Digital Copyright Protection

I've been reading a very fascinating debate at the New York Times site about the topic between--go figure--two lawyers. You can infer the joke about how the first commentators on an economic/business question are the ones with arguably the least direct training and experience therein.

First, let's start the debate over again. Why do people create content in any form? Two reasons. First, because they want to. Second, for some form of renumeration. In the case of corporations, this means monetary payment. In the case of open source coders (such as GNU contributors) I would say this is in the form of more usable software that does what they want it to do.

Then there's the US Constitution's granting of copyrights (I use this as an example only because I live in the States). Let's all remember they lived in an analog age where to infringe on a copyrighted work you had to either (a) hand copy it over and over again or (b) pay someone with a printing press to print copies. Either way you had to put in some serious time and money in hopes of making enough on sales to offset the costs. Let's face it, barriers to successful mass infringement were huge when those words were written and have been dropping steadily ever since. Computers and the Internet might be as low as barriers will go, but only time will tell.

What does this say about the debate of copyright protection on digital media? Very simply, it says that the only time such protection makes sense from an economic point of view is when it generates more revenue than it costs to implement. Does it? I don't know, but I know no protection system which allows the media to be played is going to ever stay unbroken forever. Moreover, it's likely that as time goes on it's going to get harder, not easier, to protect content.

I think any casual visit to doom9 or recalling the publication to the Internet of the key to hundreds of DVD titles a few months ago (not to mention the ongoing success of dvdlibcss2, which lets DVD's be played on Linux boxes or my history example above) will convince most reasonable people that in the arms race between "hackers" and "protectors", given time the hackers will win every time. It's not just software either. At some point the material has to be played, and a clever person with a Linux box could physically hack the monitor to record the imagery--unencrypted--as it gets displayed. This is not hyperbole, merely a more sophisticated version of sneaking a camcorder into a movie theater.

So what does this make copy protection schemes? I'd say "futile" sums it up nicely. Any system, not matter how strong, which enables playback will eventually get cracked. Period.

Then there's the argument that if we can't protect media we can keep it from being transfered. I refer back to my previous point about any system being able to be worked around. Maybe with enough draconian restrictions such a system could stop more transfers than it misses, but are we really willing to (a) pay the money or (b) the cost in civil liberties?

There's one last point that seems to get missed: some people pirate on principle, most because it's cheaper than getting an official copy (in terms of total expense of time, money, and effort). One key question is therefore this: of the people any copyright protection system prevents from pirating/having access to pirated materials, how many would buy a legal copy to have access?

I'll be honest, there are lots of songs and movies that if they were free to download I'd download and keep but that I would never buy nor rent. My favorite example is the annual James Bond marathons on cable TV. Yes, I like James Bond, but I'd not rent them, much less buy them. So if someone suddenly said to me "Goldeneye will never again be played on cable TV" this isn't a big loss and I'm not going to turn around and buy a new copy at prevailing store prices (even the Amazon ones I link to), but I might buy one used for half as much or better yet, for $1 to download. Radiohead's experiment in name your own prices would make for an interesting case study. One question I have is how many downloaded the album because they had never heard much of Radiohead's music and thought they'd try it out. Even more interesting, how many of those people then paid for a second download of the album? How many of those then recommended the album to others who then did the same thing? How many sales have happened since the cited articles? There are many interesting questions here that would inform the debate with hard evidence which, as far as I have seen, no one has bothered talking about to the public.

Whether we (or anyone else) likes it or not, Internet file sharing and downloading are here to stay. Is it legal? Not in most places. Is it ethical? I don't happen to think so and I think everyone who paid for Radiohead's album agrees. On the other hand, business is about the bottom line: profits. Is it profitable to fight the copy protection arms race? With several of the biggest music labels dropping DRM, I'd say the answer is probably "no", but the question is still open.

Never forget: in any market it's not the law that matters, but the bottom line. The world's lawyers need to sit up and take notice.