All the issues with DRM could be solved just fine by getting rid of anti-circumvention provisions.
In fact, let's flip this around: what are the issues that you think would remain after anti-circumvention rules are gone, that would require limiting people's rights to write software how they choose?
I just don't see any justification for legally preventing software makers from limiting the functionality of their software as they choose, as stupid as it might be for them to do so. Again, extending that control beyond the bounds of the software itself, such as the sony rootkit, is a different story -- but outlawing DRM seems like a needless restriction on people's rights, which is not something I support.
Here's one more question, just out of curiosity: would free trial versions of software that disable after a given number of days also be illegal?
"The fact that those people are legally prevented from using their own money and medicine to cure poisoning is a huge problem that we need to fix — but the fact that the company was permitted to create and openly distribute poison is, as far as I can see, impossible to prevent."
Because DRM is a much wider umbrella. I agree that DRM that, covertly and without consent, hijacks functions of the user's computer beyond the software it comes with -- such as the Sony Rootkit -- can be considered identical to malware. But DRM covers so much more than that.
It sounds like you would say that software which refuses to run unless the CD is in the drive, or a dongle is attached, should be illegal. Well... okay... but how do you define that? Does a software maker not have the right to include conditions for that software to operate, or to access certain functions?
In that case, what about a computer game that refuses to let me access later levels until I have completed the early ones, like almost every computer game ever. In that case, the data and the programming for all those later levels is there on my computer, but the game is refusing to let me access it until I satisfy arbitrary, unnecessary, artificial conditions.
So is that illegal too?
Now, of course, I could use other tools to unpack the data from the later levels, hack in and access them. And that would be perfectly legal. If it were illegal, then we'd have a big problem -- and that's the situation with DRM right now, which as I've said I agree is indeed a big problem. But how do you outlaw DRM in the first place without also outlawing my example?
It doesn't even have to be so outlandish. What if I create a privacy/security control program of some kind, say one for parents to install when they want to limit young children's access to certain functions or programs? Sounds to me like that would also be an illegal virus under your definition.
So then, are you saying it all comes down to whether or not the intent of the limitations is to prevent violation of copyright? That's fine I guess, but it's also ridiculous. The law is not going to use a right that people have as the definition of something they cannot attempt to do. "Software makers are specifically prohibited from placing any limitations on their software in an attempt to protect their IP rights." Uh... weird. If you think getting that law is as easy/plausible as stopping SOPA, I dunno what to tell you. Maybe we could work in that direction, though as a step before that it'd likely simply be stated that software makers must make sure their protections have exclusions for things like personal backups and fair use, and as a step before that we'd need to eliminate the current laws actively preventing circumvention of DRM for such uses. Which is, as I've been saying all along, the real issue.
The main issue with your position is that you don't have a workable definition of DRM. Let's start with the one you've provided: only functional purpose is to take control of a computer's functionality away from the computer's owner and have it instead serve the whims of a remote developer
Okay, so are distributed computing apps like the classic SETI processor also illegal malware? They also have that same sole functional purpose. But they are agreed to by the user.
So does that negate it? But what if the user agrees to buy and install a piece of software or content that openly includes DRM? Are they not then equally assenting?
Secret DRM like the Sony Rootkit is a different story. But the vast majority of DRM is not secret -- it's stupid, but not secret, and it's something users agree to when they install the software. The fact that those users are then legally prevented from using their own devices and other software to circumvent that DRM is a huge problem that we need to fix — but the fact that the company was permitted to create and openly sell the DRM is, as far as I can see, impossible to prevent.
So be it. Just know that in our eyes, you are exhibiting the exact same behaviour that rubs you the wrong way from Stallman/the FSF.
No, I do not believe that giving the government more authority to declare what sort of software is legal or illegal is a good idea. In fact, it's a downright stupid one. Simply eliminating anti-circumvention provisions and any other special protections for DRM would render it even more utterly useless than it currently is, without the need to put a bunch of Congresspeople and/or Judges in charge of evaluating the legality of software.
Mason, this is utterly absurd. Any reader of Techdirt, including you, knows perfectly well that we hate DRM - we mock it constantly, we applaud companies that forego it, we point out its massive legal and business model issues, we attack and oppose anti-circumvention provisions and other special recognition for it in the law, and we constantly say it's just about the stupidest thing a software maker can saddle their product with.
You are just mad that we won't join you on your absolutist bandwagon of criminalizing all DRM as though it's a virus. And as such, you really are doing exactly what you accuse the FSF of. What was it you said? "a heretic is someone who believes almost all the same things as you"? Yeah, look at what you're doing right now.
If you see a need for a different type of article, maybe you could fill that void and provide those articles on your own site.
We also love guest-post submissions. If someone with deep technical knowledge about bootloaders and privacy issues deep within device architecture wanted to write a good, accessible post helping our readers better understand those issues and what they can be doing about them, that'd be great! We'd love that.
