| Tuesday,
June 22, 2004
More on SpaceShipOne later after my walk. We'll also discuss Digital Rights
Management. For now on that see Mail; more when I get back. Sable calls...
DRM: The Issues. (This may become
large enough to warrant a separate page; if so that page will always be
referenced here,
so
bookmarking this page and topic will lead you there.)
This has become an important issue, not just here, and I don't think the
issues have been defined fairly. There's
already a lot about this; but much of it, I think, is aimed in the wrong
directions.
First, although it has been referenced before, it's well to
look at the Doctorow statement of the Electronic Freedom Foundation
position. That is found here,
http://craphound.com/msftdrm.txt and I am going to assume that everyone
interested in this has read it. The summary position is:
Here's what I'm here to convince you of:
1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT
And that certainly frames the issues. His
first statement may be key: it assumes his position, because if DRM can't be
made to work, the entire issue is moot. He certainly has not
proved his case. Caesar used a "picket fence" code which was good enough to
deceive Gauls who couldn't read Latin to begin with, but which isn't good
enough for now; but why it's worth five minutes of a talk is beyond me. No
one proposes anything so simpleminded. It may be that DRM can't be made to
work. I have been known to speculate to that effect myself; but a lot of
people with a lot of experience in this business think they can make it work
reliably enough to protect against unauthorized commercial exploitation of
copyrighted works, and if so that's all we have now. Example:
Israel, Taiwan, and Hong Kong all have printer/publishing firms that pirate
books, including mine. I discovered one of them at a Price Club: there was
an edition of one of my books printed by a publisher with whom I have never
dealt, selling in a American discount store for about 10% of the US
publisher price. Mine wasn't the only one there. Repeated (and painfully
slow) negotiation with the Department of State got the publisher closed
down, although someone in the government where the publisher resided seems
to have warned him since there was no one on the premises when the shop was
raided. This sort of thing happens frequently. Could we then say that
copyrights "don't work"? And of course the answer is "not perfectly, no, but
they do work reasonable well." They have been effective enough to let both
me and my legitimate publishers make some profits on my books, and do this
without accepting advertising, or begging, which seem to be a couple of
Doctorow's solutions to us old buggy-whip makers who think we ought to be
paid for our property. So: can DRM work? I am not sure. I am
sure that the strawmen Doctorow kicks apart in his presentation
aren't particularly relevant. I have been to the DRM sessions at four
different WinHEC conferences as well as the 2003 Microsoft Developer's
Conference and in every case I have taken the position that it can't be
done; and the people at those conferences have been pretty good at showing
me that maybe it can be done, at least "good enough". Note also that DRM for
movies and performances are not really the same problem as for books.
Distribution on a disk that one expects to play on any system it's plugged
into is not quite the same as distribution by download of a file that you
know in advance will only play on certain systems and certain kinds of
systems. In other words, I don't think the issue of
feasibility is a closed issue, and I do not think that Doctorow and his
supporters have proved their case: they assume they are right and assure us
they know better than the developers. Perhaps so, but surely one need not
accept that automatically? Indeed, if it can't work, what is all the
discussion about? Microsoft developers take the position that
whether or not DRM is a good idea, it is certainly legal, and both
publishers and authors and artists want to have the right to protect their
property in various ways; and that they are pretty sure they can provide a
reasonable degree of DRM, including a wide variety of choices for the
authors and publishers. Many of them are quite as good at programming as
Doctorow and his advisors. Next: is it good for society?
That is certainly not a proved case. The Framers of the US
Constitution hated monopolies but they wrote an exception to that dislike
into the body of the Constitution itself. At the time they thought 14 years
a reasonable time for copyright; but of course people didn't live as long or
have productive lives as long then as they do now. Some time later the
Copyright Act provided for 26 years, renewable for an additional 26; it also
made some provisions for original creators to recover some lost rights
during that renewal process. Works not renewed fell into the public domain.
Many of us thought that reasonable, and while I did testify in support of
some changes to the Copyright Act, I did not take a position on the
modification to life plus some span of years; and I publicly oppose the
latest revisions of life plus an inordinate number of years.
