The DRM Distraction: Part II

Speaking Truth to Power
Personally, my biggest concern about piracy and DRM these days is the general lack of a direct response to end-user theft at a moral and educational level. It’s as if the idea of calling customers/users on their thieving ways produces a bigger fear of lost sales in management than does the risk of backlash inherent in any DRM solution. Maybe it’s the direct confrontation that makes people uncomfortable. Or maybe it’s the threat that potential customers will feel management is treating them like criminals.

As a writer I don’t really care what the hold-up is. I just know the one thing everyone is running from is a direct confrontation with end users about their thievery. Only a few years ago Napster tried to make a legal case for peer-to-peer file sharing, the end result of which was that it was laughed at and obliterated by the courts. That Napster, a for-profit corporation, was trafficking in copyrighted material, was blindingly obvious to everyone, yet somehow Napster became an anti-establishment darling. How you become the victim when you’re using America’s youth to legitimize copyright theft for your own corporate profits is beyond me, but they pulled it off.

I don’t think it’s a surprise that many of Napster’s most passionate users were college students who felt they were on the cutting edge of a huge counter-culture movement, even though what they were really doing was stealing other people’s stuff. As long as there is intelligent life there will always be a tide of young minds chafing at restrictions, rules and laws. It’s also probably not a surprise that there will always be people looking to co-opt and engineer youthful exuberance for their own ends, as Napster did.

Just as ardent advocates of DRM are determined to distract you and bully you by constantly beating their self-serving drum (see Part I), so too are anti-DRM voices committed to promoting the DRM issue for their own ends. In the publishing industry the leading anti-DRM voice is Cory Doctorow, although to be sure Mr. Doctorow is not alone in has advocacy of free content or in his hostility toward DRM.  

If culture is defined by what teenagers are doing, then our culture is decidedly pro-theft when it comes to digital content, and people like Cory Doctorow are both leading the charge and capitalizing on it. I also believe that he and other high-profile anti-DRM advocates do have a considered point of view: they’re not just trying to cause riots by yelling “Free!” in the crowded content bazaar we call the internet. Unfortunately, the same cannot be said of the great majority of content scofflaws, whose embrace of anti-DRM ideology is less rational and philosophical than it is utilitarian and social. (It’s cool to steal; if you pay for content you’re a dweeb.)

Stealing From the Rich and Giving to Yourself
I agree with many of the experimental choices Mr. Doctorow has made in selling his own works, and I’m thankful that he’s doing these things publicly, so everyone can learn from the risks he’s taking. Cory Doctorow is not hurting himself, however, when he cozies up to the idea of theft as a legitimate response to other people’s abuses — a theme he repeatedly comes back to in this video clip of a February ’09 speech on DRM.

[Note: The clip in question is from the O’Reilly Tools of Change for Publishing conference held in NYC. The conference is targeted at publishing professionals and focuses on technology. I don’t know if this clip is Mr. Doctorow’s entire keynote speech, or whether he made other remarks that put this clip in context. I only point to the record as it appears. The clip is hosted on the BoingBoing.com website, which Mr. Doctorow co-edits.]

Increasing sales by pandering to your customers is a time-honored and effective marketing tradition, but it’s still pandering. To see this in stark relief, note particularly the barrage of anti-DRM quotes at the beginning of the clip:

So I have to say — the copyright industries have not covered themselves in glory in the digital era. It has not been a great moment in their history. Lawsuits against individuals, against services, censorship of the internet through takedowns, and fundamentally just not offering people what they want.

Here Mr. Doctorow defines the battlefield as he sees it. One one side you have evil monolithic corporations that use lawsuits and censorship to protect their copyrighted content, and on the other side you have the beleaguered consumer. But is that accurate? Piracy doesn’t just affect corporate copyright holders, as the rampant thievery of iPhone apps discussed in Part I attests. And consumers are hardly being egregiously disadvantaged by not having access to all content at any time for free. Yes, technology supports the possibility of that kind of access, but your car and the gun in your glove compartment also supports the idea of liberating cash from banks — where it’s being held against its will by huge monolithic corporations that use lawsuits and government police powers to protect those assets, while you get tossed out on the street because you can’t pay your mortgage.