Unfortunately, such people who try to write such posts often take on a similar tone: barely-veiled frustration with and castigation of the public for failing to make this the only thing they ever think or talk about, and for paying any attention to any tech issues/topics at any other level before addressing this one. And while I somewhat understand that view, it's not the only valid one, and it's not one Techdirt wholly endorses.
(I'd also say that by characterizing our stance as pro-DRM based on our failure to view it exactly the same way as you, you are committing precisely the same sin that you accuse the FSF & Richard Stallman of above)
Techdirt is obviously, openly opposed to DRM. We have written many posts condemning it, and we've always fought against anti-circumvention provisions. I'm looking through your comments on several of those posts and currently haven't found any where our writers have even replied to you, let alone contradicted you, but I'll be interested to see whatever examples you have in mind.
If we have opposed you, I think it's clear what we've opposed: your absolutist insistence that all DRM be treated precisely the same as malicious software and treated as such under the law, and that software makers should be legally blocked from attempting to include it.
That's a uselessly absolutist view, Mason. It's not realistic. It's not going to happen. And it doesn't even sound that great. As you know, here at Techdirt we are big fans of technological/innovative solutions before legal/policy/regulatory ones -- and we feel that the technological futility of DRM will do it in long before Congress or a court is prepared to say that the standard behaviour of all major software companies for 20 years has been criminal.
If you think that our failure to join your absolutist regulatory crusade means we "don't think DRM is bad" then you are being very myopic.
I don't mean to dismiss some of the points you are raising - they just all seemed to come entirely out of no where and have very little relevance to the point I was making.
And that, right there, is the issue with those of you who are immersed in this world of low-level device architecture, who are committed and fanatical (in a good way!) advocates of the Stallman approach to free software and technology, and so on:
While it's not that I think you are wrong, there is a tendency to revert every single discussion back to that low-level issue of yours. And I DO understand that -- it is, after all, low-level, and does indeed sit below the foundation of many other issues. And I can totally see your desire to have a blog that focuses really closely, constantly and almost exclusively on those issues.
But... that's not the blog Techdirt is. We have a variety of things to cover. And sometimes it feels like you expect that we just stop covering that other stuff at other levels until this one core issue that you consider the most important is dealt with.
If we write about the social complications around Google Glass, and people's uneducated and somewhat kneejerk opinions about its privacy implications (do you honestly think the people doing the face-ripping were fully educated in all the stuff you know, and trying to send a message to someone else who doesn't 'deserve the dignity' of a conversation -- or were those face-ripping folks themselves pretty clueless about what they were really mad about?), the response from your world is "why talk about that at all? none of that matters until THIS fundamental issue of the device architecture and control is solved."
But, we still think some of those higher-level conversations -- about privacy as a social construct, about privacy when it comes to cloud storage and security, and more beyond that -- have real value. See, we're not necessarily convinced that the ONLY goal worth fighting for is a world in which ever person has total control over 100% of all their data, because that doesn't really seem possible -- not technologically, and certainly not in a world where people still have access to a wide range of free digital content and services. We're not 100% opposed to the concept of advertising, and hoping to see it abolished the way so many people seem to be -- advertising is a good system that makes a lot of stuff cheap or free.
There are huge dangers in the way things are going now, yes, but there are also huge opportunities, and I strongly believe that some level of trade-off -- you give me a useful online service that I desire, I let you have some insight into my online habits -- is going to be with us for a long time, and that's not necessarily a bad thing. Done right, it can be a very fair trade.
And see, that's the issue. I see Google Glass, and I think "wow, that could be dangerous, but also incredibly useful and cool. Let's really have a serious conversation about the role this will play in society, and how Google will be handling data from it". You see it, and you think "that's the worst thing I've ever heard of, it shouldn't exist, and I can totally understand why someone would rip it off another person's face and smash it", even if you condemn that behaviour.
I stand by my feeling that this is overblown, or at least disruptively absolutist, even while I fully recognize and respect the roots of your feelings about it.
I called them "somewhat overblown" and "freakouts" — not entirely ungrounded or irrelevant. I do think there are genuine privacy concerns to be considered around something like Google Glass, but unfortunately most people were unable to have any kind of rational conversation about it, and went straight to violent opposition of the technology up to and including ripping them off people's faces and smashing them (and being widely applauded online for doing so).
If you think that was a reasonable reaction, so be it. I think it was a somewhat overblown freakout.
These days, with automatic software cleanup, short retention policies, the obscurity of software data storage, inability to search for anything over a week old, and transient nature of ISPs, well...
Do you honestly believe that?
1) My automatic software also *backs up* all my data in more than one place, with stuff going back for years. My records and mementos are far more secure today than they ever have been.
