Is DRM evil?

[This is slightly off-topic, but since this is my only blog I'll be diving into other subjects of professional and personal interest from time to time. One of those, needless to say, is Wired. I don't want to make this a running editor's letter, at risk of losing focus on the Long Tail, but the two subjects quite often overlap: Wired is about how technology is changing our world, and the Long Tail is a prime example of that.]

EFF organizer, BoingBoinger and Wired contributor Cory Doctorow, perhaps the best-informed person I know on the subject of Digital Rights Management, argues that Wired should be taking a more activist stance against it:

Wired seems to be a little soft on DRM these days; the recent Wired spin-off, Wired Test, featured page on page of reviews of music players, media PCs, and PVRs with hardly a mention of the fact that all of these devices were fundamentally crippleware, and all controlled by entertainment companies who can and do arbitrarily remove functionality from them after they have entered the marketplace, so that the device that you've bought does less today than it did when you opened the box. If you're publishing a consumer-advice magazine, it seems like this is the kind of thing you should be noting for your readers: "If you buy this, your investment will be contingent on the ongoing goodwill of some paranoid Warners exec whose astrologer has told him that your pause button will put him out of business and must be disabled."

Hmmm, "soft". Well, in one sense he's right: we're not following the EFF's idealistic line on DRM. This isn't because of journalistic impartiality. We, too, are unashamedly activist on issues we believe in, and DRM abuse is one of them. It's just that we take a more pragmatic stance to serve a more mainstream audience. (We are also a commercial magazine, not a pressure group.)

Like Larry Lessig and his Creative Commons project, we believe in the value of protecting intellectual property rights, but we're opposed to overzealous extensions and implementations of those protections. Copyright good; infinite copyright bad. Piracy bad; treating everyone like a pirate worse.

But equally, we believe in putting the consumer first. Consumers want more content, easier-to-use technology, and cheaper prices. If some form of DRM encourages publishers, consumer electronics makers and retailers to release more, better and cheaper digital media and devices, that's not necessarily a bad thing. This is just being realistic: much as we might want it to be otherwise, content owners still call most of the shots. If a little protection allows them to throw their weight behind a lot of progress towards realizing the potential of digital media, consumers will see a net benefit.

The real question is this: how much DRM is too much? Clearly the marketplace thinks that the protections in the iPod and iTunes are acceptable, since they're selling like mad. Likewise, the marketplace thought that the protections in Sony's digital music players (until recently, they didn't support MP3s natively) were excessive and they rejected them. Indeed, we were one of the first to criticize Sony in a big way for getting that balance wrong. And, for what it's worth, Test and the rest of our reviews do take points off for intrusive DRM when we encounter it.

At risk of opening myself up to anti-Microsoft flames, I'll personalize this by giving an example. I recently bought a Media Center 2005 PC to serve as a central tv/video/music/photo server for our house--essentially a DVR on steroids. So far I love it. It sits in the study, by all appearances a regular PC available for regular PC use, and streams content to thin set-top boxes called Extenders or the existing Xboxes at each TV. It has some DRM restrictions, including not streaming DVDs over the network and not supporting DivX, but nothing I care about that I can't work around in one way or another.

Some will wonder why I didn't go for a DRM-free open-source media server, such as MythTV, instead. And the answer is, I just can't be bothered.  More importantly, my wife really can't be bothered. The Media Center works great, is easy to use, and given that we needed a new PC anyway is cheaper than the other DVR options (no monthly fees). Did I sell my soul to the Man? No, I just got a cool technology that makes our life a little better. In the real world, that counts as a win.

Comments

[praktike]

Sony's giving it another try.

[phillip torrone]

hey chris, since you have a media center 2005, as you mentioned the extenders are pretty cool, i just got the xbox one going, works well. i posted the how-to version of it on engadget if you want to check it out, also-- check out www.orb.com i've been streaming all my content and watching live tv through my phone, all from my media center pc, it's pretty amazing.

cheers,
pt

[Chris Anderson]

Philip, I saw that and even shared a comment of concern about the requirement that the disk stay in. Any idea how I can join the beta test for remote programming?

[Chris]

Hi Chris! I'm a giant fan of your "Long Tail" article; I've been shoving it under the nose of everyone I know lately. Great stuff.

But I think you've missed the mark in your argument that the market has accepted DRM. You argued that the success of the iPod, and the failure of Sony's offerings is an example of the market's acceptance of a reasonable level of DRM. I think the difference between Apple's and Sony's offerings is far simpler: MP3 Support. The iPod is a fantastic tool, and supports MP3s as well as Apple's DRM-afflicted format. Sony, on the other hand, shied away from MP3 support, alienating, well, everyone. iTunes has also been a success, but I have a hard time believing that a 40GB iPod is filled with more than a couple GB of AAC files. Everyone I know crams a zillion MP3s into it, and completely ignores iTunes.

Anyway, just wanted to drop my $.02 in the bucket here. I've enjoyed reading both sides of this debate.

[noone]

Something wrong with your rss feed

[Seb Potter]

Hi Chris,

I think perhaps there are a couple of important points that you're missing about the "consumer acceptance" of DRM in the marketplace, and I'd like to take the opportunity to expand upon them.

The first point is that the vast enormous majority of consumers don't know what DRM is. The technically adept often suffer from an acute case of myopia when we consider what an average consumer knows and understands about technologies. Rights Management in the form that we're discussing it is novel to consumers, and it's readily apparent that most consumers are utterly ignorant of the fact that service providers (when you buy a TiVo or an iPod, you're buying a service, the hardware is incidental) can and will alter the terms of service at will, and with no notice nor appeal available to consumers. Until the market begins to realise that the promise of digital media is effectively offset by the paranoia of content owners, any assumption about consumers knowingly accepting those limitations is quite an imaginative leap.

