I have never hidden that I consider
so-called Digital Rights Management (DRM) to be dishonest, often
calling it Dishonest Relationship Misinformation. I have also
suggested that fairness is
a matter of law
and not technology. I will use the expansion of cinema
into the home to illustrate the differences.
The cinema
relationship
The relationships in the
traditional cinema experience are simple. Copyright holders
authorize movie theatres to display (public performance in copyright
terms) the movie. Audiences pay for tickets to enter into the
theatre, and are presumed to not be doing any copyright regulated
activities (ie: no recording, etc).
Put in other terms, copyright
holders authorize a platform to display the content. The platform is
owned by someone other than the audience, with the audience only
doing things that do not require a license or any interaction with
copyright law at all. If an audience member doesn't pay their ticket
and goes in anyway, they are breaking the law but it is not copyright
law: most likely trespass.
The
traditional/analog home entertainment experience
This is where the audiences
owns the platform, and purchases, rents or licenses content that can be
displayed on the hardware that they own (VCR, TV, cassette/record
players, stereo, etc). It is the audience that chooses what brands
of technology they will purchase, and copyright holders directly
license audiences to do any copyright regulated activities. If the
hardware is locked in any way to keep unauthorized people away from
it, it is the owner (audience) and not a third party that has the
keys.
The media formats that win are
those that are not dependant on any specific technology brand, with
vendor-neutral standards being the norm and the most open platform
winning when there are less open competitors (VHS winning over
Betamax).
An extension of
cinema into the home
With digital technology it is possible to create
a smart technology platform that is owned by a third party just as
the movie theatres are, and yet the sound and picture are viewable
from within the home.
The platform could be owned by
a variety of intermediaries, including cable companies or possibly
even the traditional theatres wanting to move into this market. The
platform would be locked such that it is the owner, not audience,
that controls the platform. Like the traditional cinema experience,
the audience is presumed to not be doing any copyright regulated
activities and thus do not need to be licensed by copyright holders.
From the perspective of the
audience, they are renting or otherwise possess but do not own the
technology platform. They are paying fees to the platform owner to
view content just as they would for cinema outside the home.
There is an obvious need to
regulate this relationship to ensure that the privacy and other
rights of audiences are protected, just like we have laws to protect
tenants who are living in a home owned by someone else.
Like any other situation with
locked property, it must be illegal for someone other than the owner
to circumvent the locks. It must be made clear to audiences that no
matter what the payment system is (one time, monthly, whatever) that
they do not own the hardware, and should never be confused into
believing that they do. Confusion on the question of ownership will
make enforcement of the property rights and the locks protecting
those rights far more complex. Audiences should not be held legally
responsible when the question of ownership is deliberately obfuscated
by the platform owner or their agents.
What is wrong with
the current DRM situation
The problem with current DRM
systems is that they are offering technology similar to what I
described as the extension of the cinema relationship into the home,
but misdirecting policy makers and the public by falsely claiming it
is like the traditional/analog home entertainment experience. The question
of who owns what, who manages the keys to digital locks, and what
regulatory regime should be used to keep all the various
relationships fair and honest are deliberately obfuscated.
Anyone with a respect for the
rule of law should be rejecting this obfuscation, but unfortunately
lawmakers currently seem unaware of these abuses.
A technology person will
notice that what I described as a honest extension of cinema into the
home uses pretty much the identical technology to what is currently
called DRM. The difference is entirely in the honesty of the
relationships, and whether the appropriate laws are regulating those
relationships.
Federal Copyright Bill -32,
currently being debated by a special legislative committee, grants
legal protection to this deliberate and dishonest obfuscation. While
it is possible to ratify the two 1996 WIPO treaties and respect the
traditional contours of existing Canadian law (federal and
provincial), the government has thus far chosen a very different
path. I believe it is critical that Canadians speak out and demand
that politicians pay better attention to this critical issue.
---
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.