2) Which short retention policies are the issue, exactly? I've never had any data that I wanted to keep disappear because of that. All my memories on Facebook are intact; all my tweets are apparently in the Library of Congress. The great thing about data retention policies is that we get to set them, instead of being tied down to the physical lifespan of the data.
3) Obscurity of storage methods may, indeed, cause some issues in the future. I'm a big supporter of the various groups working to pre-empt this issue.
4) Inability to search for anything over a week old? What? I regularly search stuff way older than that. Not only are there plenty of archives to help me find online material that's 10 or 20 years old, I can pop up Google Newspaper Archives and browse century-or-more-old newspapers from all over the world.
It seems to me your issue is that, if our civilization entirely collapses, a future one will have a harder time learning about us than we did learning about ancient civilizations. That might be true (though I've long been fascinated by the concept of a "data archaeologist" that such a future civilization might have). But honestly, is that our priority concern? Our technology has enabled us to have far, far more access to knowledge and history and communication, on a democratized global level, than ever before in history. I can go right now and look at high-resolution 3D photos of those "dropped pots" from Feudal Japan or Medieval Europe or Ancient Rome or the prehistoric stone age tribes from Mongolia to France. Then I can read academic papers about them, talk about them on a message board with career archaeologists, and book a flight and an AirBnB stay in the city where they are on display, all without leaving my chair. I can take photos of my trip and instantly share them with my friends and relatives, and put them into a permanent backed-up archive that I can then access from anywhere in the world and share with anyone I choose.
Are we going to give all that up, just to make sure that a hypothetical successor civilization to ours has more dropped pots to look at?
This is a comment I read somewhere else, on another blog, on a related topic, quite some time ago... I forget where, to be honest. But it's an excellent extension of the point you make here:
"All the rhetoric about this subject continue to miss a key objective reality: that there are two separate supply/demand interactions at work here not one. It also misunderstands the real-world facts of one of those supply/demand interactions.
One of them is the supply of artistic performance compared to the demand for it. Observing that the great majority of professional-caliber artists are paid very poorly we assume that this means that the demand curve (how much people will pay, or "how much our soecity values the arts") has been dropping. But this is factually incorrect. Both the Broadway and non-profit theater sectors nationally are vastly larger today in revenues than a generation or two ago; there are now nearly 200 salary-paying professional symphonies compared to fewer than 10 fifty years ago; annual tax-deductible contributions to arts organizations is today several times (after inflation) what it was in the 1970s; etc. Some perusal of American for the Arts annual statistical survey with an eye towards this particular question is eye-opening; the entire annual NEA budget isn't even a fraction of one percent of the nation's arts economy anymore. And that's without even considering the long-term boom of the broader "creative sector" such as the film and TV worlds.
But wait: if the total amount of money in the arts sector (that demand curve) has been rising then why do so few artists earn a living wage? Because the supply curve (of artists) has been rising even faster. Check out the stats on annual graduations from music, theater and dance conservatories. The number of arts organizations keeps rising which means that the growing contributed-support pot gets divvied up more. The number of Americans reporting on their tax returns cash income as artists double in a single generation (1970 to 1990). As a society we finished eliminating social stigmas on the pursuit of a life as an artist -- there are Evangelical musical-theater camps now! -- and, it turns out, liberated perhaps more than anticipated.
Also technology keeps tearing down barriers to entry, e.g. I just recorded, in a studio, an album with my band for a total cost that in real dollars wouldn't even have bought the snacks for a proper recording session in 1980 or 1960. Make something cheaper and cheaper to attempt and, it turns out, more and more people will put in the time and effort to attempt it. And some fraction of them will turn out to be genuinely good enough to pull it off.
Basically no matter how fast the demand for artistic performance has grown and is growing, the supply of artists has grown more. And what is supply from this angle is demand from another: the demand for a life as an artist. We have fully liberated that demand: now, for the first time in the history of Western civilization, essentially every person who possesses the raw talent to potentially become a professional-caliber performing artists attempts to do so. That's a genie which won't go back into the bottle willingly: are you willing to subtract yourself from that pool? I'm sure not.
Unless we're willing to put back up some of the barriers which had always artificially reduced the supply of professional-caliber artists [go back to viewing actresses and actors as just one step above prostitutes and pimps, get the aspiration to sing or dance for fame and fortune back off of our public airwaves, cut the number of conservatories back to 1950s levels, institute genuine hard artist guilds, etc], then this is the reality going forward. We're not as a society going to do any of those things, so the demand for life as an artist will keep rising faster than the demand for art. Or, put the other way, the supply of terrific and/or amazing artists will keep rising faster than the supply of the society's interest in them. Neither is actually falling or likely to anytime soon, but one is rising faster. That's a broad reality which all the well-meaning policy rhetoric in the world can't overcome."