Copyright as Antidote to DRM

Published: April 17, 2009Posted in: copyright, intellectual property, lawTags: , , , , , , ,

A man protests Digital Rights Management in Bo...Image via Wikipedia

Consider this idea: with­out copy­right pro­tec­tion for dig­i­tal media, we would have even more Digital Rights Management. Why? Because with­out it, recoup­ing up-​​front invest­ment with­out restrict­ing dis­tri­b­u­tion would be dif­fi­cult or impos­si­ble. Since I often see a con­flu­ence of beliefs around those who hate DRM and those who hate copy­right laws (I myself fall into this belief sys­tem in cer­tain cir­cum­stances), I think this is an impor­tant point to remember.

I do think that a rea­son­able argu­ment can be made that in many sit­u­a­tions, espe­cially in regards to mechan­i­cal devices that take time and resources to reverse engi­neer and repro­duce, that “first-​​mover” returns (as just one exam­ple) are suf­fi­cient to recoup ini­tial costs (espe­cially if the busi­ness is han­dled in a savvy way) and that there­fore patent pro­tec­tion is not nec­es­sary to encour­age inno­va­tion.

But what about when repro­duc­tion costs approach zero, as with soft­ware or elec­tronic books, but devel­op­ment costs are poten­tially high? (Despite open-​​source suc­cess sto­ries, soft­ware devel­op­ment costs money, and authors of nov­els spend real time — and money — writing).

Alternative busi­ness mod­els might help if we lacked copy­right pro­tec­tion (sub­scrip­tions for the lat­est soft­ware patches, sell­ing soft­ware sup­port ser­vices, or other cre­ative busi­ness approaches), but I sus­pect at least some busi­nesses would decide that DRM would be a good model.

After all, with­out legal pro­tec­tions, the only way to limit copy­ing would be through pri­vate mea­sures. DRM is one such pri­vate method. This would lead, I sus­pect, lead to an “arms race” between hackers/​crackers and pub­lish­ers, but the pay off for pub­lish­ers in gain­ing addi­tional monop­oly time through tech­ni­cal mea­sures would be large enough for be worth­while. The user mar­ket might push against too much restric­tion, but again, with­out any legal pro­hi­bi­tions against copy­ing, pub­lish­ers would be incen­tivized to use at least some DRM-​​based restric­tions. The pay off in pro­tec­tion would sim­ply be too large, and busi­ness might well decide that cus­tomer unhap­pi­ness could be man­aged through var­i­ous other mech­a­nisms (like reduced prices or mar­ket­ing), rather than “give in” to those who would copy with­out paying.

Of course, in real­ity it is not nec­es­sar­ily a black vs. white kind of propo­si­tion. We do not need to elect either full copy­right or no copy­right. We could choose a more lim­ited form of copy­right than we have today.

In truth, I believe lim­it­ing cur­rent copy­right is the right approach to the sit­u­a­tion. Unfortunately, it requires com­plex think­ing and analy­sis, and all the fac­tors are hard to quan­tify. (I sup­pose this is another exam­ple of why lawyers almost always say “it depends” when asked their opinion.)

This kind of analy­sis also gives us “fair use,” a doc­trine sadly neglected (in my opin­ion), and one that could use some more clar­ity and strength.

But for now, just remem­ber you need to con­sider all the ram­i­fi­ca­tions if you rail against copy­right, just as those who favor stronger copy­right need to con­sider the neg­a­tive impacts of that approach. Remember that a likely out­come of elim­i­nat­ing legal pro­tec­tions would be an increase in pri­vate enforce­ment alter­na­tives like DRM, and pon­tif­i­cate accordingly.

Related arti­cles

Reblog this post [with Zemanta]

Related articles