Google Video DRM: Why is Hollywood more important than users?

With the introduction of its new copy-restriction video service, Google has diverged from its corporate ethos. For the first time in the company's history, it has released a product that is designed to fill the needs of someone other than Google's users.

Google Video is a new video-search and video-sales tool, through which users can download videos that have been uploaded by their creators or by others who have the rights to them, either because the videos are in the public domain, or because they are used in a way that satisfies the "fair use" defense in US copyright law.

Part of the Google Video offering is a store that sells videos. Some of these are delivered in a locked format of Google's devising that restricts how Google's users can play and use the videos they buy. This Digital Rights Management system (DRM) is like many of those used by Google's competitors in that it doesn't attempt to model any copyright system in the world, but rather reflects a one-sided vision of how copyright should work and imposes that unilaterally on Google's customers.

Here's how the Google Video DRM works: when you download a restricted video from Google, it locks that video to your account and software player. Every time you want to play the video, your player has to communicate with Google to determine whether you are currently permitted to play it; if the player doesn't get the answer it's looking for, it won't play the video. The specifics of how this works aren't available — Google hasn't published any details of how the security is implemented, committing the cardinal sin of "security through obscurity."

The video is encrypted (scrambled), which means that it is unlawful for competitors of Google (or free/open source software authors) to make their own players for the video, even if they can figure out how to decrypt it. Other DRM vendors, like Apple, have threatened to sue competitors for making players that can play their proprietary file-formats.

Why Has Google Done This?

The question is, why has Google done this? There's no Google customer who woke up this morning looking for a way to do less with her video. There's no Google customer who lacked access to this video if he wanted it (here's a tip: enter the name of a show or movie into Google and add the word "torrent" to the search, and within seconds Google will have delivered to you a link through which you can download practically everything in the Google DRM catalog, for free, without DRM — although it may be illegal for the person you get it from to send it to you).

That's not to say that there's nothing problematic about getting your video through Google this way. But the problems of the inability of the entertainment industry to adapt to the Internet are the entertainment industry's problems, not Google's. Google's really good at adapting to the Internet — that's why it's capitalized at $100 billion while the whole of Hollywood only turns over $60 billion a year.

But once Google starts brokering the relationship between Hollywood and their audience, this becomes Google's problem too, which means that all the absurd, business-punishing avenues pursued by Hollywood are now Google's business, as well.

It appears that the main reason Google got involved in DRM was to compete with Microsoft and Yahoo, both of whom have created online video stores with movies and shows from major entertainment companies. These companies demand that their works be locked away in wrappers that restrict users in ways that have nothing to do with copyright law and so if you want a license from them, you've got to play ball, even though no customer wants this. You can't exactly put your offerings online under a banner that says, "Now with fewer features!"

This Time, Google's Users Don't Come First

This isn't the first time Google's had a major industry demand that it design a product in a way that didn't put Google's users front and center. As documented in John Battelle's excellent book The Search, there was a strong push on Google in the early days to adopt graphic advertising banners for the site. All of Google's competitors were doing it, making a fortune at it, and no one wanted to advertise via text-ads even though its users clearly found them them less invasive than graphic banners.

But Google hewed to a brilliant and successful strategy of never putting a supplier's need above its searchers' needs. This, more than Google's controversial "Don't be evil" motto is the true force driving its most successful offerings. Google refused to graphic ads and only accepted ads from suppliers who shared its view of how to deliver a quality service to its users.

Abandoning this is a terrible idea and one that's exacerbated by design decisions in Google's DRM technology. The outcome is a Google service that opens the company and its users to unprecedented new risk.

Google DRM and Copyright

Google's DRM has the potential to drastically re-shape the contours of copyright law, turning a few entertainment companies' wishful thinking about the way that copyright would work if they were running the show into de facto laws.

Some examples of user-rights that Google Video DRM takes away:

  • Under US copyright law, once you buy a video, you acquire a number of rights to it, including the right to re-sell it, loan it to a friend, donate it to your kid's school and so on. But with Google Video DRM, none of this is possible: your video is locked to your account and player.

  • Educators, archivists, academics, parodists and others have the right to excerpt, copy, archive and use any video in their work, under the US doctrine of fair use. However, Google's DRM tool stops them from doing this, and Google's video can't be played on anyone else's tool.

When I questioned Google Video's Peter Chane about this, he said that Google DRM is "user-friendly" — but none of the user rights embodied in the US copyright law are accommodated by Google's DRM. Google's view of "user-friendly" only encompasses the design of the user-interface, not the rights that users enjoy under the law.

Revocation and Changing the Deal

Google DRM player can be "revoked" — field updated without user permission or intervention. This isn't the standard in media players — for example, iTunes requires that you explicitly grant permission to the application before it updates. Where auto-update prevails, the possibility for abuse is dramatic — for example, a magistrate once tried to get ReplayTV to field-update the units it had sold to monitor its customers' use of the device as part of a dispute about the legality of one of its features. The idea was that the spyware would be implemented to gather the information required for the trial. The owners of ReplayTVs were the potential victims there, having products they'd purchased crippled after the fact (a judge overturned the magistrate's idea before it could be implemented, but other companies, such as AOL, have been forced to field-update their software to court order).

Google DRM auto-updating raises the possibility that some day the same thing might happen to them — either because Google was ordered by a court to do so, or because one of Google's customers responds to news of Google's DRM being defeated (Chane and other DRM manufacturers universally acknowledge that all DRMs will eventually be subverted by their attackers) with a demand to "update" the software in a way that changes what few rights Google does give you when you buy your movies from them.

