How DRM is Like Guantanamo

How is Guantanamo like DRM, you ask? They’re alike in two ways: First for what they are not, and then for what they represent.

Let’s begin with the first: Both are used by the people who have created them for purposes other than what they’re ostensibly used. In the case of DRM, it exists not primarily to combat piracy but to amputate the right of “fair use.” In the case of Guantanamo, it isn’t primarily for harboring dangerous terrorists but for concretely embodying the extra-constitutional idea of expanded executive powers.

Both represent different immediate aims, but both are bad for precisely the same reason: they’re about taking a society based on rights and turning it into a society based on access. In the the case of DRM, the idea being posited is that we don’t have fair use, or the right to personal copies of work we’ve purchased — the originator of the material has every right to the work, in perpetuity, and access to that work is given on sufferance. In the case of Guantanamo, the idea being posited is that the executive has the ability to create a new framework of rights, irrespective of those outlined in the Constitution, which means that the executive, not the Constitution, is that from which our rights derive, and access to those rights is given on sufferance. And in fact in both cases there are no rights at all for the individual or the public. There’s only access, controlled by entities whose list of priorities are not notably congruent to those of the public, and are likely to become less so over time, so that access is progressively more strictly managed.

None of this is new, of course, and it’s axiomatic that yesterday’s freedom fighters are today’s rights pocketers. Hollywood — where the push for DRM is based — was founded by pirates who fled the east coast and the monopoly imposed on film by the Edison Trust. The Bush Administration — which has vigorously attempted to expand executive power — is the final reduction of a political movement began in part as resistance to the expanded executive powers assumed by FDR. But just because these are merely This Year’s Model of rights arrogation doesn’t mean they don’t need to be fought against.

One of the interesting things about right now is that I think we’re in the (very) early days of the pushback. People are better educated about how DRM messes with their ability to do what they want with the stuff they own; people are fatigued with and suspicious of the Bush Administration and its goals and motives. Naturally neither DRM promoters nor the executive ascendancy crew are going to go down without a fight; the question is whether now being on the defensive makes them more canny in achieving their goals or will simply cause the backlash to be even more intense. I have no idea, personally, although I suspect things aren’t going to get any easier for either group from here on out.

I’ll tell you what I hope for, however. In the case of DRM, I think the entertainment companies will eventually recognize it’s bad business. I have nothing against renting when I’m actively renting (I love my Rhapsody music service for a reason), and I think DRM is perfectly fine there. When you buy something, however, you shouldn’t need permission to do what the hell you want with it. I personally ignore or break DRM when I come across it on things I buy, and if it’s not possible to do either I don’t buy the product. In the case of executive overreach, naturally I’d like to see that reined in by more active and engaged Congress and courts, and by members of all political persuasions who at least temporarily will put the text of the Constitution ahead of political expediency. I suspect by dint of its sheer incompetence, the Bush administration has admirably exemplified why the executive branch should not be legally ascendant above the other branches of government; this may indeed be the only useful thing to come out of this administration. But as in all things we will have to see.

I will say I’m looking forward to the day that DRM and Guantanamo — and the philosophy of rights they symbolize — plop onto the dustbin of history. That’ll be a good day for me, and for us.

57 thoughts on “How DRM is Like Guantanamo

  1. As an interesting addendum:

    “Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases.

    “In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases. He also raps jurists who ‘apply an activist philosophy that stretches the law to suit policy preferences.'”

    Oddly enough, I don’t see the federal judges agreeing with this much.

  2. Well, the President and his machine required fealty statements to be a part of the crowd in his correographed photo ops. It only figures that he would demand fealty from the Judicial Branch next. Next, the States will be required to bring Federal Taxes to the Map Room via horse cart and in hard currency.

    There’s also the matter of Attorney General G’s big move to replace a few US Attornies.

    Can we skip to the Succession part of the work flow now?

  3. Here’s a possible solution to the expansion of presidential powers:

    1) Elect a Democrat President (Barack Obama).
    2) Support and vote for a Democratic majority in the Congress in 2008.
    3) Pressure Democrats to pick up Bush, Cheney, and and as many cronies as possible and detain them in Gitmo.
    4) Watch as Republicans jump on the bandwagon to repeal and limit presidential power.

    If Republicans could guarantee a stranglehold on power ad infinitum, then expanding presidential powers might be a good idea. But eventually it’ll come back and bite them.

  4. You and your italics for emphasis. You’re such an effort to blockquote B)

    The public needs some serious education on copyright. It’s obscene how far out of whack the balance has become from the original compromise between creators and the public, with little notice or resistance.

  5. Steve Buchheit

    Don’t be ridiculous. AG AG has assured us that those firings were completely unpolitical. It’s just coincidence that the old US attorneys were investigating Republican corruption, and new US attorneys won’t be be reviewed by the Senate…and that the first guy they’ve chose was Karl Rove’s oppo research man.