Confusing a crime with the reason that a crime takes place is understandable in a humanistic sense. We can see why someone might steal food if they’re hungry. Or even why a junkie steals to feed a habit. But the idea that the theft of copyrighted content is legitimized by the market’s failure to make all content available for free is intellectual sleight of hand, if not fraud. Stealing is stealing, and the main reason the “copyright industries” have been freaking out is that they cannot find a way to stop the massive amount of crime being perpetrated against them.

Treating the fastest-adopted technology in the history of the world — peer-to-peer file sharing — as a problem instead of a demand signal from the market.

Again, Mr. Doctorow’s framing here is disingenuous, and clearly allies him with the idea that digital content theft is both legitimate and cutting-edge. The best analysis I’ve read of the peer-to-peer question, and specifically Napster, is in Steven Knopper’s music-industry exposé, Appetite for Self-Destruction: The Spectacular Crash of the Record Industry in the Digital Age. Knopper concludes that the music industry missed a critical opportunity to co-opt and take over Napster, but he also makes it clear that Napster was an illegal enterprise, and that the people behind Napster intended to profit from that illegal enterprise.

Which brings us to one of the key arguments leveled by the anti-DRM crowd, and that’s the false idea that nobody is profiting from piracy. I believe it’s true that a great deal of pirated content would not otherwise be purchased, which is why it’s so hard to track the direct costs of piracy. But that doesn’t mean pirated content does not produce a revenue stream, either from the re-sale of pirated content (think Microsoft CD’s in China), or from trafficking in pirated content (think ad revenue on web sites hosting pirated content). People eager to facilitate easy access to stolen content are not doing so because they are modern-day Robin Hoods liberating content for the masses, but because it’s how they make their living.

Which exposes Mr. Doctorow’s framing of the DRM problem as incomplete, at best.

And of course digital rights management technology which no one wants. No one woke up in the morning and said “Gee, I wish there was some way I could do less with my music — maybe someone’s offering that product today.”

And nobody wants to have to stop at stop signs, either. Or to have to pay their taxes. Or to have to think twice before strangling the idiot with the cell phone standing in front of them at the bank. But we do it because those are the kinds of things that keep our civilization functioning. We respect laws because we know that the system of laws we live in matters, and I think that’s something we should be teaching our children.

I don’t know what world you live in, but I don’t live in a world where I can do whatever I want with my own stuff. I’m not allowed to throw my used motor oil in the street or down my toilet. I’m not allowed to park my own car wherever it’s most convenient to me. And I’m not allowed to do whatever I want with content I paid for if ‘doing what I want’ includes copying it and freely distributing it or selling it.

Most importantly, what the entertainment industry did, what the copyright industries did, through this period of churning and thrashing, is they built the moral case for stealing from them. If there’s ever been a group of people who believed — who behaved in a way that make you feel okay about ripping them off, it’s the record industry and the movie industry.

I’m not immune to these sentiments myself. Every time I hear of Pearl Jam trying to outwit corrupt forces in the music industry I’m glad someone is fighting the good fight. And when Radiohead gave their latest release away for whatever anyone wanted to pay I thought that was pretty cool.

But the problem with saying the music business or the movie business deserves to be stolen from is that it’s too damn close to saying that women deserve to be raped if they were certain clothes. Where do we draw the line about our own extra-legal right to decide what someone else does or doesn’t deserve? If the color of your shirt reminds me of al Qaeda, can I kill you on the spot? If your ancestors fought my ancestors in a war eight hundred years ago, do you deserve to have your house torched?

Red Meat and Brain Damage
Just because a thought pops into your head or you feel like a victim yourself it doesn’t mean you have a right to act in an illegal way. Again, I sympathize with people who are fed up with the abuse of artists and consumers by publishing conglomerates, but I don’t think copyright theft is a particularly convincing counter-proposal — particularly at the exact historical moment when so many artists are being liberated from the de facto requirement of doing business with corporations.

You know, the last time I went to the cinema there was a great big sign telling me that I could expect to be searched…when I went into the cinema to make sure I wasn’t carrying a camera. Well if you’re going to treat me like a felon then I might as well act like one.

