When I discuss non-owner locks on
technology and anti-competitive locks on content, the two highly
controversial forms of so-called "Digital Rights Management",
a common question comes up: If I don't like these things, why don't
I just not buy them and be done with it?
While I have historically been
a firm supporter of consumer boycotts, I do not believe they can be
effective in this case for a number of important reasons. I am also
a strong supporter of free markets, but in this case I also do not
believe that markets alone can solve the problems -- partly because I
don't believe we have a free market scenario.
Non-owner digital
locks
Lets start with non-owner
locks on technology. I have called this Dishonest
Relationship Misinformation (DRM) because we have a
scenario where people are buying something, but where they are not
expected to retain ownership-like rights. To me it is obvious that
if I own something that it is me, and not someone else, that
maintains the keys for any locks applied to what I own. I may offer
a spare key to other people, and in some cases this may be a property
manager that manages the property on my behalf, but it is still the
owner that controls who has these keys.
Non-owner locks on technology
are based on the idea that the manufacturer of the device, not the
owner, should control who has keys to the locks they have applied. One interpretation of anti-circumvention legislation promoted by some
special interest groups is to suggest that it should be illegal for
the owner of the device to remove this non-owner lock and apply their
own.
This is clearly backwards:
what should be illegal is for someone other than the owner to apply a
lock and then not pass the keys to the owner when the property is
sold. To do otherwise is to ignore hundreds of years of precedent in
how property works not only in the legal community, but also how the
general public understands the concept of property rights.
The general public understands
the concept of rental, where someone other than the owner makes use
of the property while the owner retains ownership rights. Along
with property law we have a whole body of law that sets out the
rights and responsibilities of both the owner and the renter, and
this model is generally understood by the general public at large.
It is unreasonable for DRM
proponents and apologists to expect the general public or people in
the legal profession to understand this brand new type of
relationship that is neither ownership nor rental. While I avoid the
"purchase" of products that have non-owner locks on them, I
think it is obvious that this has little to no impact on the market
as a whole. It would also have little to no impact on the radical
changes being proposed to our legal system when it comes to property
law.
This departure from property
law is unnecessary as the long established rental arrangement
provides all the flexibility needed for the legitimate business model
options being contemplated by the content and technology industries. What we should be doing is strengthening the legal protection for
owner applied digital locks, including in rental situations where it
should clearly be illegal for a renter to circumvent a lock on
technology which they do not own.
The term DRM is also used to
refer to activities which do not involve non-owner locks, but various
types of locks on things which people do own. A membership-required
site uses a variety of technological measures to ensure that only
members are able to access their site. I believe that our laws
should make clear that breaking into such sites is illegal. This is
a combination of property and electronic commerce laws, two areas of
provincial jurisdiction that could use some modernization.
This protection of property
rights, itself provincial law, should be seen as parallel to federal
copyright law. While legal protection of owner-locks can be used to
protect the interests of copyright holders, they should be protected
regardless of whether there was a copyright infringement involved in
the circumvention of these owner locks. This is an entirely
different conversation than discussions around 1996 WIPO treaty
ratification where the anti-circumvention rules added to copyright
law should only apply to circumvention which directly relates to
copyright infringement.
To be clear, while I believe
that non-owner locks should be illegal, and owner locks should be
clearly legally protected, that this protection should happen outside
of federal Copyright law. It is areas of provincial jurisdiction
where the appropriate legislation should be modernized.
Anti-competitive
locks on content
I consider disallowing
non-owner locks on technology to be a pretty simple protection of
property rights, justified for all the same reasons our society
recognizes other property rights.
I understand why a wide
variety of groups have different opinions on anti-competitive locks
on content. The question here is whether copyright holders should
have a brand new right to dictate what brands of technology their
works can be accessed with, and whether this is helpful or harmful at
protecting the rights of these same copyright holders. I think that
an answer to the second part of that question is an answer to the
first.
I have seen
no evidence to suggest that dictating brands of technology has or can
help the financial interests of copyright holders. While there is a
lot of hand waiving, all the evidence I've seen suggests that these
locks are taking money out of the pockets of creators. These locks
make the content less valuable to audiences, and thus fewer are
willing to pay. These locks also threaten artistic control as well
as business model control. I believe that in order to protect the
rights and interests of copyright holders that this new right should
not be added to Canadian Copyright, even if in the short term some
copyright holders appear to be asking for it.