    Move along citizen. Nothing to see here.

  6. It’s obscene how far out of whack the balance has become from the original compromise between creators and the public, with little notice or resistance.

    True, but patents are even farther out of whack now, and an example of both Rights excesses and Administration excesses. These days there are companies that own the patent on DNA base-pair sequences that were evolved hundreds of millions of years ago (and if that’s not prior art, what is?). And the Department of Defence has used national security as an excuse to use the designs in patents without paying license fees (and the courts have so far upheld that!).

    I honestly don’t expect change on the patent scene for a long time; the average citizen isn’t affected directly by patent law, so it’s much harder to stir people up. The RIAA seems to be working very hard to make DRM and intellectual property ownership by music companies seem the act of evil overlords; maybe some biotech company will get stupid and do the same thing by trying to collect license fees for the use of mitochondria.

  7. In the case of Guantanamo, it isn’t primarily for harboring dangerous terrorists but for concretely embodying the extra-constitutional idea of expanded executive powers.

    Uh, John? Bullshit. Just because Dahlia says its so doesn’t make it so; pushing back on unconstitutional restrictions on Article II powers doesn’t make the effort extra-constitutional (I betcha you’d get arguments saying tht in fact the attempts at constraining those powers are what’s extra-consitutional.) And the notion that every detainee is a specially dangerous terrorist isn’t very realistic — but they are illegal combatants (no uniforms, rght?) taken in combat.

    Go watch some WWII movies and see how often those prisoners were tried and released.

  8. Charlie, actually most of them weren’t taken in combat, they were turned over to US Forces in exchange for bounties. Some of them taken “from the battlefield” remain, but most of those early detainees have been released.

  9. Charlie-

    So when we end major combat operations in the Mideast, all the detainees will be released? Or would the continued use of small numbers of special ops troops in the region justify the permanent detention of these people?

    And, despite the limited value of anecdotes, my grandfather was certainly treated much better as a WWII POW than the detainees in Guantanamo today.

  10. Charlie-

    So when we end major combat operations in the Mideast, all the detainees will be released? Or would the continued use of small numbers of special ops troops in the region justify the permanent detention of these people?

    And, despite the limited value of anecdotes, my grandfather was certainly treated much better as a WWII POW than the detainees in Guantanamo today.

  11. Double post, my bad.

    By the way, DRM sucks too, although with my predilection for purchasing music in CD form and then converting it myself, it doesn’t affect me much at all.

  12. Charlie

    Regardless of your opinion, the SCOTUS has decided that the powers Bush claimed were in fact illegal. Exactly how (or if) that will be resolved is still playing out.

    Re WWII movies, I myself don’t rate John Wayne as much of a constitutional scholar. And saying “The Nazis did it too” is a pretty flimsy moral argument. So we’re okay until we open our own Auschwitz? Sorry, no sale.

  13. Charlie (Colorado):

    “Just because Dahlia says its so doesn’t make it so”

    No, although oddly I find her argument more compelling than arguments suggesting otherwise. As for Article II, I’m not entirely sure where the expanse of Bush’s power grabs fit in there; let’s just say, your claims of “bullshit” aside, I haven’t found the arguments at all compelling, and for that matter, generally speaking, neither has the Supreme Court.

    Also, as a general matter, suggesting fictional accounts of World War II as a metric for what we ought to be doing today isn’t exactly what I would call useful.

  14. Interesting article.
    >“We want to determine whether he understands the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments,” Gonzales says in the prepared speech. “That, for example, a judge will never be in the best position to know what is in the national security interests of our country.”

    So an unelected president will never be in the best position to know what is in the national security interests of our country? An unelected Army general will never be in the best position to know what is in the national security interests of our country? Would this “unless someone won an election, there’s no way they can be in the best position to know what is in the national security interests of our country” philosophy apply also to presidential appointees like, for example, the Secretaries of Defense and Homeland Security, or, oh I don’t know, a certain attorney general?
    How do these people even exist? How can they possibly be so stupid, so ignorant, so malicious and/or so incompetent as to make such comments? Has he even heard of the idea of a system of checks and balances? ‘Cause if I’d said that the judiciary should “generally defer” to the legislative and executive branches in eighth-grade Civics I’d’ve been put right pretty quick, I think. Has he heard of Marbury versus Madison? Has he read the Constitution? Does he actually think that judges are making policy in their judgments (as opposed to evaluating policy to see if it’s, y’know, constitutional)? How did he get on the Texas Supreme Court?
    “The third, and equal, branch of government.” Darn straight. Good on the AP reporter for putting that in; sad that it really had to put in at all.

