View 315 June 21 - 27, 2004 (original) (raw)
Tuesday, June 22, 2004
More on SpaceShipOne later after my walk. We'll also discuss Digital Rights Management. For now on that see Mail; more when I get back. Sable calls...
DRM: The Issues.
(This may become large enough to warrant a separate page; if so that page will always be referenced here,so bookmarking this page and topic will lead you there.)
This has become an important issue, not just here, and I don't think the issues have been defined fairly. There's already a lot about this; but much of it, I think, is aimed in the wrong directions.
First, although it has been referenced before, it's well to look at the Doctorow statement of the Electronic Freedom Foundation position. That is found here, http://craphound.com/msftdrm.txt and I am going to assume that everyone interested in this has read it.
The summary position is:
Here's what I'm here to convince you of:
1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT
And that certainly frames the issues.
His first statement may be key: it assumes his position, because if DRM can't be made to work, the entire issue is moot.
He certainly has not proved his case. Caesar used a "picket fence" code which was good enough to deceive Gauls who couldn't read Latin to begin with, but which isn't good enough for now; but why it's worth five minutes of a talk is beyond me. No one proposes anything so simpleminded. It may be that DRM can't be made to work. I have been known to speculate to that effect myself; but a lot of people with a lot of experience in this business think they can make it work reliably enough to protect against unauthorized commercial exploitation of copyrighted works, and if so that's all we have now.
Example: Israel, Taiwan, and Hong Kong all have printer/publishing firms that pirate books, including mine. I discovered one of them at a Price Club: there was an edition of one of my books printed by a publisher with whom I have never dealt, selling in a American discount store for about 10% of the US publisher price. Mine wasn't the only one there. Repeated (and painfully slow) negotiation with the Department of State got the publisher closed down, although someone in the government where the publisher resided seems to have warned him since there was no one on the premises when the shop was raided. This sort of thing happens frequently. Could we then say that copyrights "don't work"? And of course the answer is "not perfectly, no, but they do work reasonable well." They have been effective enough to let both me and my legitimate publishers make some profits on my books, and do this without accepting advertising, or begging, which seem to be a couple of Doctorow's solutions to us old buggy-whip makers who think we ought to be paid for our property.
So: can DRM work? I am not sure. I am sure that the strawmen Doctorow kicks apart in his presentation aren't particularly relevant. I have been to the DRM sessions at four different WinHEC conferences as well as the 2003 Microsoft Developer's Conference and in every case I have taken the position that it can't be done; and the people at those conferences have been pretty good at showing me that maybe it can be done, at least "good enough". Note also that DRM for movies and performances are not really the same problem as for books. Distribution on a disk that one expects to play on any system it's plugged into is not quite the same as distribution by download of a file that you know in advance will only play on certain systems and certain kinds of systems.
In other words, I don't think the issue of feasibility is a closed issue, and I do not think that Doctorow and his supporters have proved their case: they assume they are right and assure us they know better than the developers. Perhaps so, but surely one need not accept that automatically? Indeed, if it can't work, what is all the discussion about?
Microsoft developers take the position that whether or not DRM is a good idea, it is certainly legal, and both publishers and authors and artists want to have the right to protect their property in various ways; and that they are pretty sure they can provide a reasonable degree of DRM, including a wide variety of choices for the authors and publishers. Many of them are quite as good at programming as Doctorow and his advisors.
Next: is it good for society?
That is certainly not a proved case. The Framers of the US Constitution hated monopolies but they wrote an exception to that dislike into the body of the Constitution itself. At the time they thought 14 years a reasonable time for copyright; but of course people didn't live as long or have productive lives as long then as they do now. Some time later the Copyright Act provided for 26 years, renewable for an additional 26; it also made some provisions for original creators to recover some lost rights during that renewal process. Works not renewed fell into the public domain. Many of us thought that reasonable, and while I did testify in support of some changes to the Copyright Act, I did not take a position on the modification to life plus some span of years; and I publicly oppose the latest revisions of life plus an inordinate number of years.
But good for society is a complicated question, and involves things like the nature of rights. "Rights" is a peculiarly English Common Law concept anyway. The French Revolution said a lot about the Rights of Man and the Citizen, but in fact what they put forth as "rights' are more calls to action and stirring exhortations than "rights" as understood in the US and England. The more common Continental (and particularly Russian) notion of rights are not property rights held by an individual, but a system of duties on the part of the public prosecutor and authorities. The distinction is important.
