There is tremendous concern in some circles about the potential threat to fair use from ongoing experiments with DRM. The level of anxiety this has generated, however, seems all out of proportion to 1) the actual impact of DRM on free speech (or even, more narrowly, fair use) and 2) the actual importance of the fair use rights in question. Heresy, I know. Here's some more:

1) Fair use is not the most important limitation on copyright for free speech. The most important limitation on copyright is the fact that one cannot copyright facts and ideas. This simply gets left out of most discussions.

2) Of the fair use rights that are most important to free speech, the right to use excerpts in parody, teaching, criticism, and so on, are only in rare instances affected by DRM. With text, DRM may make it difficult to cut and paste a passage out that one wishes to critique, but one can always type it out. (Note: the impact with music and visual arts may be greater, that's a little harder to reproduce spontaneously--but one can always record a snatch or print it out).

3) Of the practices most altered by some DRM, one often affected is the ability to make back-up copies. This may bring down the ire of some of my friends upon my head, but who the heck among ordinary consumers makes backup copies any more (I mean, of commercially available products, not data)? Why not just buy another one, as if the product were... well, a vase that could break. Oh, I'm sure some people still make backup copies. Adam Theirer does. His offspring destroy DVD's. Still, I cannot see this as an inalienable right. Furthermore much DRM can accomodate the need to make a backup copy (or more, just not unlimited numbers) when there is significant demand for it.

[note--when I originally posted this, I described the ability to make backup copies as a "fair use," but of course, strictly speaking, it isn't, necessarily, depends on context, so it's been fixed]

4) Because DRM does respond to demand. Take interoperability, for example. This is important to consumers. Thus the market began with many types of not-particularly-interoperable DRM. But now there are all kinds of interoperability ventures going on for all types of media. It's unlikely the market will converge to one... but it is converging.

5) As I have argued before at greater length, companies want a large, loyal audience for their product. Clumsy DRM annoys people and limits their audience. DRM is in the early stages of development, so it will sometimes be clumsy. But it is simply too much to respond to this as if it were some sort of crisis or conspiracy.

6) Things change. One can no longer do some of the things with new media formats that one can with old media formats. For example, one cannot (easily, so far as I know) play CD's backwards as one used to do with records to check for satanic messages. However, one can do lots of other interesting things with the new media. One can fit far more songs into one's collection, just for starters, and longer songs (for ages, songs intended to be recorded all had to be only 2 or 3 minutes long). And if you must check for satanic messages, you can find a site where this is done for you. Do we really want to freeze what can and can't be done with media to a late twentieth century standard? Nope.

7) In particular, do we really want the technology to have to conform to the extremely complex law of fair use? That is not an even remotely realistic expectation. What is and is not fair use is depends heavily on context, on multiple factors; there's no way that some little bit of hardware or software is going to be able to effectively mimic the function of a federal circuit court. For now, the most realistic goal for DRM is that it be relatively simple, cheap, and not slow down or distort ordinary play.

All for now.

posted by Solveig Singleton @ 10:34 AM | Access: Commons, Fair Use, Orphan Works, Public Domain, DRM & Watermarks, etc.

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