DRM = Lost Sales

Today I had my first big hairy encounter with why Digital Rights Management software is the worst idea that has ever come out of the tech sector.

It’s a snow day here in DC, well, more like a slushy rain, and the fear of driving has closed everything down.  So, I’ve got the day off.  This leads me to start scrolling through Netflix looking for something good.  But Netflix has next  to nothing good right now, because none of the major film companies want to play with them.  So, I figured I’d look through iTunes and see what I could find in their movie selections.  I decided it was finally time for me to see Looper.  And streaming at $4.99 was reasonable.  So, I pay my money, and start the download to buffer and I get the sign that it’s ready.

Now this is where I tell you that I have my MacBook connected to my television.  I use it as a media console and I sometimes move windows over to the television and blow up things like YouTube videos or Netflix movies or anything else that would just generally look better on the bigger screen.  I’ve got the screen split between my laptop’s built in monitor and the television.

So, I move my iTunes window over to the television to play that movie for me and my partner and my roommate so we can all watch it together.  And then it stops playing.  It would hiccup for a second and then black screen. Then I got this popup window.

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The text of it reads “The selected movie won’t play on one of your selected displays. This movie can only be played on HDCP (High Bandwidth Digital Content Protection).  Try moving the iTunes window to a different display. Make sure the entire window is in the supported display.”

And it’s true.  When I would move the movie over to my desktop it would play, but even if it would be just a hairs breadth in the television display it would seize up.

This was not something that I knew before I paid my money, and had I known in advance that this was going to happen I wouldn’t have bought it at all.  The purpose of renting that movie was to have a nice little snow day in with my partner and to pass the time.  So, I reported this to iTunes and demanded my money back.

And then I went to Amazon.  And at least Amazon is up front about it.  They give you a giant list of all the compatible televisions on which you are allowed to watch their movie.

But seriously, I have to have a specific kind of television to watch a goddamn movie?

This is why piracy is rampant.  Artificial barriers to access result in people not getting the product they want the way that they want it.  Watching a movie on a television should be a no-brainer.  You stream your movie and you watch it on a television in your home.  You shouldn’t have to have a special television that is DRM compliant just to be “allowed” to watch a movie.  It’s completely stupid.

So, I didn’t get the movie on iTunes or Amazon.  I was perfectly willing to pay for it.  But I want to watch that movie on my television.  If I can’t do that, I’ll just keep my money.

To learn more about this kind of stupidity check out http://www.defectivebydesign.org/

The Politics of Copyright

I’ve been wanting to write this all week.  Last Friday, the Republican Study Committee released a phenomenal white paper pushing for some pretty broad reforms in the copyright law. While I myself am not a terribly conservative person, this paper blew me away.  It’s amazing how progressive a statement you can make within the framework of conservative principles, and that’s exactly what they did.  While the RSC rescinded that report within about 24 hours due to “proper review” concerns,* the Electronic Frontier Foundation has the document in full preserved on their website. And you should definitely read it.

I don’t normally write about politics here, but I want to bullet point some of the necessary methods just to illustrate how this document worked.

Strict Constructionism: The first point that they address has to do with the myth of compensating the creator.  Instead the author turns to the language directly in the constitution that copyright is to “promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  They use that exact language to highlight the fact that the purpose of copyright not solely to compensate the author, but to provide the author a limited time to profit from his creation, so that we, as a nation could promote progress in Science and useful Arts.  Further in the document they talk about how the perpetual extension of copyright hinders innovation.

Laissez Faire Capitalism: The second point has to do with the breadth of the market.  Because copyright is for all intents and purposes indefinite, this creates state sanctioned monopolies on content.  What we see when works go into the public domain is a vast proliferation on that content.  We don’t have to look very far to see that in action.  From The Wizard of Oz we get Gregory Maguire’s “Wicked” (and the subsequent musical) the Sci-Fi Channel’s “Tin Man” and innumerable costumes and toys.  From Alice in Wonderland we have dozens of movies, cartoons, miniseries, songs, toys, and reprint after reprint with critical editions and leather bindings and all sorts of things.  If you need a visual then you should look at this chart of new books in the Amazon warehouse by decade from the Laissez Faire Blog.  That 1920 line is where Copyright reforms swept in due to Disney trying to protect Steamboat Willey, and it never came back.

