by Richard Amada, Esq.
In the Land of Two-fer, the mantra is: If one is good, then two are better. And what could possibly be a more natural conclusion to draw? If having one piece of chocolate cake is good, then two pieces must be even better to have. Twice as much chocolaty deliciousness to satisfy the cravings of a sweet tooth. So, when a citizen of the Land of Two-fer goes into a bakery to buy a solitary cake, what he’s really hoping for is that the baker’s having a two-fer-one sale. Because—hey!—then it’s a no-brainer. The customer pays for one cake but gets two. The fortunate purchaser can enjoy twice as much cake himself or share one of them with a friend and, in so doing, enhance the pleasure of another. Everyone’s happy and life is good in the Land of Two-fer.
And, of course, if two are better than one, then three are even better still. Or four. Or five....Well, once again—hey!—if you could feed your whole neighborhood chocolate cake for the price of just one for yourself, who wouldn’t? And just think of how popular you’d be if you had the ability to buy only one cake and magically reproduce it into cakes for the masses. Just one purchased cake would satisfy everyone, and the rest of us would never have to spend another dime at the bakery. This is the dream of every red-blooded Two-ferian—to share what we love with whom we love for no additional money. And, in Two-fer, it’s a dream they’d gladly put into practice whenever the opportunity arrives. Although, truth be told, the ability for customers to clone chocolate cake has never really presented a serious threat to the baking industry.
However citizens of Two-fer aren’t just dessert lovers. They’re also lovers of other things they enjoy sharing with friends—things that are much easier to copy than baked goods. Things that the folks of Two-fer copy all the time. Things such as digital versions of music, literature, movies, and computer games that feature action heroes kickboxing their way through life’s little mishaps. If you’re like me, you may have wondered why it is that, for reasons that are never really explained, the female action heroes are only able to fight when wearing very little clothing. But that’s a topic that will have to wait for another occasion as the immediate concern in the Land of Two-fer involves a threat to the very essence that has been Two-fer’s way of life. A wizard, you see, cast a spell upon the land and took away the citizens’ ability to get two or more electronic copies of a digital product for the price of just the one they bought. The wizard calls it Digital Rights Management. And this DRM, as it’s often abbreviated, puts the kibosh on the free buffet where the copying of digital intellectual property is concerned.
Simply stated for the benefit of the uninitiated, DRM is the means of programming into the digital medium something that either prevents the product from being copied or scrambles the contents if one attempts to play it on an unauthorized machine. Try to make a videotape copy of movie off a DRM-protected DVD, and it just won’t work. This is what the techies laboring for the copyright holders came up with to ensure that the very first DVD of The Little Mermaid wouldn’t also be the very last one that would ever be sold. It doesn’t take a wizard to figure out that people aren’t likely to buy something they can copy for free from someone else. And so DRM is viewed by many in the entertainment industry as their savior in the digital media market.
Of course, one man’s savior is another man’s devil. And people have been arguing the pros and cons of digital rights management pretty much from its inception. A search of the Internet for DRM discussions will yield an abundance of material. Almost all of it focuses on the con side. Apparently, those who blog see little if any merit to DRM. Be that as it may, before I became a lawyer, I was a journalist. And, in the interest of presenting a reasonably balanced journalistic offering, I’ll start by giving a few arguments for the pro side. To do this, I’ll momentarily step into the spotlight that shines on my artistic self. I am, you see, also a produced playwright. Some of my plays include original music I’ve written. So I have a vested interest in the protection of intellectual property, both literary and recorded. It’s from this standpoint that I’ll now view DRM.
As someone who holds the copyright on various works that have some monetary value to me, I’m inclined first to point out the obvious. Copyright, in its most literal constructionist sense, is the right to copy. Only I, as the exclusive copyright holder of my intellectual property, possess that right. (17 U.S.C. § 106.) If just anyone could make copies of my writings and music and distribute them however he pleased, my market for selling such things could be dried up to the point where there would be virtually no sales market for them at all. Thus, the copyright law protects me from such a happening robbing me of my economic incentive to be creative. And that’s exactly what was intended by copyright and patent laws derived from the constitutional provision “[t]o promote the Progress of Science and useful Arts.” (U.S. Const. art. I, § 8, cl. 8.) Most people understand this intrinsically and would never dream of duplicating my intellectual property with the intent of going into direct competition with me in the distribution market. They know that would be wrong. But we’ve entered the digital age where literature isn’t banged out on a typewriter anymore and sound or visual recordings aren’t limited to vinyl disks and reels of film that only a sophisticated manufacturer can competently reproduce at a professional grade. We’ve reached the stage where high-quality reproductions of digitally recorded material are only a click away from redistribution. Find a great new song you just know your best friend would absolutely love, well, just send a copy with a click. When it’s that easy, it almost seems wrong not to share.
