DRM a temporary lunacy ?
 

For the click-lazy, here's the part of the BBC piece relating to the iTMS:

"Peter Jamieson, chairman of the British Phonographic Industry ... whose organisation represents the UK's record labels ... [addressing] the Commons select committee for culture, media and sport ... called for Apple - which makes the popular iPod portable music player - to open up its iTunes software so it is compatible with the technology of other manufacturers.

Apple applies a digital protection system to its downloads, which means they are not usually compatible with other companies' devices.

He said iTunes' dominant market share in downloads was "not particularly healthy" and said he "would advocate that Apple opts for interoperability"."


And concerning Carlos' suggestion, even those not in favor of anarchy would probably agree

"
1. That DRM systems don't work

2. That DRM systems are bad for society

3. That DRM systems are bad for business

4. That DRM systems are bad for artists ... "

You can read the detailed, brilliantly written argument made by Cory Doctorow in 2004 while he was European Affairs Coordinator for the Electronic Frontier Foundation here:
http://www.craphound.com/msftdrm.txt


And Carlos, I think you've got your story backwards when you're saying:
"Of course I agree that DRM should go away, and I agree that high quality files are the only thing worth buying. Where I disagree is using government force to make an independent company do our bidding. I vote for DRM-free and higher-quality files with my dollars, not force."

We've already had this argument here:
http://forums.macosxhints.com/showthread.php?t=55219

To reduce the scope of the debate to the most preposterous part, lets start at the point where copyright for music exists, but no digital distribution of it, legal or otherwise. I think we're both old enough to have known that time not so far back in the past after all. Then imagine the government hadn't enacted any further law to mess with the market of digital music. What would have happened ?

Allow me to repeat one of my arguments from the other thread:

"In a truly free market one of two things would happen:

Internet.
Content Mafia snoozes gently.
Napster.

1
Content Mafia gets it, starts services such as the iTMS minus DRM, everybody is happy. --> no extra laws required.

2
Content Mafia insists on outdated business model and goes broke. People with a clue buy the content and get to do 1

What really happened is this:

Internet.
Content Mafia snoozes gently.
Napster.
Content Mafia cries bloody murder, gets heavy-handed laws encacted, sues the hell out of potential customers yet fails to offer attractive online products.

So even if I accepted your political point of view (which, respectfully, I don't), you'd probably agree that an entirely free market would favor agents working towards the interest of the customers who want hassle-free content."

You replied:
"The point is that a free market would be free of the DMCA and other heavy-handed laws. How we get there, and the benefits/drawbacks of it, are probably more political than what is allowed here. However, you can't compare today's situation to a free market; it's not. I do agree that a totally free market would favor the customers."

So it looks like we might disagree on the political utopy we wish to come true and we should probably not get too far into that. But here and now, I think the signals from France, Norway, canadian musicians organising themselves to protest abusive labels, and even the british music industry against DRM (maybe for the wrong reasons, but still) are interesting indicators.

Victor Hugo said:
"Rien n'arrête une idée dont le temps est venu."

( "No one can resist an idea whose time has come." )

History might retain the period we've been suffering through for a couple of years now as some temporary lunacy similar to the McCarthy era or prohibition...

The reason I'm against government force are two-fold. One, a matter of principle. I don't believe that initiating force against anyone is morally right. While certainly an argument can be made that a water company, electric company, or even a phone company must provide service reasonably, the same cannot be said for music. There is no societal imperative that justifies using force.

Second, historically, government controls have turned out to benefit the incumbents in the areas that have been "controlled." I think that any legislation will only appear to benefit the consumer, or will do so temporarily.

But in light of the moral issue, I really don't care about number two. I feel it's just wrong to force someone to do business with me on my terms.

I still don't understand how pro-DRM legislation does not qualify as government forcing customers to do business on the terms of the content mafia and keep smaller actors out of the market, while attempts to get back to less constraints and fairer competition, according to you, is problematic interference with the market.

What am I missing ?

You've lost me. I'm not advocating any pro-DRM laws, just Apple's ability to offer their wares as they see fit, and the consumers' ability to take it or leave it.

European vs American legislative philosophy
 

Carlos, it seems to me that Microsoft has used a similar argument with great success, breaking the backs of many competitors. Many of us would argue that Microsoft’s strategy has been unfair, and in fact bordered on the grotesque.

Interestingly, they are encountering substantial resistance from European Union legislators. The punitive fines they are facing are considerable even for Microsoft.

“Take it or leave it” is not the answer – not for Microsoft, not for Apple – and it is, in my opinion, a shoddy response to legitimate consumer concerns.

Clearly many of us Europeans, Voldenuit and myself included, do believe it is the government’s job to ensure “fair business practices”, and protect consumers from having to enter into unreasonable contracts. Signing an agreement with Apple before purchasing music on iTMS – which essentially allows Apple to change agreement after the fact! – is one such unreasonable demand. And I, for one, am wholeheartedly with our Consumer Ombudsman when he takes issue with this practice, amongst others. (These judicially retroactive agreements have also been questioned on this Forum.)