  15. I don’t get it, there are plenty of ways to pirate music without really getting the banhammer of the federal government on your case. For example you download a song from limewire (for free no less) onto your hard drive, and then you open said song onto Itunes making Itunes think its a copywrited song from your existing library, in which case it plays on your ipod just fine. Sometimes you people over think things.

  16. As an active duty officer, it would be improper and maybe illegal for me to comment on the constitionality of the POTUS’s actions or on GITMO, so I won’t (DRM on the other hand, I can talk about and that shit bites). But I will go so far as to address Charlie(Colorado)’s comment:

    “but they are illegal combatants (no uniforms, rght?) taken in combat.”

    Sorry Charlie, during the “Major Combat Operations” in Southern Iraq that I was involved in, most of the Iraqi Army prisoners we took had either thrown away their uniforms, or like the Saddam Fedyeen, had no uniforms to begin with. Some gave up without a fight, and some fought the like the devil himself. Other than the Standing ROE, I was never given any guidance regarding legal/illegal combatants. And I didn’t need any, it’s a fairly simple process – if they shoot at you, ipso facto they’re a combatant, whatever the fuck they’re wearing.

    I grant you that following conventially defined combat, i.e. in this continuing high grade insurgancy that we find ourselves in now, that we need some new criteria for defining the hostiles. I just don’t see how calling somebody “illegal combatant” does us any good at all. Somebody who intends to do you harm is a combatant, period. And here’s the thing, our law, based on our Constitition, has provisions for dealing with that situation without pissing all over everybody else who ISN’T our enemy (both foreign AND domestic, Goddamnit!). All this is “illegal combatant” bullshit is doing for us, is making everybody ELSE our enemy.

  17. Hugh, Steve, thanks. Sorry for the strong language, I’m having a bad day. Also apologies for the misspellings and such, I usually use Firefox with it’s integrated spellchecker, but here at work I’m stuck with an older bedamned version of IE and a crappy font. AND I probably need reading glasses, but I just will be damned if I’ll give in, yet.

  18. DEH. For the HTML coding challenged…

    In the interest of saving my fingers to type out the same response, I’m going to point you to a friend of mine’s blog who is discussing the same thing.

    There is some interesting banter back and forth there as well, but the whole DRM system sounds incredibly greedy.

  19. Jim, “if they shoot at you, ipso facto they’re a combatant”

    I remember some gun footage from the Gulf 1. It was an Apache engaging some of the Republican Guard. The video was IR (nice green pixels) showing desert, rocks and 5 guys waving something.”

    “What are they doing?” (Pilot)

    “I think they’re waving a white flag” (Nav)

    “Stand down.”

    (Sounds of pinging)

    “What the f**k was that?” (Pilot)

    “AK fire. They’re shooting at us.”

    “Why those little f*$%&ers.”

    (sounds of electric cannon, camera loses signal in dust, dust finally settles, there are no recognizable human IR signatures, rocks are still there.)

    “That got ‘em.”

  20. I think it’s obscene to even compare a human rights disaster to some stupid entertainment industry annoyance.

    What’s up next? “How TCPA is like the Holocaust”?

  21. Steve, I see you watch the History Channel.

    Every once in a while they show an hour-long segment on the taking of the off-shore oil terminals – which includes an outstanding fifteen second green pixelated shot of the back of my head (I have a quarter-sized chunk of missing scalp back there, so I’m easy to pick out).

    Man, I do love teh hiztorz channelz.

  22. Flynn:

    “I think it’s obscene to even compare a human rights disaster to some stupid entertainment industry annoyance.”

    How excellent for you, Flynn. Personally, I think it’s obscene that a concerted and persistent attempt to whittle away our constitutional and legal rights regarding copyright and property is apprehended by some as merely a “stupid entertainment industry annoyance.” Although no doubt those cheerfully undermining our rights for a buck are thrilled people like that are out there. They’re going to be delighted to sell them the same song over and over and over again.

  23. Flynn, you do realize that you immediately lose the debate by referencing the Holocaust. Sorry buddy; You’ve been Scalzified!

  24. First they came for my MP3s.
    and I did not speak out –
    because I didn’t like those old Captain and Tennille songs anyways.

    Then they came for my enemy combatants
    and I did not speak out –
    because all those bad guys are far away on some island somewhere.

    Then they came for my bacon and my cat
    and I did not speak out
    because I still had cheese.

    Then they came for me.
    and there was no one left –
    to speak out for me.

  25. The DRM issue has pissed me off for years. How can I buy something and yet not own it? I won’t buy CDs that have software that installs itself to my computer and yet it’s not always labeled as having software of that sort on the package. But you can’t return opened CDs.. or games.. or movies. For games, what if I don’t agree with the EULA? Shouldn’t I be able to review the EULA before buying the software? Since purchases can’t be returned, then purchase is agreement.

