Viacom's top lawyer thinks lawsuits were "terrorism" - but he's learned nothing from the experience


Photo: Mag3737

Michael Fricklas, Viacom's General Counsel, gave a lecture to a Yale Law class in which he confessed that suing people for copyright infringement felt "like terrorism." He says that this was bad strategy on the entertainment industry's part, as was "bad" DRM.

That's the good part -- an admission that suing customers is bad news. But lest you think that Fricklas has learned anything from this experience, consider the rest of his talk.

First, like a lot of people who got bitten on the ass by the magic DRM beans he bought a decade ago, he's unable to resolve his cognitive dissonance around DRM. The problem isn't DRM, he reasons, the problem is that he used the wrong DRM. He argues that there are "business models" that are enabled by DRM, and you just need to get it right.

I hear this all the time. It's truly the mark of a magic-bean-buyer: someone who has failed to absorb the first principle of DRM, namely, "DRM is technically impossible." There is no way that you can send someone a scrambled message, and the key to descramble the message, and then build a business on the foundational principle that no one will descramble the message except on the terms that you set.

And what's more, the effort to preserve DRM involves laws that prohibit telling people about flaws in DRM (which doesn't mean that the flaws won't be discovered and shared and used to undermine DRM, of course -- just because you cover your eyes, it doesn't follow that the danger goes away). It involves laws that prohibit making products compatible with DRM without permission from the DRM maker, even if you're doing something otherwise legal (so your customers can't buy someone else's music player, which means that you're locked into that vendor who can dictate terms to you forever).

This often gets lost in the DRM discussion: we get bogged down in what the DRM "allows" and "prohibits" and forget that DRM doesn't actually stop pirates from doing anydamnthing they want to do. And since most infringing users will "crack" the DRM by finding a copy that someone else took the DRM off of and uploaded, it doesn't deter "casual" pirates either.

But if you've been buying magic beans for ten years, it's hard to stop believing in magic beans -- certainly harder than believing that you've just been buying the wrong beans.

And Fricklas's wrongness doesn't end there. He also believes in a "three strikes" approach to copyright enforcement, because it is "more proportional to the harm." That is to say, he thinks that cutting an entire household off from the Internet (which supplies livelihood, civic engagement, publication, communications, education, and family) because one member stands accused (without conviction) of copyright infringement is less bad than merely bullying the family's teenager out of ten or fifteen thousand dollars.

This really is the most telling part of the whole speech: to believe that issuing the digital death penalty for entire families' information lives will somehow be less of a PR disaster than suing kids. It is the mark of a man who is so monumentally out of touch with reality that it's easy to understand how he rose to a level of prominence and power in an industry that made history by suing 30,000 of its customers.

Viacom's top lawyer: suing P2P users "felt like terrorism" (Thanks, Marilyn!)


  1. Its obvious that you (Cory) have a very clear understanding
    of the real implications of DRM. I Agree 100% and I always appreciate reading what you have to say about the subject. I am curious to know what solution / Alternative you would would offer to this Dark ages band-aid known as DRM.
    I mean for example, MGM cant just spend tens of millions to produce the next Bond film just to post it somewhere for free. Nor can most independent studios afford to produce a work of that scale. Nor do I want to be sued for copying Casino Royale from my Computer to my I pod. So what model would you propose ?

    1. I mean for example, MGM cant just spend tens of millions to produce the next Bond film just to post it somewhere for free. Nor can most independent studios afford to produce a work of that scale.

      Unfortunately, the answer to this is complex and tends to tl;dr.

      A few points, though:

      1. I do not know. Nobody does. There are reasons to be optimistic that somebody will invent something, but until they do, we have no idea what it will be. That’s the nature of future inventions.
      2. If nobody ever made another Bond film, it would not be the end of civilization, in the same way that the fact that we no longer build huge cathedrals was not the end of civilization — and at that, the cathedrals probably had the better claim.
      3. The social benefit of more Bond films does not outweigh the social cost of the proposed schemes (due process, assumption of innocence, rules of evidence, fair trial, first sale, ownership, privacy, hobby electronics, cryptography research, mathematics).
      4. Various relatively large Intellectual Property edifices have been created with relatively generous copying conditions, such as the GNU/Linux operating system and Wikipedia. A few years ago, in 2005, it was estimated that Debian GNU/Linux 3.1 would cost some US$ 8 billion if it were made as a traditional product — well over an order of magnitude more than any movie ever produced (US$ 0.3 billion, Pirates of the Carribean III).
      5. YouTube claims uploads of 20 hours every minute. A lot of that’s dross, of course, but there are some pearls. I have no idea whether this is a good way to get to a future, Internet-friendly model of movie production; but it does indicate that there are a lot of people with the time and the inclination.
  2. It’s ideas like these that make me seriously consider when we as a society are going to stop allowing daft idiots from creating policy that the majority do not embrace. Such short sighted concepts as “cutting an entire household off from the Internet” (taken within the context of the article above) is akin to social excommunication with no opportunity for appeal.

