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.

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  1. identicon
    Chris, 12 May 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."

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