by Mike Masnick

Why The "Copy Protection Is Necessary" Argument Doesn't Make Sense

from the breaking-it-down dept

We've noted multiple times in the past how the Progress and Freedom Foundation (a DC-based think tank) seems to keep taking positions that make no sense when you actually look at them. This includes things like saying that open spectrum discourages innovation, net neutrality equals theft and that fair use slows innovation. Each of these is pretty easily picked apart, and are based on both ignoring facts and making provably false assumptions. This was seen repeatedly last month at the CATO conference on copyrights, which included three separate PFF speakers -- all of whom ignored facts and made false assumptions. One of them, Solveig Singleton, has now released a paper based on her discredited talk at the event about how the DMCA isn't so bad. At the same time, she has posted a rebuttal to Tim Lee's paper on how the DMCA has harmed competition. You can read the various arguments back and forth if you want to dig into things, but Tim Lee has written a response that hits on an important hidden issue that is worth talking about in more detail.

What Lee points out, is that the defenders of the DMCA tend to defend it on one of two points, and shift back and forth between them when convenient (that is, when the other point is shown to not hold). However, when you look at the two separately, you realize how the entire argument falls apart. The two arguments are basically: "copy protection acts as a necessary speed bump" and "the internet has changed everything." What Tim Lee notices is that the speed bump argument only refers to people copying content from someone you know (i.e., ripping their CD or having them send you files directly). Because, as pretty much everyone knows, no copy protection works, and any file is available online (which the EFF points out in their own rebuttal to Singleton). So, there's no such thing as a speedbump for infringement if you're just downloading files online. They're already available -- so adding copy protection to the files that are sold makes no difference to internet distribution. That leads to the second issue. It may be true that "the internet changes everything" as a means of distribution -- but since copy protection has had no effect, whatsoever, on the availability of content online, then it's clear that the claim that DRM is needed because the internet changes everything makes no sense. It's had no effect, so how could it be needed?

The only area where they could claim it does make any sense is in the realm of personal copying (what Lee refers to as "meatspace copying") among people who know each other. And, of course, that has been possible (and, in some cases, encouraged) since well before any copy protection ever existed. That kind of personal copying has its own "speedbumps" built in -- in that people have to find someone who has a copy, figure out how to make the copy themselves, and provide whatever form of storage media the copy will be made to. If anything, those speedbumps simply push people to go online where they can download the content (which, you'll remember, is not impacted by DRM at all). In other words, the only part of the argument that even remotely makes sense is the same issue that has always been around, and which most agree is a very minor issue compared to internet-based file sharing. In fact, every time in the past that the entertainment industry has raised this issue of new technology allowing unfettered copies (piano rolls, radio, cassette tapes, VCRs, CD players, MP3 players) rather than harm the industry, these changes have helped it grow. So, by pushing DRM about the only thing the industry seems to be doing is holding back the latest innovation that should be helping the industry grow. Either way, the next time PFF or anyone tells you the DMCA and copy protection are necessary, dig deeper into exactly why that is -- and make sure to distinguish between "meatspace copying" and internet distribution, because their argument pretty much falls apart when you split them up.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Mothra, May 12th, 2006 @ 3:14am

    There's something rather ironic in the fact that legally purchased DVDs now force you to watch a video about the evils of piracy, whereas the exact same DVD can be downloaded for nothing from Usenet, from which it is easy to burn a copy that does not include that warning.

    I am also amused by the similar videos about piracy that I am forced to watch when I have paid to go to the cinema. They seem to imply that downloaded films are poor quality and may include people talking, getting up to go to the toilet etc.. Then the film starts, in 24 fps judder-vision, someone behind me natters to his mates... and someone in front of me gets up to go to the toilet.

    reply to this | link to this | view in thread ]

  2. identicon
    Lamer, May 12th, 2006 @ 3:16am

    Second Post!

    The DRM makers got 0wned!


    reply to this | link to this | view in thread ]

  3. identicon
    Brad, May 12th, 2006 @ 3:25am

    Wow - well said

    That's a remarkably well put together argument. Someone studied Philosophy.

    Serriously though, as you've pointed out many times in the past, all DRM does is decrease the value (but not the cost) of DRMed media - forcing one say "Why should I pay $18 for a CD that's only worth $4 to me? I'd rather just download it, and then it feels like it was worth $8" - but by hampering their own products, it makes the user not want it.

