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01 March 2009 Blog Home : March 2009 : Permalink

Rebutting DRM defenders

Over at Teleread, Chris Meadows has an update on the FTC DRM comments. As he notes the latest batch is rather more balanced that the astoundingly lopsided 99% against DRM 1% for that I noted a couple of weeks ago. I'm listing in a file (FTC8) all the non PDF comments from contributions 708 to 852, however this time there are a fair number of PDF comments, many of which are from the more (self) important organizations. Some of these are not just PDFed but full of lawyerly doublespeak which deserves a wider audience - and criticism. This is what I am spending the rest of this post on, however I will note that the vast majority of comments - even in this latest section - are anti-DRM and that this
includes some of the lawyerly PDF articles.

The first comment that seems worthy of having holes poked in it is Intel's one. The first thing to note about this is that if you aren't paying attention you think almost the entire comment is "About Intel" because it isn't clear that "About Intel" is merely one early paragraph. Beyond that the comment begins by boasting about Intel's leadership role in creating DRM systems and explaining that it really should not be dissuaded from such development by legislative fiat, but the market and consumer demand should be the driving factor. All of this is fair enough but then ir concludes with these two parapgraphs

Intel also supports veridical innovators and seeks to enable an interoperable home consumer experience regardless of content source. Media is being delivered into the consumer’s home through a broad range of mechanisms, including conditional access systems (cable, satellite and broadcast TV), optical media (DVD, Blu-ray Disc, etc.) and a wide range of DRMs. In that context, Intel has worked with content providers, service providers, and device makers to enable in-home interoperability. For example, Intel has developed and licensed into the horizontal market High-bandwidth Digital Content Protection (HDCP) to protect decompressed content from any source device (set top box, PC, game console, DVD/Blu-ray player, Mobile Internet Device, peripheral, etc.) to any digital display, and Digital Transmission Content Protection (DTCP) to move compressed content among devices in the home network. These basic, interoperable content protection technologies are the foundation for a healthy and innovative digital content ecosystem.

Another critical ingredient of a well-functioning digital market is consumer knowledge. Consumers must be able to make fully-informed marketplace decisions, and should not be surprised by DRM functionality. Industry should be encouraged to adopt voluntary approaches to effective consumer notice whenever possible.

The first paragraph's claims about the wonders of Intel's HDCP DRM interoperability stuff is kind of shot in the foot by comment 539814-00759:

Due to the movie industries love of all things DRM, I am unable to *legally* watch my legally-purchased blu-ray movies on my legally-purchased blu-ray player on my HDCP-compatible PC through my HDCP-compliant receiver to my HDCP-compatible HDTV.

and comment 539814-00804:

Several Blu-Ray discs fail to be playable on certain players because the DRM keys require firmware updates, and the firmware updates do not become available for months, if ever, after the Blu-Ray disc gets released.

This leads us to the last paragraph, where I find myself in partial agreement with Intel. Consumers "should not be surprised by DRM", but since they frequently still seem to be, perhaps the "voluntary approaches to effective consumer notice" don't work and a mandatory legislative one is required?

Intel's comment mainly seems to be blather which is a pity since it could have said a lot more.

Then there is the SIIA comment. This pretty much falls to the ground when you realize that it is written by inhabitants of a parallel universe. Really there seems to be no other way to explain the following tables on page 2 (in case it isn't obvious the third columns are my additions):

Within each type of protection system, there are varying degrees of protection. For example, different types of access control systems include:

Type of Protection Level of Protection Actual level of protection in this universe
Encryption High Level of Protection None
Subscription Medium Level of Protection None
Registration/Password Medium-Low Level of Protection None
Click-through Agreement Low Level of Protection None

For systems using use control functions:

Type of Protection Level of Protection Actual level of protection in this universe
Read-only High Level of Protection None
Read & Print rights Medium Level of Protection None
Full Access Low Level of Protection None

For systems using tracking functions:

Type of Protection Level of Protection Actual level of protection in this universe
Watermarking/Digital Footprints High Level of Protection None
Online/electronic Clearinghouse Medium Level of Protection None
Voluntary User Compliance Low Level of Protection None

Since the SIIA's entire argument depends on the idea that Encryption etc. actually provides some kind of effective protection (which both my own researchs and dozens of FTC comments dispute in detail) we can ignore the entire thing.