    As for Gitmo, the whole enemy combatant bit never made sense to me. One man cannot make the ruling that someone is or isn’t an enemy combatant. There have to be rules and procedures that can be challenged in court. How else can we guarantee our rights as citizens or the rights of foreigners, such as under the Geneva Convention?

    No one can ever guarantee complete security. Sure, reasonable measures can be taken to make people safer, but it can never be fail-proof. It’s silly to give up basic rights for the false security of being safe. At the same time it’s silly to blame the government for not protecting us all the time. There’s a balance between a reasonable insurance of safety to a reasonable expectation of freedom.

  26. And, despite the limited value of anecdotes, my grandfather was certainly treated much better as a WWII POW than the detainees in Guantanamo today.

    For God’s sake, man, get some facts. Look up what happened to WWII POWs, especially in Japan and Russia; I’m a generation older than you are, I *knew* some of those guys. Or get a chance to talk to John McCain and ask him to “high five” you.

    Also, as a general matter, suggesting fictional accounts of World War II as a metric for what we ought to be doing today isn’t exactly what I would call useful.

    Sorry, make that “documentaries” if you feel “movie” always means fiction.

    And I didn’t need any, it’s a fairly simple process – if they shoot at you, ipso facto they’re a combatant, whatever the fuck they’re wearing.

    Jim, I think you’re absolutely right there, both as a matter of law and of reality. The main point of the “illegal combatant” thing, though, is that we like to talk about the Geneva Conventions, and that’s a distinction made by the Geneva Conventions themselves.

    Why? Because fighting without distinguishing identification is a war crime in itself. One that leads to more civilian casulaties.

    But now — consider: you’ve got people who’ve been taken prisoner in a combat situation (“turned over for bounty” in an insurgent war with active fighting going on is still a combat situation). They may or may not be active fighters, but until you determine they’re not you’ve got a responsibility to make sure they can’t re-enter combat against you. You already know that the opponent is committing war crimes, because they don’t have uniforms or distinguishing marks, so you can’t be sure if you have a combatant or not — without, of course, handing him a gun and seeing if he shoots at you.

    So you take them prisoner, and like all prisoners taken in wartime, you have to then determine if they’re illegal combatants, legal combatants, or just unlucky. While you’re determining this, you hold them — and yeah, that’s indefinite. Why? because you can’t let them go until you are confident they can’t get back into combat.

    ICRC wants to call that — indefinite detention — “tantamount to torture” in itself, but that’s a pretty flexible definition of torture. One that they didn’t seem to be using in Viet Nam. But then what’s the choice? If it becomes impossible to remove people from being able to fight us by taking them prisoner, the solution is going to be taking no prisoners.

    I’ll even jump on the bandwagon and say it’s a fine post, Jim. It’s just wrong.

  27. Jim, actually I think it was a Frontline program, but it’s been many a moon since I’ve seen it. I think what stuck with me was the total overkill using that gun on personel (not that I blame them, I just remember seeing that and thinking, there’s going to be nothing left, and sure enough…).

    Bald patch in back, always produces a better IR signature.

  28. Charlie, “They may or may not be active fighters, but until you determine they’re not you’ve got a responsibility to make sure they can’t re-enter combat against you. ”

    Sounds like, “Round up the usual suspects.”

    “They may or may not be active fighters, ”

    But you’ve already figured out they are fighters, eh. Well, I’m sure the Army or Marines want you for that special ability to be able to pick out fighters from the general population. Mighty special that ability would be.

    “While you’re determining this, you hold them — and yeah, that’s indefinite. Why? because you can’t let them go until you are confident they can’t get back into combat.”

    No, it’s only until you hold a hearing (as required by Geneva) to determine what their status is. That’s not indefinate. Failure to follow the forms leads to it being indefinate detention. Many of those released didn’t have formal hearings, most of those still detained haven’t had such hearings.

    And I think it’s been abundantly proven elsewhere that many detained in Gitmo aren’t combantants of any type. Or, at least they weren’t when they came in the system.

    And “combat situation,” to me means a hot situation. If you would like to define that as, “in a situation where are drawing combat pay,” I think there are some that will disagree with you. Because that’s called “being in a Combat Zone.” Heck, it’s not even being in a “Free-fire Zone.” And I don’t think Gitmo is large enough to detain all MAMs in either Afghanistan or Iraq.

  29. Personally, I think it’s obscene that a concerted and persistent attempt to whittle away our constitutional and legal rights regarding copyright and property is apprehended by some as merely a “stupid entertainment industry annoyance.”

    But that’s exactly what it is. When there are laws telling all entertainment companies that they have to use this DRM shit, we’ll be in trouble; but until then we all have a choice.

    Buy unencumbered MP3s from Magnatune instead of shit from iTMS or the Zune store. Get used CDs without idiotic copy-protection schemes and use them as you please. Stop buying from the companies that make use of this odious tech and they will go away.