    At what point would these individuals have the ability for reinstatement in to modern society? Would this be a life-long censure from usage? Would a child of six maintain his pariah status until death, never being allowed to use the internet or its progeny?

    Now, I am aware that there are those that subscribe to the view that if one is guilty all are, as well as swift and severe punishment to all DRM offenders. There are arguments to be made on these stances. Caution should be exercised however, as absolute right and absolute wrong exist primarily as constructs in society’s collective consciousness, and what passes as truth today is tomorrow’s fallacy.

  3. maybe we’ll get lucky and it’ll dawn on him when his kids or grandkids or whatnot force the issue.

    Otherwise, I can’t think of a positive way to put viacom’s type of ignorance.

  4. I think the answer is to make it easier for people to access your content. Sites like Hulu earn revenue based on advertising and it works. People like being able to stream the shows they want, when they want, and are willing to sacrifice a few minutes of their time to advertisements in return. Making the acquisition of your media easier deters the casual pirates. With that you have to accept that some people will subvert your terms, using AdBlockers or ripping your streaming copy. But people will subvert your terms with draconian DRM too, but at least this time you get a chance to wean those casual pirates away from illegal means and over to your revenue generating model.

  5. It’s amazing indeed that they just can’t see the headlines that will punch them in the balls. “Single mother banned from internet for ex-husband’s song downloads,” etc.

  6. I fail to see how being disconnected is a less extreme punishment than a $3-5k settlement.

    You don’t understand the problem with DRM. DRM does NOT stop someone from posting a copy of a Bond film, it only stops nontechnical people from posting it. Once posted, anyone can download it by googling “bond torrent.” In fact, by stopping people from legitimately using their media it actually encourages them to download the DRM-free pirated version so they don’t hit those roadblocks in the future.
    Solution: make less expensive, better films.

    1. Lasttide, I understand DRM perfectly well. I think perhaps that you didnt read and understand my comment. I pulled the MGM Bond Example out of thin air as an example. My question to Cory and now to anyone here is what is your solution?
      1) How can places like MGM keep making films like James Bond Films and Distribute them digitally without DRM.
      2) How does MGM Get paid for most or every digital copy they distribute?
      3) how can the end user (Me or you) purchase a digital copy for a fair price, own it outright and have the basic rights freedoms that I used to enjoy with other analog media

      1. ok, what rights do you think you have with your analog media? Because aside for listening to it you have none. Can’t copy it and you can’t transfer it from one medium to another.

        1. I can play my record that I purchased from the record store
          on my living room turntable AND my office turntable.
          I can make a cassette copy of the record and listen to that on my walkman. (The old rights message said no “Unauthorized broadcasting or distribution)
          Perhaps I should have used the word “autonomy” instead of “rights”

          My question still stands…

          What solution to DRM do you offer??/

          I have a feeling that folks on this site might be more interested in Bitching about whats wrong with DRM and how their civil rights are in question rather that having a constructive dialog about what the alternative model could look like,

      2. The flaw in your situation is that you’re assuming the people who would steal the movie were ever going to pay for it. Media piracy has existed longer than digital distribution has. Assuming all your customers are thieves is a fundamental flaw in the business model. The people who would steal from you were never going to pay you in the first place, and by making people who would pay you have a worse experience than the thief’s, you’re making it more desirable to be a thief than a customer.

      3. How to make a viable business out of distributing content digitally? Price it reasonably, make sure the quality is on par with what users can get the old-fashioned way (CDs, DVDs, etc.) and what they can get illegally, and skip the DRM. If so, most users will pay since it is a lot less hassle to click the “Buy” button in iTunes or whatever than search around for a torrent, worry about viruses, worry about the process server showing up on the door step, etc. We’re getting there with music (generally cheaper than CDs, no DRM, quality isn’t quite as good as CDs, but decent) and music piracy seems to be waning. The movie industry still doesn’t seem to get it, and I expect movie piracy to remain rampant until they do.

      4. Chanttojah, MGM doesn’t need to get paid for every copy of the film that they distribute. In fact, movie studios routinely distribute free copies, or arrange for free viewings, when they think this will create more sales.

        The most recent Bond movie took in over half a billion dollars, despite being available through various illegal channels (bootleg DVDs, BitTorrent, etc), so apparently they can still make a massive profit even with the existence of unauthorized copies.

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          2) Hw ds MGM Gt pd fr MST r vry dgtl cpy thy dstrbt?
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          Wsnt skng t b dctd n hw stds dstrbt prm cps.

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          WHT SLTN T DRM D Y PRPS?
          WHT MDL D Y HV N MND?

        2. I think this is the bottom line right here, in terms of copyright policy. People pirate a lot. People probably wouldn’t pirate significantly more even if ‘piracy’ was no longer ‘piracy’ and instead was some legal form of distribution. Organizations whose products have been pirated still make plenty of money.