A second point is that, due to the service-oriented nature of devices such as the TiVo and the iPod, there's really precious little actual competition in the market. It might appear that there are a wealth of device manufacturers and that the Digital Media market is thriving: however, as the bottleneck of the market is actually at content distribution as opposed to hardware sales, no amount of variation in the devices themselves can create a thriving marketplace. Whilst DRM technology provides an avenue for content owners to prevent consumers from exercising their legally protected rights, the content market will continue to stagnate.

It's all too easy to get caught up in the flurry of enthusiasm for the marvels of technology and design that these new kinds of device represent. As leaders in the field of technology, you have a responsibility to look further than the veneer of empowerment that we're being sold, and to realise that technology isn't just about being cool, it's about changing the way that people live their lives. If buying a PVR means losing the ability to exercise a legal right whenever a content provider chooses, the consumer must be provided with accurate information to make a choice about the real price they're paying.

[Chris Anderson]

Seb,

Those are good points, but I have great trust in the marketplace to sort this out. Consumers may not know or care much about DRM now, but if companies start to really abuse it they will both notice and react. Consumer electronics have a useful life of just a few years, and these are still early days in the DRM wars. If Apple really screws up the iPod or TiVo caves too much to the networks, consumers will go elsewhere with their next purchase. Like the Internet itself, people are pretty good at routing around damage.

[Michael Earls]

Excellent to see such a well-written post supporting this stuff. I posted a similar entry on my weblog in response to some thing I had heard prior to buying my Portable Media Center. I got some pretty good comments...

"DRM is Not Evil" - http://weblogs.cerkit.com/mearls/archive/2004/12/28/665.aspx

and

"Even more DRM Madness" - http://weblogs.cerkit.com/mearls/archive/2004/12/29/685.aspx

[Cory Doctorow]

"Consumer electronics have a useful life of just a few years, and these are still early days in the DRM wars. If Apple really screws up the iPod or TiVo caves too much to the networks, consumers will go elsewhere with their next purchase."

The thing missing in this analysis is that people might be locked in by DRM. If your whole music collection is locked into iPod/iTMS, then you might not be so sanguine about switching to another platform, even if you're chafing at the restrictions in iTunes.

It's worse with video, where switching away from Media Center PC might cost you the footage of your son's first steps, your sister's wedding, your holiday films.

Under non-DRM circumstances, say, with MSFT Office, there's always the option of finding a product that will import your old media to your new platform. But in a DRM world, "importing media" requires circumvention of the DRM, which is itself illegal, which means that the average user won't have the ability to avail themselves of this technology.

I was once the CIO of a tech services company. I wrote POs for a million dollars worth of hardware every year. One year, I noticed that I was spending unreasonable fortunes on Sony AC adapters, because Sony gouges on these and won't allow third parties to make more. I weaned us off of Sony by buying everyone new speakers, etc, over the next 18 months. It was a good decision and an easy one of make.

But what if switching away from Sony had cost us, say, our financial records? Or our client files?

If buying Sony in the first place meant committing to them forever or risk losing mission-critical data, I would have made an entirely different calculus when I first bought into Sony products. Maybe I still would have ended up with some Sony equipment, but I never would have deployed it in the same way.

If I buy a consumer electronics review magazine, I rely on it to help me identify all the pluses and the minuses of my purchases: I *especially* rely on it to help me understand hidden downsides that might surface later in the device's duty-cycle, problems that aren't visible on the show-room floor or in a couple weeks' trial.

Whether or not the DRM in Media Center PCs is unduly restrictive, I think that it would have been useful to, for example, note that each capability in a Media Center PC, like fast-forwarding, burning to DVD, storing permanent archives, and recording itself are all subject to being disabled on a show-by-show basis, and that there's no agreement in place that limits that and no way for you to tell, a priori, which shows will and won't have those restrictions activated.

[Richard Smith]

"but nothing I care about that I can't work around in one way or another"

If you're having to find work arounds to issues caused by the DRM, isn't that a reasonably good indicator that it's overly protective?

[Chris Anderson]

Richard: In a word, no. All technologies have limitations regardless of DRM, and advanced users often have to find ways around them. Indeed, none of the limitations I've encountered and had to work around on the Media Center have anything to do with DRM. (Remote programming is still a bit clunky, etc...)

As for the DRM restrictions, I don't really want to stream DVDs over the network anyway (we play them locally) and I'm happy watching DivX video on the machine itself or burning it to a DVD to watch elsewhere. Compared to the real-world limitation of all the alternatives, from TiVo or DirectTV's closed platform to the mind-boggling complexity of making my own open source DVR, this counts as very small beer indeed.

Again, I'm not an absolutist: I don't subscribe to the view that any DRM impact is too much. I'm a pragmatist: if DRM doesn't annoy me in practice I don't care much about it, and if it does annoy me I'll reject it. And if any company is stupid enough to actually deprive me of access to the media I thought I'd bought free and clear, I'll reject them with extreme prejudice ;-)

[Chris Anderson]

Cory:

I'm been enjoying your many excellent points, and even swayed by some of them (although I'd challenge you to find a mainstream consumer magazine that raises the issue of DRM as much as we do).

