DRM is a GOLEM

A number of people have pointed me to Walt Mossberg's DRM piece in the Wall Street Journal yesterday. Since I get the Journal, I read it in print as well.

Folks pointing me to it thought I would like it, I guess, because they liked it. But I didn't. Here's Walt's gist:

...the real issue isn't DRM itself -- it's the manner in which DRM is used by copyright holders. Companies have a right to protect their property, and DRM is one means to do so. But treating all consumers as potential criminals by using DRM to overly limit their activities is just plain wrong.

Let's be clear: The theft of intellectual property on the Internet is a real problem. Millions of copies of songs, TV shows and movies are being distributed over the Internet by people who have no legal right to do so, robbing media companies and artists of rightful compensation for their work.

Even if you think the record labels and movie studios are stupid and greedy, as many do, that doesn't entitle you to steal their products. If your local supermarket were run by people you didn't like, and charged more than you thought was fair, you wouldn't be entitled to shoplift Cheerios from its shelves.

On the other hand, I believe that consumers should have broad leeway to use legally purchased music and video for personal, noncommercial purposes in any way they want -- as long as they don't engage in mass distribution. They should be able to copy it to as many personal digital devices as they own, convert it to any format those devices require, and play it in whatever locations, at whatever times, they choose.

I didn't like this piece because it's pro-DRM. For example, it doesn't visit the reasons why millions of people "steal" recordings. There are piles and piles of recordings that the recording industry has taken off the market. There are many more cases where customers (I refuse to call them "consumers") replace old vinyl recordings with digital ones obtained from others over the Net. And there are the roadblocks and other frictions that the record industry has created to "protect" what is essentially unprotectable, while avoiding creative approaches to participation in a marketplace where the demand side has as much power to supply as the old supply side.

Then there is that misnomer, "intellectual property", which Richard Stallman attacks nicely here...

The propaganda term "intellectual property" acts as a motor for these restrictions, because it leads people to assume that writings and ideas must be proprietary. It also focuses attention at an abstract economic level, where writings and ideas are merely interchangeable tokens that a business can own.

And here...

IT has become fashionable to describe copyright, patents, and trademarks as ‘intellectual property’. This fashion did not arise by accident - the term systematically distorts and confuses these issues, and was promoted by those who gain from this. Anyone wishing to think clearly about any of these laws would do well to reject the term.

One effect of the term is a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, these companies have worked to make the term fashionable.

According to Professor Mark Lemley, now of the Stanford Law School, the widespread use of the term ‘intellectual property’ is a fad that followed the 1967 founding of the World ‘Intellectual Property’ Organisation, and only became really common in the past few years. (WIPO is formally a UN organisation, but in fact it represents the interests of the holders of copyrights, patents and trademarks.)

Those who would prefer to judge these issues on their merits should reject a biased term for them. Many have asked me to propose some other name for the category - or proposed alternatives themselves. Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of ‘exclusive rights regimes’, but this means referring to restrictions as rights, which is doublethink too.

The cause of my discomfort became clearer when I read Don Marti's Walt Mossberg on DRM this morning:

It's important to recognize, though, that DRM is not just a "consumer" issue—but I said that already.

I unsubscribed from a certain DRM-related mailing list when I realized that everyone was just thinking of bits as product, not as information. There are reasons for sending and receiving information other than commercial transactions. Information matters outside of commerce—a quotation from the incumbent's first campaign in a political video, a memo telling you to do something illegal, a sound bite in a parody. When DRM gets applied to that kind of information, there's no legal safety valve to let you circumvent it.

So we need the DMCRA.

There's more. Read the whole thing. Also the links.

And here too, where I visit the reasons why we (the techies who know, understand and care about the deeper issues) keep losing to Hollywood on DRM, copyright and patents.