Here Cory Doctorow goes all-in, feeding red-meat rhetoric to the anti-DRM crowd while simultaneously gutting his own credibility. Does Mr. Doctorow feel that post-9/11 security changes at airports are goading him into acts of terrorism? Does he believe that a Secret Service security screening at a gathering which includes the President of the United States is justification for assassination? Are these examples somehow too extreme?

Go into any retail content distributor in the developed world — and here I specifically include public libraries — and you will find theft detection systems at the doorways. Does Mr. Doctorow stand outside these mute towers, railing at the implicit accusation they are making about his character, or does he simply walk in and out like everyone else? Because I think most people don’t have a problem with such systems, and not just because they are too stupid to understand that they’re being implicitly accused of sinister motives. Rather, I think most people agree that businesses have a right to protect their inventory from people who are trying to steal it.

DRM in theory is simply the digital equivalent of these systems. The main technological problem with DRM is not that it can be hacked or that it will always be susceptible to defeat, because that’s also true of any retail anti-theft solution. The main problem with DRM is that it isn’t transparent. When you go into a retail store you pay no penalty and suffer no inconvenience as the theft-detection system frisks you for product tags. With current DRM technology, however, solutions are often intrusive and time consuming, and it’s this aspect of DRM that people like Cory Doctorow opportunistically twist into something sinister or predatory.

Yes, DRM has been implemented in deceptive ways and in ways that damaged consumer property. But the end result of these boardroom brain cramps and failed implementations has been what anyone would want: market forces dictated a decrease in sales and revenue for the offending companies, and an increase in sales and revenue for companies that were not mistreating their customers. The historical truth is that failed DRM implementations have forced many former supporters to conclude that DRM simply does not work in practice, and as a result DRM implementations are no longer the main focus of deterrence for entire content industries.

Omitting Truth To Power
If you listen to the full clip you will not hear Mr. Doctorow speak to theft directly, and there’s no point at which he says to the audience that theft is part of the problem facing publishing (or any other content-driven industry). Again: the lack of clear data on the real cost of piracy makes every argument more plausible than it would be if the negative effects of piracy (or the illegal revenues generated from piracy) were known. If Mr. Doctorow balanced his anti-DRM talk with the simple observation that stealing copyrighted content is stealing, I’d be more comfortable with his philosophy. If you steal something you’re a thief. It’s not a hard concept to grasp, and while pointing it out may ultimately be as useless as trying to defeat piracy through DRM, I don’t see that as a legitimate reason for not speaking the truth. Particularly if you’re someone who wants to be known for speaking the truth.

According to Mr. Doctorow’s bio, he:

moved to London and worked as European Affairs Coordinator for the Electronic Frontier Foundation for four years, helping to set up the Open Rights Group, before quitting to pursue writing full-time in January 2006. Upon his departure, Doctorow was named a Fellow of the Electronic Frontier Foundation.

He was named the 2006-2007 Canadian Fulbright Chair in Public Diplomacy at the USC Center on Public Diplomacy, jointly sponsored by the Royal Fulbright Commission, the Integrated Media Systems Center, and the USC Center on Public Diplomacy. The academic Chair included a one year writing and teaching residency at the University of Southern California in Los Angeles.

In sum, Mr. Doctorow is neither an idiot nor incapable of understanding the importance of his chosen or omitted words. As an educated man, Mr. Doctorow almost certainly knows how easy it is to take apart the red-meat logic of his anti-DRM comments, yet he persisted in giving a speech that was essentially a litany of excuses and rationalizations for content theft. Which raises an obvious question. When Cory Doctor says these things, who is he talking to?

Well if you’re going to treat me like a felon then I might as well act like one.

It’s been a while since I was in my late teens and early twenties, but I still remember what it felt like, and how I thought about things at that age. The above quote from Mr. Doctorow still punches the same buttons in my mind that it would have punched back then — except I’m old enough now to see that it’s him doing it to me, and to recognize that he’s indirectly telling me to act in ways that benefit him and his anti-DRM persona. Because I’m no longer struggling to shake off the last bits of my birth shell, and I no longer believe that cultural paternalism is keeping me from my own fantastic I’ll-show-you fantasy-life revenge, I see Mr. Doctorow’s rallying cry for what it is: the granting of permission to steal from a cultural icon.