Without public enforcement of rights, do they exist? That is the argument of the Code Napoleon and the old Roman Law (most of that developed by the Praetors and Senate during the Empire and codified by Justinian). Rights not recognized and enforced by the state aren't rights at all, but merely aspirations. Under ancient Roman Law in the Republic, rights weren't enforced by the state, so that a court decree granting you a right was merely a license to get your clients and relatives together and go try to take your property by force: the authorities wouldn't interfere. This led to some scenes echoed in the American Wild West, complete with Committees of Vigilance as the only means for enforcing individual rights -- and of course they trampled heavily on other rights. Imperial Roman Law changed most of that, and law and contracts were enforced by the State.
So what we are really saying here is not do individual authors and composers have a moral right to dictate how their creations shall be distributed, but do they have rights in the legal sense that will be enforced by laws and both civil and criminal courts?
Doctorow and his group say "not really." He also chooses his examples carefully, most of them out at the extremes; but everyone knows that hard cases make bad law, and while the law has to deal with extreme cases, it isn't normally written with only those cases in mind.
I'm framing issues here, not answering all questions: and the issue "is Digital Rights Management" bad for society is not, I think, settled despite his glib assumption that it's no question at all. It is a very complex question, and was debated at length in the Convention of 1787, and much of that debate remains quite relevant today. Note too that "intellectual property" is not all that new an idea. Song and sheet music was copyrighted and pirated a lot back in the early part of the last century. Books have been physically copied and printed and sold without permission of author and publisher for a very long time, and the argument that somehow if someone "steals" intellectual property it isn't theft because he has only taken a copy and the original remains, unchanged, in the hands of the owner is no more relevant when the copy is done electronically as when it was done by hand setting the work into a letter press without the owner's permission. It's just easier to steal it now.
His third proposition, that it is bad for business, is also unproved, but it need not be proved in any event. If DRM protected works don't sell, and other works without DRM do sell, the market will take care of all that; we don't need debates and discussions. And once again the returns are not all in: there is evidence that books given away electronically sell no worse, and some sell better, than works not so treated, but there is also evidence that works with previews and excerpts but not the entire work sell about as well.
This is, I think, a matter of technology. It is only recently that it is about as convenient to read a book on a computer as it is to read an actual hard-bound book. TabletPC's and Ultra-Light computers with really good reading software come pretty close now, and they're getting better. So are other hand-helds. Until very recently no computer offered a decent reading experience, and while there may be hundreds -- even thousands -- of people who like reading books on Palm and PocketPC devices, there aren't so far enough to make a drastic impact on sales: at least on on my sales and those of other best-sellers. Alas, mid-list and specialty authors are already in trouble because of the distribution crisis in publishing, and loss of a few thousand sales is very likely to be critical to them: so electronic piracy may well kill off a number of works with an intense but small readership. Or may well be their salvation, some would argue. Perhaps so; but surely this is not an entirely settled issue?
Much of the data collected so far may not be relevant to the new technology when reading books on computer devices is easy and convenient.
And: DRM may be good or bad for sales, and business, but authorship hasn't always been about sales and business. A few years ago publishers began inserting advertisements into books. Some of them put cigarette and liquor ads into works without telling the authors. Some authors objected like hell. Publishers offered some of the revenue as compensation. Some authors took that. Others continued to object because they didn't want to be promoting cigarettes and booze. Perhaps they were foolish, but I don't think it an entirely settled matter as to whether they had the right to opt out, even though the ads were probably "good for business" and the author insistence on control of those ads was probably "bad for business."
His fourth point is that DRM is bad for artists, and once again, he certainly has no consensus of authors and artists on this point, nor has he been appointed their spokesman. If we have some problems with the concept of "good for business" and "bad for business," we have many more problems with the concept of "good for artists" -- unless, of course, one simply declares that what Doctorow thinks is good for artists is in fact good for them and the artists don't know their own interests.
