DRM will not be legislated

[Anonymous]

Several people have suggested that DRM software is not bad in and
of itself.  So long as it is used voluntarily, it is not infringing
on anyone's freedom.  In fact they will even agree that voluntary DRM
can be a good thing; it increases people's options and can provide a
mechanism where content producers can get paid.

However they oppose DRM anyway, even voluntary DRM.  The reason is because
they see it as the first step towards mandated DRM.  If DRM hardware
and software are widely available, they reason, it will be that much
easier to get legislation passed to make them mandatory.  Most people will
already have systems which comply with the laws, so there will be no great
costs involved in requiring the systems.  In contrast, if no one had DRM
hardware and software installed, then mandating it would be politically
impossible, requiring virtually every computer in use to be junked or at
least to go through an expensive upgrade.  The costs of such a transition
would be enormous, and legislation to mandate DRM would never succeed.

This argument makes superficial sense, but it ultimately contradicts
itself on one major point: if DRM is so successful and widely used as
would be necessary for its mandate to be low-cost, then there is no
need to require it!  Opponents of the legislation need only point out
that consumers are voluntarily adopting the technology and that the
marketplace is working to solve the problem for the record labels and
other content companies.

In fact, there is very little incentive to push for mandating DRM features
on the part of any of the participants in the dispute: content companies
or technology companies.  What they really need to do is to make DRM
become popular as the only way to have a variety of good, legal content
be available.  A substantial number of consumers will voluntarily adopt
DRM if it lets them have a Napster-style system of music on demand,
with wide variety and convenient downloads, as long as the songs are not
too expensive.  The advantages of having a legal system that is immune
to the woes of the P2P world (constant shutdowns of popular systems due
to lawsuits, the problem of bogus data, etc.) will amply justify a modest
fee for the download.

It seems clear that this is the direction the record labels want to
pursue, and the only problem is that right now, if they make downloads
available without DRM restrictions, they will go right into the pirate
networks.  With DRM they have more control over how the data is used,
there will be less piracy, and therefore they can charge less per song.

Legislating the DRM is of no value in this scenario, because people
will still be able to use P2P and other software for piracy, whether
they have software that can support DRM or not.  (We will neglect the
plainly absurd argument that the computational infrastructure of the
entire nation will be changed so that only "authorized" or "approved"
software can run.)  The record labels still must pursuade people that
DRM is worth having, and the way they will do so is by making their data
available at a reasonable price, while continuing their technological and
legal attacks on P2P networks.  Legislating DRM will not substantially
help with any of these subgoals.

The one exception where legislation might be helpful would be for "closing
the analog hole", requirements to detect watermarked data and not process
it.  If all systems could be designed so that they recognized watermarks
in music and video and refused to play them, then that would cut down
on piracy.  But this is not DRM per se, it is really an orthogonal
technology.  One can oppose efforts to legislatively close the analog
hole while still supporting voluntary use of DRM software and hardware.

Ultimately, DRM must succeed as a value proposition for the end user.
Legislation to require DRM-observant software and hardware in all
computers will not establish this value.  By itself, such legislation
will not stop piracy and file sharing.  The only way to stop file sharing
is with massively intrusive legislation that would practically shut
down the net and most businesses as well.  Such a course is impossible
outside of the raving fantasies of the paranoid.  Given the reality of
ongoing file sharing, DRM must succeed by offering good value and the
guarantees of high quality that are not available in a black market.

Legislation of DRM is not in the cards, and this remote, hypothetical
possibility should not stop us from supporting voluntary DRM systems.