          Even for a smaller organization (rather than an MGM), it is not necessarily the case that no money can be made when anti-piracy measures are not enforced or nonexistent. Cory Doctorow releases his books under creative commons; I have a digital copy of all of them, and a physical copy of several. I have digital copies of books not cc-licensed, some of which I own. In the end, is Doctorow making significantly less money per readership than, say, Gibson or RAW just because his books are explicitly legal to redistribute whereas those others are not? Perhaps. On the flipside, all three of those authors have their books digitally redistributed excessively, and to some extent their popularity comes from that. I wouldn’t own any RAW books had I not read them digitally first, because they are obscure enough that I would never accidentally come across a physical copy; I am unsure whether to thank Falcon Press for their policy of not prosecuting pirates, or for their laziness in doing it effectively — a google search will pop up many copies of pretty much every book they have ever published.

          In the end, these kinds of business decisions will be made based on the facts on the table. One of these facts is that people will redistribute anything that is essentially data, regardless of what you do to try to stop them. Any decision should go from there.

      5. @Chanttojah: I agree that simply dissing DRM without an alternative is silly. You ask:

        “1) How can places like MGM keep making films like James Bond Films and Distribute them digitally without DRM.”

        There are a number of alternative models. My personal favourite is the Street Performer Protocol, but there are variations; the Wall Street Protocol, and just selling copies cheap (the “iStore protocol”).

        “2) How does MGM Get paid for most or every digital copy they distribute?”

        Possibly ad revenues, either on the download site, or product placement in the movies. But since they will not bear the costs of distributing the media, the most obvious answer is: they absolutely do not. This question is a strawman. They do not need to be paid for every copy: as has been pointed out, they are not currently being paid for every digital copy passed around, and are not suffering significantly therefrom (or at least, the court is still out on the net value of any loss or gain from piracy).

        The way it works, and always will, is that people have a specific budget for “entertainment” – whether they spend it on strippers and getting drunk, or DVDs, or computer games, or goint to the cinema with friends, the size of that budget is not changed by DRM. If people need more entertainment than they can get with their budget, then they will pirate the excess, run their own stills, etc.

        But no matter how easy it is to pirate, they will *stil continue* to spend their entertainment budget. So the important thing as a business is to make sure that your stuff is so entertaining that people want to buy you, not pirate you.

        Proving your product to be morally destitute is a good way to move it into the piracy zone, as has been repeatedly shown by DRM’d games, Sony, etc.

        “3) how can the end user (Me or you) purchase a digital copy for a fair price, own it outright and have the basic rights freedoms that I used to enjoy with other analog media”

        See 1) above.

        Other stuff mentioned in this thread:

        One-time pad only works if you DON’T give the enemy (in the case of DRM, the customer) a copy of the pad.

        Locked doors are only a deterrent if you DON’T give the thief (the customer again) the key.

        Bad movies are not a symptom of piracy, but of the market as a whole, and it’s disingenuous to claim otherwise.

  7. Once you’ve had one glass of cool aid, it’s hard to turn down the next.

    Actually, what I think he was doing was playing to the audience. Probably Yale students download and share around as much music as the next bunch. He knows he’s not going to get anywhere by telling them they’re all bad people.

    So he equivocates, and ends up contradicting himself.

    The silver lining is a clear endorsement of fair use. I hope that was genuine. Either way, let’s hold him to it. Bring it up the next time Viacom files a take down for a mashup.

  8. “…first principle of DRM, namely, ‘DRM is technically impossible.'”

    The problem with putting this one at the very top, is that only people who are already opposed to DRM will believe it to be true.

    If you go back to the gold standard of cryptography, you get the one time pad- the only method universally regarded as unbreakable. It was invented during the first world war, which says something right there.

    Unbreakable cryptography is most useful to a society at war. That’s the black and white version, and it quickly gets muddy if it’s less than total war… but as long as companies are trying to sell encrypted stuff to customers, then there’s some part of that where the company is at war with their customers.

    The cognitive dissonance comes in because no single board member wants to run a company that is openly hostile to its customer base. Whitewashing this relationship is for the PR department to sort out.

    1. The reasons why DRM is technically impossible have nothing to do with how strong the encryption is. In order to make any use of encrypted information, you must be able to decrypt it. This means that every legitimate user of the information has both the DRM lock and the keys to unlock it. Given those two items, the DRM will be cracked, it’s only a matter of time. The track record of DRM reflects this. Every single DRM scheme ever tried has been cracked. From Blu-Ray, to satellite TV, to computer systems going all the way back to the Apple II and Commodore 64, they have ALL failed. It’s long past time for content creators to realize this and start finding ways they can make a living in a world where everything can be copied.

  9. From the standpoint of companies, locking your customers into your product for life is a good thing, and has been ignored by many consumers in the past – it’s probably still a bonus in the cost-benefit analysis, or at least neutral. So I can see where an exec wouldn’t consider that a flaw in the model. As a consumer, I think it sucks and have refused to buy an ipod for quite some time because of that behavior. Just saying his perspective is not ours on that front.

    Meanwhile, despite their habit of trying to go after college kids, thanks to college kids being a particularly obvious group of filesharers, they now endorse a model which would result in trying to kick entire schools off the internet. Good luck with that, bozos. Kicking innocents off the internet is never going to fly with the consumers or the courts, either, to an extent that he ought to be able to see it’s bad business sense.