This leads us to the egregious comment 539814-00711 written by lawyers for
As with the SIIA one is led to wonder precisely which parallel universe these people occupy since they define DRM rather differently to the FTC and most other people;

For purposes of the Town Hall event, the Commission has defined digital rights management, or "DRM," as "technologies typically used by hardware manufacturers, publishers, and copyright holders to attempt to control how consumers access and use media and entertainment content." Id. On behalf of the wide range of creators, copyright owners, and U.S. copyright-based industries that are represented by our organizations, we believe this definition is at best incomplete. DRM should also be viewed as the technologies that facilitate broader consumer access to copyrighted works, and that reflect the parameters of the bargains entered into between owners of content and consumers who purchase access to it. DRM also offers greater flexibility, allowing copyright owners (and their licensees) to tailor their offerings to the specific distribution rights they possess, to offer more granular options to consumers, to experiment with different price points, different roles for advertising, and different time limits for use -in short, to better meet the diverse needs of diverse audiences. As a result, DRM technologies undergird business models that have enabled copyright owners to make more creative works available to more consumers, through more distribution channels, in more fomts, under more flexible terms of use, and at a wider range of price points, than ever before. This comment provides many illustrative examples of products and services that make use of DRM to facilitate and broaden consumer access to these works. We urge the Commission to keep this context fmly in mind as it explores the many complex and challenging issues listed as topics for the Town Hall.

Allow me to rewrite some sentences:

... DRM should also be viewed as the technologies that hinder consumer access to copyright works and that enforce misunderstood bargains entered into between owners of content and consumers who think they have bought it. DRM also offers greater flexibility, allowing copyright owners (and their licensees) different ways to irritate their customers, to experiment with different ways of going bankrupt, to waste money on various ineffective, incompatible protection schemes and - in short, to illustrate that they consider all their customers to be thieves. As a result, DRM technologies undergird business models that have failed in the presence of the internet

On the next page there is this comment about the DMCA:

Congress's 1998 prediction has come true. The use of DRM systems has proven to be '"use-facilitating," and consumers have been the beneficiaries of the broad and expanding range of consumer uses of copyrighted materials that DRM makes possible.4 The remainder of this comment provides some illustrative examples from all the copyright industry sectors represented by the commenters.

This is contradicted by this paragraph from the comment from the CCIA:

Digital rights management or “DRM” is a general term describing technology deployed in relation to copyrighted content in digital form, ostensibly to reduce the unauthorized exercise of a copyright-holder’s exclusive statutory rights with respect to the protected work. Digital rights management was at one time viewed as the future of digital content. Arguably, it has yet to meet these expectations. A 1995 government report produced by an interagency working group stated that “[i]f content providers cannot be assured that they will be able to realize a commercial gain from the sale and use of their products using the NII [“national information infrastructure” – essentially, the Internet], they will have little incentive to use it.” This reasoning supported a conclusion that “content providers must have secure and reliable means for delivering information products and services to consumers.”1 In reality, however, extraordinary amounts of legitimate, non-infringing information products and services are available via the Internet today and are neither secured nor encrypted in any fashion. This reflects the embrace of business models unlike the traditional copyrighted content distribution model for the monetization of information products.

While the latter is talking about the "Internet" rather than DRM I think it is a reasonable rebuttal. DRM has done very little to be use-facilitating whereas the Internet has been extremely useful in helping consumers enjoy more content in more ways than ever before.

Later on the comment talks about "protecting content". Just as with the SIIA comment this is a statement which is not in fact borne out by the observable facts. This means that when the comment tries to give credit to DRM for permitting things like streaming downloads it is, not to put too fine a point on it, lying. DRM in fact has been a roadblock that has prevented people from downloading content. What the comment is trying to say, but never quite sums up the courage to blurt out, is that DRM is a way that publishers attempt to reduce the problem of free-loaders by only allowing genuine customers to decrypt etc. the content. The problem with the comment is that this has demonstrably not worked and the freeloaders have not notably been inconvenienced by DRM.

The whole "looking glass" worldview of this report is perhaps best illustarted by footnote 35 which refers to EA (and presumably to to secuROM - the link doesn't work so I can't confirm this). I would say that EA and Sony are the two companies most mentioned in the other 800+ comments and none of the mentions are positive.

Finally the comment mentions that Amazon's Kindle has helped fire up the ebook market and seeks to credit DRM for this fact. I would say that DRM has actually been more of a stumbling block to the ebook market than a facilitator and I'll note that comments on internet forums like mobileread tend to discuss how to work around DRM and handle the fact that book 1 is available for reader A while book 2 is only available for reader S. In other words how to handle the incompatibilities that DRM causes.