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Artists No Longer Need Copyright

We are getting close to a Senate vote on the Induce Act, a bill that makes hardware manufacturers subject to lawsuits when people who buy the hardware use it to infringe on copyright. Besides being a crazy idea (and one that overturns the Betamax decision- shielding from the 1970’s), the bill has certain pernicious effects on artists.

The majority of creative artists are not bothered by copyright infringement if only for the reason that they no longer have realistic expectations of being able to sell artistic content for a fair price (“fair” meaning worth the bother of finding a buyer or processing the transaction). Most musicians these days do not expect to sign with a big label; most writers don’t expect to sign with a big publisher. Copyright infringement just does not bother artists personally, only those who purchase rights to it (and nobody seems to be doing that lately). Most recognize that their creative work needs to be disseminated widely and that locking something into copyright just doesn’t accomplish that. These type of artists (and I count himself as one of them) are not idealists or communitarians; they just recognize the practical fact that the market has basically dried up for various reasons (and not totally due to infringement). With copyright bringing so little benefit to artists, artists are more likely to insist upon full or partial control of copyright.

Right now, there are two schools of thought with using Digital Rights Management (DRM): “tight DRM” and “loose DRM. ” Before saying anything, let’s agree that no DRM is safe against the competent hacker. The “tight controls” approach tries to manage usage so strictly that consumers have a hard time making copies even for legitimate use of their product. As a result, people who buy ebooks complain about the “usability” of the experience, and music CD’s sometimes don’t play on certain CD players. The “loose controls” approach doesn’t try to dictate types of usage; it merely imposes inconveniences on those who try to copy something without the correct license (with nag screens, etc).

Between the two approaches, “tight controls” require more product development time and also more manhours to handle the day-to-day customer service issues of people who have misplaced their licenses or done something to invalidate their license. “Tight controls” DRM also is more likely to alienate customers. Furthermore, it’s unclear whether “tight controls” actually results in more honest user behavior. “Loose controls” uses a sort of honor system to internalize the customer’s ethical behavior. “Tight controls” create a sense where users are assumed to be criminals and engaging in illegal behavior. It creates an adversarial relationship between customer and manufacturer and almost challenges consumers to overcome the impediments. I’m reminded of Robert Cialdini‘s excellent example in his book Influence. Two groups of people were asked to participate in an energy conservation study. For a month, both groups were asked to conserve as much energy as possible. For the first group, if they reduced their energy use by a certain percentage, they received a substantial reward (say $100). For the second group, they were offered a token reward (say $5). In the first month or two, those with the larger incentive showed greater progress toward conservation goals. However, after the first two months when cash incentives were dropped altogether, researchers found that the group with the substantial rewards resumed their previous level of high energy consumption. However, the second group’s conservation habits were more likely to persist. Researchers suggested that the first group were motivated by external stimuli, while the second group were motivated by internal stimuli: a desire to acheive a goal, and a pride that they had succeeded. The small amount of cash wasn’t sufficient to serve as an external motivator, and yet it was sufficient to persuade them to adjust their personal values. They changed their behavior because they wanted to, not simply to win the prize.

A loose DRM is not perceived as threatening the user, but simply reminding or nagging the user. For this reason, it affects a user’s internal motivations and values. It appeals more to the user’s sense of honor than his sense of control. A strict DRM is more likely to be perceived more as an “external motivator;” therefore, the consumer is unlikely to modify internal values about issues of personal control.

However, the INDUCE Act will put pressure on hardware manufacturers to adopt the strictest DRM possible. Suppose a tight DRM exempts a manufacturer from liability while a loose DRM leaves manufacturers open to the liability risk that their DRM is “not good enough.” The obvious response of manufacturers would be: let’s use the strictest DRM that is commercially available.

Strict DRM is not only cumbersome for customers and expensive for manufacturers, it is also bad for artists wanting to take advantage of alternate methods of distribution for their creative content. The device I’m imagining is some portable PDA which can (via p2p) receive video or audio feeds via some wireless connection. This is not too far away, and yet strict DRM on hardware often makes it harder for users to download or share things which are legitimate for sharing (creative commons stuff for example). Consider the case now of ebooks. Right now Project Gutenburg has made available electronic versions of public domain books. You’d expect that consumers would be clamoring for a reader to read them, right? The sad fact is that proprietary formats dominate ebooks (see Jon Noring’s piece about onerous DRM standards for ebooks) and apparently there is not even a way to view “free” books in one open standard like HTML or PDF (according to David Rothman). Strict DRM, by default, wouldn’t work if it were possible to view a creative work via an easy and open standard. And using strict DRM only delays the day when open standards make it easier for individual artists to share their works with the world. Big media companies are going to gravitate to products using strict DRM to protect their copyrighted material, but it’s unclear whether they’ll impose standards that essentially exclude freely shared material.

I don’t despise strict DRM; I just don’t believe it’s possible for a device’s DRM to be agnostic about content delivered via free sharing networks. If Time/Warner or Microsoft controls the device’s DRM, it’s doubtful whether it will accomodate content that doesn’t make use of these controls.

Cory Doctorow once wrote that ” Copyright isn’t an ethical proposition, it’s a utilitarian one”. We are no longer discussing morality but whether artists still need copyright. Right now, it doesn’t seem to be offering any advantages, so artists will stop using it to protect their interests. This is a classic case where the government doesn’t need to get involved. Let the artists, consumers and media companies sort it out. The real issue (artistically speaking) is how individual artists can establish relationships with fans without having to go through the major media companies (and without ceding copyright control). If strict DRM makes it necessary for artists to cede control to major media to reach fans, artists (and fans) may be in grave danger.

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