But good for society is a complicated question, and involves things like the
nature of rights. "Rights" is a peculiarly English Common Law concept
anyway. The French Revolution said a lot about the Rights of Man and the
Citizen, but in fact what they put forth as "rights' are more calls to
action and stirring exhortations than "rights" as understood in the US and
England. The more common Continental (and particularly Russian) notion of
rights are not property rights held by an individual, but a system of duties
on the part of the public prosecutor and authorities. The distinction is
important. Without public enforcement of rights, do they
exist? That is the argument of the Code Napoleon and the old Roman Law (most
of that developed by the Praetors and Senate during the Empire and codified
by Justinian). Rights not recognized and enforced by the state aren't rights
at all, but merely aspirations. Under ancient Roman Law in the Republic,
rights weren't enforced by the state, so that a court decree granting you a
right was merely a license to get your clients and relatives together and go
try to take your property by force: the authorities wouldn't interfere. This
led to some scenes echoed in the American Wild West, complete with
Committees of Vigilance as the only means for enforcing individual rights --
and of course they trampled heavily on other rights. Imperial Roman Law
changed most of that, and law and contracts were enforced by the State.
So what we are really saying here is not do individual authors and composers
have a moral right to dictate how their creations shall be distributed, but
do they have rights in the legal sense that will be enforced by laws and
both civil and criminal courts?
Doctorow and his group say "not really." He also chooses his
examples carefully, most of them out at the extremes; but everyone knows
that hard cases make bad law, and while the law has to deal with extreme
cases, it isn't normally written with only those cases in mind.
I'm framing issues here, not answering all questions: and
the issue "is Digital Rights Management" bad for society is not, I think,
settled despite his glib assumption that it's no question at all. It is a
very complex question, and was debated at length in the Convention of 1787,
and much of that debate remains quite relevant today. Note too that
"intellectual property" is not all that new an idea. Song and sheet music
was copyrighted and pirated a lot back in the early part of the last
century. Books have been physically copied and printed and sold without
permission of author and publisher for a very long time, and the argument
that somehow if someone "steals" intellectual property it isn't theft
because he has only taken a copy and the original remains, unchanged, in the
hands of the owner is no more relevant when the copy is done electronically
as when it was done by hand setting the work into a letter press without the
owner's permission. It's just easier to steal it now. His
third proposition, that it is bad for business, is also unproved, but it
need not be proved in any event. If DRM protected works don't sell, and
other works without DRM do sell, the market will take care of all that; we
don't need debates and discussions. And once again the returns are not all
in: there is evidence that books given away electronically sell no worse,
and some sell better, than works not so treated, but there is also evidence
that works with previews and excerpts but not the entire work sell about as
well. This is, I think, a matter of technology. It is only
recently that it is about as convenient to read a book on a computer as it
is to read an actual hard-bound book. TabletPC's and Ultra-Light computers
with really good reading software come pretty close now, and they're getting
better. So are other hand-helds. Until very recently no computer offered a
decent reading experience, and while there may be hundreds -- even thousands
-- of people who like reading books on Palm and PocketPC devices, there
aren't so far enough to make a drastic impact on sales: at least on on my
sales and those of other best-sellers. Alas, mid-list and specialty authors
are already in trouble because of the distribution crisis in publishing, and
loss of a few thousand sales is very likely to be critical to them: so
electronic piracy may well kill off a number of works with an intense but
small readership. Or may well be their salvation, some would argue. Perhaps
so; but surely this is not an entirely settled issue? Much of
the data collected so far may not be relevant to the new technology when
reading books on computer devices is easy and convenient.
And: DRM may be good or bad for sales, and business, but authorship
hasn't always been about sales and business. A few years ago publishers
began inserting advertisements into books. Some of them put cigarette and
liquor ads into works without telling the authors. Some authors objected
like hell. Publishers offered some of the revenue as compensation. Some
authors took that. Others continued to object because they didn't want to be
promoting cigarettes and booze. Perhaps they were foolish, but I don't think
it an entirely settled matter as to whether they had the right to opt out,
even though the ads were probably "good for business" and the author
insistence on control of those ads was probably "bad for business."
