DECE seeks complex DRM that approximates the simple first-sale doctrine that consumers expect

Consumer elec­tron­ics man­u­fac­tur­ers and Hollywood stu­dios have a prob­lem: when cus­tomers pur­chase a movie online, they expect to be able to watch it any­where — but, thanks to Digital Rights Management (DRM), they can’t eas­ily do it (unless they bought a phys­i­cal DVD and rip it, or oth­er­wise remove the DRM, which is what Hollywood is des­per­ate to pre­vent).  The Digital Entertainment Content Ecosystem (DECE) wants to change that:

The group is set­ting out to cre­ate a com­mon dig­i­tal stan­dard that would let con­sumers buy or rent a dig­i­tal video once and then play it on any device. It might sound tech­ni­cal, but it could be cru­cial to per­suad­ing con­sumers to buy all the splashy new Internet-​​connected gear that tech com­pa­nies will demon­strate at C.E.S., like HDTVs and set-​​top boxes that can down­load TV shows and films.

via Hollywood and Technology Companies Work to Make Digital Video Portable — NYTimes​.com. (For a more customer-​​focused dis­cus­sion, see DECE’s Plans for Digital Movie Purchases May Confuse and Anger You — Downloads — Gizmodo.)

Of course, we already have com­mon dig­i­tal stan­dards that allow exactly this. What we don’t have is a com­mon sys­tem that imple­ments shared restric­tions (DRM) and allows Hollywood to spec­ify what you can (or, more usu­ally, can’t) do with the prod­uct you pur­chased on all your devices.

To a con­sumer — me, for exam­ple — buy­ing media with DRM that lim­its what I can do through tech­no­log­i­cal and con­trac­tual restric­tions feels an awful lot like rent­ing that media. Why should I spend extra to “buy” some­thing that won’t let me use it to the max­i­mum extent pro­vided by law? Sure, I don’t expect to be able to make copies and sell them, but I do expect  to be able to fully uti­lize what I pur­chase: sell it, play it when and how I like, and so on.

This intu­itive expec­ta­tion by con­sumers has a legal con­cept asso­ci­ated with it: first sale. That doc­trine, which applies to most of what a reg­u­lar per­son has been pur­chas­ing for years, cuts off the abil­ity of the orig­i­nal seller to deter­mine what hap­pens next in the stream of com­merce. I can sell my new pur­chase, destroy it, rent it, take it apart, and so on. I can’t nec­es­sar­ily copy it (at least, not if patent pro­tec­tion exists, or copy­right applies), but I can pretty much do what I want with it. This is why CD resale stores exist, why Netflix can mail you DVDs in a day, and why Craigslist (and news­pa­per clas­si­fieds) can exist. It is what cus­tomers have come to expect from the prod­ucts they purchase.

But it isn’t what they get from movies pur­chased online (or from e-​​books, for that mat­ter) or often from music either (although Apple and oth­ers have finally pushed back enough to remove DRM from most music — per­haps this is a les­son for Hollywood?). Instead, con­tent own­ers (who may or may not be cre­ators or pro­duc­ers) want to “license” your access to media, and to stick DRM on to limit what you can do with it — but they still want you to pay them the same amount as if you were pur­chas­ing some­thing that gave you full first-​​sale rights. And then they won­der why con­sumers balk?

I don’t mind pay­ing a small amount to “rent” (I know roughly what that means) limited-​​use media. But if I buy some­thing, I want to own it, and I want full first-​​sale rights to it, not some tech­no­log­i­cal restric­tion that arti­fi­cially lim­its my use (and tends to break across man­u­fac­tur­ers and over time).