I've decided not to beat this particular horse (that is, Cato's DMCA paper) any longer after today, especially as it is not quite dead. (Note to my SPCA friends and colleagues--it's just an analogy!) So just to sum up a few more problems, briefly, and then to make some kind of larger point, then, the end.

More problems in brief:

The Cato paper implies that Blackboard obtained an injunction against students seeking to present security research by "citing" the DMCA. A letter sent to the students mentions the DMCA, but the injunction was based on federal and Georgia anti-hacking statutes and trade secret law. Describing this case as involving "research" is problematic, although technical ingenuity certainly came into play, it seems to fit in the same class as the sort of ingenuity that racoons display in prying open trash cans. The Blackboard case arose when the students forcibly dismantled a debit card reader used by colleges and determined how to signal it. Very clever indeed. But it seems to me that the story loses some of its force as a horror story once one knows the details, and indeed throws doubt, perhaps deservedly, perhaps not, on other anecdotes related in this area.

Onward, relentlessly. The enthusiastic Cato author has acknowledged that his assertion that CSS does not prevent copying a DVD and playing back the copy in ordinary consumer equipment is not right. Ordinary consumer equipment will not copy the sectors of the disk in which the keys are stored and the result would not be playable.

So what? My last blog post on this topic ended up after some meandering with the larger point that the argument that a market could in fact thrive in a world without the DMCA was at least an interesting one, in being at the right "level" to qualify as a policy argument. That's the point I'm trying to work my way back to.

The argument about the CSS not preventing copies relates to a larger point about DRM and the DMCA that has been made repeatedly (by the unfortunate Tim Lee, by Adam Goldberg) namely that it does not prevent piracy. (This relates to a larger point still, which is that DRM is being misrepresented by evil corporations as an anti-piracy tool, when it is really all a plot to offer consumers less).

The statement that DRM does not prevent piracy is certainly true. It is also mostly false.

DRM does not prevent all piracy. DRM schemes can be broken, some rather quickly, by determined hacktivists or whoever. The results, both hacker tools and decrypted content, are readily available on the Internet. But you have to go get them. And they are not sanitized in the manner of licensed offerings. An awful lot of consumers just don't have the time or inclination to mess with this sort of thing. Example: A few years back a young man I know got a DVD from Amazon.com UK that he particularly wanted to watch, which had not yet been released in the US. Annoyed that it would not play on his region-coded DVD player, he downloaded DeCSS, fiddled with it a bit, decrypted the DVD, and watched it on his computer. He was an expert level computer user, being a computer game designer and having done a fair bit of programming. But this still took him about an hour (making sure he had all the files, that they were going into the proper directories, that he wasn't giving his computer a horrible disease, and so on). Fast forward: three years later he has a two-year old, a job with long hours, a house, and a horrid shrewish wife, and it would go hard with him if she found him wasting his time in this fashion, jeopardizing the health of their expensive machinery and precious Quicken data. He hasn't got an hour. He hasn't got half an hour. He has joined the mass of consumers who want and need instant gratification. So he bought a region-free DVD player.

DRM does not stop determined pirates. But that, coupled with the DMCA, makes it necessary for those making unauthorized copies to use black-market sources that are not especially convenient. This is enough to stimy those who would free-ride if the cost in time and trouble were near zero, but not otherwise. The idea that there are two classes of content consumer, the determined pirate and the honest consumer, and nothing in between, is nonsense. There are in my experience precious few in the latter category, especially in certain age groups. My young brother-in-law, for example, reported that he was the only student at his university he knew who did not download music from unlicensed P2P networks.

One final query... if DRM is so useless against piracy, why is the content industry (music, movies, software etc) so determined to pursue it as a business mechanism? The theory is that they are trying to exploit some kind of market power to offer consumers less. Hah.

-Bear in mind that many of these items are luxury goods for which there are many alternatives. If you offer consumers less, they may well decide to spend their spare dollars elsewhere, or go play frisbee, or bear the inconvience of becoming more determined pirates.

-The amount and variety of content offerings, media, and media players continues to grow.

-If every entity now in the content business (games, music, movies, software, photography, newsletters) were indeed stupidly determined not to serve consumers, which seems unlikely, it would be a marvellous opportunity for new entrants to rush in and capture that market.

-DRM is in fact evolving in the direction of giving consumers flexibility--simple DRM tried to prevent consumers from making any copies at all, but it is evolving for some applications in the direction of allowing one or two or six copies.

-It has been pointed out that DRM transforms media from durable goods (a book can last decades) into ephemeral goods (a disk only good as long as the players and software are updated). I think I want to do a whole separate blog on this another day. But in a nutshell--a) the price that can be charged for durable goods will be different, it isn't really the same market b) For a lot of media, the demand for durable goods may be limited (bad movies, for example, may be funny if watched once, but, well, no one needs to keep a copy). c) With digital media there is much less deterioration than with analog recordings, so it isn't too much trouble to keep old software around if you really need it to read the files; friends of mine have a room full of vintage game players. Analog media (books, records and so on) are durable only in the sense that they can sit around on shelves, but, well, unless printed on acid-free paper, the books are gone, the records are scratchy... and people get bored with the same content over and over. Okay, enough.

-Now that distribution and copying are cheap, there is no reason that the content side would need to give consumers short shrift to make money. It is the production end that is expensive. It isn't like giving consumers the right to make one or two backup copies, for example, would COST the content side anything. Is it all a plot to make consumers buy a second copy? I find it hard to believe that for the vast majority of content goods that could be a market of any significant size. Perhaps for music, which people want to be portable, but if the price keeps coming down for both copies and players, and DRM continues to evolve towards allowing some copies for some media... who the heck cares?

Enough on this subtopic. Back to the larger point. DRM is not a perfect weapon against piracy, but it can keep a critical mass of consumers "honest." The DMCA is not a perfect weapon against piracy either, but it can keep the critical mass of cracker tools inconvenient. The theory that this is all a plot is, well, embarassingly nonsensical.

Time to move on. I'll come back and add links later.