Tim Lee

Seltzer vs. Attaway on DRM

The Wall Street journal has a debate between Fritz Attaway of the MPAA and law professor Wendy Seltzer about digital rights management. Frankly, I think Attaway needs a remedial course in reading comprehension. In her first post, Seltzer points to several examples of video innovations that are stifled by the DMCA: excerpting video content, playing DVDs on Linux computers, and building a video jukebox. Attaway responds by stating that there is “absolutely no evidence to support” the assertion that the DMCA stifles innovation. Well, what about the three examples that Seltzer just offered? Are those not evidence?

Seltzer tries again, pointing out that DRM will prevent consumers from using their legally purchased content in new ways. In the past, she pointed out, the creators of new devices like VCRs and TiVo’s didn’t have to ask permission before they were allowed to deploy their devices.

Attaway responds with a non-sequitur: “I think we are getting to the philosophical heart of the issue. You want to be able to take for free the intellectual property others invested their time, talent and money to create.” Nothing in Seltzer’s post said anything of the sort. She’s plainly talking about the freedom to make creative uses of a DVD or other media that one has legally purchased. Yet Attaway, bizarrely, seems to believe that if we allow people to play DVDs on their Linux computers, that people will stop buying DVDs.

I think the fundamental disagreement here is one about technology, not philosophy. Attaway believes that the flaws and restrictions imposed by DRM are temporary–kinks that will be worked out as more sophisticated technology is developed. If that were true, Attaway’s argument would have some merit. But the reality is just the opposite: as the media world becomes more complex, the flaws of DRM will only become more glaring. DRM is technological central planning. Centrally planned economies become less efficient as they grow more complex. For precisely the same reasons, centrally planned technologies perform worse as they become more complex.

June 20, 2006 | Comments |

Viewing 12 Comments

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    No, certainly the DVD example isn't evidence of stifling innovation. The DVD example is a choice, nothing more than that. I have little doubt that the DVD format creators could have made it possible to have DVDs played in a Linux environment.

    They chose not to do so. We can decide whether that choice should be respected, but we shouldn't say that it is innovative when someone unilaterally decides not to respect that choice and tries to figure out a way around that choice. That is like saying that it is innovative to drive 70 in a 55 mph zone. Anyone can do it; the trick isn't in doing it; it is in deciding whether we want to respect the limit in the first place.
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    Randy:

    based on the work I've seen of yours on DRM, you seem to have a strange and alien idea of what constitutes innovation. In the world I wish to live in - and the world that technology is creating despite the best efforts of reactionary lawmakers - it isn't the reponsibility of the creators of the DVD format to make it available on Linux. It's the responsibility of those who wish to view DVDs on Linux to make the format available there. (And let me tell you, it's a lot harder than just pushing down harder on the foot pedal.) Open standards are better in many many ways, and as far as I see it, virtually inevitable.
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    Actually it's great eveidence of stifling innovation. Why not allow for open standards in the first place? As soon as you take out the consumer's ability to use the material legally purchased (like a DVD) in the ways he or she sees fit, then it's stifling innovation. I don't mess with DVD's I legally purchased because I don't want some brutes knocking my door down and arresting me because I made copies of the DVD, or ripped it and streamed it, or used clips for a project or something.

    People fear innovating these days and there is a good reason for that. The DMCA allows big media to sue whatever it feels is threatening it's business off the face of the earth legally. All in the name of innovation supposedly.

    It's really a simple line of reasoning when you break it all down. MONEY. DRM is a legal way to make the consumer pay for the same content over and over again. Watch that show on TV and enjoy it - but don't TIVO it! Time shifting is stealing! You can buy the DVD of the show if you like it that much though. If you would like to view it on your computer - go to our website and download it for a charge. It's all about choice!

    Yeah Right.
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    Doug,

    This really is a conflict as exactly you have framed it: between closed systems and open systems. The DVD setup is a closed system setup: disks go with players and patent royalties are collected on both pieces. The decision not to support Linux is a decision to keep the system closed in a particular way.

    You (and I think Tim) want to label as an innovation any way around a closed system, thereby opening the system.

    You are right to say that I don't regard that as innovative. The closed aspect of the system was part of the design, not a limit that arose from a lack of vision or creativity or, here's the word, of innovation.