If you’ve never had any close contact with artists (literary, performing, visual, or otherwise), let me share with you something that, from my observation, I’ve deemed they all have in common. The greatest fear of every artist is not that he’ll die an obscure, penniless unknown. Rather, his greatest fear is that his intellectual property will be stolen by an unscrupulous pirate...and then as a result he’ll die an obscure, penniless unknown. (I think it’s not the dying obscure and penniless part that bothers artists. You sort of accept that as your lot when you forsake gainful employment to pursue your artsy-fartsy dream. Rather, it’s the dying obscure and penniless while some untalented hack reaps the ill-gotten rewards that really chafes their artistic hide. But anyway...)
Back in the early ‘90s, when I was creating the first online art gallery in the state of Arizona, I raced about the University of Arizona’s art school trying to get its faculty members to let me put photos of their artwork online. The opportunity to show their work to a global audience was a strong incentive toward convincing them. But, almost without exception, they were all at least somewhat tentative about putting their art online because they feared what could happen to it once it was thrown out there to the world. How will I know if someone’s stealing my artwork? The answer, of course, is you probably won’t know—unless someone makes a big splash marketing it, and you spot your masterpiece coming toward you on a T-shirt you didn’t sell. But those were the days when ninety percent of Internet users were getting strictly text. And those who could get visuals on their computers were using slow, clunky systems that downloaded the occasional low-definition image on browsers like Mosaic. (Remember Mosaic? You’d click on the link and then go take an extended lunch while you waited for it to download one picture.) So back then it was easy to pooh-pooh the worrywarts. Now there’s no pooh-poohing their fears. The digital technology has gotten too sophisticated. Too fast. Too good. Once it hits the Internet, there’s no rebottling the genie. If you want to drive on the information superhighway, you run the risk of being hijacked.
But what about those who aren’t choosing to drive that route but, rather, just find their vehicle out there in the fast lane because someone else decided to take it for a spin? The movie that gets downloaded onto YouTube or somebody’s personal web site. The music recording that gets passed around the classroom until the whole school has a free copy of it. In most cases, I believe, the people illegally making and distributing copyrighted material aren’t even thinking that what they’re doing could in any way be illegal. They’re not notorious pirates. They’re just ordinary people with the sort of logic that goes: I bought the music. I own the recording. So I should be able to make a copy for my friend.
Trust me, even people who should know better often don’t. I can’t tell you how many playwrights I’ve know who, while fretfully protective of their own intellectual property, think absolutely nothing of calling for someone else’s copyright protected song to be a part of their play. And I couldn’t even begin to count the number of community theaters that, while having absolute knowledge that they can’t put on a play without first contracting for production rights and paying royalties, don’t refrain from playing copyright protected music recordings as part of the dramatic performance—music compositions and recordings for which they’ve neither secured the performance rights nor even thought to do so. It just doesn’t occur to them that there’s any legal issue involved with sticking a song in the show. If you’ve attended as much community theater as I have, you know this sort of unconscious infringement takes place every single day. And the only reason the theaters get away with it is because that level of theater typically flies under the radar of the copyright watchdogs. They simply don’t get caught. And, even if they did get caught, what’s the infringed party really going to do? Sue them? A community theater? C’mon! What’re you gonna get out of ‘em? On a good day, maybe a dollar-eighty-five in change they fished out of the seats after their last closing performance?
So there you have a simple example of the copyright holder’s dilemma. Give people the opportunity to infringe the copyright, and they will without ever once thinking they’re doing anything wrong. Digital media make copyright infringement easier than ever. And chasing down the infringing parties is difficult and, more often than not, probably not terribly cost effective. An argument for digital rights management then would be that DRM helps secure intellectual property rights that would otherwise be almost impossible to enforce. And the only thing DRM takes away from those who seek to make unauthorized copies is the power to do what they’re not legally permitted to do anyway. What’s more, it prevents people who don’t know they’re doing wrong from unwittingly breaking the law.
So, you may ask, if DRM is just a computerized equivalent to a childproof cap, how could anyone seriously take issue with it? Well, there’s a lot of issue being taken. An awful lot.