    Imagine if every American sports car in the country came with a governer set at 65. (If you cross it, the transmission kicks into neutral, until your car slows to below 65 again). How many people do you think would buy American sports cars? "The speed limit is 65 - that's where the governer should be set. Any faster and you're breaking the law." Makes for a pretty lousy sales pitch, don't you think?

    And to the jerk who will (or was about to) undoubtedly respond to this with "The speed limit is 70 somewhere!" I know, and I don't care. You're missing the point.

    reply to this | link to this | view in thread ]

  4. identicon
    Hedwig, May 12th, 2006 @ 4:10am

    Re: Wow - well said

    Actually, the fact that the speed limit is different in different places is an extra point why such a speed governor idea is flawed. And the analogy still holds because the USA is not the same as the world...

    reply to this | link to this | view in thread ]

  5. identicon
    Darrington Bevins, May 12th, 2006 @ 4:55am

    Question of semantics

    So the argument made by the PFF, and its supporters are doing what every other American lawmaker is doing. Dancing around the subject with arguments that sound related, but in fact are just a bunch of cleverly constructed redundancies. The answer is not to argue with them, but to educate the average consumer (not the average geek mind you) of the difference, and the choices that they have.

    I don’t mean to insult the rest of the world, but if middle America makes their choices with their wallets. Then big business has to change their stance, and that is exactly what will change lawmaker’s votes.

    reply to this | link to this | view in thread ]

  6. identicon
    thecaptain, May 12th, 2006 @ 5:20am


    I totally agree with you.

    However, I'm passed finding it ironic, it pisses me off.

    I see it this way:

    I've just PAID to see the movie, I've just LEGALLY PURCHASED the damn DVD...so now, YOU (the content company, MPAA, RIAA whatever) force ME (a legal, somewhat loyal customer) to sit through 2-5 mins of ASININE anti-piracy ads, accusing me of starving your damn children (because rich people are always on the brink of starvation whenever a business model is threatened) because I'm a thief and a pirate.

    Well yarrrrrrrrrrr, if no matter WHAT I do, I'm presumed guilty, AND no matter what I do, I'm expected to pay the penalty (in Canada, there are many levies for specifically this), then know what? I'll do the crime. I've already done the time.

    Pirate away! Yaaaaaaaaaaaaaaaar!

    reply to this | link to this | view in thread ]

  7. identicon
    The Ghost, May 12th, 2006 @ 6:21am

    Arrrgghhh... Pirate's Matey....

    I blame it on the niggers meself....

    reply to this | link to this | view in thread ]

  8. identicon
    smellyFeet, May 12th, 2006 @ 6:34am

    Yes and no

    While this may work in cases where you can exploit the "analog hole" of movies and music,
    there are cases where DRM does work and does stop Internet distribution in its tracks.

    Lets not forget about the "evil" star-force and games like Splinter Cell Chaos Theory. While there are probably a lot of people who downloaded it online, the number of complaints on forums show that only a tiny percentage of the downloaders managed to make it work - often using very inconvenient mechanisms (unplugging drives, etc.).

    While DRM might not fully stop piracy, that is not really its goal. The idea is to make piracy so inconvenient that people will just go and shell out their hard earned cash.

    reply to this | link to this | view in thread ]

  9. identicon
    Mr. Stanky, May 12th, 2006 @ 7:28am


    Here's something fun. I just bought a copy of Narnia. Went to watch it on an older DVD player with my wife and, oops it wouldn't play because of copy protection. What did I do? Made a COPY of the COPY PROTECTED dvd that I BOUGHT just so I could watch the damn thing.

    reply to this | link to this | view in thread ]

  10. identicon
    Brad Eleven, May 12th, 2006 @ 7:51am

    yes, vote with your wallet

    Darrington Bevins made the meta-point: talking about this is silly. Don't participate if you really feel strongly about the implementation.

    OTOH, the American consumer seems to be able to justify anything, as long as the medium delivers. This holds true for those who've never heard of bittorrent and are oblivious to the implications of the anti-piracy tax--and for those who don't immediately recall the last time they paid for digital media.

    I agree: copy protection is bullshit, draped in legal arguments. It's the recording industry responding to the gravy wheels having fallen off the gravy train. They deserve the status quo and more--they're the ones who went digital simply because they saw a wider profit margin, and charged even more simply because they realized they could.

    There are still a few chickens which haven't come home to roost, at which point the entire roost will collapse.

    reply to this | link to this | view in thread ]

  11. identicon
    e, May 12th, 2006 @ 8:22am

    Copy protection schemes do serve as a speed bump, in that they slow down the initial distribution of files online. If there was no copy protection at all, the minute a new CD came out there would immediately be 1000's of different versions of it available online, in multiple bitrates and file formats, on virtually every file sharing medium available.

