Trusting Consumers

Another Shot At the Broadcast Flag

O'Reilly Op-Ed Piece on Google Library

The broadcast flag. AAC. DMCA. RIAA. Clickwrap. eBooks.

Everywhere I look lately there's more evidence that content producers don't trust the consumers. Of course, it's not like we're really trustworthy people. But, that's not really the point. Movie studios, record companies, and publishers are all pushing to restrict the ways in which you can use their content. If you want to buy a cd, they will make sure you can't rip it to your hard drive. If you want to buy a movie, ditto. If you want to download a song, they want to make sure you only buy a proprietary file type that will play on their player (and their player only supports proprietary file types). If you buy software, they want to make sure you don't know how it works (you might create a competing product!). If you buy an eBook they want to make sure you can only read it on an approved monitor.

Meanwhile, the consumer is left in cold. If I don't want to buy the proprietary player, I'm limited in the music I can purchase. Before buying a monitor I have to consider whether I'll be able to watch the movies I have or the books I've downloaded. If I download software I have to have faith that the developer will create patches to fix it (because it will inevitably be broken) or will update it (because it will inevitably be obsolete). Gone are the days when I can go and buy any music playing device I like and know that I can play any music that is released in that medium. The days are numbered that I can buy any monitor on the market and know it will work with my computer. Christ, even the days that I can buy a TIVO and know it will record the shows I want and keep them until I actually get around to watching them are rapidly dwindling.

The publishing industry is trying to prevent Google from creating a world-wide library catalog to be indexed by its search engine so that someone that searches for "George Washington" might just turn up a wonderful novel by a 3-time Pulitzer Prize Winner ("1776") that they may be interested in reading, or even buying. Or a student who searches for "Milton Friedman" for an economics class will be presented with all of his books that just might be of interest.

Each of these are examples of distrust of the general public. They don't trust the public because they are afraid that, well, I'm not really sure WHAT they are afraid of. They are afraid that if they don't protect the content we will share the content with everyone in the universe. That if I buy the new Arcade Fire songs that I may really like them and want to send them to my friend and that he won't subsequently purchase them. Of course, it's not that their DRM actually PREVENTS this, it merely makes it a bigger pain in the ass. (I can burn the AAC files to a CD, and then rip the CD to an unencumbered format) But, more precisely, and of more moment, is the fact that I become encumbered in the ways in which I can use the files I've purchased for MY OWN USES. Apple's files can only be used on 7 devices or burned only 10 times (down from 10, which they changed without asking first, thanks a lot Apple). So, hopefully, you don't run out of devices. Ever. And hope that they don't unilaterally decide to reduce it 5, or 3.

The "Broadcast Flag" and TIVO's little experiment is even worse. It would flag a TV Show as "broadcast" so that it cannot be redistributed over the web or saved to a hard-drive; or only saved for a certain amount of time. Sort of like if someone said "you can tape our show on your fancy VHS device, but after 10 days we're going to come in and take your VHS tape, so I hope you didn't go on vacation for 11 days."

The Copyright Act doesn't prevent you from reverse engineering software (it may prevent you from making a "copy" but not from reverse engineering). But that agreement that you clicked "I Agree" to does. In fact, under the Copyright Act, as interpreted by the courts there is often a "fair use exception" that allows reverse engineering. Not if you clicked "I Agree" though. That's breach of contract. You didn't actually BUY that software, you are only licensing it from the developer. And even that's a misnomer. I "true license" grants the licensee rights to do something they are otherwise not allowed to do. "I grant a license to you to come on to my property." In this case, the "license" prevents you from doing something you are otherwise allowed to do! Talk about co-opting a word! More precisely your use of that software is subject to a contract; in exchange for your money and your agreement to abide by the limited terms of that contract you are permitted to use the software.

In any event. It's not that we are losing these rights that makes me so perturbed. It's the underhanded way that they come about. The MPAA knows that no one actually WANTS the Broadcast Flag, so they stick it in obscure legislation that is sure to be passed. The RIAA knows that everyone hates DRM on the files, but it refuses to license to anyone that doesn't encode their files. The publishing industry knows that there is massive support for Google's book project, but is upset that someone else thought of it first. These organizations get it in their collective heads that they want something done, so they go out and buy Senators (Joe Biden, Orrin Hatch, etc.) to do it for them. 10 times out of 10 the general public is unaware that their Senator is being so underhanded (we don't tend to think about intellectual property decisions when we vote) - they just know that the new technology is more limiting than the old technology.
Look, the publishing industry thought photocopiers were going to mean an end to the publishing industry via rampant piracy - it didn't happen. The record industry though analog tapes would mean the end via rampant piracy - they didn't. The MPAA thought VHS would spell the end of the movie industry via rampant piracy - it didn't. Did some people infringe? Sure. That's more or less a way of life. But, each of these industries, once they figured out how to use the technology, flourished with each of these inventions. Instead of specialized legislation carving out individual niches in the Copyright Law or, more invasively, social norms, perhaps these industries should learn how to utilize the technology to provide content in an easy-to-use manner that people are actually willing to pay for.

Rather than closed standards (broadcast flags, DRM'd music, DRM'd eBooks, etc.), if the content providers produced with open standards everyone would be better off. Make files that everyone can use and everyone will be more likely to use them. Not everyone owns an iPod; Apple is therefore limited in the number of files it can sell on iTunes because only those that have an iPod can take advantage of it. And, there are folks like me out there, who - no matter how "cool" the iPod is - will never own an Apple product (pretentious fuckwits with terrible customer service). On the other hand, if they sold an open format and competed with ease of use, or price, or selection, I may be more tempted to buy from them. Hell, I don't even mind DRM as AN OPTION. I may be willing to pay less for something that I'm not completely free to use. But, I'd like the option of paying for something that I can do whatever I god-damn please with.

Man, talk about rambling. Hopefully, you get my point.