Europeans, by and large, do not believe in laissez-faire government to the extent that Americans do. (You will never get a European government, or the EU itself, taking a libertarian approach to the business community.) This is one of the key differences between our two continents, which at times seem more than an ocean apart.

There was a time when the USA had an effective anti-trust law, and even practiced it. Not many years ago, Microsoft itself was in danger of being split into different companies – something that I believe would have changed things for the better. Now, however, it seems that the monopolies and multinationals are not only fully in charge of their respective markets, but have even better friends than ever amongst the "people’s (sic) elected representatives".
Some are even going so far as to claim that everyone is getting the government that they have bought and paid for – but that’s a tangent...

Some could argue that operating systems are a key and essential service for economic survival. Nobody could argue that music and videos are an essential service.

Some could argue that Microsoft used unethical tactics to force competitors out of business. Nobody has said that about iTunes that I know of.

The contract issue already falls under US contract law in probably being "unconscionable." That is, a contract provision that is completely one-sided is not enforceable. The courts have ruled many times that "we can change the contract at will" is such an unconscionable provision.

There was a time before that when the USA had an effective free market and didn't need to engage in "anti-trust" control of non-essential services where there is no intrinsic monopoly. If MS violated other laws, use those. The desire for people to slay giants for merely being giants is a very strange thing. Don't mix up unethical actions with size or market share.

You "have to" enter into a contract to get water, electricity, and other such life necessities. You don't "have to" enter into a contract to get music. I've never purchased from ITMS and won't as long as the current practices stand. Do you think I'm unable to otherwise obtain music and other material? And even if not, would my life be greatly negatively impacted?

I refuse to do business with a number of companies because they have practices or political positions that I dislike. I don't go asking for them to be legally chastised; I just move along to the other options. There ARE other options to ITMS, and you don't need what it offers.

Arctics brilliant contribution contains a lot of material furthering the debate, especially the international perspective.

Carlos, I submit that your argument is inconsistent and falls apart by simply looking at it:

You say "I feel it's just wrong to force someone to do business with me on my terms."

The swedish government tries to force their law on Apple.
Many governments, including the US, try to force DRM-anticircumvention laws on their citizens.

I don't see the fundamental difference.
Either you stand by your argument and reject both attempts to force terms on the markets or you don't.
But you can't have it both ways.

I certainly reject both, I don't know why that is not clear. I reject all government attempts to regulate free enterprise. I make no exception for the US government, if anything, I'm constantly fighting it.

A friend of mine used to say "I'm not sure which upsets me more: that people are so unwilling to accept responsibility for their own actions, or that they are so eager to regulate everyone else's", and I think that fits here.

What we're observing is just that - government responses to inappropriate action that are themselves inappropriate. As Voldenuit pointed out, what happened was this:

But what was Napster, really? Wasn't it out-and-out theft of copyrighted material? So who's responsible for all this heavy handedness? Whose actions started this? It wasn't the "content Mafia".

Now, because DRM and the Content Mafia's heavy-handed response was so competely inappropriate and closed-minded - over the top vis-a-vis the "action" that the response targetted - other countries are responding with their own particular political slant on who can do what to whom.

I'm with Carlos; I abhor the tendancy of the "nanny" state to respond to every vociferous special interest with heavy-handed regulation. On the other hand, let's recall that it wasn't the Content Mafia that started this cycle; it was the theft of intellectual property. The nanny state has struck again, and what's being debated here is the response to an action that subverted reasonable copyright laws (as they then stood).

Legitimate intervention – to ensure fair practice
 

I totally agree! But that was before monopolies and multinationals (including entertainment multinationals) in practice changed the rules of the game to their own advantage. (Video zones is but a modes example.)

Do I believe all monopolies are bad? True "Free Enterprise" disallows unreasonable monopoly. So, as a matter of principle, yes – but in practice, no.
The USA had one of the best phone systems in the world before anti-trust measures shattered Ma Bell into pieces. That was a grave mistake, in my opinion; things worked far, far better before.

At the outset, size and ethics have nothing to do with each other. In practice, they do. In most mulitinationals and in large national corporations you basically get a cybernetic process that removes the human element from decision making. From pharmaceuticals and oil, from IT to entertainment, from fashions to the food industry, we see a decision-making process where there seems to be a very direct relationship between size and the lack of ethics.

By and large, CEOs and Chairmen that place human (or environmental) factors before immediate shareholder interests don’t last long in the job. In fact, they’re not likely to become CEOs or Chairmen.

Can you find unethical small corporations? Of course you can; plenty of them! But they don’t have the same negative impact.

Such conscious choices are commendable. I try my utmost to make similarly informed decisions about who I do business with.

But for every one of us who may do so, there are hundreds who do not make similar choices – and thus companies can carry on with questionable practices. And they can do so based on a simple cost-benefit analyses. Relatively speaking, most of the time, the static they receive is marginal.

Hence I firmly believe that there are instances when government measures designed to protect consumers, or reinstate fairer business practices, are called for.