I can use myself as an example
to illustrate part of the answer. For reasons which should be
clear from my views on non-owner locks, I will avoid the ownership or
use of technology that has non-owner locks applied to them. A
copyright holder that locks their content such that their content can
only be opened with non-owner locked devices has excluded me as a
potential customer.
Telling me that it is
my choice to not consume content only provided on
brands of devices I do not own is backwards. This is like telling
someone that they are free to vote for anyone they want, but that the
only legal options are from the Communist party. That is not a
choice, but the removal of choice.
For other audiences the
evaluation may be different. They may own a variety of brands of
technology, some non-owner locked and some not. For them it is clear
that content that is interoperable with all their devices is more
valuable than content that only works on one. They will expect a
discount on content that only works on a subset of their devices. This discount is unlikely, especially considering it costs the
copyright holders more money to lock their content (fees to license
DRM technology) than to leave it unlocked and interoperable with all
devices.
We have a problem with the
statistical models being used by creative industries to indicate the
health of the industry. If you look at the statistical methodology
there is no differentiation made between copyright infringement,
consumer boycotts, or market failures where people aren't buying for
other reasons (inadequate value for money, not available on owned
devices, etc). All the statistics show is that people aren't buying,
and there is no way for copyright holders who blindly believe that
infringement is the only problem to realize that it is things under
their own control that may be the primary cause of declining revenue.
This reduction in the value
and marketability of content is one way that these
anti-interoperability locks take money out of the pockets of
copyright holders. While I believe this costs copyright holders more
than infringement does, I don't consider it the greatest threat.
Few television viewers think
about the traditional business model of commercial television. The
model is to sell eyeballs (viewers) to advertisers. The product
isn't copyrighted works being sold to viewers, but viewers being sold
to advertisers. The supplier of the most relevant service is the
television network, cable and satellite companies. Copyrighted works
are a business expense to these suppliers, used to grow the size of
their product (viewers) to their customers (advertisers).
Anti-competitive locks on
content threaten to cause a transformation of traditional retail
content distribution from where the product is the content and the
customer is the audience, to one where the product is the audience
and the customer is the copyright holder. If a small number of
locked platform providers are able to dominate the distribution
networks for copyrighted works it will then be these platform
providers, not copyright holders, that are in control of the business
models. Copyright holders will have to give in to the demands of the
platform providers if they wish to receive any remuneration at all.
This transformation is already
happening with companies like Apple who are able to dictate terms to
an ever increasing number of copyright holders. In the past it was
only software authors, and then with iTunes they were able to
convince large parts of the music industry to sign on. With new
content types being added to Apple's platform, we now see examples
where cartoonist Mark Fiore nearly had his works censored by Apple. Apple backed down when this became widely publicized, but if we allow
this type of platform control to dominate we will have effectively
eradicated artist freedom.
Beyond issues of censorship,
it should also be obvious that it is the platform providers that
determine pricing and other aspects of the economic interests of
copyright holders, not the copyright holder.
At this relatively early
stage, artists still have the freedom to move elsewhere. We still at
this moment have communications technology in the hands of citizens
which do not have non-owner locks applied to them, and artists who
aren't already being dictated to by publishers/labels/etc can opt to
sell to these people and not those locked in by a platform
monopolist.
I don't think this will last,
if current trends continue. I don't think that individual artists or
individual consumers will have any weight in protecting their rights
and interests if a large proportion of fellow artists and/or
consumers remain unaware of the threats.
Canada has a federal Competition
Act and a Competition
Bureau set up with a recognition that sometimes the
government needs to step in to protect free markets when traditional
market forces are insufficient. In addition to not adding a new
brand dictating restriction to Copyright, I believe that we should
modernize our competition law to protect the creative industries from
these practices. The Competition bureau has thus far focused far too
much on price as an indicator of market failure, and needs to look at
additional indicators that would take other anti-competitive threat
into consideration.
It should be obvious that
consumer choice is not adequate here, considering that many creators
have been convinced that "more copyright" is good for them,
and that a new brand-dictating right will help them. I believe that
by the time they realize the threat, if ever, the damage to creative
industries will be massive.
I consider the wiping out much
of the creative industries to be bad for anyone, so is not something
I believe we should allow to happen. Relying on consumer choice
alone is a do-nothing approach that should be dismissed.
---
Russell McOrmond is a self employed consultant,
policy coordinator for CLUE:
Canada's Association for Free/Libre and Open Source Software,
co-coordinator for Getting Open Source Logic INto Governments (GOSLING),
and host for Digital
Copyright Canada.
