Some context in the DRM debate

David Berlind hates DRM due to the restrictions it places on consumers. It's worth remembering, though, that most digital media formats carry restrictions ameliorated by one ending up as a market standard. The same will apply to DRM.

David Berlind has declared war on DRM. The source of his discontent appears to be that once you start to use music DRMed using the technology owned by a particular company, you will always be dependent on that company, however indirectly, in order to play that media.  Given that electronics companies don't license every DRM technology in existence, there are incompatibilities.  Going forward, this might make your media purchases useless should the DRM technology used to encode them fall out of favor in the marketplace. 

I understand David's concerns. DRM incompatibilities between Apple, Microsoft, and to a lesser extent, Real Networks, hinder portability, and also grant the companies a degree of control over what devices you can use to play the media you have purchased. Likewise, it creates the possibility that, at some point in the future, your rights to your purchases could be curtailed, either accidentally (the market drops support for one DRM technology) or purposefully (companies choose to be more restrictive in the rights granted).

On that last point, the power to curtail your rights depends on the written guarantees (or lack thereof) associated with purchase of the media. If you purchase the music according to well-defined terms, content companies won't have a legal right to change those terms. So, the answer to this problem is to insist on binding language in the purchase of DRMed music, which seems less draconian than doing away with DRM altogether. 

I don't have an answer for accidental curtailment (market failure of a DRM technology vendor).  Perhaps legal agreements might also be useful, providing some guarantee that media could be reissued using different DRM technology in the event that a DRM technology gets discontinued. (Notice that I didn't say "for free," because there should be a certain amount of "buyer beware" in all this.  If that curtails online digital purchases, then media companies have to deal with that...perhaps even by offering the re-encode for free.).  Fortunately, we have time to resolve this issue.  I can still read my WordStar files, even though the program used to generate them (WordStar on a CP/M operating system) has gone to the great big computer dumping ground in the sky.  FairPlay isn't going away tomorrow, nor is Microsoft's DRM technology.

As for incompatibilities between players, the solution, as Berlind implies in his "We the Sheeple" post, is for the market to standardize on a single DRM solution. According to Berlind, however, there are negative aspects to this standardization. The following excerpt demonstrates this:

I was just thinking about how what we all really need is another monopoly in this business. A duopoly wouldn't be bad either. You know, the kind that stifles innovation, forecloses on competition, and limits our choices, and all that?

This is where we get to the "context" part noted in the title of this post. Stephen Howard-Sarin's argued in a response to a previous anti-DRM blog post that most people are used to restrictions on use of their media.  Berlind explains the argument in his response:

You talk about how you're used to physical restrictions. For example, you say that you can't listen to LPs (vinyl records) on your CD player. This is a media / form factor decision. You could've taken that LP and played it on the LP player of your choice. You can take a CD and play it on the CD player of your choice...But with the new media type -- digital music -- you can't take the digital music you buy in Apple's iTunes music store or one of the Microsoft PlaysForSure-compliant music stores and play it on the digital music player of your choice.

I don't think that response, however, really defeats Mr. Howard-Sarin's point.  LPs aren't the best example due to the lack of any patent restrictions that I know of.  CDs, however, ARE a digital format, and patent restrictions DO exist. Your ability to play a CD on any CD player in existence is the result of electronics companies licensing CD playback technology from Phillips Electronics. Any CD player with a "Compact Disc" logo on the front has paid the required licensing fees.

That's exactly the same situation with DRM technologies made by Microsoft, or Apple, or Real Networks. Only products that have properly licensed a particular DRM technology can play that media. The only difference between the current DRM situation and CDs is that the market has organized around CD technology as a music distribution media, and no such standardization has taken place in the DRM market.

Other areas of media technology face similar issues. The MP3 standard is NOT free and open. Implementers must pay a licensing fee for the right to create an encoder / decoder, which is why some in the open source community worked to create the Ogg Vorbis media format. MPEG-2 is not free, even though it is the technology used to encode most video media (it's the format used to encode the video on DVDs, and most digital cable broadcasts use MPEG-2), and litigation flew fast and furious as the industry consolidated around MPEG-2 as a standard.

The groups that hold the patents related to MP3, MPEG-2 and Compact Disc technology could, theoretically, decide to stop licensing to electronics vendors, thus invalidating existing libraries that use that technology. However, the lawsuits that would result, both from electronics vendors and consumers, not the mention the simple loss of revenue such a move would entail, are enough to guarantee that that will never happen. The same applies to DRM.

Berlind claims a DRM monopoly would "stifle innovation." If that's true, then it must true that innovation is stifled every time the market settles on a media standard. Music technology has been stifled by the popularity of the CD format. Video technology was stifled by standardization on VHS or the popularity of MPEG-2. Music has also suffered because MP3 is so widespread. The fact that all three points are nonsense is a sign that a DRM "monopoly" (like the "CD monopoly", or the "MPEG-2 monopoly") would not stifle competition.

Berlind suggested elsewhere that open DRM might be an answer, one where the code is open, licensing is free, and nobody controls the technology. There are a couple of problems with this approach. First, the open source world (the most likely creator of an open DRM solution) is violently opposed to DRM. I've even heard rumors that Richard Stallman is including language in the new version of the GPL which would hinder the use of DRM technology. This may be untrue, but what is certain is that any card-carrying member of the open source church would sooner work for Microsoft than write an "open" DRM solution.

Second, (and this is based on my own theories as espoused in my series on Eric Raymond's "The Magic Cauldron") open source is not the likely originator of cutting edge technology the parameters of which are ill-defined. Why? Because it takes lots of interactions with real-world customers to find a solution that meets customer needs, something a volunteer-based development model oriented around the interests of those donating time to the project is ill-equipped to provide.

As a final point (and one that will be particularly galling to those who lack the mental plumbing to get past my status as a Microsoft employee, as if that somehow affects whether my arguments are logically correct), who do you trust more to provide your DRM technology, one who makes most of their money from sales of hardware, or one who relies on sales of software to hardware vendors? The iPod is an important part of Apple's bottom line. As a result, Apple is understandably restrictive about who they allow to include their FairPlay DRM technology. Microsoft, in contrast, relies on sales of software, and thus is willing to license their DRM to anyone who wishes to pay a licensing fee.

You can take your Windows-compatible software and run it on any machine that runs Microsoft Windows, a domain that includes most machines in existence. I expect the same would apply in the DRM media world should Microsoft serve as the foundation of a DRM ecosystem.

Flame on.