Those of you who regularly stop back to this blog have no doubt noticed that a fair amount of the news updates are concerned with “DRM,” but many of you might not know what that means. You’ve seen Warner Brothers, Sony, Apple and iPod, along with lots of other big media names tied to those articles. I figured this morning would be a good opportunity to tackle some of the basic concepts surrounding “DRM,” and why I think they are important issues for progressives to be out in front of.
DRM means Digital Rights Management, but more importantly, it represents attempts by media conglomerates to use technological means to prevent users from copying content they’ve produced. Originally, it meant preventing CDs and DVDs from being copied, but with the digital age n full swing with MP3 players and digital downloads, it has meant a variety of other things in a variety of different venues all centered around the media industry’s “right” to make as much money as possible.
Concepts in this arena get messy quick, so I’m going to keep this post relatively short and leashed to only one relatively narrow topic: what is it about digital media that has so complicated copyright law?
In the traditional sense, copyright law can be thought of as two separate but related topics: physical copyright and intellectual property. Physical copyright concerns itself with the ability and right to produce goods which employ specific designs on which one person or entity has copyright ownership. You cannot, for example, legally produce fake Rolex watches (a.k.a Faux-lex) and sell them. The Rolex corporation owns the copyright that gives them exclusive rights to produce their watches.
It gets more complicated than that, like all things in law, but physical copyright does not concern us in this discussion. Intellectual property is much more important.
Most of us who went through high school English and History classes are familiar with the concept of “plagiarism.” If you took information out of a book or encyclopedia without attributing that source with a footnote, you were guilty of plagiarism, which was punishable by failure of your entire term paper. That’s because plagiarism is not only unethical but illegal, because it violates intellectual property law.
Because intellectual property is merely information which has been obtained from one source. One does not need to quote a source verbatim nor does it even need to be that sources information, originally. Merely using information you found from one place is enough to be considered using their intellectual property. But the writers of the original copyright laws of this country (Ben Franklin foremost among them) were concerned with intellectual monopoly. And so, they allowed copying intellectual property under two conditions: first, proper credit (attribution) must be given to the original source; second, if any profit is to be made off the intellectual property, the original source has a right to share in that profit.
OK, so what does that have to do with Digital Rights Management? Well, the music, movies and television shows that people copy and distribute on peer-to-peer networks are essentially intellectual property. Most of us have previously tended to think of them as physical objects, thus subject to physical copyright, because we were only able to own them by buying VHS tapes, cassette tapes, records or whatever. But in this digital world where the data contained on DVDs and CDs can be copied to your hard drive, shared with friends on peer-to-peer networks and even burned onto new media, we see those things for what they truly are: they are intellectual property and not physical objects at all.
So, then, the big question: is downloading free MP3s, movie files and such illegal? That is the legal question of the twenty first century, and the one that courts are struggling with. There is a lot of money behind the desire to rule it illegal, since the entertainment industry is afraid to lose profits, but there is an increasingly well-funded movement arguing that downloads are legal. That’s because Google and lots of other Internet companies rely on information freedom.
And if music is information, the only legal tests that need to be passed are those of attribution and profit. Since no one would download MP3s without knowing what they were downloading, all MP3s have the name of the song, artist and occasionally album in their file names. Since we are, after all, talking about the free transmission of files on peer-to-peer networks, there is no profit being gained from the MP3s and therefore nothing to be shared with the original source. So, on the basis of intellectual property law, peer-to-peer sharing is in fact quite legal.
DRM schemes like iTunes’ copyrighted MP4s are an attempt to circumvent the court system by creating systems which are inherently closed, therefore copyrighted by nature, from whence you cannot extract the intellectual property. What iTunes does is certainly legal, but what Microsoft plans to do with it’s next generation Operating Systems is probably not: they want to basically impair the operation of a PC that you bought for the sake of their own profits. But discussing such plans is really beyond the scope of this post.
And in fact, the move towards DRM-type systems is a tacit admission that the entertainment industry could not have won its case in court. That is because their case rests upon treating intellectual property (the movies and such) as though they were physical property subject to physical copyright. And increasingly, even the attempts to create DRM-protected download files is slowly going the way of the dinosaur, because of course openness is the way of the Internet.