Google won't comment on whether they've entered into any arrangements with their suppliers that would require them to do this, and there lies the problem. Your ongoing enjoyment of the property you buy from Google is dependent on their ongoing relationship with their suppliers. If you buy a Warner Brothers DVD from Tower Records, it doesn't affect you in the least if Tower and Warners have an ugly dispute. You've bought it, it's yours. But with Google DRM, auto-update means that it's never really yours. Third parties always have the possibility of taking away the rights you bought, after you bought them.

Alternative Players

DRM systems are protected by the Digital Millennium Copyright Act (DMCA), a 1998 law that makes it illegal to break them. That means that where a DRM is in place, no competitor can reverse-engineer your player and make a compatible one — something that is otherwise lawful.

DVDs were the first widely-released DRM media. The effect of DRM on DVDs was to deprive DVD owners of the fruits of an open market in players. In the ten years that DVDs have been in the marketplace, no new features have been introduced for the platform, robbing us of the dividends on our investment in DVDs. By contrast, DRM-free CDs ushered in the era of the MP3, home karaoke, time-shifting, media servers, iPods, mashups, MP3 CDs and all the rest of the value that has accumulated in our music collections, the dividend paid on our investment in the CD format.

But even DVDs are less restrictive than Google DRM. DVD players can at least be manufactured by anyone willing to enter into a restrictive contract with DVD-CCA, a licensing body that controls the keys and patents for DVDs.

Google has no licensing program at all, and no publicly disclosed plans for developing such a program. In other words, your Google movies only play on Google's player, and no one but Google gets to make a Google player.

This is particularly worrisome in the case of the Google DRM system because it requires that you have a live Internet connection to Google every time you want to play a movie. That means that every time you watch a Google DRM movie, they get a record of your viewing. What's more, if you're not on the Internet, or if Google's servers are unreachable, you can't watch your movies. Google competitors aren't anywhere near this onerous with their DRM — Netflix doesn't know when you watch a DVD; even Microsoft doesn't gather this much information on your video-watching habits. TiVo erases all personal information before aggregating its viewer stats.

And if Google goes bankrupt (stranger things have happened — just ask anyone who ever bought and loved a Commodore computer), that's it, game over. No authentication server to approve your video viewing, no alternative player that skips the authorization step, and no legal way to make such a player. (Google says that it's working on a version with offline viewing capability, but this isn't present in the current version of its DRM)

That said, it's a near certainty that alternative Google players will be developed — though the legality of these players is unclear. Nevertheless, just as with DVDs and iTunes, players like VLC and converters like DVD X-Copy will surely emerge for Google DRM. Will Google sue the people who make these players?

The company won't say. They do say that they prefer to use their field-update capability to break the compatibility with these players, but one wonders whether this will be much better, from a user-centric point of view. After all, if you buy or download a tool that lets you enjoy your lawfully acquired movies in a lawful way, what business does Google have in reaching into your computer to take that away from you?

What Else Could Google Have Done?

Has it come to this? Has Google gone from being a company where the customer always comes first to a company where "what else could we have done?" is the order of business?

Of course, there are lots of things Google could have done. It could have digitized all the movies and shows that are presently in its store with DRM and simply indexed them with links to buy them on Amazon, just as it's done with millions of books through its astonishing and wonderful Google Book Search program.

It could have concentrated on indexing only videos that are found in the wild on the Internet, and selling only videos that come from rightsholders who don't want to shaft Google's customers — repeat the strategy it pursued when it stuck to its text-ad guns and refused to go with graphic banners.

It could have delivered tools that you use, in your home, to index your personal video collection — a Google toolbar for the media in your living room.

It could have done all or none of this. But by choosing to copy the mistakes of its competitors, Google has put its destiny in the hands of an industry where treating customers like criminals is the order of the day — these are the companies that search cinema-goers and make them leave their cameraphones with the usher, after all.

These companies don't want Google to succeed at DRM. That would give Google too much bargaining power in licensing agreements (see how much power Apple has accumulated through the penetration of its lock-in DRM suite — iTunes, iPods and iTunes music — the music industry's attempts to change their licensing terms with Apple have been laughed out of the Cupertino board-rooms). The entertainment companies prefer consortia of battling companies that can't come out with a coherent bargaining position.

Take DVD Blu-Ray and DVD-HD: there we have two technology consortia warring to deliver the worst product they think they can sell. The format with the most restrictions has been promised the sweetest licensing deal for content. Blu-Ray recently announced that it would add region coding (locking DVDs to playback on players bought in the same country as the disc) to its final specification — after years of insisting that region coding just frustrated honest users.

Google DRM doesn't come from a fragile consortium, so it isn't supposed to be a winner: it's supposed to be a strategic tool to weaken the power of Yahoo and Microsoft's DRM (also not supposed to be winners). The ultimate trajectory for DRM is in consortia like Coral, where all the losers in the DRM format-wars have been gathered together by the entertainment companies, who've promised them preferential treatment if they'll help overturn the Macrovisions, Microsofts and Apples of the DRM market.

There's no way Google can win the DRM wars. The end-game for the entertainment companies is to use the sweet lure of content to turn Google from an unmanageable giant into a biddable servant, dependent on long-term good relations with its licensors to preserve its customers' investment in its video.

The only way Google can win this game is not to play at all. The only way Google can win is to return to its customer-comes-first ethic and refuse any business-arrangement that subverts its customers' interests to serve some other industry's wishes.