Morality, Legality and Digital Rights Management

In a recent article in the Los Angeles Times, John Healy raises questions about the illegality of file sharing once again. Healy points out that if file sharing does not reduce the owner's ability to sell the content (because it is digital, not physical) then there should be a distinction between file sharing and standard larceny, which our legal system today seems to lack. In a related commentary in Ars Technica, Timothy Lee takes extends the discussion to the question of production of digital content in a world in which such "theft" does not diminish the supply of the asset. (Some may argue this point - it is hard to defend, but you should read the article.)

In the business world, the effects of file sharing directly impact the profitability of the entertainment industry, and the industry's attempts to curb activities it considers improper are impacting the behaviors of individuals who might adopt new technologies for entertainment. Note the generally widespread criticism of the 24-hour time limit on videos rented through iTunes and other services. As one early adopter of the iTV said to me, "I won't agree to a 24-hour rental for the same reason that we don't have a min-bar fridge in our kitchen."

Get the idea? We might pay for an inflight movie, a DVD rental at the airport, or an in-room movie rental when we're on the road, but please don't treat us like tourists in our own homes. That's a fundamental mistake, and it's kind of surprising Apple (of all companies) made it.

But it reflects a really important distinction that the articles in the LA Times and Ars Technica address: intellectual property rights are far from black-and-white.

Let's pause for a moment, and just consider the legal aspects of IP law. There are copyrights, trademarks, patents and licenses. Now, most of these are addressed through contract law. A copyright declares that the right to reproduce a work belongs to the work's creator, and may be licensed to others. Without knowing it, the average American has probably engaged in thousands (if not hundreds of thousands) of implicit contracts with copyright holders, by doing things like opening a copy of People Magazine, watching a sporting event on TV or turning on a computer and navigating to a favorite web site. However, these license agreements may not carry the same legal weight in other countries, where the "owner's rights" are not equivalent, or the law regards licenses and copyright differently. This is not unusual. For a long time, the United States did not respect the copyright law of England, in order to allow American printers to reproduce the works of English authors without penalty. (By the way, the unintended consequence was to make the work of fiction-writing in America very unprofitable, due to the flood of cheap works by English authors.)

In the United States, we have taken a severe step in the wrong direction with the passage of the Digital Millennium Copyright Act (DMCA), which attempts to extend the footprint of legal authority beyond actual violations of copyright law, to apply to technologies that facilitate such violations. Keep in mind that most copyright violations are in fact a violation of a contract, not a civil offense. Yet the DMCA makes these facilitating activities a civil offense. Very little debate occurred about this question of escalating the "enablement" of copyright offenses. It is a rabbit hole from which our legal system will not emerge for some time.

However, the legal dimension of file sharing is really just one aspect of this very interesting story. What's really fascinating is the various arguments around the concept of intellectual property. You see, when you leave one dimension to enter another, you may do so through a reasonable, logical relationship; or you may do so through an argument that is nothing more than a logical fallacy and a sleight of hand.

The most obvious example is "digital rights management" (DRM) which we are told is a necessary tool to prevent violations of legitimate copyrights. But DRM may include almost anything: a rootkit placed on on your computer, a "phone home" application like the "Windows Genuine Advantage" software, or some basic copy-protection code on a downloaded music file tat prevents a legal backup. Is there a legal requirement for any of these technologies? No. Would their absence diminish the legal rights of the copyright owners? No. More interestingly, do they violate your rights or expectations as a user and/or purchaser of the work? Often, yes. So the problem with DRM is two-fold. First, it diminishes the user's experience below expectations, and secondly, it actually engages the user in a secondary contract that is more restrictive than standard copyright law. For example, the idea of "fair use", which allows backups, parody, commentary, etc, is well understood in copyright law, but it is simply bypassed through the combination of a convoluted license agreement, DRM technology and the DMCA legislation.

My argument is this: the justification for egregious restrictions on the use of digital content are due to arguments that blur the distinctions between what is morally right or wrong (stealing), what is legally permissible (copying or sharing), what is technically feasible (DRM), and what constitutes a fair business practice. When someone tells you that the DMCA or DRM technology is essential to protecting the rights of legitimate copyright holders, ask them what fair use rights - ordinarily protected under US copyright law - they expect you to give up. Of course, that's a hypothetical scenario. You won't really be having a conversation with anybody the next time you agree to some DRM, spyware, or other scheme. It will be installed for you by the folks who noted that you "opted in" for something or other. The burden is now on your to stop your own implicit surrender.