  10. I think the 3 strikes policy is so popular among lawmakers and execs right now because no one has seen the kind of damage it will do. We can talk about that damage, but until a family is actually destroyed by a gov’t passing these kinds of laws, there won’t be enough bad PR to keep these idiots from thinking this is a great, and just, punishment.

  11. There are certainly arguments against DRM (generally from the consumer’s side, not the seller’s), but the idea that it it is worthless because it can’t be infallible is a ridiculous one. Door locks aren’t infallible either for exactly the same reason (people have to be able to get through the door) — but they are a discouragement. Often that’s all that’s needed.

    1. DRM is a door lock that makes it a hassle for you to get in to your own house, while the thieves climb in a the window.

      1. I’m going to expand on it.

        Simple DRM is a lock on a door next to an open window.
        Complicated DRM is 6 locks on a door next to an open window.

        It doesn’t matter how ‘good’ the DRM is once it’s cracked once everyone can access whatever they want.

        This is why DRM is impossible.

        1. But, for better or worse, the “terrorism” lawsuits which severely punish a few DRM breakers in very public, high profile cases will discourage large numbers of people.
          They don’t have to stop piracy altogether, just as store owners don’t need to bring shoplifting to 0. Ever have cashiers wave you through tripped alarms or even ignore the lights and sirens of tripped alarms altogether? Cause if they discourage just enough theft to cover the cost of the alarm system– no one cares how well it actually works in practice.

          1. Bullshit.

            Point to one study that says rate of piracy has been affected by these sorts of court cases. They’ve been going on for years and piracy hasn’t dropped an iota.

    2. “Door locks aren’t infallible either for exactly the same reason”

      I was thinking that safe and door-lock sellers might be the only exception to Cory’s assertion that you can’t give the buyer the encrypted message (the opening of the lock?) and the key (the… key or combination) and survive in the business world. Obviously they make money and we use locks to protect our stuff. But physical locks protect a real object or real people. It’s one thing to crack a safe in a bank to steal money – another to rip a DVD your friend has so you can watch it on your laptop. The idea, I guess, is to make the DVD ripping as serious as a physical robbery, which just makes robbing someone more appealing, imho..

  12. Some notes: DRM, having been around for ten years, has obviously been totally effective in stemming the digital tide. As in not. Now they’re trying laws, in someattempt to gain control. They should know their history, specifically about the Gutenberg Press. Anything that transmits information, cheaply, and compels the need to educate, will find a way to people. Bucky’s ‘doing more with less idea’.

    And I notice that pure crap is still making money-2012, in spite of being nearly pure drek, is making a massive killing in North American theatres-and will make much, much more worldwide. Leads me to speculate that it might not be about money, it might be about control. As McLuhan observed, machines can have an impact on social structure and conciousness. One might observe that the internet has had, and is having, a massive, increasingly global impact that way, and this is what terrifies the control freaks. they still have the weapons-law, media, and guns, but no longer have control of as many minds as they used to. Consider this: one does not have to believe in the 9-11 Truther movement, to understand that such a movement would have been engaged with punitively, some time ago. Groups that meet and speak can be infiltrated, computer groups, less effectively so.

  13. “1) How can places like MGM keep making films like James Bond Films and Distribute them digitally without DRM.”

    I think the problem may be more that MGM is unable to take advantage of a cheap delivery system – via the internet or some other digital delivery method – because they’re a ginourmous company resistant to change. Cutting back on the ever-expanding movie budget (I can’t wait to see the first billion dollar movie!) would mean cutting back on yachts, private islands, private jets, coke parties, plastic surgery, limousines… Maybe that’s too cynical. Maybe it’s more they don’t know WHAT will happen to their billions of dollars if they do take a calculated risk and move into the digital age, already. So they protect the entire distribution mechanism that’s currently in place, even though it’s inefficient and out of date. But it makes a few people very rich and very influential.

  14. Funny I was just reading an article on Gawker that listed the top 50 highest grossing films of all time and posing the question, “Ever wonder why most movies suck?” I wondered to myself exactly that, and low and behold I stumbled upon an answer.

    I simply cannot understand why people assume that everything they get on the internet must be free, even content that is clearly defined under federal criminal laws as the intellectual property of others. The economic value of a good or service is not determined by its cost. It is determined by supply and demand. The fact that it costs virtually nothing to store a movie on a computer does not mean it is should be free.

    The movie and music industry have suffered tremendously due to piracy on the internet. When someone records a song or makes a movie, that is their property. Period. It cost them money to make such property. They have the right to sell such property for whatever amount they want. If a company spends $5 billion in R&D and discovers a cure for cancer, they should be given the right (property) to sell it exclusively. If not, the drug companies will not make money and thus never discover such drugs.

    While there may be some cute examples out there like the Radiohead album, the simple fact remains companies that offer free products/services do not make money. Facebook, Twitter, Youtube–they all lose money, and that will never change.

