
(delegates will find my
slides online as a PDF). I travelled there from an engagement in
Paris, and took the Metro/U-bahn in both places. There was a
very visible difference between the two experiences.
In Paris, I bought my Metro ticket and then used it in an automated
barrier to reach the platform. I noticed lowlife furtively scanning the
station and then vaulting the barriers, and I saw armed police at the
station to catch the thieves doing this (they didn't catch any that I
saw, and there were several at each station).
By contrast, the U-Bahn in Nürnberg has no barriers. I bought my ticket,
boarded the train without fuss, there was no risk of being shot by a
policeman targeting a barrier-vaulting cheat, and the system was still
clean, efficient and well-used.
This all sprang to mind when a conversation about DRM followed the
GPLv3 item up over on Stephen's blog. A comment writer (Christopher
Baus) said of DRM:
I might be the only technologist on the other side of the DRM fence. To
me it is like checking my lift ticket when I get on the ski lift. I
might find that a bit annoying, but if ensures the resort can stay in
business from collecting ticket money, then that is a net good thing for
me. If the ski resort goes out of business I can't go skiing, and I
would resent those who got on the lift w/out paying.
I think there are quite a few people around who have Christopher's view,
which is unfortunately rather simplistic. DRM - the imposition of
restrictions on usage of content by technical means - is far more than
that. It's like checking the lift ticket, yes, but also the guy checks
you are only wearing gear hired from the resort shop, skis with you down
the slope and trips you if you try any manoeuvers that weren't taught to
you by the resort ski instructor; then as you go down the slope he
pushes you away from the moguls because those are a premium feature and
finally you get to run the gauntlet of armed security guards at the
bottom of the slope checking for people who haven't paid.
DRM's Collateral Damage
The problem with technology-enforced restrictions isn't that they allow
legitimate enforcement of rights; it's the collateral damage they cause
in the process. In my personal opinion the problems are (very concisely)
that they:
-
quantise and prejudge discretion,
-
reduce "fair use" to "historic use",
-
potentially empower a hierarchical agent to remain in the control
loop, and
-
condemn content to become inaccessible.
To go into more depth on those:
Technology-enforced restrictions quantise and prejudge
discretion
People talk of "fair use" but what they actually mean is that we all
depend on the exercise of judgement in every decision. Near the
"bulls-eye" of copyright we're all clear what is what, but as Lessig eloquently explains in Free
Culture, in the outer circles we have to make case-by-case
judgements about what usage is fair and what usage is abuse. When a
technologist embodies their or their employer's view of what's fair
into a technology-enforced restriction, any potential for the exercise
of discretion is turned from a scale to a step and freedom is
quantised.
Technology-enforced restrictions reduce "fair use" to
"historic use"
The natural consequence of having the quantum outlook and business
model of one person replace the spectrum of discretion is that scope
for new interpretations of what's fair usage in the future is removed.
Future uses of the content involved are reduced to just historic uses
the content had at the time it was locked up in the DRM wrapper. The
law may change, the outlook of society may mature but the freedom to
use that content according to the new view will never emerge from the quantised state the wrapper imposes. The code becomes the law, as
Lessig again explains in Code.
As others
have pointed out, "fair use" is forward-looking, "historic use" is
ossifying.
Technology-enforced restrictions potentially empower a
hierarchical agent to remain in the control loop
When use of content depends on a technology from a single vendor, as
is currently universally the case, that vendor effectively becomes the
gate to ongoing use rather than the actual copyright owner. A great
argument for an alternative approach like the open source,
distributed-identity-based scheme in Project DReaM. What's much worse, though, is that the restrictions don't go away when the rights they are enforcing do. Copyright eventually runs out, but technology-enforced restrictions never do.
Technology-enforced restrictions condemn content to become
inaccessible
As DRM's outspoken critic Cory Doctorow points
out, DRM condemns content to suffer the fate which for documents I
call corporate
Alzheimer's. Each of the problems above combine in a 'perfect
storm' to create a content owner's dream world of built-in
obsolescence and repeated opportunity to sell the same content to the
same people all over again if they actually like it enough to use it.
Meanwhile, our collective cultural memory gets locked up in instances
which become inaccessible the first time one of:
-
The content being 'turned off' by a usage rule
-
The implementation of the restriction mechanism is obsoleted by an
"upgrade" of the host system
-
The original medium degrades into uselessness but couldn't be
copied
-
A part of the "phone home for authorisation" chain goes out of
business
-
The original license is no longer applicable (for example because
your children have inherited the media but not the digital key)
Thus your children won't get to play your music, show your favourite
films, share your culture, with your grandchildren because they won't
inherit anything containing that from you that's usable.
Complacency leads to servitude
Christopher went on to express his complacency over the whole situation:
IMHO if DRM isn't good business it will go away. Simple as that. No need
to worry.
Except the prior market power of huge corporations is being used to
project it into markets in a way that distorts market forces and
conceals the lack of ethics and the erosion of the social contract
behind rights law. What if it's good business but bad humanity? What
we're seeing here is the 21st century equivalent of enclosure - indeed, the comment by More from Utopia rings eerily true:
... not contented with the old rents which their farms yielded, nor
thinking it enough that they, living at their ease, do no good to the
public, resolve to do it hurt instead of good. They stop the course of
agriculture, destroying houses and towns, reserving only the churches,
and enclose grounds that they may lodge their sheep in them.
It's clearly right to "pay the labourer a wage" but is that enough
excuse to also condemn culture into the memory hole and enforce an
economy of constant repayment for the same stuff? Is there a solution?
If there is, it will surely involve a fundamental rethink of rights
legislation - patents and copyrights - that goes back to the social contract on which both are based, giving limited and temporary one-time
rights in exchange for the enrichment of society. We've forgotten that
was the root of the whole system, and corporations now have the sort of
entitlement culture they deride in individuals.
We also need the invention of schemes like the
Open Media Commons that allow the technological equivalent of the
Nürnberg U-Bahn for content and OpenDocument that guarantees future access to today's documents. And we need to
recognise the point at which schemes like iTunes finally funnel us away
from circumventable almost-locks into real servitude and not give in to
the intentional seduction .
But whatever the answer, we need it soon, because we're rushing headlong
into a world that will be doomed to forget its culture and history - if
it doesn't keep paying the
protection money. As a card on my wall reminds me, "the biggest
enemy of freedom is a happy slave".
1
The title is a reference to Rookmaaker's
influential religious book discussing how modern art signals an inner
decay of society.
2
That's the subway/tube/underground railway - interesting how
even in English there's no agreement what to call it. Just to
complicate matters further, it was actually the RER that I took...
3 James Governor has been hammering me on this one for a while. I'm happy enough to use iTunes all the time there's a way to get real MP3s of my purchases that's not too much fuss as it also makes me take backups. But I'm pretty close to giving up on them because of their "5 users" limit (as a household we have 5 machines so we have to keep a careful eye on authorisations), and I don't buy their videos because I can't get unencumbered versions that will live on when iTunes dies.
© 2006 Simon Phipps, all rights reserved
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