TARLETON GILLESPIE: Probably the most prominent concern for the existing DRM systems is how well they strike the balance of fair use. If you remember from the earlier chapter, copyright has this exception. It says that under certain circumstances, for socially valuable reasons, you can use my work without asking permission or compensating me. But what happens if my work is not only under copyright, but it's also behind a technical barrier that it's illegal for you to go around?
If I pop a DVD into my Apple laptop, I can watch that movie, I can skip chapters, I can view the extras, I can watch the film in a different language. But if I try to run Apple's Grab software, which under normal circumstances would let me take a snapshot of anything that was on my screen, and I try to take a still image from that Hollywood picture, my software refuses. Comes up with an error message that says it's impossible. Because Apple has signed the CSS license in order to build its DVD application, it's had to design a second piece of software to obey the rules and not let me take even a single image from that film.
Now, let's imagine that I teach a course on media in society, which I do. If I wanted to show a still image from a film or a TV show in class, if I wanted to use it to spur debate with my students, if I wanted to use it as an example in my research, this technology prohibits me from doing so. My fair use, which would otherwise be legal, is technically unavailable to me.
Fair use is just one example of the dimensions of copyright that don't translate very well or at all to a technical solution. Fair use depends on context. It asks judges to say, in this situation, was this use fair? Was it reasonable? And technical rules are notoriously bad at dealing with context and dealing with ambiguity.
More importantly, the industries that are pursuing DRM have very little economic interest in ensuring that I can make fair use of their films. What they'd rather do is make sure that I can enjoy them as a consumer.
Whether or not these DRM strategies succeed, whether or not they drop by the wayside, the mobilization of political allies, the effort to justify this strategy, the bringing together of these participants, may have its own consequences. I'm going to point out three. The first is an increasing closeness between the content industries and the technology industries, the makers of consumer electronics and computers.
The coalitions that I said before are very hard to draw together seem to be much stronger now for a couple of reasons. First, the movie industry and music industry have been very successful in making the argument that their fortunes are tied together. Through technological convergence and a series of mergers, sometimes these are often the same company, and therefore, they have increasingly the same interest.
Technology companies are seeing content as crucial to their business, and as they've seen the argument being made again and again that piracy is rampant, that DRM is the only solution, a number of these companies are making Faustian bargains and saying, this is the way to go. Some of them are even designing DRM systems themselves, and therefore have a direct economic interest in pursuing this strategy.
Now, why does this closeness matter? Well, Jessica Litman, who has been working in this area, argues that in the past, before the internet, the difference between the content industry and the technology industry turned out to be very important in protecting that balance the copyright was supposed to strike. Whenever Congress decided it was time to rewrite the law of copyright, it often turned to the industry to say where it should go.
And the content industry, well before the internet, has been arguing that copyright should be stronger, that they should be enjoying more rights and have more power to prosecute those who infringe their rights. But at the same time, electronics companies, in order to serve users that they knew wanted to share and copy and duplicate, would often act as a brake on that argument. As these industries grow closer through agreement on DRM and a common economic project, that gap, that productive gap is closing.
A second implication is the increasing closeness between the content industries and government-- Congress, the FCC, regulatory agencies. Congress, over the last couple years, has been increasingly convinced by the music and movie industries of their underlying argument that more protection would be better, that piracy is rampant. And although this is a bigger issue than copyright, they've increasingly seen their role, not in the protection of citizens' rights, but in the protection of the rights of consumers. And to the extent that legislators see their job as smoothing the market rather than providing for what the market cannot, they're likely to see copyright in the terms most friendly to the content industries. The risk here, of course, is that Congress could pass a new law like the DMCA that radically changes how copyright law works and how it is imposed on the internet.
A third implication might be this curious combination of encryption and contract, not only imposing obligations through DRM, but also shifting our emphasis from public laws that articulate common values to private laws that basically say, work out the arrangement for yourselves. Contract law was designed to allow two parties to agree on a set of terms and then give legal force to that agreement. It assumed that those parties were on a level playing field.