    Our movie industry will continue to get worse and worse–ten years from Saw XII and Harry Potter XXXVI will dominate the box office. Pretty soon, there will be no movies to steal in the first place. Same for the music industry. It is amazing how people fail to realize how much it is going downhill. 15 years ago bands like Pearl Jam and Nirvana dominated record sales. Problem is, fans of bands like that are just the type to download songs illegally on the internet. As a result, the only people that buy cds are kids. Ever wonder why music these days is dominated by crap like Britney Spears? Because 14 year-old girls buy cds.

    1. “If a company spends $5 billion in R&D and discovers a cure for cancer, they should be given the right (property) to sell it exclusively. Even if millions will die!”

      Fixed that for you!

      I might do something crazy if my wife was dying of cancer and I knew a doctor down the hall had the cure but I didn’t have the money. There’s a human factor to be considered, isn’t there? lol.

      “the simple fact remains companies that offer free products/services do not make money”

      Don’t know about that. There are musicians and artists and writers who are very happy to have a low-cost distribution mechanism. And the products and services don’t have to be free, just not hostile towards the users.

      The problem might be more that you can’t make ENOUGH money to support the army of lawyers and lobbyists you need to protect an entertainment empire and control the politicians. Hence the odd tendency of mainstream capitalists to defend inefficiency and discourage innovation when it comes to this issue. More open technology would improve the lives of consumers and promote new economic growth, but the already-rich would take a hit. Quite the dilemma.

    2. “The economic value of a good or service is not determined by its cost. It is determined by supply and demand. The fact that it costs virtually nothing to store a movie on a computer does not mean it is should be free.”

      Actually that’s exactly what it means. The law of supply and demand says that if something is in infinite supply, the price drops to zero. Once you release something that can (and will) be copied indefinitely, it becomes free, unless you don’t believe in the law of supply and demand. That’s why sooner or later the industry will change to pay actors, directors, and writers instead of media companies, because they are the limiting resource.

    3. Ever wonder why most movies suck? There are two answers.

      The first is Sturgeon’s law, which actually gets worse over time. Back when writing a book was a lifetime’s endeavor, relatively few of them were terrible. Now that getting published only takes free time and an internet connection, there are many more good ones and countless more bad ones. Same thing here: more studios making movies faster.

      The second is the way movies are distributed means some kinds are easy money. People want to give sequels to things they liked a chance, and they want someplace romantic to go with their dates. So big studios will keep making them, good or not, until they start earning so much less money it stops being profitable.

      One thing that definitely isn’t the answer is loss of money, considering that some of the best stuff in recent years has come out of smaller players.

  15. Cory is just biased because I bought a copy of Little Brother for every person between 12-19 I knew, after I read it for free online.

  16. A note about making movies:

    The film industry is unique economically speaking in that movies require substantial fixed costs up front. Revenues on the other hand, are highly variable and incredibly difficult to predict. Such a structure creates highly volatile returns, and no investor likes volatility. Filmmakers, studios, investment bankers–they have all tried to change the business model, but it is simply not possible. There are other industries with the same problem: professional sports and airlines are two examples. If you cannot alter your cost structure to vary with the same factors that affect revenues or if you cannot alter fix your revenues to match your fixed costs, the volatility results. With the film industry, it will always be difficult to predict whether a screenplay will result in a successful box office.

    In addition, there is a long value chain in the film industry, one that is highly vertical, and highly fragmented, with substantial investments required at each step. Filmmakers know nothing about marketing and distribution, so additional investors are required to fund these steps, deflating returns even more.

    Given the very nature of the economics associated with making movies, the slightest drop in revenues decreases the value of a film by an amount greater than the dollar amount of the lost revenues. When people download movies immediately, not only do they diminish a film’s revenues, they also diminish revenue forecasts for future films. In the end, investors fund less movies, and there is a decline in production quality. There is no way to make movies like Braveheart or Lord of the Rings cheaply. It is impossible. The result is the crap you see today–digital horrors that cost next to nothing to make, Tyler Perry movies, etc.

    1. A note about your comment:

      Ever hear the phrase, false dilemma?

      Yeesh, the way you’re talking you’d think the movie industry is so delicate that it skips every time Spielberg sneezes.

      Wanna know why there are so many bad movies? Good old fashioned capitalism- that’s what people pay for. People will watch Terminator XXXVII, so someone will hire Michael Bay to make it because there’s a demand. The reason so many movies are crap is audiences.

      They no longer tolerate the sort of hours long magnum opuses like The Godfather. People will shell out $10 at the box office for Saw MMLXXIII just as easily as The Reader– I dare say more. The Reader made $2,380,376 on wide release (select theater figure release numbers are fraction on this). Saw VI? $44,255,487 after 3 weeks. That’s ~2000% more for a much crappier and less thought-provoking movie.