But I think this borders on the alarmist:
"It's worse with video, where switching away from Media Center PC might cost you the footage of your son's first steps, your sister's wedding, your holiday films."

Even the darkest tinfoil-hat conspiracy theorists don't suggest that Microsoft is going to hold my WMV-encoded home videos hostage. But you seem to be taking it even further, somehow tying it to the Media Center itself. Please explain.

[Cory Doctorow]

MSFT has a track-record for tethering all the media you import to the CPU you import it to (see http://trevor.typepad.com/blog/files/msftdrm-purple.html#purp887 for example) and whenever the capability exists to device-tether your imported media hostage you should be aware of the possibility, if only so that you can ensure that tethering isn't taking place (a household with only one PC has no easy way to check whether the media it imports is being tethered).

More significantly, though, is that MSFT controls the entire market for WMV/WMA playback devices. If your only home movies and recordings are in WM*, the entire market for devices that will play them back is controlled by MSFT.

That means, for starters, that you won't ever be able to move your videos to a Linux-based PVR, like a TiVo. Hell, MSFT has pretty much abandoned WM* players for the Mac, too -- WMP OS X is so old that even on my latest Powerbook (the fastest Powerbook ever built, with maximum video and main memory), video doesn't play back smoothly -- sometimes not at all.

It's not an issue with the media center per se, except to the extent that Windows Media and Quicktime are the only formats that're owned by OS vendors who have an incentive to limit the number of platforms that can play them back, so if you're investing in a "convergence device" that natively uses those formats, you run a real risk that you will be locked into a single vendor or have to abandon your old media.

I don't think that Wired does a worse job than others in calling out DRM, but I *do* believe that there's a lot of room in Wired's reviews to call out DRM more explicitly, particularily in terms of what the DRM is capable of doing down the line: which features are revocable and under what circumstances? I think that as soon as the featureset in a device moved from a static to a dynamic one, the job of the reviewer became more than technical research and metastasized to include investigative reporting on the nature of the underlying consortia, governance and legislation, since these have a much larger potential impact on the device's utility than its features at purchase-time.

[Morten Bay]

It'd funny how the EFF and everyone else who wants to question the copyright system seems to forget that it is only in the anglo-american world that the copyright rules the music business. And that we as artists actually prefer not to have our songs stolen. Here in Scandinavia, as well as in countries like France, Author's Rights are the basis upon the which the rights system builds on, not Copyright. It basically means that the author of the song retains the right to decide who gets copyright to the song - no matter what! This right can never be sold off, like it is done in the anglo-american music world. This means that when I've written a song, I can regard it as being MY song, just like I would think of a house or a fence or a table I built as being mine. And I would like to be the one who decides what happens to it, thank you very much! I can easily see why there is something to debate about in your part of the world, where the copyright is easliy sold off to big corporations. But from a artist perspective in Northern Europe, DRMs are a tool to make sure I retain my right to do what I want with what I've made. And that's why most of us over here actually embrace DRMs. Just another perspective on things.

Morten Bay
singer/songwriter/geek

[Morten Bay]

Oh - and by the way,

Your choice of the media center for sheer convenience proves my theory of survival of technology:

The technology that becomes the most successful with the broad public, is the one that makes stuff we're already doing at some scale, more convenient.

Convenience is king, as I usually say.

Getting music via file sharing is not convenient outside the UK or US, since e.g. local Danish music is hard to come by on Gnutella-servers or Bittorrent. The same goes for countries from Hungary to Portugal....and believe me, everyone in Europe wants local music. Legal alternatives make it easier to get all the local stuff you want. It's just more convenient. Just like it's more convenient to buy back catalogue music online, that's too old to be found on P2P or in regular music stores.
The reason for the long tail effect is sheer raising of the convenience level, if you ask me.

Now we're at it:
The 'The Long Tail'-article is nothing short of a revolution. It was the big topic at a recent rights society event, I went to here in Copenhagen, Denmark - as well as at the 35th Internet anniversary at UCLA which I also attended on october 29th. I expect it to be a big reference point at the MIDEMnet conference on music and technology in Cannes later this month.

Just thought you should know.

M.

[Cory Doctorow]

Morten, that's a very coarse depiction of the author's right/economic right split as practiced on the continent. Of *course* copyright is employed on the continent at great length and breadth: otherwise how would CanalPlus enjoin Universal France from duplicating its broadcasts and selling them on DVD? The way that you have divided Moral Rights and Economic Rights is not technically accurate: the whole bundle of economic and author's rights are collectively called "copyright" in the field; the thing you're calling "copyright" is more usually called "economic rights" or "industrial rights."

Authors in *some* European states may have an strong, inalienable Droit Moral (though, certainly this is not the case throughout Europe -- see the Netherlands, for example, where authors are not entitled to a cut of the monies from the resale of their works as they are in France), but every European state, including Sweden and France, has decided to turn a blind eye to the droit moral, reducing it in practice to a mere economic right, in the case of technology. That's why VCRs are legal for sale throughout the continent (even if there's a levy on the devices or media). No filmmaker, actor, composer, director, or other creator associated with the production of a film has the right or ability to stop Europeans from recording the transmissions of their works, nor from playing them back later, nor from making copies for personal use, nor from fast-forwarding past the dull or offensive parts (so much for the much-vaunted European right of integrity).

I live and work in Europe, and am a delegate to the UN's World Intellectual Property Organisation, where I am surely as exposed to the world's copyright systems as you are. When you characterise the European concept of author's rights as governing everywhere except the US and the UK, you commit the same arrogant sin you accuse me and EFF of: exporting your notions of how the copyright system should work to the rest of the world. It is as untrue to say that the whole world runs on European copyright as it is to say that it runs on American copyright.

