DRM versus innovation

Here's a superb essay on the other DRM problem -- DRM isn't only bad for fair use, it's also a disaster for innovation, because it forecloses on the possibility of disruptive new technologies (you can only build on DRM with permission from the DRM maker; no DRM maker is going to authorize a disruptive innovation that could hurt his bottom line). The paper is by Wendy "Chilling Effects" Seltzer, and will be published in the Jan 25 edition of the Berkeley Technology Law Journal.
First I briefly review the history and existing academic debates around DRM to consider why they have so overlooked the user-innovation impacts. The next sections examine the law and technology of digital rights management, particularly the interaction of statutory law, technological measures, and the contractual conditions generally attached to them. I focus particularly on the "robustness rules" in licenses at at this inter- section. I then introduce the rich literature on disruptive technology and user innovation, to argue that these copyright-driven constraints significantly harm cultural and technological development and user autonomy. I conclude that the mode-of-development tax is too high a price to pay for imperfect copyright protection.
The Imperfect is the Enemy of the Good: Anticircumvention Versus Open Innovation (via JoHo)

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  1. “On a probabilistic analysis, fewer potential innovation
    opportunities lowers the chances of success (however defined).”

    I was enjoying the read until this sentence. I think I need to go lie down now.

  2. If someone made a website that looked exactly like boingboing, but with a slightly different name, and then copied all your content everyday and posted it on their site and claimed they wrote it, would you support their right to do so, or would you claim infringement of copyright?

    1. I’ve run across a number of websites that republish all or part of the BB feed under their own banner.

      College Humor’s games section is called Bleep Bloop. Check out the Bleep Bloop logo in one of their videos.

      We’re mellow.

  3. I think there are two fundamental issues here. (1) Is DRM good or bad, all things considered? and (2) Do content creators have the right to use DRM if they wish?

    I’m not an expert on the consequences of DRM, so I can’t comment on (1), except to say that I don’t like DRM.

    However, the answer to (2) is clearly yes. Not everything that’s bad should be prohibited. Let DRM win or lose in the marketplaces of commerce and ideas. I think it will lose on its own without the need for more government. (I’m not suggesting that everyone opposed to DRM is attempting to ban it. Some are, some aren’t, and some are implying it.)

    1. I think there are two fundamental issues here. (1) Is DRM good or bad, all things considered? and (2) Do content creators have the right to use DRM if they wish?

      I’m not an expert on the consequences of DRM, so I can’t comment on (1), except to say that I don’t like DRM.

      Perhaps if you read the linked article, you might become a little more informed?

      However, the answer to (2) is clearly yes. Not everything that’s bad should be prohibited.

      However, things that are bad should not be mandated or otherwise supported by laws.

      Generally, it’s not the technology itself that’s a problem; that’s relatively easy to fix (though it may be tedious). The major part of the problem is the combination with ill-conceived laws and treaties. In some cases, market effects can also be problematic, for instance with the DVD CCA (which has monopoly control over DVD and Blue-ray video players).

      It’s when disruptive or user-led innovation by law requires permission from incumbents that the harmful effects are the worst.

  4. [i]Let DRM win or lose in the marketplaces of commerce and ideas. I think it will lose on its own without the need for more government. [/i]

    The point of DRM is to avoid being subjected to normal market forces through the force of law. Its the government which makes it have any real effect at all (by making circumvention illegal, thus barring most disruption by legitimate parties.)

    1. Re: drm only having power b/c of government intervention, thus creating a distortion in the market –

      To be fair, all forms of ip protection (copyright, patent, trademark, trade secret) are both a) government created/enforced and b) create market distortions (by limiting entrance by others).

      If you want a truly free market with no government distortions, then drm is not the problem…ip protection is.

      Few people (not even creative commons, lessig, et al) advocate for a complete elimination of ip. Sometimes I feel that drm rants are really just anti-ip rants which are too chicken to admit it.

  5. I think there are two fundamental issues here. (1) Is DRM good or bad, all things considered? and (2) Do content creators have the right to use DRM if they wish?

    1) DRM is neither good nor bad. There are some markets where it is value adding (medical records?), and some (many more) markets where it is not value adding.

    DRM does not add any value to the final customer. Would you pay extra for something that decreases the value you get from a product? Would you pay extra for a bicycle if it came with a lock around the wheels (a lock to which you were not allowed to have the key)? OR would you simply avoid the product in the marketplace and look for alternatives to purchase — a bicycle with no lock or media files with no DRM? This is why DRM will fail in the marketplace, and the only thing keeping it from failing is government legislation.

    But would you pay a bit more if your medical records could be kept private and those documents better controlled? Many people would.

    There are a few instances where DRM might add value (medical records) and for these reasons the government should neither ban it nor afford it legal protection. But DRM adds no value in the consumer marketplace.

    2) The creators do have the right to choose how they want to distribute their work. Should they choose to choose the route of exclusively distributing via wax cylinders, go right ahead. Just as long as they understand that the market for wax cylinders is smaller than the market for other formats.

  6. Anonymous, if you paid for access to a website under terms that only allowed that web site to be viewed with on proprietary browser on one kind of computer, with the threat of legal action against anyone who developed a different browser for you to view the web site you paid for, would you feel that you were being treated fairly as a consumer?

    Oh, there’s always the rationalization that if you know you’re going to get screwed before you buy something then it’s ok for you to get screwed.

    1. You mean like Netflix? B/c I can’t ever get their online service to work other than on a MS based PC running explorer, and I have a mac.

      So…. I stopped being a customer without ever once being self-righteous about how my needs weren’t being met by a service I misunderstood when I signed up for it.

      caveat emptor.

  7. DRM can also cheat the buyer. There are stuff that’s tied down to the device you download it into. You’re supposed to be able to “unregister” the stuff from your old machine and transfer it to another (or you simply need to reinstall your OS). The DRMed stuff is sold to you (sold, not rented), but 5 years on, the company goes bust, the authorization server goes down …

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