Content by Cory Doctorow (top ebook reader .TXT) 📕

to run afoul of anticircumvention.

That's what happened to Jon Johansen, a Norwegian teenager who wanted to watch French DVDs on his Norwegian DVD player. He and some pals wrote some code to break the CSS so that he could do so. He's a wanted man here in America; in Norway the studios put the local fuzz up to bringing him up on charges of *unlawfully trespassing upon a computer system.* When his defense asked, "Which computer has Jon trespassed upon?" the answer was: "His own."

His no-fooling, real and physical property has been expropriated by the weird, notional, metaphorical intellectual property on his DVD: DRM only works if your record player becomes the property of whomever's records you're playing.

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3. DRM systems are bad for biz

This is the worst of all the ideas embodied by DRM: that people who make record-players should be able to spec whose records you can listen to, and that people who make records should have a veto over the design of record-players.

We've never had this principle: in fact, we've always had just the reverse. Think about all the things that can be plugged into a parallel or serial interface, which were never envisioned by their inventors. Our strong economy and rapid innovation are byproducts of the ability of anyone to make anything that plugs into anything else: from the Flo-bee electric razor that snaps onto the end of your vacuum-hose to the octopus spilling out of your car's dashboard lighter socket, standard interfaces that anyone can build for are what makes billionaires out of nerds.

The courts affirm this again and again. It used to be illegal to plug anything that didn't come from AT&T into your phone-jack. They claimed that this was for the safety of the network, but really it was about propping up this little penny-ante racket that AT&T had in charging you a rental fee for your phone until you'd paid for it a thousand times over.

When that ban was struck down, it created the market for third-party phone equipment, from talking novelty phones to answering machines to cordless handsets to headsets -- billions of dollars of economic activity that had been suppressed by the closed interface. Note that AT&T was one of the big beneficiaries of this: they *also* got into the business of making phone-kit.

DRM is the software equivalent of these closed hardware interfaces. Robert Scoble is a Softie who has an excellent blog, where he wrote an essay about the best way to protect your investment in the digital music you buy. Should you buy Apple iTunes music, or Microsoft DRM music? Scoble argued that Microsoft's music was a sounder investment, because Microsoft would have more downstream licensees for its proprietary format and therefore you'd have a richer ecosystem of devices to choose from when you were shopping for gizmos to play your virtual records on.

What a weird idea: that we should evaluate our record-purchases on the basis of which recording company will allow the greatest diversity of record-players to play its discs! That's like telling someone to buy the Betamax instead of the Edison Kinetoscope because Thomas Edison is a crank about licensing his patents; all the while ignoring the world's relentless march to the more open VHS format.

It's a bad business. DVD is a format where the guy who makes the records gets to design the record players. Ask yourself: how much innovation has there been over the past decade of DVD players? They've gotten cheaper and smaller, but where are the weird and amazing new markets for DVD that were opened up by the VCR? There's a company that's manufacturing the world's first HDD-based DVD jukebox, a thing that holds 100 movies, and they're charging *$27,000* for this thing. We're talking about a few thousand dollars' worth of components -- all that other cost is the cost of anticompetition.

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4. DRM systems are bad for artists

But what of the artist? The hardworking filmmaker, the ink-stained scribbler, the heroin-cured leathery rock-star? We poor slobs of the creative class are everyone's favorite poster-children here: the RIAA and MPAA hold us up and say, "Won't someone please think of the children?" File-sharers say, "Yeah, we're thinking about the artists, but the labels are The Man, who cares what happens to you?"

To understand what DRM does to artists, you need to understand how copyright and technology interact. Copyright is inherently technological, since the things it addresses -- copying, transmitting, and so on -- are inherently technological.

The piano roll was the first system for cheaply copying music. It was invented at a time when the dominant form of entertainment in America was getting a talented pianist to come into your living room and pound out some tunes while you sang along. The music industry consisted mostly of sheet-music publishers.

The player piano was a digital recording and playback system. Piano-roll companies bought sheet music and ripped the notes printed on it into 0s and 1s on a long roll of computer tape, which they sold by the thousands -- the hundreds of thousands -- the millions. They did this without a penny's compensation to the publishers. They were digital music pirates. Arrrr!