Number of new books in the Amazon warehouse by decade

From the Laissez Faire blog. We have a huge blindspot, and it’s copyright’s fault.

 

Tort Reform: On Page 7 when the author starts into the potential policy solutions one of the first things that he looked at was statutory damages reform.  Right now damage for copyright violations and infringement are orders of magnitude beyond the value of the original work.  This disconnect between penalty and reality is what gives us the ludicrous world of the 8 Billion Dollar iPod.  From the paper:

Further, this system creates a serious clogging of the ourts, because copyright holders now recognize that they can accuse anyone of infringemen, and include the threat of $150,000 awards per violation. But in reality, most people then settle for less than that sum, say $3,000.  Scaring a large number of potentially innocent people into settling should not be an effect of copyright law.

Limited Government: As stated above,the perpetual extension of copyright secures the rights of one individual or one company to be the sole entity to profit from a work.  This means that the government is determining who is allowed to profit, and who not, and the resources of government (i.e. the court system) can be used to enforce this regime.  By limiting copyright we limit the government’s role in enforcing copyright.

While the arguments that lead to these conclusions and proposals are definitely conservative base targets, the conclusions and solutions were really the best part.  And Libraries were not left out. Though they reference Project Gutenberg as a digital library initiative, and it is, with the expansion of the public domain there are entire universes of activities that could spring up among public libraries both on their own, through vendors like Overdrive, or coordinated efforts like the Hathi Trust or the Digital Public Library of America.  Expanding the potential for eBook development on a grand coordinated scale can lead the entire world into a new era of research, development, and entertainment.

As we start to look at the future, we’re going to see more disruption in content, and how people engage with it.  It started with music, moved to video, and surprisingly text has been slow to crack.  But with the growing ubiquity of eReading devices, and some fairly well settled ePub standards based on HTML5 this is going to be blowing up, and fast.  And copyright law will either adapt, or be thrown to the wolves on the internet.  Adaptation, and innovation in the sources of funding for limited times will do everyone a service.  The music industry is finally starting to find out how to make this work and it’s taken some pretty bold experimentation among established musicians to do this.  But today the Future of Music group released a pretty amazing checklist of 42 ways you can gain revenue from your work.  This is the kind of exploratory thinking that needs to be happening in the Big Content world, because maintaining perpetual copyright is only going to last so long as you can’t rip the content from a book the way you can rip a CD.  Oh wait, you can now.

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*Secretly in my heart of hearts I’m kind of hoping that Derek Khanna, the RSC Staff Contact and Paul Teller posted the document for just long enough, and rescinded it fast enough for the Streisand Effect to take hold and drive the conversation forward. A little too Machiavellian?  Maybe.  But it has certainly been the topic of conversation across the entirety of the tech sector.

Copyright Musings

This week I’ve had copyright law on the brain.  Nancy Sims, librarian and copyright lawyer was interviewed for a piece in the Chronicle of Higher Education on some things folks need to know about copyright law but don’t. But mostly this is on my mind because I was poking around through Andy Woodworth’s blog over on WordPress and found this vehement post against CD ripping at libraries.  This came from a longer debate that was raging on another library listserve that I just didn’t bother to read, because if it ran anything like the comments in the post then I didn’t want to bother.  Lots of people weighed in on different sides of the debate: yes, we should allow people to rip CDs but only their own; no, we shouldn’t allow anyone to rip CDs because they could be infringing copyright.  blah blah blah.

Andy, I’m sorry, but I’m not with you on this one.  And here’s why.