    I wish I could come up with a similarly elegant solution for the Bush administration; sadly there doesn’t seem to be an open-source alternative president to download. And I’ve looked everywhere!

  30. Durf:

    “When there are laws telling all entertainment companies that they have to use this DRM shit, we’ll be in trouble…”

    You mean, like this? That smells like an attempt at government-mandated DRM to me.

    Waiting until the government passes mandatory DRM to be concerned seems like it’s missing the point. The time to stop it is before it happens, not after. Not buying DRM’d crap is all very well, but stopping attempts to pass legislation to require is part of the equation as well.

  31. Charlie(Colorado):

    Heh, Charlie, you sound like a good guy to sit down with and shoot the shit over a beer. And I understand they brew reasonably decent beer in Colorado, so next time I’m down that way I may have to look you up.

    I agree with most everything you say (with the exception of that crack about me being wrong, that is). I maybe should have clarified my position a little better. I have to be careful about what I post online and sometimes that hamstrings what I write, which is why I avoid the politics and stick (mostly) to cat and cheese related topics. While I have the highest regard for the Geneva Conventions (it’s personal to me, obviously), I think that it may be time for an update of the definitions – not the Articles, just some of the definitions. Before you say anything, yes, with the present mindset in DC we’d best just leave such international agreements the hell alone.

    Several points from both our posts above that I’d like to clarify: 1) I guess for those of us in harm’s way, it seems much simpler (isn’t it always?), they shoot and they’re combatants. The world has changed much since the GC was signed; it’s not just spies and saboteurs that go to war without uniforms these days. But I gather you know that, so I won’t belabor the point. 2) I agree that adversary combatants (uniformed, or otherwise) must be removed from the battlespace until their status can be determined, and to prevent them from returning to combat until the conclusion of hostilities. Morally, this is the only correct action, for a variety of reasons. 3) BUT, there must be a defined period of detainment and a clear definition of status. In my not-so-humble opinion it is immoral to do otherwise, especially since this so called “war on terrorism” may last until the heat death of the universe. The administration has made it pretty clear that they don’t expect it to end, ever. Because these “detained” people are in limbo, because they have no status as human beings, and will not for the foreseeable future, they are a cancer on us. Torture? No problem, it’s not like they are people, they’re (wait for it)…”Enemy Combatants.” Our treatment of them is not constrained by any law, agreement, or convention. One guy, and one guy alone gets to decide how we treat them, and somewhere along the line that guy has decided that the United States of America will endorse torture and denial of basic human rights and dignity as national policy. Not so long ago, a person with that kind of power might have been called King, or maybe Caesar. Were we not once the defenders of freedom and human rights? Isn’t that what I’ve been risking my life for all these years? I sure wasn’t doing it so we could torture people. Now before somebody misconstrues that, I, sure as Scalzi’s next book will be a bestseller, am no bleeding heart liberal and I firmly believe that shithead terrorists should be locked up forever. Hell, I don’t care if we put them against the wall. But, for our own sake, for the sake of all we hold dear, let us do it in a manner that doesn’t turn us into THEM. Hell, even Jeffry Dahlmer had rights, and a lawyer, for all the good it did him. If we do not believe in our own system enough to be confident that the real terrorists will get what they deserve, well then maybe we need to be working a little harder at it. And finally 5), we don’t need any new laws or international agreements or Patriot Acts: Uniformed or not, conventional soldier or insurgent mujahadeen, it doesn’t matter. Call them “Combatant” because that’s what they are, anything else is just picking nits, and treat them in accordance with the GC, our law, and the Constitution. If we don’t, then we are lost as a nation.

  32. Steve: “Bald patch in back, always produces a better IR signature.” Well, I’m not going bald (not that’s anything wrong with that, John) I’m just missing a piece of scalp. I’m not quite sure where I put it either. But you are most certainly correct, Sir, as my son pointed out on the IR video clip, “Look, Daddy has a light on his head!” That’s way I always wear a hat.

  33. Argh! I meant to say: they’re (wait for it)…”ILLEGAL Combatants.” Man, it’s just so much less clever an argument when you hose it up. And from the number of typo’s in the next post, you should be able to tell I’m watching Mythbusters while surfing. It’s Kari Byron’s fault, she’s just so…ah nevermind.

  34. In the case of DRM, it exists not primarily to combat piracy but to amputate the right of “fair use.”

    While you are probably spot-on about Guantanamo, this sentence strikes me as naive. While certainly you and all of your right-thinking friends are only being caught afoul of DRM when attempting to do harmless backups, there is, in fact, a ridiculously huge amount of piracy occuring. Between movies, music and microcode, I’d be very surprised if most instances of digital IP weren’t pirated. Not loaning, not sharing, but flat out piracy. On the other hand, most people rarely actually use their rights under fair use (Are your DVDs backed up? Your print library?). To the extent that DRM prevents fair use rights, it’s onerous and should be worked against (probably legislatively). However, to pretend that DRM was created or is maintained so that The Man could keep you away from your fair use rights is deeply naive.

