The conference "Copyright, DRM Technologies, and Consumer Protection", on March 9 and 10 at UC Berkeley, was a great example of competing assumptions jockeying for mental floor space.
(DRM is the set of software and hardware handicaps that prevents computers and media players from sharing files freely with each other. It's why when you download a song to your iPod, you can't copy it to another iPod or upload it to somewhere else, for example; or why when you burn a CD with a standalone CD burner, you often have trouble making copies from the new CD.)
The panelists at the conference were varied: lawyers and professors of law, some economists and other academics, executives from content-owning companies and content-carrying companies, officials from governmental and quasi-governmental bodies (e.g., WIPO), someone from the British Library, from the Electronic Frontier Foundation, from Public Knowledge, etc. Each panel held five or six people, facing the audience. A moderator introduced each one, and then that panelist spoke for fifteen to twenty minutes on the panel's topic. After all had spoken, the panel as a whole took questions from the audience.
Given the disagreements in the room, the conference understandably didn't come to any conclusions about DRM. But it did two other useful things: it gave an opportunity for every possible analysis of DRM to be heard and debated (there were some non-obvious ones), and, perhaps more importantly, it revealed the rhetorical terms in which different parties want the public to think about DRM.
One good point a few panelists made is that successful DRM is likely to weaken the user's privacy. All DRM prevents computers and media devices from sharing files freely with each other. But in order to merely curb freedom, rather than end it entirely, DRM must identify which files can be shared and which can't, and which methods of sharing are permissible. The more sophisticated this process of determination becomes, the more it is necessary for devices to analyze information about the files in complex ways. The burden of this analysis will often be too great to implement in typical consumer electronics — so instead the data will be sent to an online server, which will figure out your rights and tell the client device what to do. But step back and consider where this is going: devices all over your house, sending information about your viewing and listening habits to a central server. Is this data certain to be subpoena-able someday? You bet. It probably already is.
Another point (made by Peter Swire among others) was the computer security implications of running DRM. The code in a DRM system must be a black box: it cannot be open source, because if the user could understand and change it, she could disable it and copy her files without restriction. But if the code is opaque, it cannot be examined for security flaws — and in fact, the Digital Millennium Copyright Act makes it illegal to even attempt such an examination in most circumstances. Basically, you have to run this code, for even if you are technically capable of modifying it, doing so would be illegal. (In response to this situation, Jim Blandy proposed a new slogan: "It's my computer, damn it!")
There was also some discussion of DRM in terms of consumer law and contract law, rather than copyright law. Consumer law takes into account the "reasonable expectations" of the consumer (for example, that having obtained a copy of a movie, you might reasonably expect your television or computer to actually play it when asked). But this solid-sounding phrase slowly disintegrated as people pointed out that the expectations of consumers are not static: as people experience digital restrictions more and more often, they begin to accept them — their "reasonable expectations" begin to incorporate DRM behaviors.
It was fascinating to see how determinedly the representatives from content-owning companies used the words "balance" and "choice". Over and over again, we heard that the best DRM systems are those that strike an appropriate "balance" between the rights of content owners and the rights of consumers (also sometimes called "users"). The invocation of "choice" as a guiding principle often came as part of a self-addressed call-and-response formula, as in "What do consumers really want? They want choices." I don't see any way to understand that other than as a fake question designed to make DRM deployment appear to be a response to some market need — which it isn't, because users have been indicating pretty clearly what they want: bits that flow freely.
These sorts of assertions often came in the context of the broader claim that DRM has the potential to enable a wide variety of new business models (see "An Economic Explanation For Why DRM Cannot Open Up New Business Model Opportunities" for a rebuttal of this point of view). The business-model argument was repeated by several panelists, and it's worth some attention for the assumption underlying it: that enabling any particular business model is a positive good, a prima facie justification for whatever DRM mechanism might be required to enable it. My friend Ben Gross has an intensely practical answer to this kind of thinking. He objects to draconian copyright laws on the grounds that it's simply not the government's job to prop up failing business models, and he applies the same reasoning to DRM. Panelist Andrew Bridges (of Winston & Strawn, LLP) said essentially the same thing, in a memorable comment on DRM's essential role in the marketplace: "There are two ways to make money by connecting supply and demand: by making it easy, or making it hard."
