Might as well legislate against gravity

So with the news that Canada is going to bring in our own version of the DMCA, and that the Democrats in the Senate are bringing in a "rescue legacy radio act", it might be time to revisit the problems with legally protecting digital rights management (DRM) technologies.

DRM can be any number of things, but the most basic aspect of it is restricting the function of a computer or electronic device. DVDs are encrypted to prevent them from being copied. iTunes only lets you burn a song a certain number of times. And so on. These restrictions may be reasonable or not, but they are unquestionably a crippling of your computer. A computer, after all, is fundamentally nothing more than a machine to copy bits. It is only a "good" computer in so far as it copies bits quickly and accurately.

Here's the problem, though: DRM can never work. Because the architecture of computers has been open for so long -- since the beginnings of the personal computer industry, really -- it's dead easy for software and hardware hackers to reverse any DRM scheme. The encryption scheme AACS, which was supposed to protect hi-definition DVDs from piracy, has been breached. It's only a matter of time until it is effectively useless. And your average consumer doesn't need to know how to unzip any particular DRM scheme: they just need to know where to find the liberated files on the Internet. This is what's called the "break once, infringe anywhere" or "one smart cow" problem: All it takes is one smart cow to open the gate. And there are millions of smart cows on the Internet.

Surely, if nothing else, the last decade of experience has shown that increasing the legislative protections for DRM don't, in fact, stop copyright infringement.

There is absolutely no technical fix to digital copyright infringement, a fact which was grasped years ago by no less than Microsoft's own employees (Word document link.) Indeed, DRM serves as the most effective inducement towards copyright infringement, because DRM-wrapped goods are substantially lower-quality than non-DRMed goods. If I download an MP3 and the label has decided to prevent me from, say, recording it to CD or making a ring tone out of it, then I've pretty much wasted my money -- downloading the same music illegally simply offers more freedom, and therefore a better product.

So if it can't work, and if might even in fact induce copyright infringement, why are the movie studios and music labels so crazy for DRM? Because this isn't about "piracy". Read it again, and understand: This isn't about piracy. What is it about? In short, it's about undoing Betamax. I said above that the last decade shows that DMCA-style laws don't work at protecting copyright. What the DMCA was really, really good at was stopping challenges to the movie industry's business model.

One of the particularly odd questions you sometimes hear or read in tech news discussions is why there isn't a game-changing device for video, the way there was the iPod for audio. It's a silly question -- for the largest market in the world, ripping a DVD is illegal. Making a machine to rip DVDs is illegal. Selling a machine to rip DVDs is illegal. This hasn't stopped electronics firms from doing some sneaky things (like adding VGA ins to new TVs, or putting DivX support on new DVD players) but it's nevertheless stifled innovation in the personal electronics sector for no good use.

Aside from preventing challenges to the movie industry's business model, the other purpose of DRM is to create new business models. As Ken Fisher puts it:

Access control technologies such as DRM create "scarcity" where there is immeasurable abundance, that is, in a world of digital reproduction. The early years saw tech such as CSS tapped to prevent the copying of DVDs, but DRM has become much more than that....

To create new, desirable product markets (e.g., movies for portable digital devices), the studios have turned to DRM (and the law) to create the scarcity (illegality of ripping DVDs) needed to both create the need for it and sustain it. Rather than admit that this is what they're doing, they trot out bogus studies claiming that this is all caused by piracy. It's the classic nannying scheme: "Because some of you can't be trusted, everyone has to be treated this way." But everybody knows that this nanny is in it for her own interests.

Now, maybe this is a good thing. Maybe this will create incentives, efficiencies, whatever. I honestly can't say -- though I'm deeply skeptical. But it's quite clear that we're having a debate of lies. The studios claim this technology is necessary to stop piracy. (Doubly false: piracy is not harming them nearly as much as they claim, and these techniques are irrelevant to that problem anyway.) If we are going to repeat the decade-long mistake of American law and try, Canute-like, to sweep back the ocean of digital technology, we might as well have an honest debate about it.

If the music labels want to enclose the digital commons -- to strip us of fair use rights that we previously held under law -- then they ought to at least make an honest argument for it.

In the meantime, write your MP and tell them what you think about this.