Now we see private law, contract law, happening all sorts of places. Every time you click through an end user agreement when you start a piece of software or subscribe to a website, you're hardly on a level playing field at that point. But increasingly, we are seeing some of the things that copyright was supposed to handle being shifted over to these more private forms of ordering, contract law and licensing agreements.
And here's the final twist. Despite the rhetoric about piracy, copyright infringement, hackers, peer-to-peer technologies, DRM and technical copy protection is not just about enforcing copyright. It's also about regulating the purchase, access, and use of information and monetizing those transactions more precisely and more carefully than ever before. DRM is not just about control. It's about commerce.
Even though DRM systems are regularly cracked, even though upgrading them or pursuing them has been costly, both in a financial sense and in the eyes of the public, even though there's no sign that DRM is ever going to work in the way that those who were hoping it would wanted it to, the industries are still pursuing this as a technique. The reason for that is that technical copy protection allows for the sale of content, the regulation of content, and the tracking of content in a way that analog forms could not.
So if we go back to the CSS license that the manufacturers of DVD players and DVD applications have to sign, most of that license is about copy protection. But there's one portion that isn't. It's called regional coding. When the Hollywood studios introduced DVDs, they broke up the global market into six portions, roughly by continent. And they designed it such that your DVD player kept track of where it was designed, and every DVD included a bit of information that said where it was manufactured.
Every time your DVD player goes to play a DVD, it checks this bit of information and makes sure that that DVD matches so that a US DVD player can play a US disc. But if those codes don't match, then the disc will be refused. So the DVD player from the US will not play the European disc, and vice versa.
This mechanism has no particular contribution to copyright protection. It instead produces an artificial incompatibility that's designed to allow studios to market their DVDs in different places, at different times, at different prices. This is something the movie industry has always done, having movies first appear in the theaters, then on cable, then in the airports, then on television, at different prices and different qualities. They also have been able to release films at different times in different nations, or not at all.
This technique depends on encryption, but it's not for copyright purposes. Nevertheless, if you tried to go around it, you'd be violating the DMCA. There's also no reason why that technique couldn't be expanded to distinguish not just by continent, but by user, depending on what technology you use, how much you paid, whether you're willing to release your private data, or any other distinction. And just like regional coding, it can take cover under the rhetoric of piracy, even though it serves no particular copyright enforcement purpose.
If the internet is not a revolution, it may have introduced new forms of creation, collaboration, and distribution of culture. And along with it, it may be offering a new mindset towards culture, a more active participation, that we are users, not just consumers. Copyright depends on and reasserts a distinction between producer and consumer, between owner and receiver. And DRM extends these relations and further commodifies our intersection with culture.
This should very powerfully raise the question of whether copyright and DRM as a particular solution to copyright may in fact be inhibiting the new dynamics of communication that the internet at least makes possible. We may be shifting the balance of copyright just as new opportunities for public participation are emerging. Institutional arrangements may be tightening around a consumer paradigm for information just as new forms of distribution are possible. And a technology may be being installed that choreographs our relation to culture according to commercial imperatives. If that's true, then we need to at least consider what copyright and DRM are doing to the shape of digital culture.
And as I said before, this is not just a story about Hollywood blockbusters and pop songs. This is also about the broader patterns of the production and circulation of knowledge and culture. If we are now living in an information society or economy or age or world, then copyright is its law of gravity. The difference is, it's a law that can be changed, for better or for worse.
Thank you for listening. I want to encourage you to explore the resources that are available through the Cyber Tower room-- the readings and links will be interesting if you want to pursue them-- as well as participating in the discussion room, e-mailing me with questions. I'd be happy to answer. Thanks again.
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Join Tarleton Gillespie in examining the effect of copyright on digital culture, and develop insights into the ongoing negotiation about what the internet will be, what shape digital culture will take, and what role technology plays in the organization of society.
This video is part 5 of 5 in the Wired Shut: Copyright and the Shape of Digital Culture series.