How DRM anticircumvention laws stifle innovation

Found via BoingBoing: a 54-page law journal essay by Wendy Seltzer discussing how Digital Rights Management anti-circumvention laws prevent almost all innovation around the media that they protect.

image Scholars have described DRM’s failures to protect copyright exceptions, its failures to stop unauthorized copying, and its impact on complementary innovation. This paper takes those debates as background to focus on the foreclosure of an entire mode of development and its opportunities for user innovation.

The paper is a bit dry and hard to read; it took me all weekend to struggle through it. But for those who make the effort, the paper makes some interesting points.

One of the comparisons Seltzer makes is between the DRM-free audio CD media and the encrypted video DVD media. There has been considerably more innovation in the CD’s space than in the DVD because potential innovators (individuals and businesses alike) are not prevented from accessing the content.

Seltzer explains why DRM hinders fair use while not actually preventing copying. She discusses how and why the Digital Millennium Copyright Act’s anti-circumvention provision, which made it illegal to break DRM even on media that you own, was passed. Then she examines the effects it has had on innovation.

One of the properties of an effective DRM system is that it must not permit user modification—because if users can modify it, they can easily bypass its restrictions. This means that DRM is completely incompatible with open source software, because the entire point of open source is that it permits user modification.

Necessarily, I am barely scratching the surface of what this paper covers in its 54 pages. It goes into a great deal of detail about the purposes and history of DRM and anti-circumvention, the effects it has on innovation, and why this is a bad thing. It is fascinating and thorough. I only wish it were a little easier to read.

The paper concludes that using public law to let the content industry make its own “private law” prevents a great deal of innovation that could otherwise benefit society in general.

10 Comments on How DRM anticircumvention laws stifle innovation

  1. Chris, you’re just gonna make us fight through the document, huh? Because as this is written, I don’t see how DRM laws stifle innovation, other than innovation on someone else’s protected work. That doesn’t mean that there’s no innovation, just a restriction on one kind of innovation, the kind the originator obviously doesn’t want done to their work.

    That means the DRM is only there to enforce what the copyright laws already establish–assuming, as the doc points out, it isn’t just broken. And since the doc seems to point out that DRM can be and is easily broken, I’m not sure how it is stifling anything.

    Now, if the doc maintained that copyright law was stifling innovation, we might have an issue to debate…

  2. This isn’t surprising. Open standard stimulate competition and innovation. DRM is by it’s very nature proprietary.

    If you take ePub as an example. Without DRM there would be multiple vendors creating reading software, adding innovative features within a standard framework. People could select the reading software with the features that best meet their needs.

    With Adobe DRM everyone is using Adobe’s SDK and limited feature set. Want to change your font while reading? Too bad. Want to embolden the font for improved contrast? Too bad.

  3. @Bob, that seems to be confusing “innovation” for “choices.” I agree, DRM limits choice.

  4. Peter Sorotokin // December 1, 2009 at 11:47 am //


    You are correct that by the nature of DRM, a vendor would need Adobe SDK license to create software for reading DRMed EPUBs. However you assumptions about that significantly limiting the feature set are incorrect. Adobe SDK comes with complete source code and has a lot of customizable features. Certainly the features that you mention are both easily achievable without any SDK code modifications. As vendors have more time for development, I am sure you’ll see them innovate in various ways.

  5. @Steve: I’m not sure what’s wrong with innovating around other people’s work. We’re not talking about remixes or mashups here, we’re talking about making existing systems better. Examples cited in the paper talk about hobbyists devising better systems of bindings for skis, or improving open-source software.

    Because audio CDs are in an open format, people have been able to create a wide variety of players and other ways to access them—hardware, software, CD jukeboxes, rippers. With DVDs, that can’t be done, because you have to get permission from and pay fees to the DVD consortium, and you are limited in what you can do.

    “Disruptive” innovation often threatens the business models of existing companies, but at the same time often offers great benefits for the consumers—and indeed, for the business itself. The home VCR was such a disruptive innovation: the movie industry didn’t like it, Valenti compared it to the Boston Strangler—but within a few years, it had literally created a revenue stream for the movie industry worth billions of dollars where none had existed before.

    At any rate, you should “fight through the document”. It’s fascinating, but a little hard to summarize.

  6. Augh! The PDF isn’t even tagged for reflow!…

  7. I tend to put PDFs that are tagged for reflow in the same category as “the tooth fairy” or “Santa Claus”. I’ve never met one, and have only other people’s word that they exist. :)

  8. All of my e-books are tagged for reflow… I’ve tested them on my PDA many times. (I stopped selling them, because no one ever, ever ordered one in PDF.) Be glad to send you one…

  9. Drm/Steam is used to track and monitor PC gamers habits, purchases, links, etc.

    thats not DRM thats “the patriot act”

    its only the dumb sheep that dont mind it, (80% of Americans.)

    just quit buying it, supply and demand right?

  10. DRM isn’t used to track or monitor habits, you’re confusing two different issues. Besides that, what’s so “Patriot Act”-ish about tracking habits? If people want it, whats wrong with a system that tailors itself to the user? What are they going to do with the information, divulge your secret love for Nancy Drew games?

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