Don Marti

Sun 17 Apr 2005 08:33:51 PM PDT

DRM vs. the market

There seems to be a widespread point of view that the market will handle the DRM problem. After all, Apple allows burning DRM-infected music to CD, so as other vendors compete to make affordances act in the expected manner and just plain try not to annoy the customers, mighty Market Forces will whittle DRM down to a meaningless stub or eliminate it entirely.

I disagree. Much as DRM constitutes counterproductive customer-annoying foot-shooting that will make it a hard sell to markets that are still having trouble getting all these doo-dads to work in the first place, citizens still need a right of circumvention and a right to traffic in circumvention devices.

DRM as practiced today in the US is not simply a matter of technology. A DRM system effectively has two parts: a technical restriction, and a legal prohibition on bypassing the first part.

So a DRM system gives its developer the chance to unilaterally rewrite copyright law for his and his customers' works -- and have that "law", however one-sided, backed up by the full power of the legal system at public expense. That legal power is too great, and too one-sided.

When a DRM system fails to do its job and allows a user to make an infringing copy, there's a legal backup—copyright law. Likewise, when a DRM system fails to allow a user to make a legitimate copy, there needs to be a legal backup—a right of circumvention for non-infringing uses.

The problem with letting the market decide, and, for example, punish with oblivion those authors who sign contracts hiding their works behind DRM, is that there are strong reasons to have other people's speech, even the speech of shortsighted DRM users, available for criticism and parody.

The only fair use that really matters is the fair use that someone wants you not to do, and would configure any DRM system under his or her control to deny you. That's why I told David Weinberger and others that "any DRM system effective enough to work is effective enough to destroy civilization."

Use case for circumvention: a politcian's record

A popular singer just made some political remarks and performed a song with political content in a studio performance that was broadcast digitally in a proprietary DRM-infected audio/video format.

In 20 years, when the singer decides to run for political office, she will refuse to license any use of the recording of the performance, and, in a speech, deny ever making the remarks or performing the song.

An artist critical of the singer's candidacy plans to produce a video about the singer, and includes an excerpt of the song and remarks, along with the denial.

Yes, it's possible to criticize someone in a documentary without using a audio or video clip of that person. It's also possible to write a computer manual without using the letter e—but the author of the political speech should be the one to choose the format of the quotation.

I know that by Godwin's law I automatically lose an online argument by mentioning this subject, but here I go anyway.

An abridged English translation was produced before World War II. However, the publisher removed some of the more anti-semitic and militaristic statements. The publication of this version caused Alan Cranston, who was an American reporter for UPI in Germany and later senator from California, to publish his own abridged and annotated translation, which he believed to more truly reflect the contents of the book.

Use case for circumvention: criticism of a software-implemented policy

A software company produces an email spam filtering program and licenses it to Internet service providers. Although effective against spam, the program also mysteriously discards some opt-in email newsletters from several controversial organizations.

The software company claims that it's only "false positives" that are an accidental artifact of the filtering algorithm used, but one ISP's security manager discovers that the program has those organizations' names hard-coded in it. The ISP ceases to license the program and explains why in a letter to its customers.

Use case for cicrumvention: Incriminating document

A senior manager at a corporation threatens, in a word processor document, to fire a consultant unless the consultant participates in or refuses to disclose the manager's illegal conduct. The consultant prints a paper copy of the document for her records.


Even if DRM is doomed in the market, political speakers and other legitimate users need access to a DRM safety hatch. That means no DRM mandates, of course, and a Digital Media Consumers Rights Act to let people with a good reason get past the worst DRM abuses. Watch for a letter to Congress here.