It is categorically untrue that European songwriters labour under this regime: "...when I've written a song, I can regard it as being MY song, just like I would think of a house or a fence or a table I built as being mine. And I would like to be the one who decides what happens to it, thank you very much." In actual practice, every commercial songwriter in Europe is part of a collective licensing scheme, often a compulsory scheme (though in practice it makes no difference) through which their "inalienable moral rights" are traded like any other manufactured commodity: otherwise the Beatles' publisher EMI could ban phonograms of Joe Cocker singing "With a Little Help From My Friends," since Cocker recorded this under the compulsory mechanical license that governs composers' creations in the USA.

[Morten Bay]

Dear Cory,

Thanks for your comments. You are indeed in the know about these things from your position in the UN I can tell - the reason why I avoided terms like moral rights/Droit Moral and so on is because the are so eurocentric that I honestly thought no-one here would know the slightest about what I was on about if I used them.

I myself is on the board of one the organizations that make up KODA, the main author's rights collection society in Denmark. And if you read my post again you will notice that I'm actully not talking about Europe...I'm talking about NORTHERN Europe, i.e. Scandinavia and the Baltics. The reason why I included France is because the whole idea of author's rights originated there in 1895, and I know for certain that the rights societies down there struggle to retain droit moral and the divide towards what you call economic rights (a term I've never heard before in the past 6 years of representing Denmark in international talks about rights - is it the same as mechanical rights?).

I have never claimed that the anglo-american notion of copyright is not employed across this continent. Of course it is. It would be quite difficult to have a pan-european hit if it wasn't.

I have also never claimed that the rest of the world outside America runs on author's rights. I have said that the copyright system - in contrast to the author's rights system (And there IS a difference) - works in the parts of the world that have adapted the anglo-american way of running music business. That's why I used the term "Anglo-american world" and didn't simply write Britain and America. Because you are right - even our brother country of Sweden are fighting the international publishers all the time trying to keep the author's rights with the authors. And in Germany, Holland, Italy (and France, apparently) that struggle is lost by now.

You are right that the rights societies in the EU in general have granted permissions for certain ways of copying to be legal (Your VCR argument), but this is a decision made from country to country, and here in Denmark it is made as a collective decision in our rights society, KODA, to grant this permission. It is not the same as turning the blind eye to Droit Moral, it is actually putting our Droit Moral to sensible use. After all, it is still - through a democratic process - ourselves who decide what happens to our music, not some corporation. Because of the way the author's rights system is structured (at least here and in Norway and Finland) we can also choose NOT to retain that right. If I want to make one of my songs "public domain" by putting it up on my website and asking everyone to copy it, I can do so. I can even do it without terminating my membership of my rights society - I just have to fill out a form - which basically makes the Creative Commons idea non-sensical in this country.

So there IS a big difference between the author's rights and performance rights and the mechanical rights/copyright (which of these are the economic rights, you write about?), Membership of the three different rights societies that handle these rights are in NO WAY compulsory. There are several examples in this country of successful artists who have done their rights collection themselves.

Were you at the last Cisac conference in Seoul? Our representative there came back with a broad grin, reporting that after many years of advocating for author's rights in contrast to the dominating anglo-american model, the anglo-american world (...not just Britain and America) were starting to listen, since their own model was falling to pieces through pressure from people like yourself and technology giving us new opportunities.

So to sum up:
"the whole bundle of economic and author's rights are collectively called "copyright" in the field"

Not in this country. Author's rights are so much more than just the right to copy. And that's why the Scandinavian model differs from the anglo-american.

"When you characterise the European concept of author's rights as governing everywhere except the US and the UK"

I haven't. I haven't even claimed there IS a European concept. So please don't call me arrogant.

"Authors in *some* European states may have an strong, inalienable Droit Moral"

Yes, like here - and the world is finally starting to see the sense in a model based on author's rights (more than droit moral) - that was the result of the Cisac conference in Seoul.

"...through which their "inalienable moral rights" are traded like any other manufactured commodity"

Only if I choose to let a publisher or an organization that works in the anglo-american world, like ASCAP or BMI administer my rights. If I do it through the Scandinavian model, it is my choice.

But all of this is academic. This discussion shouldn't be about what hellish situation we are in now in this transitional phase in music. It is a question of which system we whould end up with when this digitalization process is over - where the whole "copy" discussion is irrelevant, since music consumption in the future will be streamed music that isn't stored anywhere, probably paid for with flat fees. Then everything will be performance rights and there won't be a copyright discussion.

Bottom line is this: I make something, I decide hat to do with it. And in that matter, DRMs are quite helpful to protect the songwriter. It is not the DRM's fault if songwriters are stupid enough to use the songwriter-exploting anglo-american system though which big corporations can use DRMs to exploit songwriters even more.

[Cory Doctorow]

"You are right that the rights societies in the EU in general have granted permissions for certain ways of copying to be legal (Your VCR argument), but this is a decision made from country to country, and here in Denmark it is made as a collective decision in our rights society, KODA, to grant this permission. It is not the same as turning the blind eye to Droit Moral, it is actually putting our Droit Moral to sensible use."

So if there's a Danish filmmaker who opts out of KODA because he objects to VCRs, he can sue people who record his shows when they're aired?

"I can even do it without terminating my membership of my rights society - I just have to fill out a form - which basically makes the Creative Commons idea non-sensical in this country."