Predictably, the composers and music publishers went nutso. Sousa showed up in Congress to say that:

These talking machines are going to ruin the
artistic development of music in this
country. When I was a boy...in front of every
house in the summer evenings, you would find
young people together singing the songs of
the day or old songs. Today you hear these
infernal machines going night and day. We
will not have a vocal chord left. The vocal
chord will be eliminated by a process of
evolution, as was the tail of man when he
came from the ape.


The publishers asked Congress to ban the piano roll and to create a law that said that any new system for reproducing music should be subject to a veto from their industry association. Lucky for us, Congress realized what side of their bread had butter on it and decided not to criminalize the dominant form of entertainment in America.

But there was the problem of paying artists. The Constitution sets out the purpose of American copyright: to promote the useful arts and sciences. The composers had a credible story that they'd do less composing if they weren't paid for it, so Congress needed a fix. Here's what they came up with: anyone who paid a music publisher two cents would have the right to make one piano roll of any song that publisher published. The publisher couldn't say no, and no one had to hire a lawyer at $200 an hour to argue about whether the payment should be two cents or a nickel.

This compulsory license is still in place today: when Joe Cocker sings "With a Little Help from My Friends," he pays a fixed fee to the Beatles' publisher and away he goes -- even if Ringo hates the idea. If you ever wondered how Sid Vicious talked Anka into letting him get a crack at "My Way," well, now you know.

That compulsory license created a world where a thousand times more money was made by a thousand times more creators who made a thousand times more music that reached a thousand times more people.

This story repeats itself throughout the technological century, every ten or fifteen years. Radio was enabled by a voluntary blanket license -- the music companies got together and asked for a consent decree so that they could offer all their music for a flat fee. Cable TV took a compulsory: the only way cable operators could get their hands on broadcasts was to pirate them and shove them down the wire, and Congress saw fit to legalize this practice rather than screw around with their constituents' TVs.

Sometimes, the courts and Congress decided to simply take away a copyright -- that's what happened with the VCR. When Sony brought out the VCR in 1976, the studios had already decided what the experience of watching a movie in your living room would look like: they'd licensed out their programming for use on a machine called a Discovision, which played big LP-sized discs that were read-only. Proto-DRM.

The copyright scholars of the day didn't give the VCR very good odds. Sony argued that their box allowed for a fair use, which is defined as a use that a court rules is a defense against infringement based on four factors: whether the use transforms the work into something new, like a collage; whether it uses all or some of the work; whether the work is artistic or mainly factual; and whether the use undercuts the creator's business-model.

The Betamax failed on all four fronts: when you time-shifted or duplicated a Hollywood movie off the air, you made a non-transformative use of 100 percent of a creative work in a way that directly undercut the Discovision licensing stream.

Jack Valenti, the mouthpiece for the motion-picture industry, told Congress in 1982 that the VCR was to the American film industry "as the Boston Strangler is to a woman home alone."

But the Supreme Court ruled against Hollywood in 1984, when it determined that any device capable of a substantial non-infringing use was legal. In other words, "We don't buy this Boston Strangler business: if your business model can't survive the emergence of this general-purpose tool, it's time to get another business-model or go broke."

Hollywood found another business model, as the broadcasters had, as the Vaudeville artists had, as the music publishers had, and they made more art that paid more artists and reached a wider audience.

There's one thing that every new art business-model had in common: it embraced the medium it lived in.

This is the overweening characteristic of every single successful new medium: it is true to itself. The Luther Bible didn't succeed on the axes that made a hand-copied monk Bible valuable: they were ugly, they weren't in Church Latin, they weren't read aloud by someone who could interpret it for his lay audience, they didn't represent years of devoted-with-a-capital-D labor by someone who had given his life over to God. The thing that made the Luther Bible a success was its scalability: it was more popular because it was more proliferate: all success factors for a new medium pale beside its profligacy. The most successful organisms on earth are those that reproduce the most: bugs and bacteria, nematodes and virii. Reproduction is the best of all survival strategies.

Piano rolls didn't sound as good as the music of a skilled pianist: but they *scaled better*. Radio lacked the social elements of live performance, but more people could build a crystal set and get it aimed correctly than could pack into even the largest Vaudeville house. MP3s don't come with liner notes, they