His fourth point is that DRM is bad for artists, and once again, he
certainly has no consensus of authors and artists on this point, nor has he
been appointed their spokesman. If we have some problems with the concept of
"good for business" and "bad for business," we have many more problems with
the concept of "good for artists" -- unless, of course, one simply
declares that what Doctorow thinks is good for artists is in fact good for
them and the artists don't know their own interests. John
Adams said once that in America we consider that each man is the best
judge of his own interest. He acknowledged that in individual cases this
might seem to be demonstrably untrue, but as a principle it was good for
society. Our modern Nanny State has negated that principle in large part,
and many of the freedoms that Adams' principle implied have been lost; but I
am not prepared to hand over judgment as to what is good or bad for artists
to Doctorow and his friends. When I was president of Science Fiction Writers
of America I never went so far as to assert I knew their interests better
than the members, and I worked pretty hard at trying to get a consensus
before I did any bargaining with publishers; I don't think Doctorow has
consulted many writers and artists, and he certainly hasn't been given the
right to speak for me or for many writers who make a living at what we do;
and I doubt he has a consensus of composers and graphic and performing
artists either. Another principle here: not all artists have
the same problems. The US has some very bad copyright laws. One of them has
a provision snuck into the Copyright Bill in the dead of night by a
Congressional staffer who subsequently left government employ and went to
work for the RIAA at a hell of a good salary: this provision gives
essentially all rights to a performance to the publisher and none to the
artist. No Congressman or Senator has ever been found who will admit to
having read that provision before voting for the law, and most of them say
it is a shame and ought to be changed; perhaps it has been changed and I
didn't notice since it doesn't affect me, but a couple of years ago all
Congresscritters were saying it was bad law, they didn't vote for it, it
needed changing -- and then doing nothing whatever about it.
Writers don't have that problem. The default rights sold by authors are
considerably narrower than those taken by publishers in performance art.
Writers must explicitly sell all rights as "a work for hire" before losing
all their claims. Thus it may be -- I don't say it, because I
haven't spent enough time consulting with performing artists -- that given
the law as it stands, DRM would be bad for artists because they don't get
much from DRM -- but that isn't necessarily true for composers and authors
and graphic artists. As to whether DRM is bad for Microsoft,
I will leave that to Microsoft to decide. So: in contrast to
Doctorow, I think: 1. DRM may or may not be impossible; a lot
of smart people think it is feasible. 2. It is not at all a
settled issue whether DRM is bad for society. That certainly needs more
discussion. 3. We don't really need to know if DRM is good or
bad for business, since the market will almost certainly settle that: those
who choose to employ DRM will find out soon enough whether their business
model is correct or if the "give it away and they will find a way to pay me
back" model is better, or if some other model is better. 4.
There is no consensus of artists on whether DRM is good or bad for artists,
and there needs to be a lot more discussion. In any event, deciding for them
isn't obviously the morally superior position. 5. Microsoft
will decide whether DRM is good or bad for Microsoft. My guess is that
the answer to the first four questions will decide that matter.
Now let the debates begin. You may want
to Start here. Or next: ======================== In long discussion on
this, Mr. Thompson says: From a
libertarian perspective, copyright is not a natural right, as for example
property rights are... You say that
we'd have fewer novels written if copyright terms were reduced. Permit me to
doubt that. Perhaps you would write fewer novels, but there is no lack of
people clamoring to be published.
I had not known that about the libertarian position.
As to the rest, I agree. You can find as much of that kind of work as you
like. Just enroll in a writing workshop. They aren't
published because publishers don't think they will make much on them.
Publishers take chances on unknowns in the hope that the editor's judgment
that this book is good and this author will develop is correct. Most of
those bets are lost. A few, like with the Harry Potter books, pay off big.
When the publisher gets a big payoff he can afford to take more chances.
I had a number of writers come to me after Lucifer's Hammer auctioned for an
enormous (in those days) advance, larger than any science fiction book had
ever got. "You are taking the bread out of our mouths! You soak up all the
money that the publisher had for advances, and left none for me!" And
many variants on that theme. My reply was "Actually, Hammer
made a good profit for the publisher, as well as paying overhead, and it's
from those profits and overheads that the publisher can pay new advances for
other books. Mote in God's Eye made money, on what was then a big advance
for science fiction but which is about average now. It earned out and made
money which is one reason the average advances are larger."
Stop the publisher from making a killing because he doesn't deserve that
intellectual property (how are you harmed? You still have your book!
Just because I pirate printed copies and gave them away, you still have your
property, nothing was stolen from you!) -- stop the publisher from making a
killing on successful books and you pretty well assure that the publisher
won't take many chances on other books. The nature of
publishing is changing, but one thing is certain. There are plenty of people
with plenty of novels they would like to see published (or parts or novels,
or unedited messes they call novels) and they will certainly "publish" them
given half the chance. Whether that is what readers really want I don't
know. I do know that if you take the revenue out of books, no one but a
blockhead will work very hard to get them out in good form, rewritten to a
competent editor's suggestions, and carefully copy edited. We don't call
galley proofing galley slavery because we like doing it...
And it all continues, in Mail.
==================== I
have not had a chance to look at much of this, but it seems alarming:
www.southafricanemigration.com
============
Tuesday TOP
Current Mail
|
CLICK HERE for
a Special Request. 
