I will make a partial rebuttal to John Gilmore's article on the problems
with content protection schemes.
I distinguish between schemes which are enforced by legislation such
as the Digital Millennium Copyright Act (DMCA), versus schemes which
rely on technological means and market competition to attract customers.
John attacks both kinds of mechanisms equally. But there is a fundamental
difference between them.
The DMCA and similar laws are the real problem in this area. They allow
companies to eliminate competition and are running roughshod over free
speech rights. I applaud the efforts of John, the EFF, and other parties
in working to overturn or limit the range of applicability of these laws.
But when we deal with content protection which is provided on a
competitive basis in the marketplace, it is another matter. In that
case it is ultimately a question of satisfying the desires of the consumer
which determines which products will succeed.
When DVD players were first released there was an alternative scheme
called DIVX which would provide limitations on your viewing of the DVD
disks you bought. In exchange, you could purchase the disks for about
$5 rather than $20 and up for conventional disks. Nevertheless there
was strong consumer backlash against the device and it ultimately failed
in the marketplace.
Shortly, portable MP3 players will have the option of providing support
for the mechanisms designed by the Secure Digital Music Initiative
(SDMI). To succeed, SDMI players must convince consumers that they
are more useful to them than MP3 players which lack these restrictions.
Only if consumers prefer devices which enforce content protection will
these devices succeed.
The nature of the marketplace means that there will inherently be
a competition between the various technologies which can be used.
In a free market, if content protection wins, it is because people are
more willing to buy it than the alternatives. When companies develop
content protection technologies, it is only their own well being which
is threatened. The technology may fail, as DIVX did, which only hurts
the companies. Or it may succeed, in which case consumers prefer the
the new technology to the alternatives.
We should not attempt to second guess consumer preferences and say that
they are making the wrong decision for themselves. We should respect
the rights of the people in the marketplace to make their own decisions.
I understand that John and others worry that consumers will not actually
be able to make choices and decisions, because all products available
to them will have content protection built in. But this amounts to the
belief that industry will form a cartel which seeks to sell products
which make consumers unhappy, intentionally delivering devices which
consumers dislike, smug in their belief that their cartel is 100%
effective and that no competition is possible.
Without the enforcement of laws like the DMCA, such a situation is
highly unstable. There is a huge incentive to produce devices which
don't observe the restrictions and which give consumers more power.
These devices will be popular with consumers and the cartel will be
broken.
The key to allowing competition in the marketplace is to eliminate
laws like DMCA which allow manufacturers to enforce limitations on
their competitors. That is why John's and others' work is so important
in fighting these laws. Take away these legal teeth and force the
companies to compete in a free and fair market for consumer dollars,
and we will see companies supplying devices which consumers want.
This is where I believe John should be focusing his energy. Working to
oppose technical standards for content protection is a waste of time,
by comparison. It dilutes his efforts and muddies the philosophical
principles involved. When they judge a technology only on the basis
of how much it will restrict what they can do, it makes it appear that
opponents of content protection are interested only in getting for free
content which others have worked hard to produce.
A superior principle says, yes, you can create content protection systems,
and you can try to convince consumers that their best interests are served
by adopting them. Let all parties compete freely and openly and let the
best system win. Judge their activities by the means and not by the ends.
If you are truly confident that a world without content protection is
the best, trust consumers to come to understand and believe this as well.
Don't try to use the legal system yourself to force this outcome.
Hal Finney