Carlos, I have great respect for your libertarian outlook, which is very consistent and well-founded. I just happen to disagree, that’s all; I don’t embrace that philosophy as ideal or practice. (And I’m not alone. There is a vast difference in approach between Europe and North America.)

DRM/DMCA is one such area of legitimate intervention. So would a repeal of laws that confuse copyright protection with video/DVD zones, whose only objective is market segmentation and profit maximisation.

Respectfully,
ArcticStones

PS. On a tangent: I think the recent US "thumbs down" to insistence on a one-tier Internet was tragic. And I fear we will soon see the ill effects of the telecoms’ victory.

.
NovaScotian makes two important points:

1.) The last thing we need is ill-founded regulation – there is too much of that. We don’t want measures that make the cure worse than the disease. Agreed; but that calls for wisdom, not laissez-faire abstention.

2.) The "nanny mentality" is abhorrent. The State is not a surrogate mother. Agreed; so intervention and regulation should be carefully considered and used only as a last resort.

Intervention as a last resort: I guess I apply that to critical services. If you can't get water because the water company decided to say that you have to sign a horribly restrictive contract, I'd support regulation. Part of the intrinsic monopoly of laying pipes under streets means you accept regulation. Again, I simply don't see any moral or ethical NEED to regulate a non-essential industry, and therefore don't believe it's a last resort. When Apple starts bombing the headquarters of competitors, maybe it's time...

Without deregulation where would we be now? Would we have VoIP? Would long distance calls cost 40 cents a minute? Deregulation had a small destabilizing effect, but it also opened the door to innovation and price competition. What if only AT&T could develop VoIP?

The destabilization was temporary and it was OPTIONAL. You could choose to stay with your legacy company or try a new, maybe less reliable carrier. Right now I gotta tell you, VoIP is nowhere near the five nines of reliability the legacy PSTN has, but it comes down to money. Is the cost of unreliability less than the cost of the reliable service? Yes. If you don't want that compromise, you can still buy legacy service.

For the record, I did not assume bad faith or nationalistic bias.

Unless you reject the proposition that no government intervention beyond existing, reasonable copyright law (which is an interesting debate on its own) will result in a market driving DRM-based solutions out of business by providing DRM-circumvention and better value for the customer, the problems with french and norwegian opposition to unreasonable and retroactive contract conditions instantly goes away.

NovaScotian, like Arctic alread pointed out, it is a question of appropriate reaction. If you seriously want to stand up to proclaim that lobby-driven restriction of basic liberties is reasonable while laws protecting John Doe from abusive retroactive changes in contracts are not, go for it.
You'll probably have a hard time to defend such a point of view.

Consider this (hypothetical) situation:
Suppose someone invents a mechanism for a soccer ball (football for non-North Americans) that can detect player behaviour that is against the rules (e.g. use of hands) and report it (via wireless) to a central computer system. The communications are encrypted not only to ensure security. A company starts marketing this mechanism together with the software that runs at the referee station. They sell a kit that includes several balls and the software. Additional replacement balls are available at a reasonable price.

The system is well-liked and is started to be used at the better-off clubs, but the price of the whole kit is prohibitive for smaller clubs.
Since the balls (with mechanism) are available separately at a reasonable price, some people start to work on cracking the encryption so that an open-source computer program can be used with those balls.
This is successful and the program is made widely available.
The original company finds that its sales of kits are starting to slip. They are selling lots of replacement balls but few kits - and the pricing is such that they really only make money by selling the kits (i.e. the software is the real money-maker).

Should the government step in and protect the business model of this company by enacting laws that prohibit decryption or other means of using the balls without buying the whole kit?
Or should the government enact laws that prohibit the use of encryption in outdoor game equipment?
Or should it just leave things alone and let the market (and the company) sort things out?

For this analogy to work, we'd have to assume that there are no patent or copyright protections in place. We also have to assume that the encryption was bad to start with, since it was hacked. And we have to assume that the company built a poor business model since it can't make money from all its products.

We also already went through this. Gillette used to basically give away razors that only used its own blades. So third-party blades came on the market, Gillette sued, and lost.

No government needed.

And to answer your question, I would always vote for the free market working it out with possible use of the civil courts.

meanwhile all the soccer players are left without trust and set to become obediant drones, taking the soul out of the game...

This assumption might not even be needed, item 1 in post #21 of this thread most probably applies:

"DRM systems don't work"

See the document linked there for detailed discussion.

There's a difference between the encryption used to transcode a signal, and that used within a communications system where both ends are fully controlled.

DRM is easily hacked because you have access to the source and the result, so you can mathematically deduce the intermediate step. With a communication channel between two closed systems you would not have that benefit, if done right.

New technology combined with amputation of culprit’s limbs? :cool:

Did I just see a one-armed Maradona wander offstage, or was that God missing one hand?

Enoug for now! I’m off to watch Brazil-Croatia. :)

True, and I believe I made that point. The reaction was ill-considered, over the top, and aimed at their own customers.

I don't want to stand up for any of the regulations or reaction. I merely pointed out (as in Hayne's example) that in this instance, the customer started it. The appropriate response was to change the model and join the fray. To some extent ITMS did that, and DRM isn't their idea.