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
    Anonymous Coward, 15 May 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.

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