Er, only if you don't understand what CC is for. I suggest that you take this up with the Danish and Finnish CC people. There is a universe of difference between releasing something under a CC license -- say, by-nc-sa -- and placing it into the public domain. If you doubt it, I suggest you try releasing a commercial edition of one of my CC-licensed novels and see how far you get when my publisher sues.

"after many years of advocating for author's rights in contrast to the dominating anglo-american model, the anglo-american world (...not just Britain and America) were starting to listen, since their own model was falling to pieces through pressure from people like yourself and technology giving us new opportunities."

Gosh, that's a weird assertion. How is it that Anglo-American copyright -- i.e. the copyright that gave us the first legal phonograms, radio transmissions, jukeboxes, videorecorders and the exemptions for Internet cacheing, etc -- is falling to peices? Or indeed, particularily problematic?

"Not in this country. Author's rights are so much more than just the right to copy."

So is copyright.

"Only if I choose to let a publisher or an organization that works in the anglo-american world, like ASCAP or BMI administer my rights. If I do it through the Scandinavian model, it is my choice."

So if you opt into your collecting society, you can still say, "I grant the society the right to administer the performance rights to my music, with the following caveats: radio stations x, y and z must not play my songs after 5PM; my songs may not be performed in nightclubs that contain the letter 'e' in their names, nor by musicians with more than three horns in their backing ensemble," and the rights society will still administer your rights? That must be a pretty complicated system to administer.

"since music consumption in the future will be streamed music that isn't stored anywhere, probably paid for with flat fees. Then everything will be performance rights and there won't be a copyright discussion."

Well, you might be streaming music in the future, but me, I'm counting on my portable petabyte drive to store all of my music, since as someone who's spent a fair bit of time hanging around Network Operation Centers, I know better than to trust my ability to listen to my music to a public-switched network.

I'm boggled by the idea that "performance rights" aren't copyright -- of course they are. Copyright in the internationally accepted WIPO sense encompasses all author's rights, as well as copying, performance, adaptation, display and other rights, including neighboring rights like the proposed Broadcast Right (as embodied in the Convention of Rome).

[Morten Bay]

"So if there's a Danish filmmaker who opts out of KODA because he objects to VCRs, he can sue people who record his shows when they're aired?"

KODA doesn't administer film rights, only the music author's rights. But let's say there was a film composer, who - as it by the way is the standard over here - has not sold his rights off to the film company, yes there would be nothing legally to prevent him from seeking out and suing the people who are copying his music by taping the shows, if he chooses to not do it through KODA. Most of us do it through KODA, though. There are on-going lawsuits all the time about e.g. negligence of creditation in tv or reissuing of tv shows or movies on dvd. These lawsuits are one of KODAs primary fields of work, through it's fractions, besides collecting money for the use of rights.

But the point here is, that we, the artists and members of KODA, decided through a democratic process that it's okay for the council leading KODA to make an agreement with the government that legalizes the copying of e.g. a cd borrowed at a library for personal use. It is our choice, our usage of the droit moral. Not some corporation's (for profit).

"There is a universe of difference between releasing something under a CC license -- say, by-nc-sa -- and placing it into the public domain"

I know there is. I was the one who brought CC to the attention of KODA and osme of the other rights organizations in Denmark because I'm always open to new ideas and a big fan of Open Source. However, after the people who know our system to the very bottom had given it a thorough look, they simply said: "We don't need it - everything that's in there has been possible in Denmark for years"...

"Gosh, that's a weird assertion. How is it that Anglo-American copyright...is falling to pieces?"

Why is there a need for CC if it isn't? Why do the people at Cisac react the way they did, asking us for advice, if it isn't? I don't know about you, but I believe the easier exchange of data possible through the network will change our world in ways, we can't even think of yet. One of the ones I CAN think of is that everyone who holds a right, from a big corporation to an independent artist, will have to rethink the way they protect (exploit) their rights and the rights of the artists and authors. It's a question of market: If the big companies (publishers/record companies) can't provide a profitable way of using the copyright (in my literal interpretation of the term) for the artist, the artist will simply go someplace else, because the alternative will be equally powerful in the future. Right now our top 10 has consistently been filled with independent Danish artists for the first time in decades, simply because of the independents embracing the network.

"Not in this country. Author's rights are so much more than just the right to copy."

So is copyright."

Using the same type of argument, I will simply say: Nope!

"...and the rights society will still administer your rights? That must be a pretty complicated system to administer."

My point is, that if I want to change the way KODA administers my rights, I can do so in a democratic process. We've just had a case of 200 people petitioning to stop KODA from working with the IFPI in suing filesharers. However, only 100 of the signatures on the petition were members of KODA, and some of those were even forged celebrity names. None the less, this petition were taken extremely seriously by KODA, being put on the front page of the website for other KODA members to sign on to it, and a lot of working hours went into finding out if it was a valid bid for a change of policy. But since there are 27.000 KODA members and only about 75 of those protested, and also in the light of KODA normally getting a 95% approval rating from it's members, it was decided to leave it up the general assembly, where any member can turn up and make suggestions and vote.

The difference from this system to the corporate, anglo-american copyright system is that KODA is not a commercial company, it is a democratically run organization, through which we alle choose what happens to our music.