      Meanwhile I bought The Matrix Revolutions as part of a DVD set. I hadn’t seen the last installment and getting first movie along with The Animatrix was worth the price. I couldn’t watch it on my computer. I got an error talking about how my DRM was out of date. Unbe-fucking-lievable. I paid money at Best Buy for it, it’s my DVD- I couldn’t watch it the way I saw fit. I tried my XBox- similar error. I had to resort to borrowing my brother’s DVD player just to watch the damn movie- only to find that it sucked as bad as everyone had told me it did when it first came out. But yeah, keep saying that DRM results in crappy movies.

      1. Perhaps your computer and XBox were trying to protect you, and faking bad DRM was the only way they knew how. Your dad’s DVD player, unfortunately, had no such taste.

        1. That’s an interesting way of looking at it (though it’s my brother’s player and not my dad’s) The singularity has come!

          I’m also reminded of a separate DRM fiasco my friend ran into. He bought a Foo Fighter (and several other) CDs from Best Buy, I can’t remember the exact album. Later at home he tried ripping the tracks to his computer, only to find that what he ripped was garbled beyond recognition. He wanted to create a mix CD for his car, but apparently the RIAA wants him to constantly have to shift between CDs while driving, or listen through the entire album (and who the fuck does that?)

          He’s not a technical person, so though there are a number of methods by which he could have possibly circumvented the technology, he hopped on Limewire and downloaded the album he just payed for. Mission accomplished RIAA! You stopped someone from copying your music and putting it on the net! A pity you only stopped one person.

          I told him he should send an email to the Foo Fighters or their agent and let them know that this was a pain. He just shrugged and said that he wouldn’t buy CDs if he wasn’t sure he could use them the way he wanted. “Let them figure shit out the hard way,” was his attitude. He simply stopped buying CDs after that. DRM burns bridges.

    2. “Our movie industry will continue to get worse and worse–ten years from Saw XII and Harry Potter XXXVI will dominate the box office. Pretty soon, there will be no movies to steal in the first place. Same for the music industry.”


      how can i help?

  17. “Three strikes doesn’t go far enough. It merely prevents members of what we in the media industry refer to as an ‘infringing family’ from downloading music from their own home. But there’s nothing to stop repeat offenders from going to Starbucks or a cybercafe and downloading there (nothing at the moment … but I’m getting ahead of myself). So what we clearly need is a ‘computer license’: if you’re suspected of … I mean caught … pirating music, you lose your right to use a computer (six strikes).

    But what, you say, about people who use computers without a license? Well, we’d like to see them try that without any fingers (nine strikes). And for the real hardcore offenders, who persist in listening to music that they haven’t paid for? I’m sorry, but then the ears have to go (twelve strikes).

    I suppose some of these people will buy or steal sheet music and try sight-reading it, but I don’t think we need a fifteen strikes law. We’re not monsters, after all.”

  18. Speaking about the whole “Three Strikes” issue that the MPAA/RIAA’s lawyers are pushing, they may make one ISP turn-off your connection, but we will see a rise of ISPs that will be willing to take on these customers as a good source of profit – much like car insurance for people with DUIs.

    1. Also, I imagine, ultra-cheap VPNs (it’s already only about $7.50/m). How d’you like that? Fisted by the Invisible Hand! Sweet.

  19. I actually think that the argument that there is no right to have everything free on the internet is valid. But I also think, going beyond critique of DRM, the idea that an artificial monopoly property rights in the form of copyright (or even patent for other types of intellectual property) is the best way to pay for creative work is an assumption that needs to be questioned.

    Note that I don’t think the liberatarian argument (rely on advertising reveneue/speaking tours voluntary donations/transaction of costs of of unpaid works) in neccesarily a valid general solution just because it works in special cases. I think the key is ultimately you need to think of it not as a property right but as a labor right. Given that the margin cost of distribution is free, how do intellectual workers get paid for their labor? The answer will probably still be the creation of some sort of artificial right, but very differently structured than our copyright/patent setup.

  20. Just an issue of details. Fricklas was speaking to an undergraduate class, Intro to Law and Technology, not a Yale Law School class.

  21. If you go back to the gold standard of cryptography, you get the one time pad- the only method universally regarded as unbreakable. It was invented during the first world war, which says something right there.

    Yes, it says that it’s probably obsolete. And it is: we have encryption that can’t be broken in any reasonable amount of time, and that doesn’t depend on transmitting (how?) a volume of data equal in size to the original message. If you have a secure channel for transmitting a one time pad you can save the effort of encrypting the original message and just send it via your secure channel. But that’s not the point.

    What Cory is saying is that DRM is like a self-unlocking box. It doesn’t matter how good the lock is or how many hoops you have to jump through to get the box to unlock itself. Once it’s unlocked (that is, once the DVD is decrypted and displayed on your TV screen) the security is gone. And since whoever possesses the box also possesses the means of unlocking it (because the box is self-unlocking) it’s very likely that they can subvert the locking mechanism to make it stay open.

    Now, people know this. So they make rules about opening the box. You’re not allowed to interfere with the lock. You’re not allowed to jam the lid open. You’re not allowed to let anyone else reach into the box. All these rules are necessary because the idea of a self-unlocking box is silly. And so is DRM. And that’s why you have the Digital Millennium Copyright Act (DMCA), which is an attempt to stop people from breaking DRM, because DRM doesn’t work. Why the DMCA should work any better than traditional copyright law is an exercise left for the student.