Again, maybe I missed some important comments apart from those contained in this particular clip. Or maybe Mr. Doctorow elaborated on his position since then. What I’m left with, however — from a clip that he himself made available on a site that he himself edits — is the unmistakable feeling that ripping off content is not just okay for individuals, it’s actually a good thing for the world.

If true, this raises some important questions. Do we ever bear moral responsibility for our own conduct in an absolute sense, or is stealing content really okay as long as the person you’re stealing from is also a thief? If I think Cory Doctorow is a liar, is it okay if I steal from him? And I don’t just mean copyrighted content. Can I steal his car? His identity? Where is the line — and should we tell our kids when we find it, or should we just keep reassuring them that they are entitled to whatever they want no matter what it costs, how bad it might be for them, or who it belongs to?

In the entire clip Cory Doctorow’s only oblique mention of theft comes at the 17:22 mark:

If I were writing a EULA…for a digital delivery service -a user license agreement — it would be one sentence long. And that EULA would consist of: ‘Don’t break copyright law.’ If the message you’re trying to convey with your goods is ‘stop pirating our stuff and start buying it so you can get legit, and the offer that we’re giving you is just like the offer you would get in the real world, except that we’re giving it to you digitally,’ that’s all the EULA you need — now

I like the spirit of this idea, and if this is what Mr. Doctorow himself wants to do I support it. But note: I don’t think Cory Doctorow believes this would work in any other setting. Encouraging people not to speed won’t cut down on speeding. Encouraging people not to cheat on their taxes won’t reduce the number of tax cheats. Encouraging people not to kill each other — even to the point of executing people who kill people — won’t cut down on murders. Likewise, it’s unlikely that Mr. Doctorow’s encouragement not to break copyright law will result in compliance. (Assuming the people reading his message understand copyright law, which is hardly a given.)

Reaching Agreement
Despite the fact that Cory Doctorow positions himself as part of the solution, his rhetoric sounds like part of the problem. By which I mean the part where he joins the ranks of those trying to convince everyone that DRM is an absolutely critical issue we all need to take sides on and fight to the death over, when in reality it’s a theoretical good crippled by technological limitations that inevitably turn into a customer-service nightmare.

This kind of blame game is a staple of the hot-button rhetoric on all sides of the DRM issue, however, and Mr. Doctorow even makes fun of it in his speech:

So why is publishing using DRM? Well, partly it’s the DRM vendors. Uh…they sell it to you…and they claim that it’s you guys [the audience] that are driving it. It’s always a nice blameless position to take. It’s, you now, ‘I don’t traffic in human beings, I just supply a market need. There’s someone out there who’s demanding this. You need to take this up with the people who are creating the demand, not the people who are filling it’. And there is an awful lot of that, you hear a lot about how it’s big dumb publishing’s idea to put DRM in it, not [the] poor innocent DRM vendor’s idea to put DRM on it.

The problem, of course, is that Mr. Doctorow himself is profiting by the same mechanism. He’s not stealing content himself, you see, he’s simply supplying a market need by reporting on that cultural dynamic. If publishers are angry about content theft, they should be taking their frustrations out on their customers, not on professional anti-DRM advocates like Cory Doctorow, who are only reflecting reality.

By Mr. Doctorow’s own logic, if pro-DRM forces are driving the adoption of the technologies they sell for profit, then aren’t high-profile anti-DRM advocates to blame for the general acceptance of piracy in our culture? If Mr. Doctorow feels the need to bypass pro-DRM forces and speak to their constituency directly (meaning the publishing companies that DRM vendors sell to), because he wants to educate them about the risks associated with DRM, shouldn’t the publishing industry be trying to bypass people like Cory Doctorow and speak to consumers directly about the risks associated with pirating content? Risks which include destroying the very artists that consumers enjoy?

Isn’t that exactly what I’m arguing for?