Actually, when I in late 1999 got the idea for making a legal download service a la iTunes (the reference point was Napster back then), but only non-profit and owned by the rights owners, one of the last things that three years later kept us from realizing the project was that the rights organizations wanted to be able to prohibit use of rights in exactly as specific a way as you describe. If one performer didn't like the way he played a solo on a track, he should be able to ban the track from being sold online, that was what they wanted. And because of DRMs - they got it.
Phonofile, as the system is called, out-competed every single, international music delivery system in 2004, and is now Denmark's only serious music provider online. It's a huge success both for the artists who can set up shop on their website (KODA even subsidizes artists who do!) and not even have record companies or publishers involved, but still sell their music and retain their rights....but also for the record companies who are getting into totally new markets and are selling back catalogue like hell - just like it says in the 'The Long Tail'-article.
All because of flexible DRMs and a future-oriented rights collection society. The system isn't complicated at all - thanks to technology.

"I know better than to trust my ability to listen to my music to a public-switched network."

It's all about convenience. Convenience is king - and if the consumer could choose what's on the radio, and choose that the DJ would play whole albums by their favorite artist, they would. Simply because buying/downloading music when you don't have to, is incovenient. Just like storing things has always been inconvenient. But none of us know of the future. I think it is a matter of stepping fully into the network society, where things are not stored personally, but remotely and everything is available anywhere and at all times.

"Copyright in the internationally accepted WIPO sense encompasses all author's rights"

Yeah - but it's also WIPO, who has decided that a copy sold though an online shop is also a performance, thereby accepting the very important difference between the two types of rights.

Listen, I agree with you that the term Copyright means something else in the anglo-american sense than it does in the scandinavian sense - that was the whole purpose of my first post. I have also agreed with you that the rest of the world outside scandinavia has a slant towards the anglo-american model.

But that's not the point. The point is that the scandinavian model, where the author's rights is separated out from, and is more fundamental than, the copyright, is better than the anglo-american model and also better than some of the attempts made to better the anglo-american model, like CC (IMHO). Simply because it leaves the choice to the artist.

By the way, are you going to be at MidemNET this year? This discussion is really interesting, and it could be cool to have it over some food in Cannes...

[Cory Doctorow]

"KODA doesn't administer film rights, only the music author's rights. But let's say there was a film composer, who - as it by the way is the standard over here - has not sold his rights off to the film company, yes there would be nothing legally to prevent him from seeking out and suing the people who are copying his music by taping the shows, if he chooses to not do it through KODA."

So, two questions:

1. Has this ever happened? If not, wouldn't you say that you have a defacto system of exception to the author's right?

2. Do you think that this is a good thing? Should Danes be subject to legal liability for taping a show to watch at a later time?

"But the point here is, that we, the artists and members of KODA, decided through a democratic process that it's okay for the council leading KODA to make an agreement with the government that legalizes the copying of e.g. a cd borrowed at a library for personal use. It is our choice, our usage of the droit moral. Not some corporation's (for profit)."

Not every artist has opted into this, by your own account. These people are subject to "extended blanket licensing" -- IOW, once a minimum percentage of rightsholders opt into the blanket scheme, all are considered in. The library doesn't face liability if a non-KODA CD finds its way into the circulating collection. If you believe in your IP-is-property rehetoric, than this should turn your stomach: artists are subject to the tyranny of the majority, their "property" exporpriated by the state because a cartel has sold them out!

"We don't need it - everything that's in there has been possible in Denmark for years"..

All right -- how would a Danish novelist create a by-nc-sa license for his work without CC? How many such arrangements exist today in Denmark outside of the CC licenses?

"Why is there a need for CC if it isn't?"

You think that the Moral Rights system is coping with file-sharing any better than Anglo-American copyright? Anglo-American copyright has the signal virtue of dispensing with the moral element of copyright in favor of an economic right: artists are given a compensation for the use of their works (ASCAP/BMI/Fox) but lose the moral right to enjoin anyone from making use of their work in a new medium. To accomplish this in Denmark, you need one of these hear-no-evil systems where VCRs are theoretically illegal and every Dane in his living room is subject to civil prosecution for taping a show unless he determines beforehand whether every artist involved in every show has joined to a collective licensing scheme.

"Using the same type of argument, I will simply say: Nope!"

You're simply wrong. I'm not sure what would convince you? Shall I have a copyright lawyer come and weigh in here? Shall I point you to WIPO's definition? 17USC? The Canadian copyright code? Learned texts on the history of IP law from the Statute of Anne forward? I mean, you can say "nope" but you are absolutely, 100% and utterly wrong, wrong, wrong. Trust me on this one.

"The difference from this system to the corporate, anglo-american copyright system is that KODA is not a commercial company, it is a democratically run organization, through which we alle choose what happens to our music."

There's nothing specific to Ango-American copyright that says that collecting societies need to be commerical entities. I'm a member of Copyright Canada, a rights society that's a nonprofit. I personally prefer nonprofit rights-societies, but it's incorrect to assert that there's anything in Anglo-American copyright that requires that collective licensing be managed by for-profit entities.

"Yeah - but it's also WIPO, who has decided that a copy sold though an online shop is also a performance, thereby accepting the very important difference between the two types of rights."

Yes, it's a different form of copyright. Denmark is a member of WIPO, a signatory in Berne and TRIPS and lots of other international IP treaties. There may be some local, Danish definition of copyright that means nothing more than the right to copy, but that's a very local phenomenon indeed -- in every other national context and in all international contexts, copyright is understood to mean the "bundle of rights" afforded to creators and rightsholder organizations.

"But that's not the point. The point is that the scandinavian model, where the author's rights is separated out from, and is more fundamental than, the copyright, is better than the anglo-american model and also better than some of the attempts made to better the anglo-american model, like CC (IMHO). Simply because it leaves the choice to the artist."