First off, we’re not the copyright police.  We’re often lucky that we have enough staff to open the doors, much less monitor what’s going on at people’s public computers.  No one is going to sit there any monitor patron behavior to find out if they’re illegally ripping CDs.  It’s just not going to happen.  If you actually have the time to monitor all of the activities in a computer lab you are doing your job wrong.  There are people who are the copyright police and those are the folks who hold those copyrights.  If they want to visit every public library in the United States I dare them to do so.  When our public computers log out after each session, whatever content may have been put on that machine is erased.  There is no transaction history logged.  It’s as if no one was ever there.  Which makes this issue unenforceable and untraceable.

Secondly, we offer legitimate services that for all intents and purposes approximate the same practice.  With certain downloadable media, there is no real way to monitor the DRM status of materials downloaded to an external device, be it desktop, laptop, MP3 player or iPod.  They just trust that you will delete that content from your drive when the time period has expired.  Let’s be real about this.  Who is really going to do that?  When someone discovers that their content hasn’t been wiped off their machine, they’re just going to keep it, cause really, why not?  Now you tell me, what is the difference between allowing the person who downloads an MP3 via a legitimate file sharing service that we operate, and the person who rips a Library CD?  The only difference is the legal arrangement for these different formats, and the fact that they differ at all is totally stupid.

But lets get to the more important question here.  Because this isn’t about the legality of ripping CDs at all.  This is about the state of current copyright law and rights enforcement in an era where supply has basically become infinite and demand can always be met at a moment’s notice.

This whole situation really blew things out of the water with Napster. Does anyone remember Napster?  Oh, wait, it still exists…  Just as a recap, this was one of the file sharing services that exploded in 1999, and became so amazingly popular (especially on college campuses) that the RIAA sued them for massive amounts of copyright infringement, and won, leading to the eventual shutdown and sale of the service (or really it’s name) to BMG, and then having it shuffled off to one lower level retailer after another.  Did that stop file sharing?  No.  After Napster there was Grokster, Kazaa, Limewire, etc. etc. etc. It’s just never really going to stop.

In eBook land let’s talk about the Harper Collins fiasco that came out earlier this year.  Harper Collins basically said that they would only provide an eBook DRM license allowing public libraries to share an eBook 26 times before they would kill that eBook.  This led to some hilarious YouTube videos where librarians examined the number of times physical copies of books were checked out (upwards of 40 checkouts and still in good condition on a shelf) and that some Harper Collins books even had lifetime guarantees on them.  It was a laughable moment.  Why?  Why would you treat an eBook worse than you would a physical book?  It makes no sense.  Especially since the DRM on those items from our vendor restrict the number of times it can be “checked out” for download at any given time.

Then there are television shows and movies.  I’m just going to link to this cartoon to explain my opinion on that. Oh, but let me include this video from the IT Crowd as well.  But let me just make one comment here about air time and web time.  The internet makes the original air date, the date of air for the entire world.  Over the latest memorial day weekend BBC America did not air the new episode of Doctor Who, which means that they are now out of lock stop with BBC1, where Doctor Who airs in Britain.  Yes, Memorial Day is a big holiday in the U.S., but given that people have DVRs and that Doctor Who fans in the U.S. are absolutely rabid about this show does anyone think it would make a difference?  No.  Because the lead up to this last Saturday’s mid-season finale was so intense that I will guarantee you that damn near everyone who watches Doctor Who in America went and downloaded that content from somewhere.  Will they watch it again on BBC America.  Absolutely.  But they’re going to watch it as fast as they can, because they can’t get it fast enough.

The RIAA & MPAA have been trying to pull downloadable content off the web, and sue people for millions of dollars for years.  And they’ve gotten away with it so far.  But the reality is that file sharing sites crop up all the time. And no matter how many times people pull them down, they will continue to come up again and again.  There are so many places to go that it’s impossible to even begin to try to fight it unless you have the money of these lobbyists or the backing of a federal agency.