    Copy protection schemes slow down this process. Instead of there being 1000's of different versions available all over the net, there are initially fewer copies (at only a select number of bitrates and file formats). The protection schemes by no means prevent the file from being available online, but act as a mitigating factor, limiting it's initial distribution and format. So, for example, the files may initially only be available through more obscure channels like IRC, usenet, and a few bittorrent sites.

    I think the idea is this will prompt Molly the 11 grader to go out and buy it. Hopefully by the time the files have wide distribution in multi formats across all file sharing mediums, she will already own a copy.

    reply to this | link to this | view in thread ]

  12. icon
    Ron (profile), May 12th, 2006 @ 8:46am


    While the discussion on the merits of DRM, speedbumps, evils of the "Man", lunacy of the lawmakers, etc. are provocative and interesting, I don't know if I like being classified as the "meat" in "meatspace copying".

    reply to this | link to this | view in thread ]

  13. identicon
    A Network Admin, May 12th, 2006 @ 8:47am

    It's about time

    You read all these articles about DRM and Copy Protection, it's about time someone puts it in writing that IT DOESN'T even begin to hinder or slow down the distribution of online media/games/appz/movies. They need to realize any freeware dvd ripper, has copy protection removal or region code removal built in and its updated when the a new one comes out. IT's stupid to waste money on trying to keep updating it so people can't "Pirate" the material when they don't have to do anything shy of downloading a single small program to copy the damn thing. If they want to stop it, they need to start making shit worth what they are charging. Who will pay 10$ to see Date Movie, i wont even pay to rent the trash or waste the bandwidth to download it. They want people to pay for quality, then they need to start putting some quality into the work and release cds with additional content and i dont mean a lousy music video or something. Relase albums with tons of extra stuff to make it worth paying 15-20$ for. i mean geezus they cry poverty and itshurting the music industry. Half of them suck, the other half live in million, or billion dollar mansions, yet they cry poverty to the people who have to work hard jobs for a living. Please, i don't care how good you sing, a million dollar mansion shows one thing. You make too much already, so stop your whining.

    My 2 cents

    reply to this | link to this | view in thread ]

  14. identicon
    DittoBox, May 12th, 2006 @ 8:48am


    With my MythTV (which is illegal on multiple levels now!), I can skip any ad or warning.

    XINE for the win!...or however it goes.

    reply to this | link to this | view in thread ]

  15. identicon
    Chris, May 12th, 2006 @ 9:09am

    There's really only ONE way.

    Thanks to capitilism, the puropse of business is to make a profit, and as much as you can. So the music industry is trying to continue doing this. However, none of them seem to be educated past the digital age of file sharing. Anytime there's been a medium to store music on (even records if you had the right equipment) there's been a way to duplicate the original piece.

    The only way to actualy stop illegal copying (which doesnt exist mind you, as people legally can backup their own media) is to shift the debate to illegal sharing. Instead of trying enact a law to enforce all these copy protection devices, they should be trying to ban file sharing programs, such as Kazaa, BearShare, LimeWire, etc...

    The argument they should be trying to make is that file sharing programs make the acquisiton of illelgaly "uploaded" files more readily available. If their goal is to truly inhibit the distribution of these digital files, then go for the source that makes it so easy to do so. If no file sharing programs existed, people would have to resort to what they did with the casset; find someone you know and make a copy from them i.e. e-mail only or messenger services. This would in theory drasitcly reduce the rate at which copies could be transfered and recieved.

    Not to mention that people seem to be looking over that which is most obvious. Music is sound, and sound can and will always be replicated. Even IF there were a way to completely stop the consumer from ripping the content of a CD, so there was no way at all you could make a digital file from the source medium, all one would be required to do is get a speaker, a mic, and a recording device. In short reducing all auido quality to stereo only, in turn hurting the quality of the music, and hurting the quality of the product.

    on an unrelated note....

    "Copy protection schemes do serve as a speed bump, in that they slow down the initial distribution of files online. If there was no copy protection at all, the minute a new CD came out there would immediately be 1000's of different versions of it available online, in multiple bitrates and file formats, on virtually every file sharing medium available."/

    No, no, and you're wrong. In case you haven't noticed, a lot of times the songs are acutaly available online before the CD is even released. Anytime a song's played on the radio, say through a shoutcast, someone then has a digital form of this song and can share it to the world. Or a guy who works at a music store, ganked a copy of the cd from inventory, before it's put out on shelves, and made his own copies. Next time you see a major band releasing a CD take a look at how much content you can already get for free. Once it's released take a look 1hr later, and I can almost guarantee someones leaked the entire thing.

