|Article first published in Canadian New Media, Decima Publishing.
Republished with permission.
|Volume 7, Issue 16||9/8/2004|
By Russell McOrmond
One of the most controversial aspects of recent copyright reform worldwide has been the proposed prohibition on the circumvention of digital rights management (DRM). This proposal is part of the World Intellectual Property Organization (WIPO) copyright treaties that specific members of the Canadian Parliament wish to ratify soon.
DRM is controversial. It can be used by copyright holders to restrict activities which are not restricted in copyright law, effectively allowing DRM software to replace legislation as the authority on what can or cannot be done with a work. DRM can also be abused by copyright infringers to hide their infringement, and can be used by media companies to create or extend harmful monopolies.
Offering legal protection for DRM is even more controversial, as there are many otherwise legal and perfectly legitimate reasons to circumvent DRM that do not involve copyright infringement.
With DRM a copyright holder would encode their digital work in a DRM file format. This file would, in turn, be readable only with specific DRM-reading software that is compatible with that file format. The copyright holder would indicate authorized activities within that file, and the DRM software would then disallow the operator of the technology to carry out other uses. In this case, the copyright holder is appealing to the DRM software authors to obey the agreement encoded within the digital file.
Without DRM, a copyright holder would encode what is authorized in a license agreement to be read by the operator of the ICT, clearly indicating activities which are not authorized. In this case the copyright holder is appealing to audience members to obey the agreement encoded within the digital file, with legal avenues such as the courts available to deal with situations where copyright or other laws are broken.
It is important to realize that at the point when ICT is being used there are only two parties that can control what this ICT will do: the operator of the technology, and the creators of the DRM software. If a copyright holder wishes to discourage copyright infringement they must appeal to these groups of people.
The motivations of DRM software companies are easy: maximize profit. One way they can do this is to offer copyright holders the types of features that they want, but this will overshadowed by their desire to maximize the number of product sales they will make, and these sales will be to audiences. Trying to limit the number of competitors that exist by merging or by creating strategic alliances with larger content companies, they will seek to try to be the sole supplier of DRM and thus effectively control the communication between creators and audiences.
Creators are seen as the source of raw materials, and as more centralized control over communications is achieved, the terms offered to creators will be more and more in the favor of the DRM companies. Creators will eventually be in a situation where they will have to accept the terms of ever-merging DRM media monopolies, or not have access to the largest markets at all.
Creators are further distanced from having a say with DRM because of the media companies they are signed with. In 2000, musicians such as Courtney Love suggested that the major label recording contracts were "piracy". Some artists have tried to come together to try to fight for artists rights against the big labels.
How the big-corporate battles for dominance will take place can already be seen with the battles between Apple, Microsoft, and Real Networks in music. It is expected that one vendor will eventually win this war and eliminate competition since customers will be unwilling to pay for the same music multiple times for incompatible players.
If creators will have an affect on this battle it will not be in a position of power, but as mere pawns.
The most overly-simplistic thing to say is that audiences want access to content as cheaply as possible, free if they can get it. It is hard to generalize audiences of creative works because this includes everybody, and generalizing on humanity as a whole is not possible. Audiences include a large number of people who want to support the creators that they are fans of. There is a relationship that is built between creators and their audiences that defies simplistic economic analysis.
That relationship has been strained by DRM, lawsuits, and other such poor examples of public relations. The existence of DRM is based on the assumption that audiences cannot be trusted, which is not a good starting point. DRM takes content that audiences would otherwise be able to access using technology of their choice under their own control, and encumbers it in a less useful, lower quality format that mandates specific choices of technology vendors and features in order to enjoy it. Effectively, the control over the communications technology is being taken from the owner/operator of the technology.
With DRM, the content is tied to a specific vendor’s technology, making existing content obsolete if the audience wants to upgrade to a newer technology from a different vendor. While having customers re-purchase the same content over-and-over again may seem beneficial to the copyright holder, it will also make customers less likely to purchase content in the first place. Alternatively, audiences may feel forced to have multiple players to accept multiple formats: possibly five or more different brands of audio/video players depending on their media collections. Frustrated consumers may purchase far less DRM content than they purchase content in unencumbered open standard formats.
This type of an imposition is going to motivate people to boycott creators who take this route to circumvent the DRM so that they can enjoy the work on the technology of their own choice, or join the people who will illegally acquire the unencumbered DRM-free versions of the files that will always exist.
Russell McOrmond is an Ottawa-based software consultant
and frequent commentator on digital copyright issues.
Copyright 2004, Decima Reports Inc.