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Over at DRM makes pirates of us all. This is an easy-reading version of Patricia Akester’s own summary of her DRM work. My own take on the issue is that DRM entangles the copyright on a creative work (and copyright is a well understood social contract) with a device used to present, reproduce, or make accessible the underlying work. And the mechanisms used in the device are not held to the same social contract as that of copyright; you end up with the lowest common denominator of copyright and the mechanism, which often means stripping you of the rights you would have under copyright. With an old-fashioned book, the mechanism does very little other than to present the underlying copyrighted work. I can pull a book off the shelf and the book itself poses no additional restrictions. Here’s a quote from an 1829 almanac:

Wij plagten ons Jaarboekje altijd eene vriendelijke groete en eene of andere boodschap, was het niet in verzen, dan in proza, mede te geven.

No restrictions, and in using the creative work the user is obligated to check whether the use is allowed under the rules of copyright. 1829 is sufficiently long ago that any restrictions imposed by copyright are long gone.

With DRM, there is an additional class of restrictions present based on a different social (?) contract. While the user may think they are obtaining a copy of a work under copyright law — and they are — they are also getting an inferior contract because of the entanglement of the work with the device.

It would be interesting to time-travel 90 years into the future and demand, then and there, from the rights holder at the time, a public domain version of the Wolverine movie. That’s the trade off in copyright: you get protection for a limited time, and then the creative work becomes part of the public domain, free for all to use, study, modify (that might make a new creative work) and distribute. And then sue them into oblivion when DRM prevents the rightsholder from fulfilling their end of the bargain. Unfortunately, by that time it’s a bit late to realize that 90 years of creative work is effectively excised from the public domain because it was entangled with devices that were produced with an inferior contract.

So yes, you buy a DVD and you get a device for reproducing a creative work; this device gives you a lousy set of rights. I wonder if it could be argued that this is not publishing and therefore the work on the restrictive device doesn’t obtain copyright protection at all. Then you’d get no fair use out of it either. Good thing this blog entry is peppered with counterfactuals like time travel so I can claim that the whole thing was rampant speculation.

My iPod shuffle — I won one in a raffle earlier this month — is not a matter for speculation. It’s a very peculiar 4GB USB stick, it doesn’t use standard USB cables, and what the heck kind of USB stick has a clip for attaching it to your lapel? (Yes, I know there are enough weird-form-factor USB devices. Don’t send pics.) I’m told it can play music, too, and indeed headphones attached to the device will inform me “Please use iTunes to synchronize this device.” Yeah, right. It’s sufficiently new that gnupod doesn’t support it, but it illustrates in a round-about-way how devices impose additional restrictions on end users.

It reminds me a little of poorly written software licenses. At Free Software legal events I usually use the example of “you may use this software under the terms of the 2-clause BSD license provided you also stand on your left leg.” It’s an additional technical requirement which is is tolerable — but still not right — for a brief time, and then quickly becomes noxious and annoying.


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