I belong to a professional guild called the Science Fiction Writers of America (SFWA) which recieves a $70,000 payment every year from a Swedish rights society that collects on behalf of authors whose books are lent in Sweden's public libraries. That money is a complete windfall. The Swedes could send us $10,000,000 every year or $0.50 every year and it would not make a single new work appear in the market. What this amounts to is Sweden exporting $70,000 that it could be using for education, for new books, for healthcare or transit, and sending it to a group of foriegners who don't need it, don't look for it and won't miss it. If that's the Scandavian system, you can keep it.

"By the way, are you going to be at MidemNET this year?"

Nope.

[Morten Bay]

"1. Has this ever happened? If not, wouldn't you say that you have a defacto system of exception to the author's right?"

It hasn't happened with film composers, but a couple of rock groups have suspended their membership of the NCB, which is the organisation who takes care of Copyright (as opposed to KODA which takes care of author's rights) and have gone after the radio stations who didn't pay up for usage of their music themselves. I guess that's sort of an analogy. And by the way, is it a de facto system of exception, or simply a better system? Since the choice is there, and the competition authorities in Denmark don't protest, I guess it must be because people just prefer to use the better product.

"2. Do you think that this is a good thing? Should Danes be subject to legal liability for taping a show to watch at a later time?"

No, and that is why I am a member of KODA and with all my other sensible co-members gave the KODA council my backing, so that they could help our ministry of culture legalize it. But it was MY democratic choice. Not some board of CEOs.

"If you believe in your IP-is-property rehetoric, than this should turn your stomach: artists are subject to the tyranny of the majority, their "property" exporpriated by the state because a cartel has sold them out!"

First of all, it is every artist's right to choose another rights collection society or work with his or her own rights. That's what is being done in this country when it comes to theater, where the writers usually negotiate the usage of their rights themselves. As I have pointed out several times, membership of a rights society is not mandatory in this country.

Second, there is no point in joining an organization if you don't agree with it, so those who don't agree with KODAs way of doing things can either change them by gathering support for their cause, or they can terminate their membership and do it themselves. This is democracy at it's best.
How can an organization of 27.000 people, who takes time to listen to and take seriously a group that makes up 3% of it's members, be a majority tyranny?
Especially when you, from within your membership of KODA, can control a majority of the ways your music is being used e.g. on the net. This is only blanket licensing if you disagree and choose to do nothing.

Third, the Danish state has NOTHING to do with KODA. We are an independent, unsubsidized organization. To say that "The State has expropiated the artist's rights" and that "A Cartel has sold them out" sounds like 70's paranoia political gibberish in the present environment. The only Cartel that exists in the Danish music industry are the CD retailers, who are keeping cds at too high a price, even though the state has tried to help the consumer by removing taxes on music. But they are dying a slow and painful death thanks to online music and DRMs anyway, so that'll teach them, I guess...

"All right -- how would a Danish novelist create a by-nc-sa license for his work without CC? How many such arrangements exist today in Denmark outside of the CC licenses?"

I have no idea. As I have pointed out several times: The strength of our system is the separation of the different type of rights and the rights societies. I work in music, not in book publishing, and there is a world of difference in our system between the two. So I don't know. I hope you are not bringing books into this because of my use of the word "author", which is just the general term for someone who creates something (not trying to insult your intelligence here, just clarifying for safety)

A songwriter, if he performs his own material, simply fills out a form and sends it to KODA. This is how we give artists the possibility of giving away a song for free on their website. From a copying point of view, there is no difference in distributing the work and sending someone to the artists' website to get it, so that is in fact the same. Unsurprisingly, artists usually only want to do this with one or two tracks at a time...The "by" is mandatory already. That's one of the points in focusing on author's rights: It is illegal to use any sort of artistic expression in any way without crediting the creator. As far as the derivative works go, it is always up to the original author to decide whether a song can be modified by another artist and republished. What normally stands in the way of this outside of Denmark are the publishers...and they simply have no power in this country. Because KODA is so good at what they do, the author him/herself has to be asked. In practise, if the author wants to allow derivatives to be made, he can just automate a "Yes" answer on his answerphone.

How many licenses outside the CC licenses. Well, until now CC has only been used in Denmark by extreme left-wing activists who use it as leverage for anti-private property opinions. But, according to themselves, KODA is actually the organization of it's kind in the world who has made most agreements with their artists about e.g. publishing stuff on websites for free distribution. So to answer your question: More than I can count. It's also the organization of it's kind that keep the least amount of money for administration, btw.

"You think that the Moral Rights system is coping with file-sharing any better than Anglo-American copyright?"

No, especially since, as I've also pointed out several times, I'm not dividing the rights world into Moral Rights and Copyright...but into Author's Rights, Performance Rights, Copyright/mechanical rights, Moral Rights, and on, which is the strength of the Scandinavian model.

But to be honest, I don't think anyone is coping very well with filesharing. I think the right way to go is to realize, that since wireless networks are developing faster and are becoming more economical than storage, and since a whole generation has no idea about how to buy music, we should all focus on paving the way for what comes after filesharing - streamed music, which is probably where it stops for a while, until it's possible to play music directly to the brain without physical/technological intervention. We should focus on the problems that that will present us with, so that we're better prepared than we were the last time.

The file sharing problem is a small by-product of this transitional phase. In 8 years we'll be laughing about it (I hope.)

"To accomplish this in Denmark, you need one of these hear-no-evil systems..."