  22. #2, you have no idea what you are talking about. ‘supply and demand’ of electronic media does not exist. supply is infinite and scarcity is artificial. IP shows the fundamental flaw in all these crazy capitalist assholes: each and every capitalists really wants to be a monopolist. Somehow we ended up with regulations to give them this status.

    All copyright should fall into the public domain after 3- 5 yr. All of it: music, books, and Saturn V rockets. How about ‘creative people’ work like the rest of us and we annihilate the parasitic distribution & protection racket they used to need. The level of national debate on this issue is appalling. Why aren’t these fascists who are attempting to dictate our laws tried for treason?

  23. My cranky old white guy is coming out, and I’m crankier because I feel like a nutter neo-con now. But this:

    “If a company spends $5 billion in R&D and discovers a cure for cancer, they should be given the right (property) to sell it exclusively. Even if millions will die!”

    is pretty much the way it should work. Just because somebody discovers something with ridiculous amounts of moral value doesn’t make it an imperative that it be free or cheap. They have the right to sell it exclusively for 20 years, the way that the laws work right now. Just because it’s got ridiculous amounts of value doesn’t mean that it automatically should be bequeathed to the world for free. It’d be nice if it were. If there were communist research groups that are in it from the beginning to discover said cure with the express notion of giving away or licensing the end product, great. You can argue that it should be much cheaper, but where does that argument end? is curing cancer better than medically-induced boners? if so, at which point does the world get to draw a line and say that an invention is no longer the property of its creator?

    But this is more about DRM, and not curing cancer. not that anybody was confusing the two. I don’t have a good answer to this. I think it’s possible for an artist to want to restrict distribution of his works to people that have paid for them.

    I fully support artists that wish to propogate their works freely.

    It’s accomodating the first within the framework of the real world that’s the pain in the ass. There’s a difference between “a torrent available” or “a dvd from a guy at the park” and “studios offering free full-quality DVD downloads on the honor system”.

  24. to believe that issuing the digital death penalty for entire families’ information lives will somehow be less of a PR disaster than suing kids.

    Well, that may be marginally correct. It will certainly be a lot harder for the “convicted” of this kangaroo court nonsense to raise public awareness after they’ve been carefully removed from the most useful tool for dissemination of information.

    He’s quite likely well aware of the fact that this is actually a for more disproportionate punishment. The idea is to make the punishment so exponentially worse than the crime that (in his poor demented mind) everyone will be afraid to do it.

    Personally my money is on this being armchair fascism, versus sheer stupidity… not that the two are mutually exclusive.

  25. Chanttojah asks “How can places like MGM keep making films like James Bond Films and Distribute them digitally without DRM?”

    Try the following thought experiment:
    1. MGM makes a movie just exactly like they do now.
    2. They show it in theaters just exactly like they do now.
    3. They release it on DVD / BlueRay like they do now, only without the DRM.
    4. The sell the rights to broadcast it to cable companies, exactly like they do now. (Only, don’t require the cable company to encrypt it.)
    5. They explore other models, like download it from the net for half the cost of a physical DVD. Your choice of resolutions.

    I assert that if they just did 1 through 4, they would make more money than they do today. Since you wouldn’t have people worrying about whether their player will work with their TV while showing your disk, there will be less resistance to buying your stuff.

    And when you add (5) into the mix, profits really take off. All it requires is a willingness to embrace the future.

  26. Forgive me if I state the blindingly obvious, but the best response to piracy is to make the content cheaper and more accessible.
    Cinemas need to be cheaper, at the moment they are too expensive and so people are more picky about what the watch there and the rest they will pirate, if cinemas where better value then you would get more bums on seats.
    Also psychical mediums, where is the sense in paying $30 for a DVD only to see it in the bargin bin for $10 several months later?

  27. 1. I do not want to live in a world of ads. I would like to pay for good content, of any kind, if the producer would let me.

    2. The best way to deter someone from stealing is to make it not worth the effort (i.e., cheap enough).

    3. DRM is looked at in the wrong light. It should not be used to prevent something, but to enable it. The “it” being a way to track how much I am consuming, then billing me. Take 5 cents every time I listen to a song or read a news article (how many times do you actually listen to your current favourite in the first year after release? The second?). Take 1 cent every time I quote someone (and give me 1 cent every time I am quoted and maybe I will write something quotable). Think of the possibilities. Bulk rates, loyalty rewards, pay based on rating, whatever (if I had all the answers do you think I would be typing this?). This would encourage producers to make content easily available anywhere, anytime, every format. It would discourage stealing. I hate to say it, but DRM is the precursor to making this work.

  28. In short, what he is saying: suing people feels like terrorism, so we need to use nicer terrorism to get things right?

    Jeopardizing legal systems through lobbyism is a stupid move, too. No matter how secret you do it, it will bounce back on you some day.

