Technology Liberation Front - Latest Comments in Confused reasoning about the DMCA

Re: Confused reasoning about the DMCA

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Re: Confused reasoning about the DMCA

Andrew — Mon, 17 Oct 2005 06:33:52 -0000

Chris,

Although Slashdot's blurb read something like, "Here's a funny article about DRM . . . ," giving the impression that it was satire, in actual fact the author was perfectly serious. I also read the article expecting something a la "The Onion," but Mr. Ross is not joking.

Re: Confused reasoning about the DMCA

Chris Chiasson — Sat, 15 Oct 2005 10:50:31 -0000

The article you're bashing was linked off of Slashdot a few days ago as satire.

Re: Confused reasoning about the DMCA

John Gilmore — Sat, 15 Oct 2005 03:54:47 -0000

Contracts require that the terms be spelled out in advance, so that both parties know what they are agreeing to. The terms of DRM systems are not spelled out -- not in the ads for DRM'd products like the iPod, not in the user manuals for these products, nor anywhere else. Not even in the "contract of adhesion" EULA, if any. They are "hidden terms" that are imposed on the consumer without notice. Undisclosed terms cannot form part of an actual contract with the consumer, so the consumer cannot be penalized under contract law for violating those undisclosed and un-agreed-to terms.

For example, the terms of the DRM on DVDs are spelled out in a secret 50-page contract between the "DVD Copy Control Association" and the DVD player vendor, and another between the DVDCCA and the DVD pressing plant, and another between the DVDCCA and the publisher of the DVD.

I think most DRM systems would die in the market if consumers were actually notified of the restrictions involved. It seems that the vendors agree; they document every other part of their products.

Re: Confused reasoning about the DMCA

Tim — Sat, 08 Oct 2005 07:25:21 -0000

Braden,

That's all well and good, but I think it's important to keep in mind that contracts are governed by contract law. Contract law has different rules from copyright law-- there are no statutory damages, and you can't be thrown in jail for willfully breaking a contract. Moreover, in contract law, there is a concept of efficient breach-- there are circumstances where something is technically against contract, but the other party doesn't bother to enforce the terms because it doesn't actually harm his or her interests.

TPMs ought to be treated the same way. They're a way of reminding consumers of their contractual obligations (to the extent it even does that-- again, TPMs don't always reflect consumer obligations) but the human should always have the discretion of circumventing the TPM.

Incidentally, what's really interesting about the software example is that TPMs was tried in the software industry, and they failed so badly that most companies abandoned them in the mid-1990s. What they found was that it did absolutely nothing to prevent piracy (since a few skilled hackers would crack the software and share the cracked version with everyone else) but that it did inconvenience a lot of their paying customers by making arbitrary restrictions on how the software was used. What the software industry ultimately realized was that the people who were paying them for a license weren't their enemies and it was foolish to treat them that way.

My prediction is that the same will happen with TPMs for music and video. It's already obvious that they're doing absolutely nothing to stop piracy. At some point consumers will start getting irritated by the fact that (for example) their iTunes Music Store songs can't be played on any MP3 player other than an iPod. Music industry execs will eventually realize their customers would be a lot happier buying music unencumbered with restrictive, arbitrary, and ultimately ineffectual copy protection.

Re: Confused reasoning about the DMCA

Braden Cox — Fri, 07 Oct 2005 22:47:21 -0000

While a TPM is not a contract, I think it could be looked at as a technical measure to enforce a contract. I think that Patrick Ross's article goes to the fear that a consumer, thinking he or she has fair use rights (rightly or wrongly), will circumvent the TPM in a way that abrogates the contract that the TPM was designed to enforce.

I think the main issue is whether we want to proceed down the road of treating copyright law as a default protection provided by government that can be made either less or more restrictive through contract. Creative Commons provides flexible, less restrictive ways for copyright owners to license their content. Should we allow more restrictive arrangements through TPM? I think so, but consumer awareness and expectation will be the defining market response as to whether a TPM succeeds (with or without a DMCA). Maybe this means that like computer software, all digital media will have shrinkwrap licenses in which purchase equals acceptance, and circumvention of DRM means breach of contract.