    When you buy something, however, you shouldn’t need permission to do what the hell you want with it.

    Like, make perfect copies of it and sell it? I’m pretty sure the copy of _Old Man’s War_ I bought doesn’t include the right to run it through the office Xerox machine and sell the results on a street corner. Indeed, it doesn’t even include the right to give away such copies, even to my friends, even if I really, really liked it (which I did). For that matter, it doesn’t even include the right to reuse your characters and world in my own works, and resell them. I bet it doesn’t even allow me to scan the paper, run it through an OCR machine, and post the book on the internet, EVEN THOUGH I OWN THE PAPER MY COPY WAS PRINTED ON. What a gyp!

  35. Dave:

    “However, to pretend that DRM was created or is maintained so that The Man could keep you away from your fair use rights is deeply naive.”

    Not really. If you set a legal and social precedent that suggest you have no right to do what you want with the content you purchase, then you construct a framework that gives the advantages to the IP holder, not the consumer. Also of course, as the article linked to makes clear, training people to believe they have no rights to what they purchase is what the IP holders want, so to call this theory naive is, well, naive.

    “there is, in fact, a ridiculously huge amount of piracy occuring.”

    None of which is being effectively stopped by DRM at all; every DRM scheme that gets tried is cracked nearly instantly. So as a method of thwarting piracy, DRM is pretty damn useless; it has to have another use for it to retain its value to IP holders. Such as, say, trying to establish a legal framework in which the consumer is understood to have no rights.

    “Like, make perfect copies of it and sell it?”

    You’re making an argument from a quote which you’re choosing to view in isolation. From the context of the article it’s clear that I’m talking about private use, because I specify such earlier in the article (“In the case of DRM, the idea being posited is that we don’t have fair use, or the right to personal copies of work we’ve purchased”). To counter with giving an example of making perfect copies and selling them in this context suggests that you’re being either rhetorically sloppy, or you’re not reading carefully.

    In other words, please try to make an argument that is relevant to the actual discussion at hand, as opposed to taking a quote in isolation and making an argument that no one is disputing.

  36. Jim Wright,

    Can’t tell you how heartening it is to read such a cogent argument from serving military. (I’ve got no bone to pick with military as my brother served in the 90’s, but he’s my little brother, so he can never outlive being a stupid little brother.)

    Forget beer in Colorado. If you’re in NY, the beer’s on me. Even the steak. And we have none of that vile Cinci….never mind, I digress.

    At any rate, you’re spot on. Except when you’re being an alien (of the extraterrestrial kind).

  37. Dave – DRM combats piracy? No. DRM CREATES piracy. DRM created the largest pirate *retailer* of non DRMed files – allofMP3.com. They sell music that they don’t pay anyone for. Why? Because they sell it cheaper, and most importantly without DRM. You can get everything they have free on bit torrent, but bit torrrent is slower, and less organized.

    Consumers will pay for good organization, and DRM free music, and they’re willing to pay a reasonable sum. AllofMP3 is a pure profit machine, outside of server costs and time spent ripping files. The site design is good. The concept is good. It just sucks that they’re illegal.

    If you want to say that piracy is bad, say that it’s bad. I agree piracy is bad.

    But don’t try and sell the RIAA party line that DRM is effective at combatting piracy, because it’s nonsense. DRM has jack-shite to do with protecting artist’s rights. It’s something the 4 major labels of the recording industry foist on consumers who want to buy music online. It’s something Apple benefits from beause it locks you into the itunes/ipod cycle for buying music online. It’s not helkpful to anyone in the long run.

    Compare allofMP3.com’s sales to every online music retailer, and they blow everyone but iTunes out of the water. They sold more than eMusic, and eMusic outsells everyone else other than iTunes combined, and does not cary anything but indie music.

  38. Charlie (Colorado)

    “For God’s sake, man, get some facts. Look up what happened to WWII POWs, especially in Japan and Russia; I’m a generation older than you are, I *knew* some of those guys. Or get a chance to talk to John McCain and ask him to “high five” you.”

    Some facts? Like the fact that McCain fought in Vietnam, not WWII?

    Or is your point the more generic one that some of our opponents have done evil things to US servicemen? If so, I agree. And so? Are you saying we should use Axis (or Vietnamese or Al Qaeda or Soviet or…) treatment of POWs as our benchmark?

  39. What solution do you propose to solve the DRM problem?

    Creators need to paid for the work they do. Without a way to raise the cost of digital reproduction (lack of cheap printing solves this for print books, i.e. Not many people would trade the cost of purchasing a paperback for the cost and bother or printing themselves) DRM seems the only way to make sure the artist actually gets the money they’re due.