But again, we’re asking the wrong question.  It’s not, how can I crack down on things that are violating my copyright, but  how can I profit in an era where everything is available practically all the time?  How do I change my business model to take advantage of this new behavior that is on the web?

Let’s start with CDs, since that’s where this conversation began.  Just ignore ripping CDs.  People share CDs and rip them all the time.  There is nothing that’s ever going to stop that.  We fought that battle when it came to audio cassette tapes.  Thankfully the music industry has finally gotten to the point where they can provide content online through things like iTunes or Amazon MP3 so that people can legitimately download their content for a reasonable price.  But people are still downloading music and sharing music over file sharing websites.  But then there are some bands who just give their content away for free through sites like Magnatune and Jamendo.  Before that bands were putting their tracks on MySpace and DMusic.  It’s a way to get your name out there, to spread your content and promote yourself.  Even megastars are exploring new methods of content delivery like Amanda Palmer and Radiohead giving people the option to download their music through their website at a price that they name (including nothing), and Lady Gaga releasing her new album on Amazon MP3 for $.99 and demand being so crazy that it crashed Amazon’s servers DDOS style. These are forward thinking bands.  They understand the internet and are experimenting with different sales and delivery methods, and it’s working.

Over in eBook land we have similar things going on.  Cory Doctorow has been releasing his books for free in eBook format for a long time, but he has had to negotiate and wrangle with his publishers to make that happen.  And sales of physical printed copies, as well as sales of eBooks are still good.  Seth Godin in an interview at BoingBoing discussed his new eBook venture, where they will be giving away free copies of eBooks via his publishing imprint, and selling physical copies.  And this is not just a route for famous people either.  Amanda Hocking has become the poster child for new media success, by making millions selling her books for $.99 on Kindle.

Movies and television are slowly getting there through sites like Netflix and Hulu.  Through Netflix people were able to watch the series Spartacus: Blood and Sand and its companion piece Spartacus: Gods of the Arena on the same air date.  Hulu gives you the content the day following broadcast, with commercials at certain intervals with a limited number of back episodes.  Though the Hulu Plus the low monthly fee service gives you access to a much broader backlog of shows.  These are not perfect by any means, but they are still legitimate methods of content delivery that are changing the way we deal with television and films on the internet.

We are at a point where we need to rethink the value of existing copyright laws, experiment with these new delivery methods, and find a place where artists and authors can prosper through the new media.  We are wasting our time with enforcing a system that was developed centuries ago to protect the value of a supply line.  The supply line no longer exists.  The value is on the value of the content, not the physical or virtual product.  People will pay for content that is delivered in a timely fashion at a price that makes sense to them, and when it exceeds realistic expectations they will turn to pirated media.  This is not a devaluing of an artist’s work, it is a recalibration of the market to meet a new publishing medium.  Publishers, broadcasters and other content providers need to find a way to make their content available to people legitimately or face media piracy.  If they cannot step up and deliver their content to eager users, others will do so for them and then they lose.

As a librarian am I going to show someone how to download something from a bit-torrent client?  Even if bit torrent sites weren’t blocked by our firewall, I probably wouldn’t.  I would, however, have a conversation with them about legitimate download sites, like Overdrive, and how they work.  Am I going to show someone how to rip a CD?  Absolutely, because that is a skill that is a part of every day life now.  There is no reason why I cannot instruct someone on how to convert their content to a new medium for their own personal enjoyment and turn around to load that on their phone, mp3 player, or iPod.  It is a technical skill, agnostic of the legality of the content being used for the process. It’s like teaching someone how to build a website, fill out a web based job application, create a blog, establish an email address or get on Facebook.  It’s yet another skill that we need to have in order to live in our society.  By not teaching someone who comes to the library about it we create a knowledge divide between people who have home computers and those who don’t.  People want to get media, we want to provide media.  We need to figure out how to make it happen and not how to create another digital divide.