DRM doesn't fix the problem

Before we go off half-cocked and blame Steve Jobs (or Bill Gates) for Digital Rights Management (my colleague, David Berlind, likes to call it C.R.A.P.) we need to ask ourselves 'Who's really to blame?'
Written by Marc Wagner, Contributor

I just finishing reading Steve Jobs' open letter, Thoughts on Music, and I couldn't agree more ...

Assuming Jobs is correct that the music industry sells 20 billion DRM-free songs (via CD) every year compared to 2 billion via DRM, then the music industry argument that DRM protects their music from piracy is simply ludicrous.  If the purpose of DRM is to protect music against piracy, it doesn't do much good if 91% of the music sold is unprotected. 

Piracy is illegal no matter whether DRM is in place or not and that is the message which needs to be sent.  Remember, though, there are TWO KINDS of 'pirates':

"PIRATES FOR PROFIT" are buying CD's and copying them and then ILLEGALLY redistributing the music for profit.  DRM does NOTHING to stop them.  Nor can it!  Even if DRM were employed on CD's, as long as there is profit to be made, someone will break the DRM in order to 'get at' that profit.  As jobs points out, there are plenty of smart people in the world with sufficient time on their hands to break DRM and plenty of money to be made from their efforts.

"CASUAL PIRATES" are people like your friends and your acquaintances (people like yourself) who hear a piece of music and decide to buy it (on CD or on-line).  They want to share this music with their friends so they make them a copy.  So what is it about their intent that is criminal? 

These 'casual pirates' are people who have grown up with Xerox machines conveniently located in libraries full of copyrighted material and 'fair use' legislation designed specifically to protect them from prosecution from copying materials to share with their friends.  Most have never read a EULA and see no comparison at all between music which they believe they 'own' and software for which they have (sometimes reluctantly) purchased a license to use. 

(The software industry tried copy protection in the 1980's and quickly learned that license keys and plainly worded EULA's was the best they could do to reign in piracy.  Mostly, they learned that the cost of a 'copy-protection' solution is greater than their losses to piracy.)

In the 1970's there were LP's ('long-playing records' for the kids out there) and there was cassette tape.  Pre-recorded cassettes were of clearly inferior quality compared to LP's but cassettes recorded at home from LP's using high-performance equipment came very close to the original LP in audio quality.  Still, quality fell off rapidly through successive generations of copying.  High-volume distribution of high-quality copies was expensive so 'piracy for profit' stayed in check.

Like the cassette of the 1970's, the MP3 recordings of today are of lesser quality than their CD counterparts but often inaudibly so.  Further, whether originating on CD or on-line, digital music can be copied indefinitely without any degradation.  Herein lies the problem.  But is DRM the solution?  No, it is not.

As I state above, the 'pirates for profit' are not going to be deterred by DRM.  There is simply too much money to be made.  So what does DRM accomplish?

All it really does is make criminals out of those 'casual pirates' who want to share their music with their friends.  Those same people who were protected by 'fair use' in the 1970's are now felon's according to the Digital Millennium Copyright Act if they take any action to 'get around' DRM -- no matter what their intent may be. 

It's easy to blame Jobs and Gates for DRM -- or better yet, the recording industry -- but the blame belongs in the hands of the Congress of the United States who passed the DCMA without leaving in place any 'fair use' protections for digitally recorded materials. 

Lastly, let's not forget those online peer-to-peer music sharing services.  These firms are the accomplices who turn 'casual pirates' into a real threat to the recording industry.  They are the excuse for the RIAA's lobbying for the provisions now found in the DMCA but DRM cannot address their contribution to the problem. 

In fact, these services are making money off of their unwitting users and turning those users into real pirates (and felons) though they gain nothing from their piracy but who nevertheless become subject to the scrutiny of the DMCA.  Why not go after them?

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