    I don’t love DRM but if they can give a little more lee way to fair use (conversion to other formats while maintaining the DRM signaure so they can trace thevies, something analogous to signing all your content with the owners data) I can live with it.

    So far I’ve heard no one come up with a better idea. Most notably Cory Doctorow who is very critical of DRM (in some cases rightly so) but has yet to offer any useful ideas to allow creators to limit their loses from digital formats down to the level of that lost through shoplifting at retail stores.

  40. Ben:

    “What solution do you propose to solve the DRM problem?”

    Well, I don’t think there is a “DRM problem” as you appear to understand it, so asking me what solution I would propose isn’t the right question. Also, clearly, DRM isn’t making sure the artist get the money they’re due, since, as noted before, DRM is easily circumvented and piracy runs unabated. There is nothing that is “protected” by DRM that I can’t find and take for free if I want. It is, in fact, useless for the securing of revenue for the artist; nor is it proven that having non-DRM’d files will cause artist revenues to drop.

  41. Interesting post. I won’t comment on the issues around prisoners at Gitmo because I don’t think that I can add anything relevant to the topic.

    However I do want to send a shout out to Jim Wright and say that I am glad that there are persons with your views actually serving in the American Military. I suspect that you are not alone in your views in the service.

    One thing I have commented on to my many left-wing friends is how impressed I am with the sheer professionalism of the American Military. Given how shoddily it has been treated by this republican administration, I think that Americans ought to be proud of the work that their military has done and ought to thank whatever God that they have that the military has taken the crap from the president and just got down to business. It is this impression that I have that leaves me with the view that Jim Wright is not alone in the Military.

    On to DRM.

    One thing that has been absent from this discussion is how certain more adult orient folks are dealing with the issue of DRM. (Yes I am talking Porno here. Not that I ever, ever, ever go to those horrid vile exploitive sites, nor have I ever, ever, ever downloaded anything worse than an R-rate film clip. I have heard all of my information from a friend of a friend who spends an unhealthy amount of time surfing for those kinds of things).

    Some have tried to install DRM into their Downloaded clips (Hello Private!). It really has not caught on because many of the folks who visit these sites don’t really like DRM; If they pay to download stuff, they want to be able to keep watching that stuff on their computers. (have I mentioned that it is not me who is doing this but a friend of a friend).

    Curious thing is that some sites have arisen that will review and rate various adult sites. One thing that they often will mention is whether the files are downloadable and whether the downloaded file have DRM attached to them. Both will result in more negative reviews; I have been told by my friend of a friend that he actively avoids sites with DRM.

    I bring out this example because of the longstanding canard about the importance of adult movies in the development of recent technology. According to the legend, the reason why VHS beat out beta was that producers of dirty movies chose VHS as their standard. Given the sheer volume of VHS dirty movies that were being sold, Beta didn’t stand a chance. Part II of the legend involves the growth of the internet and how some of the earliest folks that could actually get people to pay for content were adult sites. Basically Itunes figured out that they could charge for content because the folks at Playboy, Penthouse, Private and Vivid showed that people would pay for content.

    If this legend is, in fact, true, then DRM won’t stand a chance. The purchasers of Porno (not me surely) don’t like it, and won’t buy it and it won’t catch on.

    Cheers
    Andrew

  42. Ben, Scalzi: “making sure the artist get the money they’re due.” I have little experience in the music industry (having no musical talent whatsoever), but from what I read more often than not it is the Music Industry ITSELF that screws the artist out of their just dues. So much so that iron clad contracts and greedy Sony executives have become a cliche. Seems to me, again from my admittedly limited perspective, that DRM is about protecting the Recording Company Executive’s lucrative income, and a whole lot less about protecting the intellectual property of the artists. Am I wrong?

  43. Andrew: “I am glad that there are persons with your views actually serving in the American Military”

    Andrew, I am no exception, not even close. Despite the stereotyped military caricatures you often see on TV, the vast majority of us were TRAINED this way. Especially at the highest levels, again be careful of basing your perceptions on what you see on TV. But, also remember, our oath is to support and defend the Constitution. Since we’re very likely to have to give our lives for it, most of us read it and revere the ideals that it embodies, it means something to us. We’re volunteers, we chose this life and it would be pretty stupid to give up your life for something you don’t believe in – especially since nobody made you do it. But you must also remember that the rest of our oath is to obey the orders of the President. Not only the orders we agree with, not just in conflicts we agree with, but all lawful orders of the President. This too is a voluntary obligation and either your word is good, or it isn’t. There’s no gray area there. I’ve gone to war, more than once now, and I go at the President’s command without reservation even now, because that is my profession and calling, just as I willingly served under Reagan, Bush Sr, and William Jefferson Clinton. It is not for us as soldiers to decide, (outside of some very limited situations) the morality of the conflict – that is for the duly elected representatives of the American people. But, for us as citizens, well it IS for us to decide, by voting, by writing letters to our representatives, by talking to people on Blogs, etc. And we DO vote, at a far greater percentage than the civilian population, and this last election shows how most of us feel. The point of my posts above is not to give you the impression that I don’t support the President, because I am honor-bound to do so, but rather that I believe that we may be in the process of losing our way as a nation. Despite the despicable actions of some of those detained at Gitmo, or maybe especially because of it, we must never resort to treating them as they would most certainly have treated us should our positions be reversed. Or we are NOT the people we think we are.