Why? Our system is the one in the world that gives most money to the artist pr. capita, and at the same time lets the artist retain his moral and author's rights. I can't see why a compensation scheme like the anglo-american one, where corporate lawyers negotiate on behalf of artists is better? There you can talk about a minority tyrrany!

"I mean, you can say "nope" but you are absolutely, 100% and utterly wrong, wrong, wrong. Trust me on this one."

I was just trying to make a point about arguments without argumentation. As I point later on in the posting, your Anglo-american definition of the term copyright is dominant, but we simply don't work with it here. And my point is, by taking the copyright term literally and focusing just as much on all the other rights aspects, we have built a really good system, that you CC guys should take a closer look at.

"But it's incorrect to assert that there's anything in Anglo-American copyright that requires that collective licensing be managed by for-profit entities."

I'll have to give you that one. Wrong assertion, although in practice most Anglo-american (at least the biggest ones) rights associations are commercial...?

"...means nothing more than the right to copy, but that's a very local phenomenon indeed..."

Yes, it is local - but not only in Denmark. Scandinavia is covered by NCB, the Nordic COPYRIGHT Bureau, and there is a reason that they only work with mass production/copying issues (mechanical rights).

"copyright is understood to mean the "bundle of rights" afforded to creators and rightsholder organizations."

Then please explain to me why the rights socities in Europe are so obsessed with getting the EU to stop this bundling from taking place?

Still - we're discussing the definition of a term here, not the meaning or use of it, which I find rather more interesting, in reference to why I wrote my first posting here.

The point is not whether it's bundled into the term Copyright or not, or which parts of the world it's bundled in. The point is whether it should be or not. And since our system works very well with unbundled rights the people behind the Anglo-american system has started listening.

"If that's the Scandavian system, you can keep it."

Well guess what. We have the same system here, and Mark Knopfler (ex-Dire Straits) applies every year for what amounts to 3600 dollars - and he gets it, simply because it's fair. It's not like he needs it. But the Danish population gets to listen to his music for free, unless the libaries send him that money...and that's simply not fair. It's not even his publisher who applies, it's his management.

But if it's any comfort, the money KODA collects for foreign acts who gets airplay here in Denmark amounts to more (by percentage) than e.g. the British PRS collect for their own artists! And that's AFTER we take a little amount out the money, which we give back to the artists as funds they can apply for to achieve, yes exactly, time off to write new stuff, travel expenses, education and occasionally also healthcare.

So our system actually achieves what you want, both in CC and artistical development terms. And it even keeps the author's rights with the author. And it provides more money to the artist than any other organization of it's kind. It also gets a 95% approval rating, especially with it's DRM-related activities. I wonder why.

[Joergen Ramskov]

First, I would like to direct you (Morten Bay) to digitalforbruger.dk, which I am a member of. I don't speak for them though, I'm just speaking for myself here (but I agree with more or less all of their statements). In general they are big supporters of open standards (which is a totally different thing than open source) and in getting balanced laws (ie. laws that treat authors AND consumers as fair as possible). The current danish law (it was changed in 2002 IIRC) isn't fair or balanced anymore, it has changed and authors now have much wider rights.

"It also gets a 95% approval rating, especially with it's DRM-related activities. I wonder why."

Because 95% of your members don't understand how flawed DRM is?

[Jens Pedersen]

Just a dissenting opinion from Denmark where Morten Bay is working for/with KODA.

1. KODA detest everything digital. Wonder why there are no danish web radio stations? KODAs excessive licensing fees. You have to pay them more than 1.000$ a month before you even start broadcasting.

2. KODA has a magazine, and for 4 or 5 years it's been crying excessively about illegal filesharing. Every god damn month.

3. As mentioned, KODA is sponsoring raids in teenage homes and even had two ad running "How many lawyers do you think it's possibl to cram into a kids room?" and "We'll sue you to hell.". KODA is a collection of old, bitter and scared men. They feel at their most safewhen they're doing what IFPI tells them to. Hence Phonofile...

4. Phonofile sucks. Hard to use and expensive like you wouldn't believe. It's partly run on gubbermint money and has killed all danish competition. Danes hardly use it, preferring instead shops in Spain and Russia http://www.cultur.com/2004/0302.html

And just to end it all on a less sour note: danish copyright law is just like copyright law in the rest of the european union. There's one copyright symbol: ©. Both GPL and CC are new ©,-based licenses that have no equivivalent in danish copyright law.

[Jim Forster]

Is there any way to have a subscription model business without DRM, or something pretty similar? Examples of subscription model businesses are cable tv, cable network shows (HBO, CNN, ESPN), satellite tv, and now satellite radio. OK, these businesses don't use IP packets, but do rely on broadcasting a signal that most everyone could receive for the cost of a receive and no monthly fee, except that they encode it in such a way that for most people the most convenient thing to do is to pay the monthly fee.

Seems to me the subscription model brought a boost to TV and now it's doing it to radio. Funny how a restriction enabled a new content.

[Faisal]

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[Jack]

I dont think DRM is evil....i think it enhances the music experience

[christmas gifts]

Interesting argument. I am speaking on the topic of DRM in the next few weeks and have been actively looking for any published support for DRM and this is the first instance that I have found.I am wondering whether anyone can point me toward arguments in favor of DRM that contain compelling statistics to support its use as a deterrent or its use for any reason. I am inclined to believe that it must have its uses but is there any hard evidence to support a publisher’s decision to activate DRM on a particular title or in a given instance?