Maybe I’m a cynic, but I can’t separate Mr. Doctorow’s rabble-rousing anti-DRM message from his pro-Doctorow marketing. Maybe he truly believes everything he’s saying, maybe he’s saying it because he knows his audience believes and that helps him sell more books and drive more traffic to his website. In neither case, however, does his argument against DRM do anything except further his own agenda, because he doesn’t put the DRM focus where it belongs. Instead of telling the whole truth, Cory Doctorow perpetuates the idea that DRM is a problem facing publishing when it’s not.

The problem is theft. DRM is one proposed solution. Attacking the problem of content theft by focusing only on DRM is like attacking the problem of cattle rustling (yes, it’s still happening) by focusing only on fences. If the landscape is populated with people who don’t believe that fences mean anything then you’re going to lose a lot of cattle. If the landscape is dominated by people who encourage people to ignore fences, you’re going to lose even more.

The Publishing Industry’s Ace in the Hole
Elsewhere in the clip, Mr. Doctorow makes a good point when he says that books will be copied and scanned regardless of the DRM that publishers employ. I agree. But that’s not necessarily saying something important. Scanned versions of books are almost inevitably going to be less clear than licensed e-books or even licensed digital copies. Yet even assuming someone cracks a DRM-protected book and makes it available for free, the book business has a kind of built-in protection against wanton piracy simply by nature of its content.

Music comes in small files. Movies are dumb — you just stare at them. Books, however, are big, and require active engagement over a long period of time in order to be consumed.

Maybe someone somewhere is downloading two hundred cracked e-books at a whack, then reading the first sentence of each in order to find a great read, but I think it’s unlikely. In fact, it’s unlikely that most pirated books are ever completely read, precisely because a book is relatively hard to digest. This means the ratio of thefts by end-users who intend to enjoy the content they steal to thefts by pirates who intend to profit from the content they steal may be lower in the book publishing industry than in any other medium. Which means the book publishing industry has more to gain by going after traffickers and less to gain by going after end-users than any other industry.

Opting Out
To see how truly out of whack the DRM conversation has become, imagine for a moment that you’re in a public forum where someone asks you about your opinion of DRM. Chances are you know the right things to say politically so as not to draw a chorus of boos from the audience, but the very fact that pro-DRM sentiments are considered politically incorrect is a pretty amazing thing.

The whole point of DRM is to keep people from stealing things that they don’t own, like the lock on the front door of your house. Is trying to protect your property a radical position? Would you feel that way if someone stole your car? Is locking your car door a slap in the face of everyone who walks because you are treating them like a thief? Do we really need to have this conversation?

As I said in Part I, if you think you need to have an answer in the DRM debate you’re A) wrong and B) falling into a trap set by advocates on both sides of the DRM issue. Don’t allow yourself to be distracted or forced into a polarized position when the data doesn’t support it, and when a black-and-white view of DRM only serves the agendas of two groups you shouldn’t respect.

And for god’s sake don’t allow yourself to be pushed off the obvious proposition that people who steal your stuff are breaking the law. The people who are pushing that notion would be the first ones to freak out if you ripped off their iPhone or hacked their email or bank account or profited from selling their protected Facebook photos.

The Road Ahead
DRM is something that will exist transparently in the future, but it’s not here now and if you’re a content provider or developer you can’t wait for it to evolve. (See Part I for a workaround.) Having said that, I’m not looking forward to that day, because I think business and government will overstep their bounds in implementing DRM solutions. I also think the current giddy trend in anti-DRM rhetoric is going to be partly responsible for future abuses when the pendulum swings in the other direction.

It doesn’t take much imagination to project comments like Mr. Doctorow’s as part of the Congressional record when some righteously indignant and industry-funded politicians decide it’s time to sand our individual rights down in order to protect another money making venture. Mr. Doctorow should be able to see the eventual convergence of corporate customer databases and government information on citizens, and how that could make the identification, tracking and punishment of content thieves as automated as the traffic tickets now being given out by cameras at stoplights.

The right thing to do now is to say that stealing is wrong, whether you’re stealing candy from a baby or content from a copyright holder. If we can’t agree on that then the entire DRM issue is even more of a useless distraction than I already believe.

— Mark Barrett