    You do define as innovative anything which opens up a closed system?
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    > You do define as innovative anything which opens up a closed system?

    It's possible, though there may be counterexamples. I don't know that it's all that important what's defined as innovative or not. I do believe that open systems are in the majority of instances superior to closed systems, both technically and morally. Our legal system should be designed with more attention paid to openness as a virtue.
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    But the definition matters if we are going to frame the debate as--today's starting point--DRM thwarts innovation. I know from reading Tim's DMCA paper that the DVD/Linux example looms large, hence the importance of whether we want to consider as innovative something that unlocks the system.

    As Tim knows, I see the DMCA as a species of technological contract enforcement, and I generally favor contract enforcement. And the legal system should be designed to make contracts enforceable cheaply.

    As to open vs. closed, let the market decide. Don't buy songs from iTunes and get all of your music from emusic.

    And if our concern is about anti-competitive behavior, that is what antitrust is for, so Real can sue Apple if Apple has behaved anti-competitively.
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    In reviewing the Wall Street transcript of the Seltzer/Attaway discussion, I was resensitized to the "red herring" aspect of the whole DRM debate. The Wall Street Journal wrote: "The music and movie industries defend DRM as a means of protecting artists and publishers". Altruism, is not in the content industry's vocabulary, it appears that the content industry desire to implement DRM technologies is to ensure their continued existence as the middle man in the traditional distribution scheme of artist sells to middle man and middle man sells to consumer.

    The internet, as an innovative distribution system, allows the artist to sell directly to the consumer. The middle man is now technically obsolete as a means of collecting content and then selling it to the consumer. The content industry's may realize that its back is to the wall and its desire to impose DRM techologies may be an attempt to "force" content creators (artists) to still be dependent on the content industry's "services" as the middle man.

    Logically, the speculation noted above is weak since there is nothing to actually stop artists from selling directly to the consumer. Maybe in a few years the artists will have developed the sophistication to market directly to the consumer and the RIAA and MPAA will fade into oblivion for failing to adapt.
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    The difference between an open system and a closed system is who gets to do the innovating. With a closed system, only those who created the system (and their licensees) get to extend its functionality. With an open system, anyone is allowed to do so.

    So the innovation in this case wouldn't be the creation of a Linux DVD player as such. Rather, it's the potential for the creators of the Linux DVD player to add new functionality to the DVD player, or to combine the DVD player with other Linux software in a way that Microsoft and Apple wouldn't have thought of.

    So no, I don't define anything that opens up a platform as innovative. But opening up platforms is often a pre-condition to many types of innovation. We see that in the modern PC industry, which was created when Compaq and Phoenix forced the IBM PC platform open. You might not regard what Phoenix did as innovative by itself, but it undeniably made it possible for a lot of other companies to add innovative functionality to the PC platform.

    I think Seltzer's example of a DVD jukebox is an excellent example here. Being able to rip all my DVDs to a set-top box, just as a rip all my CDs to my iPod, would be quite useful. It's also not, as far as I can see, copyright infringement in the ordinary sense. Yet it's precluded by the DMCA. Circumventing DRM might not be intrinsically innovative, but innovative devices like a DVD jukebox are precluded by the prohibition on circumvention.
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    Attaway should be in the running for an Orwell award. Attaway wrote "Digital rights management is the key to consumer choice." As a consumer, I fail to appreciate how having my freedom crippled by the RIAA and the MPAA is a benefit to me.
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    I could imagine going after the DVD-CCA for anti-competitive behavior with regard to DVDs (a near-monopoly as a format, it seems). But anti-trust seems like a cumbersome, regulation-heavy solution compared to setting a few ground rules and then letting market comoetition work. Thing is, I see appropriate ground rules for technological competition as including the ability to reverse engineer. Remember, the personal computing era was arguably kicked off by Phoenix's reverse engineering of IBM's BIOS. Was this innovative? Maybe, maybe not. But it sure kicked off a whole lot of innovation, and it would be hard to argue we as a society aren't better off for having the PC become an open platform.

    So yes, I say let the market decide between open and closed solutions - after we get rid of a very bad law designed to stack the deck in favor of closed solutions that likely wouldn't be able to compete without government favoratism.
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