John Adams said once that in America we consider that each man is the best judge of his own interest. He acknowledged that in individual cases this might seem to be demonstrably untrue, but as a principle it was good for society. Our modern Nanny State has negated that principle in large part, and many of the freedoms that Adams' principle implied have been lost; but I am not prepared to hand over judgment as to what is good or bad for artists to Doctorow and his friends. When I was president of Science Fiction Writers of America I never went so far as to assert I knew their interests better than the members, and I worked pretty hard at trying to get a consensus before I did any bargaining with publishers; I don't think Doctorow has consulted many writers and artists, and he certainly hasn't been given the right to speak for me or for many writers who make a living at what we do; and I doubt he has a consensus of composers and graphic and performing artists either.
Another principle here: not all artists have the same problems. The US has some very bad copyright laws. One of them has a provision snuck into the Copyright Bill in the dead of night by a Congressional staffer who subsequently left government employ and went to work for the RIAA at a hell of a good salary: this provision gives essentially all rights to a performance to the publisher and none to the artist. No Congressman or Senator has ever been found who will admit to having read that provision before voting for the law, and most of them say it is a shame and ought to be changed; perhaps it has been changed and I didn't notice since it doesn't affect me, but a couple of years ago all Congresscritters were saying it was bad law, they didn't vote for it, it needed changing -- and then doing nothing whatever about it.
Writers don't have that problem. The default rights sold by authors are considerably narrower than those taken by publishers in performance art. Writers must explicitly sell all rights as "a work for hire" before losing all their claims.
Thus it may be -- I don't say it, because I haven't spent enough time consulting with performing artists -- that given the law as it stands, DRM would be bad for artists because they don't get much from DRM -- but that isn't necessarily true for composers and authors and graphic artists.
As to whether DRM is bad for Microsoft, I will leave that to Microsoft to decide.
So: in contrast to Doctorow, I think:
1. DRM may or may not be impossible; a lot of smart people think it is feasible.
2. It is not at all a settled issue whether DRM is bad for society. That certainly needs more discussion.
3. We don't really need to know if DRM is good or bad for business, since the market will almost certainly settle that: those who choose to employ DRM will find out soon enough whether their business model is correct or if the "give it away and they will find a way to pay me back" model is better, or if some other model is better.
4. There is no consensus of artists on whether DRM is good or bad for artists, and there needs to be a lot more discussion. In any event, deciding for them isn't obviously the morally superior position.
5. Microsoft will decide whether DRM is good or bad for Microsoft. My guess is that the answer to the first four questions will decide that matter.
Now let the debates begin. You may want to Start here. Or next:
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In long discussion on this, Mr. Thompson says:
From a libertarian perspective, copyright is not a natural right, as for example property rights are...
You say that we'd have fewer novels written if copyright terms were reduced. Permit me to doubt that. Perhaps you would write fewer novels, but there is no lack of people clamoring to be published.
I had not known that about the libertarian position.
As to the rest, I agree. You can find as much of that kind of work as you like. Just enroll in a writing workshop.
They aren't published because publishers don't think they will make much on them. Publishers take chances on unknowns in the hope that the editor's judgment that this book is good and this author will develop is correct. Most of those bets are lost. A few, like with the Harry Potter books, pay off big. When the publisher gets a big payoff he can afford to take more chances.
I had a number of writers come to me after Lucifer's Hammer auctioned for an enormous (in those days) advance, larger than any science fiction book had ever got. "You are taking the bread out of our mouths! You soak up all the money that the publisher had for advances, and left none for me!" And many variants on that theme.
My reply was "Actually, Hammer made a good profit for the publisher, as well as paying overhead, and it's from those profits and overheads that the publisher can pay new advances for other books. Mote in God's Eye made money, on what was then a big advance for science fiction but which is about average now. It earned out and made money which is one reason the average advances are larger."
Stop the publisher from making a killing because he doesn't deserve that intellectual property (how are you harmed? You still have your book! Just because I pirate printed copies and gave them away, you still have your property, nothing was stolen from you!) -- stop the publisher from making a killing on successful books and you pretty well assure that the publisher won't take many chances on other books.
The nature of publishing is changing, but one thing is certain. There are plenty of people with plenty of novels they would like to see published (or parts or novels, or unedited messes they call novels) and they will certainly "publish" them given half the chance. Whether that is what readers really want I don't know. I do know that if you take the revenue out of books, no one but a blockhead will work very hard to get them out in good form, rewritten to a competent editor's suggestions, and carefully copy edited. We don't call galley proofing galley slavery because we like doing it...
And it all continues, in Mail.
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I have not had a chance to look at much of this, but it seems alarming:
www.southafricanemigration.com
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