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DRM and the Death of Culture, by Simon Phipps
Saturday, January 28 2006 @ 07:48 PM EST

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.

Stone wall in Cornwall

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..."


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-bahn1 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:

  1. quantise and prejudge discretion,
  2. reduce "fair use" to "historic use",
  3. potentially empower a hierarchical agent to remain in the control loop, and
  4. 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 seduction3 .

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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