[DMCA-Activists] Grant Gross: Does Hollywood Get to "Manage" Your Rights?

[Seth Johnson]

http://newsforge.com/newsforge/02/07/18/1644212.shtml?tid=19

Framing the DRM debate: Does Hollywood get to "manage" your
rights?


By Grant Gross
July 18, 2002


A public workshop on digital rights "management" sponsored
by the Technology Administration of the U.S. Department of
Commerce Wednesday operated on several flawed assumptions.
First, let's recognize the name, digital rights
"management," as a euphemism, kind of like when military
people say "collateral damage," when they mean, "we killed
some civilians."

Digital rights "management" is a nice way of saying digital
rights "control" or digital rights "revocation." The movie
and recording companies seem to think that your right to
sample artistic works, to make copies and to share those
copies with friends is something they have the authority to
"manage." This attempted power grab -- in which some friends
of Hollywood are trying to outlaw all "unauthorized" uses of
computers -- flies in the face of years of copyright law.
Copyright law up until now generally accepts that copyright
is an agreement between the public and content creators
where the public willingly gives up some of its copying
rights in exchange for the public good of artists getting
paid for their work. 

What happens when a large number of people no longer accept
this "copyright bargain?" As John Perry Barlow of the
Electronic Frontier Foundation has asked, what happens when
a majority of Internet citizens believe file sharing isn't
wrong, despite attempts at laws to the contrary? If a
majority of citizens are disobeying a law, is there a
problem with the people or the law?

But I may be getting into a faulty assumption myself.

Faulty assumption No. 2 (No. 1 was that we're talking about
digital rights "management"): There's a problem with people
"stealing" digital movies and music. Phillip Bond,
undersecretary for technology for the Commerce Department,
noted Wednesday that "piracy is rampant" because one-fifth
of the public has downloaded music.

I'm not sure that qualifies as "rampant," and I'm pretty
sure that a significant amount of music downloading online
can't legitimately be called piracy. To illustrate that
point, all Bond had to do Wednesday is look across the room
at Rob Reid of Listen.com, a "legitimate" (meaning non-free)
music download service.

Furthermore, even the music label reps at the Wednesday
meeting admitted that one friend sharing a copy of a CD with
another friend falls under the public's fair use rights. So
if I email you a copy of a music track, and you download it,
even the music labels can't call that piracy. So Bond's
one-fifth number may not exactly measure the "problem."

Is there even a problem? If we go back to the copyright
bargain explanation of copyright law, do we see movie and
recording companies going broke left and right? Sure, there
are many musicians barely scraping by, but there's a growing
sentiment among the artists that the recording companies are
screwing them, not the downloading public.

So when MPAA president Jack Valenti whines about people not
paying for products, ask him how much the presidents of the
major movie companies made in salary and bonuses in the past
year. And ask him to compare those salaries to a proven
figure on how much the movie companies have lost because of
"piracy."

Faulty assumption No. 3: DRM is the way to fix this
"problem." There were no dissenting voices among the invited
guests at the Wednesday panel about whether there's a need
for some digital rights "management" system. This group of
23 IT people, Hollywood people and government people are no
longer debating the need for DRM, they're debating how to
implement it.

So while there's still no consensus in the real world over
whether there's actually a problem or not, this group of
industry insiders is pushing ahead with a way to fix it.
There was a lot of lip service paid to "what the public
wants" during the workshop, and you got the feeling that a
couple of people on the panel actually believed it, but for
the most part, this is a Big Business panel that sees the
public as the enemy -- a bunch of lawbreaking malcontents
who need to be "managed."

Faulty assumption No. 4 (or maybe 3A): DRM will work. Robin
Gross, intellectual property lawyer for the EFF, seemed to
smirk when Andy Setos, president of engineering for Fox
Entertainment Group, talked about efforts to watermark
digital video. Gross is intimately familiar with how well
watermarking technology does the job.

And actually, there was some debate among the panel about
the impact of current DRM initiatives on current fair use
rights. Bob Schwartz, a lawyer representing the Home
Recording Rights Coalition, noted there will be some
"collateral damage" to the public's rights in any DRM
scheme. But that point didn't seem to bother the Hollywood
types on the panel.

If sharing one copy of a CD with your friend falls within
your fair use rights, as EMI v.p. for new media Ted Cohen
admitted, how do you stop someone from sharing a copy with
1,000 friends without also taking away that right to share
one copy? While some of the technology people on the panel
seemed to wrestle with that question, the Hollywood types
certainly didn't. For them, there's no question about who
should get the benefit of the doubt: They should.

So at best, DRM and laws like the proposed Consumer
Broadband and Television Promotion Act are the equivalent of
using a nuclear warhead to kill a mole in your backyard.

We'll exempt Listen.com's chairman Rob Reid from being a
Hollywood type. He provided a counterbalance to the MPAA's
Valenti whining, "How can we possibly compete with free?"
Reid noted plenty of examples of products competing with
free alternatives, including the four or five bottles of
bottled water sitting on the tables during the workshop, and
the Free Software people in the back pointed out that
Microsoft still believes it can compete with free. In Reid's
company's case, Listen.com tries to provide a more
convenient interface, better customer service, a bigger
catalog, and higher quality recordings than the free
file-sharing services out there.

Reid didn't quite say it this bluntly, but this was his
underlying message to Hollywood: You'll never be able to put
the free services out of business, so beat 'em at their own
game. And if you can't compete, maybe you really are a bunch
of dinosaurs who need to be put out of their misery.

Faulty assumption No. 5: What we're talking about is static
"content." Content is an easy word to use to describe
information that's traded online, but content implies
something that doesn't change. Seth Johnson, of the
Information Producers Initiative, points out that people
online "want to collaborate and do interesting things." So a
song you've downloaded may later be used as a sample in
another song you're writing. The movie clip you've
downloaded gets set to music and shared with a couple of
friends. Three news articles you've read get pasted into
term paper you're working on.

All those uses are your right under current fair use
exemptions to copyright law. But most DRM efforts, including
Microsoft's proposed Palladium, would make those uses much
more difficult, if not impossible.

Faulty assumption No. 6: The DRM debate is about doing
what's right. Let's look at how this is playing out:

 The movie and recording industries have sued services like
Napster while dragging their own feet in providing similar
services.

 Big Hollywood would rather restrict your fair use rights
than come up with business plans to compete on the Internet.

 If producer-based DRM schemes don't work, Big Hollywood
wants Big Technology to change how computers work so you
can't make any "unauthorized" copies. Some IT companies,
such as Microsoft, are ready to go along with this.

 Big Hollywood companies are now asking Washington to give a
second ownership of digital content they've already legally
sold to you once. They want to get paid a second time after
they've pocketed the profits from the first sale.

 All this is happening despite what appears to be the
public's desire for near-unrestricted access to digital
content. Because of the wishes of a few content producers
with well-placed friends, some kind of DRM is likely to be
forced down the public's throats.

This is about the money Big Hollywood executives see on the
Internet. They lack the drive and the creativity to create a
working business plan, so they're asking for the government
to step in and prop them up. They're asking that the
copyright bargain -- this agreement with the public that has
turned them into rich men -- be revoked and the agreement
turned into a one-sided enforcement action.

This is about corporate greed, nothing more. And the sad
thing is that a majority of the public won't notice until
that greed has overrun their rights.