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Drawing the Digital Line

For most of our species' time on this planet, trade has primarily been for physical goods, although there has always been a roaring trade in services as well - such as theatre, transportation and prostitution. But in the last thirty years, we have seen a vast increase in the trade of ephemeral 'digital goods' such as music and games. The law is rarely pro-active and therefore disputes over digital rights are a vibrant battleground right now. But where should we draw the line in assigning rights of ownership to digital media?

This post was inspired by Corvus drawing my attention to some hilariously ridiculous legislation known as the A-Hole Bill. I'm not going to talk about this very much, because it's such patent nonsense that it seems implausible that any rational legislative system could take it seriously. Instead, what I want to talk about is where we should draw the line with digital media.

I am not a lawyer, although I did foundation courses in law as part of my university years. The way I see it, there are two basic commodities in trade: goods and services. When one pays for goods, one owns a physical object. When one pays for services, one receives certain benefits, or has a certain experience. Deciding which is which can become quite tricky, however.

Let's begin by looking at books. They've been around for long enough to be fairly well established. Books are goods, presumably. You buy them. You own them. You are free to loan them to your friends (although you are prohibited from charging for such a loan). You are denied the right to reproduce the content of the book in any form, because this would comprise copyright theft. I'm going to presuppose for the purposes of this post that copyright theft is a "fair crime"; you are stealing from the author or the author's estate.

Next, films. You go to the cinema, you are paying for the experience of the film. You rent a video or DVD, and you are also paying for the experience of the film. You watch a film on TV and advertisers (in general) are paying for you to experience the film. But if you buy a video cassette or DVD you are purchasing goods. You should be able to loan these goods to other people, you should be able to enjoy these goods more or less indefinitely.

Games once again set the same pattern. Pay for a game on a coin-op arcade cabinet, you are paying for the experience. Purchase a game to take home, you are paying for goods. You should be able to loan those goods to your friends, and enjoy them indefinitely.

Now we hit our first problem area. What exactly is going on when we purchase a MMOG? We are paying for goods (the software), but we are also paying for an experience (playing with other people). The goods facilitate the experience... I feel this is more or less reasonable, as the cost of setting up an MMOG is so large that making the players purchase the game can be seen as a way of spreading the risk of setup. That said, I feel that the micro-transaction model of giving the game away for free and making money by charging for voluntary extras (customisations etc.) is both acceptable and, perhaps, desirable for all concerned.

Music starts off following a similar pattern. Attend a gig, pay for the experience. Listen on the radio, and advertisers (in general) are paying for you to have the experience. Purchase a CD and you are purchasing goods, and you should be able to loan these goods to other people and enjoy them more or less indefinitely.

Until we get to digital music, of course.

Digital Rights Management or DRM is intended to cut down on copyright abuses, allegedly. This is an area of particularly concern for media corporations who are afraid that you will give your files away for free, thus cutting into their turnover. This isn't a new issue... from the moment magnetic media came along, there was the potential for casual piracy. What makes digital media so problematic is the effective zero cost of replication: you could copy an audio tape, but it cost you money, and there was a tangible loss of quality in each cycle. You can copy a digital file infinitely, with no loss of quality.

Now the problems start. An audio file protected by a certain DRM can't be moved or copied. Is it goods or a service? You can listen to it over and over again, so it doesn't appear to be a service. But if it the audio file represents goods, why are we not afforded our usual rights we associate with goods? We cannot loan the file. We cannot even transfer it off the device we have downloaded it to. And these problems are not inherent to the media - they are invented restrictions.

I am willing to accept DRM that prevents me from copying a file, but I am not willing to accept a DRM solution that prevents me from moving a file, as this (to my sensibilities) takes away some basic rights of goods ownership, such as the capacity to loan the file to a friend. I'm going to argue (facetiously) that if the goods I am purchasing do not meet certain minimum expectations of use, they are of diminished saleable value, thus we are entitled to a partial refund from the vendor.

Assuming that a digital track costs basically $1, and an album has about 12 tracks, digital music is currently being sold at the same price as a CD, more or less - yet we have many more rights with the CD than with DRM-protected music. We are (arguably) entitled to a refund.

In practice, I will not seek this refund, but rather take it out in kind by what you might term "ethical theft". Which is to say, although I do not engage in commercial piracy, like almost everyone else on the planet a certain proportion of my media is acquired through grey means. The more DRM tries to prevent this, the more open to receiving grey media I will be. I believe there are many people who will be in a similar position.

Chris Anderson argues (quite convincingly) that zero piracy rates are not only impossible, but undesirable. Here's an extract:

So the moral for video content holders and others considering DRM: be careful what you ask for, because you just might get it. "Uncrackable" DRM could make the P2P problem worse, by driving more users underground and depressing prices. Don't imagine that if you release content in a relatively weak DRM wrapper (like today's DVDs) and copies get out that the whole market will collapse. Instead, you may find that piracy stays constant at relatively low levels, leaving the rest of the market happier and more profitable.

The lesson is to find a good-enough approach to content protection that is easy, convenient and non-annoying to most people, and then accept that there will be some leakage. Most consumers see the value in paying for something of guaranteed quality and legality, as long as you don't treat them like potential criminals. And the minority of others, who are willing to take the risks and go to the trouble of finding the pirated versions? Well, they probably weren't your best market anyway.

I find Chris Anderson's argument that weaker protection is commercially more viable than strong protection fascinating and well reasoned. It's only flaw might be that it is pragmatic in its stance to legal violations - and sadly, such pragmatism is very hard to apply in corporations where the "rule of law" is often assumed to be absolute.

These digital ownership issues aren't going to go away, so we have a duty to consider how we believe the rights of digital ownership should function. I don't have answers, only questions and opinions. But I am convinced that if we as individuals don't take decisive action sooner rather than later, then the important decisions will be made on our behalf.

We need a solution which protects the rights of media creators (and the organisations they have empowered to distribute their media) but which also protects the rights of consumers. It's going to be a balancing act, and we have to find a reasonable place to draw the line.

Any suggestions?


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I'm a bit fan of minimization approaches to piracy. If a product has a strong core following and is distributed at a low price, then the leakage will be nominal. Combine that sort of quality with a "weak" wrapper and you've officially made the best of it. Of course, I'm no stranger to anarchic impulses, and I believe a bit of piracy is healthy, if for nothing else the art itself.

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