Some panelists made reference to DRM protecting "integrity" (e.g., Victoria Bassetti of EMI: "DRM preserves our products' integrity"), but we never got a concrete explanation of how it does so, or even what precisely it would mean. "Integrity" is a loaded word here, because whenever it is used in a conversation about filesharing and copyright, one can easily imagine that it refers at least partly to plagiarism. I don't know whether that's how these people meant it, but the inference is hard to avoid, and it's completely backwards: DRM works against the detection of plagiarism, because it impedes digital technologies' ability to arbitrarily examine and compare files, and prevents people from uploading files to locations where they can be viewed and downloaded publicly. Plagiarism cannot flourish where there is transparency, but DRM prevents transparent behavior at a technical level, and thus drives people toward non-transparent methods of sharing.
There were also various attempts to talk of DRM-restricted products as being essentially the same as physical products or limited-resource services. Thus, Thomas Rubin of Microsoft said that DRM has been accepted for years as a means of controlling access to satellite TV (and now satellite radio), to websites that require login accounts, to cell phone networks, and even to traditional libraries! At some point during the reading of that list, he mentioned that he was being deliberately provocative and tossing up some examples as fodder for thought. I'm glad he included that caveat, because his list didn't contribute anything constructive to the debate, except to outrage more than one person in the audience (as I learned chatting in the hallway afterwards). Web sites and cell phone networks have limited bandwidth and computational resources, so their products really can be used up, if too many people log on. And libraries deal with physical objects, so access control is as understandable for them as for jewelry stores.
Is it so much to ask, at this late date, that everyone debating issues of copyright and DRM agree to stop talking about digital data as though it were a limited resource? You can't "steal" songs and movies, you can only copy them. They're not like library books, or cell phone bandwidth, or an artist's reputation (all of which are, in one way or another, diminishable resources). Talking about data in that way is a disservice to logic. I think, deep down, Thomas Rubin knew this, which is why he inserted his disclaimer.
If I were to take away two lessons from the conference, they'd be that language matters, and assumptions matter. The rhetorical advantage gained by being in favor of "balance" is nearly unbeatable. I think the only way to deal with it is to redefine "balance", to start using that word to talk about balancing new things, for example, the right of the public to copy and make derivative works versus the right of the artist to have (very) temporary control over the initial distribution of her work.
As for assumptions: I heard Victoria Bassetti of EMI respond to a questioner by asking (paraphrasing, as I don't have the transcript) if he cared whether artists earned any money or not. Since artists mostly don't make money from copyright royalties anyway, her response was a non-sequitur, but it effectively placed her on the artists' side and the questioner on the side of those lazy, freeloading filesharers. Because she knows that most people share a certain assumption — one which she may even sincerely believe herself — about artists earning their livings from copyright royalties, she's able to use this kind of response to deflect attention from the problems DRM creates. It would be a bad outcome indeed for these to be the terms under which the public considers DRM.
I've concentrated mostly on the remarks of unreservedly pro-DRM panelists here, but I don't want to give the impression that they set the tone of the conference. There were impressive critical presentations and questions from the aforementioned Andrew Bridges, from Gigi Sohn (of Public Knowledge), Cindy Cohn (of the EFF), Ian Kerr (University of Ottowa), Deirdre Mulligan (Berkeley Center for Law and Technology, Samuelson Clinic, and Boalt Hall School of Law), Peter Swire (Ohio State University), and others. I went to the conference partly to see how people were talking about DRM, from all points of view, in preparation for being on a similar panel in Montréal next month. I was not disappointed. If there remains any major point about DRM not raised at this conference, I'd be very surprised; kudos to the organizers for that.
[References: my notes from the conference are here.]