    The blatent factual truth the music industry needs to realize is they lost the battle before the fight even began and the replication of an origianl is essential for their industry to exist. When you have a medium that is made for mass distribution, you create the means of replication. So when your company uses this technology without exclusive rights, you agree to use a system who's sole purpose is to produce many many copies of an original. This is where you business model is "flawed."

    reply to this | link to this | view in thread ]

  16. identicon
    Scott, May 12th, 2006 @ 9:26am



    I have had to get copies of software I purchased off of site before and there is no down time believe me. Copy protection keeps Joe Public from ripping it and putting it online, but it does not even slow down hard core pirates. The day it is released and usually before it is available in high quality rips.

    Almost every movie and 90% of games that were released last summer were available on sites before they were released.

    reply to this | link to this | view in thread ]

  17. identicon
    The Ghost in the Machine, May 12th, 2006 @ 9:32am


    The RIAA/MPAA need to check out this article. It would prove to be interesting.

    reply to this | link to this | view in thread ]

  18. identicon
    Blaise, May 12th, 2006 @ 9:50am

    Canadian Music Creator's Coalition

    Here's an interesting development happening in Canada recently. A powerful group of Canadian major label and independent recording artists have formed a coalition to specifically fight against suing their fans and against digital locks on their music.

    Steven Page of the Barenaked Ladies points out that the DRM technology is often more of a punishment to those who are legally buying music than to those who are pirating it anyways, etc etc.

    Definitely worth checking out: http://musiccreators.ca

    reply to this | link to this | view in thread ]

  19. identicon
    slick, May 12th, 2006 @ 10:13am


    I think Truthiness is at work here. Stealing = bad. Copying = stealing. Copy protection (is intended to) prevent stealing. Therfore Copy protection = Good! Sure, if you think about it, or use "logic" is doesn't make sense. But if you use your heart you'd feel what was right. It's got the ring of truthiness to it to me. It just feels right.

    reply to this | link to this | view in thread ]

  20. identicon
    P, May 12th, 2006 @ 10:33am

    Chris said:
    "Instead of trying enact a law to enforce all these copy protection devices, they should be trying to ban file sharing programs, such as Kazaa, BearShare, LimeWire, etc.."

    Give me a break... we've already seen how simple it is for the open source community to stay one-to-many steps ahead of the people trying to shut down specific file-sharing networks. The Internet's sole purpose is to share digital information. File sharing clients are simply specific protocols for sharing that information. Ban one protocol/client and 4 more will pop up in its place. It's just a ludicrous argument.
    Bottom-line: file sharing will never be stopped. Pirating will never be stopped. Big business' only choice to keep profits alive is stop DRM-ing everything, let honest people be honest and align the price of their product with its non-inflated, actual market value.

    reply to this | link to this | view in thread ]

  21. identicon
    Kilroy, May 12th, 2006 @ 11:23am

    what's the fuss

    I don't understand. But more importantly how can I copy-protect this comment? I'd hate for someone to use my opinion with out paying me ... and in mmy opinion Solveig Singleton is hot!

    P.S. please take this post with a grain of salt ...

    reply to this | link to this | view in thread ]

  22. identicon
    Cober, May 12th, 2006 @ 12:52pm

    Missing the point

    instead of there being 1000's of different versions available all over the net, there are initially fewer copies That is a completely bogus argument - even though there are less "varieties" of a given content file, it is still avaialable. So the fewer varieties spread - maybe the DRM has slowed down disribution by a few hopurs, so what. How many different versions of a file do you want, anyway?

    reply to this | link to this | view in thread ]

  23. identicon
    Blaise, May 12th, 2006 @ 2:13pm

    Re: Truthiness....

    I disagree with slick that copying is necessary and absolutely stealing in every single case. I mean, what about Fair Use? The reason that argument doesn't hold is because copying ISNT ALWAYS stealing! What if I want to copy tracks from the new Chili Peppers album I paid $30 for to MY computer, and then copy them to MY ipod.

    Copying is NOT EQUAL to stealing !!

    Therefore, the argument for the inherent 'truthiness' of copy protection doesn't hold.

