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Id pay to listen to any conversation including Lawrence Lessig (a Stanford Law School professor and widely published scholar of copyright issues) and Greg Papadopoulos (Sun Microsystems CTO). Receiving a free transcript of their chat about digital content, courtesy of Suns midmonth Boardroom Minutes letter, is proof that e-mail is sometimes worth the nuisance.
That conversation raised a point thats rarely emphasized in debates about the rights of content creators and users. Digital media, it must be recognized, dont merely reproduce the function of conventional media at a lower cost of producing a higher-quality copy. Digital media also shift a delicate and crucial balance in the direction of giving content creators far more control of how their work is used, reducing the chance that old work will trigger new ideas.
As Lessig observed in that discussion, it used to be that you could quote or derive from a work, then defend yourself as needed against accusations that you had gone beyond “fair use.” In contrast, digital media enable fine-grained control of all use by the content creator. This means that patent and copyright laws that were passed to promote innovation, when channeled through the control enabled by digital media, can cripple innovation instead.
My major objection to DRM—digital rights (or, as GPL proponent Richard Stallman calls it, “restrictions”) management—is that it cant work. DRMs costs and benefits are unavoidably misaligned. The would-be individual buyer of content pays full freight for whatever cost per user a rights management technology entails: setting up a subscription, purchasing a single-use license, and possibly paying in money and time to set up any required hardware or software such as a media player device or application. That individual content buyer, though, represents little threat to the future ability of the content creator to get compensation for that work.
The would-be mass-production pirate often bribes a trusted party to obtain an unencumbered copy of the content, evading any DRM that might be applied downstream, then amortizes the costs across buyers who may number in mere dozens or perhaps in tens of thousands. Even if the aspiring pirate has to rely on a DRM-protected source, content has to become accessible to human senses when its used: It therefore becomes accessible to recording devices that mimic those senses, resuming its journey to pirate markets with any DRM left dwindling in the rear-view mirror.
Please dont get me mad by calling the latter issue an “analog hole”: Anyone who uses this phrase is eventually going to ask me to pay more for a piece of equipment that does less. Thats just part of the technology regression that Lessig was describing, in the conversation that I mentioned above, when he said: “Were in an obsessively extreme … environment, especially in the context of copyright. The Internet has created fear within the content industry that theyre going to lose everything if they arent allowed to exercise perfect control over content. So theyre building technology and legal infrastructures to give them more control over innovation than theyve ever had before.”
Its simply not acceptable to let phrases like “intellectual property” continue to shape this debate with the false analogies they inspire. IP is not a symbolic parallel to real estate or other assets that can have only one beneficial owner at any time. The central question is not how to prevent ideas and expressions from being stolen; the question is how to maximize the benefit of inspiring people to create new work while minimizing the nuisance of granting them any post-creation rights at all.
Yes, I know I make my own living by assembling strings of symbols that can readily be reproduced—but I expect to keep making that living only as long as I keep producing new work, and I see no reason why other creators shouldnt live by that same rule.
Technology Editor Peter Coffee can be reached at [email protected].