  44. Regarding DRM, Baen Webscriptions (http://www.webscription.net/) only sell non-DRM ebooks and according to anecdotal evidence they are the only publisher with a consistently profitable e-book business that is also growing paper-versions of the ebooks.

    The complete Liaden series is coming to Webscriptions sometime this quarter.

    I also remember a piece by Janis Ian on her website that details how non-DRM mp3s of her songs from her website have driven sales not just of her current work but also of her backlist.

  45. What solution do you propose to solve the DRM problem?

    Creators need to paid for the work they do. Without a way to raise the cost of digital reproduction (lack of cheap printing solves this for print books, i.e. Not many people would trade the cost of purchasing a paperback for the cost and bother or printing themselves) DRM seems the only way to make sure the artist actually gets the money they’re due.

    Only to fools. Really. DRM has not stopped piracy. It’s failed. Faield *so* badly, that people will *pay* for good pirated copies, rather than DRM.

    Did you miss my explanation as to how DRM created iTune’s second largest competior as a pirate shop (allofMP3.com?)

    I don’t love DRM but if they can give a little more lee way to fair use (conversion to other formats while maintaining the DRM signaure so they can trace thevies, something analogous to signing all your content with the owners data) I can live with it.

    Let me fill you in on something – the music industry is *dying* because of DRM. DRM proponents living with a sucking chest wound, and they (and you) don’t realize it. And more DRM schemes keep widening the wound.

    I shouldn’t complain. I really shouldn’t. I work fr the second largest *legal* DRM free site. We’re selling music like crazy, legaly. Our customers aren’t file swapeprs, they’re music fans. Idiotic DRM proposals made eMusic viable. We sell what people really want – music without DRM.

    We sell mroe music than everyone other than iTunes, which only beats us because we sell indie music, and iTunes makes it’s money on major label deals.

    So please, keep touting DRM. Imagine that somehow it makes you ‘safe’. Wherein ‘safe’ is an analogy for isolated and starving to death.

  46. I’m here because I read books (Just bought Ghost Brigades) and also ebooks. I buy from Baen, and the relatively open multiformat books from Fictionwise. That’s it.

    As far as I’m concerned, DRM means “Doesn’t Receive Money.” I spent over $150 on ebooks today, none of them encrypted.

    I’m old-fashioned. I want to do what I want with what I pay for. I want to read my books on any device. Baen gets money because people are willing to pay a fair price for ebooks. Electrons are worth less than paper, ebooks cost less than paperbacks.

    If you don’t rip your customers off and treat them like the enemy they just might want to spend money with you. Funny that.

  47. Jim Wright: But you must also remember that the rest of our oath is to obey the orders of the President. Not only the orders we agree with, not just in conflicts we agree with, but all lawful orders of the President.
    *********
    I joined the Navy during Desert Storm and served in the Med as well as the Red Sea for interdiction ops. I am also a fairly left-leaning individual who is not afraid of war; I just feel that it should be used as a last resort after all other avenues have been exhausted; i.e. Afghanistan to eradicate Al Quida (sp) and return the country to its pre-Taliban system of government where women could work and see doctors, and drug warlords didn’t run the place.

    That said, please review the words you used when describing your current state ‘… all lawful orders of the President.’ The most important word there is Lawful. If the action in Iraq is not lawful, which many feel it is not, then you are under no obligation to obey the (p)Resident.

    I am not in your position, and thank my deity of choice for that, so I don’t have to make that decision to war (or not) in Iraq for what I (personally) believe are unlawful reasons. But, much like the German soldiers under Hitler, following orders in what could assuredly be seen as an unlawful action would be worse than standing up for the constitution you are pledged to protect by joining your fellow servicemembers in refusing to go back there. (Before anyone complains about my comparison of Shrub to Hitler, there are way too many similarities to ignore. A quick search will illustrate the point.)

    I do support the troops. I support bringing them back here where they are safe, and I support the government developing alternate fuel sources to lower our use of fossil fuels.

    Just an observation.

    And Scalzi, I truly enjoyed Old Man’s War, have copy 350 of your book on writing, am looking forward to reading The Android’s Dream which is next on my reading list, and share your birthday – May 10 – but one year later.

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