    Stop whining and stop treating your customers like criminals. Consider a potential customer who downloads your song/movie/book/whatever without payment. He knows that if he doesn’t buy it he will harm the artist(s). So if he likes the media, he will buy it anyway.

    So the only loss is that you can’t screw up people to buy media they don’t like. If you cry about that losses, it makes you look like a con who only wants to sell crappy media to his customers.

    Ergo, DRM is not meant as a way to ensure copyright, but a way to ensure that buyers can be fed with any crap.

    Greetings, LX

  29. The internet was great, it was the wild west of telecommunications. Now it’s been invaded by so many business interests trying to whore it out for whatever they can get it’s quickly losing its vigour.

    So how can we establish an internet that cannot be tampered with, monitored, and ad-infested?

    I’m thinking of a global ad-hoc peer-to-peer wireless network.

    Who’s with me???

  30. I download TV shows in what the industry currently considers an illegal manner, and lots of ’em.

    It’s convenient, there’s no DRM, there’s no ads, the quality is fine, and I can stay current with what my friends are talking about this week.

    I also buy the DVDs of those shows when they’re released months later. I buy every ebook I read, even if I could torrent them.

    I do this because I know that the most effective vote I have for the commercial ventures that I want to succeed is cash.

    The solution for the future is already implementing itself: people who are prepared to pay for content dictate what people who are prepared to steal it get to watch.

    Decide for yourself whether you watch what I like or what you like.

    1. I think the idea of money = votes for product makes sense. Maybe it could be translated into something like giving regular consumers the opportunity to be investors. You like something, you get the opportunity to invest in the company/producer/writer/director/peformer to do more. The problem seems to be that the people at the top are too protective of their profits. If the whole thing opens up there could easily be just as much money flowing in and out, just distributed. Until very recently wasn’t all art created under a patronage model? Creativity at the bequest of the receiver? We’d be paying directly for the value we recieve instead of financing a huge mechanism.

      …aside from the fact that we’re talking about entertainment here. Fundamentally, all of it is fleeting and chances are that few people will care about each particular instance in a few years anyway. The fact that we’re fighting so vehemently over leisure has a tinge of the absurd in it and points a finger at our society as a whole.

      At its heart, entertainment is people trading value(currency) for emotional experience or stimulation. If getting that result is easier to obtain, then entertainment is of less value. The internet makes entertainment easier to obtain, so it’s just not worth as much as it once was. Add this to the fact that we’ve been made to believe in a bloated value based on bombardment by large organizations for decades and we have a crash down to reality for the industry.

  31. Cory, nice job on the Strombo show. Good work.

    If you really think that DRM is a dead-end business model, perhaps you could counter this observation sometime: DRM is alive and well on XBOX360.

    Downloadable content for Xbox games (especially the guitar hero and rock band titles) have the same pitfalls of any DRM: the items won’t function unless they’re being used either by the people who bought them or used on the device used to purchase them.. you can’t transfer them between owners, you can’t re-sell them.. but yet these kinds of purchases are amazingly successful.

    So, maybe Fricklas is right: maybe this business model enabled by DRM is one way to get it right.

  32. Why is it that virtually every person claiming to be a musician in these types of threads is a first time commenter?

    You have my permission to link to an example of your music.

  33. Door locks protect your content from other people–not from you.

    If you decide the lock is too much hassle, you can leave your door unlocked; many people do this in places where they feel safe. They can give their friends a copy of the key, and allow them full run of the house. The house doesn’t cost more if you want two keys or fourteen or want to leave the door wide open for anyone to come in.

    A more accurate analogy would be comparing DRM to access to a gated community with strict and limited visitation rules… that insists that everyone should live in such communities.

  34. Someone said

    “All copyright should fall into the public domain after 3- 5 yr. All of it: music, books, and Saturn V rockets. How about ‘creative people’ work like the rest of us and we annihilate the parasitic distribution & protection racket they used to need. ”

    That sounds fine, I’m a ‘creative person’ and I’d love to get paid for working. Trouble is that hardly anyone gets paid for working. In a market economy I can’t thing of an example of any “work” that gets paid for on the basis of “work” rather than on value to the person paying.

  35. I see a few posts saying something like. DRM and and/or harsh laws can’t prevent piracy. But, the makers of a James Bond film should be able to sell the film at a fair price. What do you suggest for their business model.

    Honestly, I am not sure it can be done at a “fair” price if you mean similiar returns to what they get now. The movie industry may have to rely soley on add content and theater sales. This may well be lower then what they get now.

    After all, the newspapers are being crushed by the likes of google and craiglist. While google is making lots of money, I think they have effectively reduced the total costs of advertising that was previously spent on newspapers. In other words, they are not replacing revenue from newspapers one for one. They are providing the same or more for less cost.

    I think Hollywood is facing a similiar future.

    1. Highest Grossing Films – note that 3 of the top 20 were made in 2009.

      Is it any real loss that massive film making studios lose profits from DVD sales? They can easily adapt to selling films online (distribution is virtually free so overheads are much lower).

      As for Newspapers, etc. Well that’s another debate entirely.

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