First of all, while it’s illegal to make copies of copyright protected material with the intention to sell or redistribute the copies, it’s perfectly legal to make copies in connection with such things as criticism, comment, news reporting, teaching, scholarship, or research. That’s guaranteed under the Fair Use doctrine as formalized in the federal code (17 U.S.C. § 107). DRM can’t distinguish between the legal and illegal uses. And so it prevents the legal ones as well as the illegal ones—in the eyes of many, a First Amendment issue, if ever they saw one.
Another huge red flag for the anti-DRM side is that the DRM technology holds the capability of opening the floodgates to abusive manufacturer practices. It can, for example, be used to put coding into digital products that would then restrict which equipment is able to play it. Have the wrong (i.e., a non-favored manufacturer’s) machine and your new DVD won’t play. As I understand it, this type of DRM wasn’t invented by companies specifically to pressure people into purchasing only certain brands of hardware. (Oh, perish the thought, you cynics of capitalism!) But, rather, the argument goes, it helps ensure that digital media are not smuggled to and played in parts of the world where they have not yet been officially released for distribution or where exclusive distribution rights belong to someone other than the vendor who sold that particular copy. I don’t know about you, but I spend many sleepless nights worrying whether Paraguay is going to see Beerfest II before I do. Thanks to digital rights management, those overeager Paraguayans will simply have to wait until the DRM on the media says it’s okay for DVD players in Paraguay to play the disc. This is something known as region coding.
Maybe you’re thinking that’s not such an unreasonable restriction to be placed on a piece of digital media. But my guess is you do see how the very nature of such coding restrictions allows for the possibility that DRM could be fashioned to prevent you or me from playing a Sony CD on a Panasonic machine. Am I going to have to make future sound system purchases based on which brand plays the largest selection of music I like? And, even if it’s not brand specific but, rather, region specific, why should the manufacturer of a CD that I legally purchased be able to tell me where I can listen to it? If I buy the music in a store in Germany and then bring it home to play it in my American purchased sound system, why should I have that ability infringed? After all, there’s nothing in copyright law that says the owner of the intellectual property can restrict where I choose to enjoy it once I’ve paid the price to own it. You can’t, for example, insist that I not read a book (another form of copyright protected property) I’ve purchased in an airport once the plane I’ve boarded passes into another country’s airspace. That contradiction has got some people very worried.
Yes, the entertainment industry has reasonable concerns about its ability to protect its intellectual property from unauthorized use and distribution. But how much protection does the entertainment industry really need? When piano rolls were first introduced, the music industry sued, claiming it would be an end to popular music as we know it (White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908)). The VCR was another supposed villain that, in the view of some, was going to crush the motion picture industry (Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984)). The creators of the intellectual property lost in both those landmark cases. And, yet, somehow music and movies have survived and continue to thrive today. The entertainment industry has sounded its own death knell on so many occasions in the past that, like hearing the boy cry “wolf” again, it’s just become a little hard to swallow the notion that the whole industry is in danger of being gobbled up by yet another technological advancement. We’ve all had the ability to make copies of music, movies, and TV shows for some time now, and yet the industry has managed to stagger along to the tune of billions in profits.
And here’s one that even the pro-DRM people probably have to admit. Build a better mousetrap, and there’s bound to be a Frito-eating, Monty Python-quoting, Scotch-taped-glasses-wearing, geeky mouse somewhere out there who’s going to figure out how to beat it. The real pirates stop at nothing to crack the codes designed to keep them from infringing copyright for a profit. At some point all the digital safeguards fall to the industrious hacker. So whom then is digital rights management really managing? The answer, of course, is the rest of us—the non-techie, basically law-abiding folks who have been buying the products and merrily making the occasional copy for ourselves (or perhaps a friend or family member) all these years. We’re not making a nickel on it and are hardly in a position to bring the entertainment industry to its knees. Yet we’re the ones who’ll likely be most impacted by DRM. So DRM holds the dubious distinction of being a means of stopping both the technically illegal and perfectly legal activities of regular people with no desire to intentionally commit a crime while doing almost nothing to prevent the big-time criminals who are deliberately trying to steal for profit. Isn’t that sort of like installing a piranha filled moat around a cookie jar while leaving a maximum-security prison guarded by only a goldfish with a nasty disposition?
As an artist, I want protection for my intellectual property. As a journalist, I want protection of my First Amendment right to fair use. And, as an attorney, I can see the merits of the arguments on each side. That kind of issue straddling may not help bring closure to the good folks in the Land of Two-fer. But, as of this writing, digital rights management is far from a closed case. So, if you run into anyone from Two-fer, tell ‘em to settle back and expect a long debate.
Oh, and if you happen to think of it, ask him if he’s got any cake.
© 2007 Richard Amada.
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