    Plus, I think that if something only makes sense before you apply logic to it, then it doesn't really make all that much sense.

    reply to this | link to this | view in thread ]

  24. identicon
    Chris, May 12th, 2006 @ 3:01pm

    File Sharing progs.

    To P or E or we you choose to go by.

    The point I was trying to make is this. Before the whole file sharing era blew up, it already existed just on a smaller scale. People would use mIRC to find a group of people uploading content to a FTP server, and would acquire it thusly. However, you had to know what you were doing. Now you just install a program, hit the search button and TA-DA! Napster came along and now the iggnorant music industry had gained some insight. Fearing a loss of profit they went after Napster, got it shut down, and then tried going after others. They then noticed "how simple it is for the open source community to stay one-to-many steps ahead of the people trying to shut down specific file-sharing networks." And that's where the fight should have stopped, because they lost. Instead they took a different route to try to stop what is already legal to do, make a backup of your own legally aquired goods.

    People can make backups of their legally purchased media. They can upload it to a server, so they can retrieve it at a later time. This has always been the case. So it becomes an issue once these people try to share THEIR copies. This is made possible by file sharing programs (this being the source of the problem) and it's why the music industry went after them first. They lost and now they need a new scapegoat.

    reply to this | link to this | view in thread ]

  25. identicon
    Tora1188, May 13th, 2006 @ 7:33pm

    Re: Arrrgghhh... Pirate's Matey....

    While you may just have been trying to be funny, I think i speak for everyone when I say that:

    1) Offensive language isnt welcome here
    2) TROLL!

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, May 15th, 2006 @ 10:39am

    Speed bumps ARE working

    DRM as a technology may not be doing much to stop piracy - though as far as I knew, until recently there was no such thing as DRM in music, so despite fiascos like the sony rootkit, I think it's a bit early too give it a grade - but a comprehensive copyright protection strategy will never just be about technology. The concomitant - and just as important - legal tactics the industry has pursued have done a remarkable job of slowing down the explosive growth of piracy, and the fact that ITunes is out there selling millions of tracks a day is testament to that success.

    Not to mention that the end goal of any DRM technology is not about preventing duplication of content, but the consumption of that content. If DRM makes it so that pirated content only ends up on bittorrent-type networks, then it's done its job since a lot of people don't feel comfortable using those services.

    btw, full disclosure, i am not an industry advocate, but in general, i do feel that piracy IS stealing, and that content should be able to be protected like any other output. the fact that new technologies makes rampant sharing of that content easy still doesn't make it right. I also believe, however, that content producers who embrace these new technologies and approach the problems of piracy through creative means rather than just throwing up road blocks would probably see more success. But for the most part, content producers have a right to handle these throny issues however they see fit, even if it in the long run is bad for business or heaven forbid upsets you.

    reply to this | link to this | view in thread ]

  27. identicon
    Blaise, May 17th, 2006 @ 8:28am

    Re: Speed bumps ARE working

    "Not to mention that the end goal of any DRM technology is not about preventing duplication of content, but the consumption of that content."

    That's exactly the problem though!! It makes it more difficult for people who have legally purchase the content to consume it! DRM technology doesn't do a very good job at differentiating between people who are attempting to access the content who have actually legally purchased it and those who haven't!

    The speed bumps, if they are working, are working to make it more difficult for anyone to consume the content, whether or not they have legally purchased it, and that is the problem.

    That is one of the main points of that group I mentioned earlier, The Canadian Music Creators Coalition... as stated on their website:

    "Digital Locks are Risky and Counterproductive

    Artists do not support using digital locks to increase the labels’ control over the distribution, use and enjoyment of music or laws that prohibit circumvention of such technological measures. The government should not blindly implement decade-old treaties designed to give control to major labels and take choices away from artists and consumers. Laws should protect artists and consumers, not restrictive technologies. Consumers should be able to transfer the music they buy to other formats under a right of fair use, without having to pay twice."

    reply to this | link to this | view in thread ]

  28. identicon
    Kent, Aug 15th, 2006 @ 12:55am

    Re: Re: Speed bumps ARE working

    I completely agree with your point, Blaise, but I think (and hope) that by saying "Not to mention that the end goal of any DRM technology is not about preventing duplication of content, but the consumption of that content." He meant preventing the consumption of content by people who haven't legally bought it. Though the biggest obvious problem is that DRM complicates making personal copies (from legally purchased media) to their computer, MP3 player, media server, etc.

    reply to this | link to this | view in thread ]

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