Introduction

Some of you have told me and noticed that I talk more about being against DRM than I am talking against capitalism or against George W. Bush. Of course, I'm not saying that the issue of Digital Restriction Management (or what the industry calls "Digital Rights Management") is more important than, for example, children starving around the world, not having an universal health care, or global warming. Yet, it is important. I hope to show why.


DRM is in Principle a Stupid Technology: Part I

DRM is intrinsically and essentially a stupid technology for three reasons:

First, DRM is the consequence of a false premise concerning copyrighted content: That actually you can create a fence around it and declare it your "intellectual property". As Rousseau would say, when the first person placed a fence around a piece of land and said: "This is my property", and the others were naïve enough to believe it, that's how the inequality among humans began. However, there can be a reasonable basis for an elementary notion of property: I have this house I live in ("a place to keep my stuff" ... as George Carlin would say), I have a car, I have this book, etc.

But expressions and ideas are completely different in nature from physical things. Ideas and expressions are meant to be shared. If I take your radio to my house, you no longer have it, and I have it. The result is that I have gained something and you have lost something. On the other hand, if you express an idea, I can grasp it also, and I have now "something new", but without you losing the idea or the expression itself. If you tell me: "Today is a sunny day", I can grasp that expression as well as you do, I gain, you don't lose.

Every culture around the world, even ours, nourishes from sharing ideas and expressions. Since pre-history, humans have been sharing musical ideas, artistic ideas, literary ideas, and expressions of all kinds. If you look at civilizations in Asia, Europe, Africa, and America, you realize that everyone copied from everyone else! But at the same time they gave a new twist to it, providing something new. Judaism, for instance, took some of its myths from the Assyrians and the Babylonians, but provided a whole new story of its own about how God created the world. Christianity, thanks to St. Paul, the author of the Gospel of John, as well as the Fathers of the Church, took lots of ideas from mysteric religions, and Neo-Platonism, but also provided new ideas of its own. Christianity in Europe would not have been possible if it did not incorporate lots of cultural aspects of the different societies it ended up ruling upon. The same with Islam, the Hindu religion, Buddhism, Tao, the Aztecs, the Incas, the peoples of the Congo... Everyone copied, and modified, and expressed themselves in all variety of ways. This is no less true in philosophy and theology: using other people's ideas and expressions has been essential for the philosophical enterprise. For those of you who are philosophers, imagine if Hume would have declared his "relations of ideas" and "matters of facts" as "intellectual property"; wouldn't that have affected Kant's distinction between "analytic" and "synthetic judgments", and therefore would Kant have not advanced with his new idea of "synthetic a priori judgments"? Mozart and Beethoven ... yes, those great composers! ... did copy, and modify, and remixed, and composed, until they made the most wonderful music in the history of mankind. Today's hip-hop's tendency to sample is just the modern expression of that. Literary works were also copied. El burlador de Sevilla of Tirso de Molina was one of the bases of the famous character "Don Juan Tenorio" (John Tenor), even Mozart's famous work Don Giovanni. If you look at Don Quijote de la Mancha we are only reading a parody of lots of literary works that existed at that time. Shakespeare created much of his literary works taking ideas and expressions from lots of places, from Ancient Rome, to then Italy, etc. Disney's industry is completely based on works available for everyone in the public domain: Snow White, Sleeping Beauty, Cinderella, Alice in Wonderland, Alladin, .... you name it!

Why did this happen? Because people were exerting a natural right: the right to make copies and modify them! Of course, these people did believe that their house was theirs, that their books were theirs, that their land was theirs, etc. But ideas and expressions are not anyone's property in any way.

But then something happened. Guttemberg invented moving types. This made easier the printing of books, and hence, let people have more access to information. This established an industry where you could create massive publications and sell them to anyone you wanted to at a reasonable price. But there was a problem. Stationaries were profitting from these works immensely, the public was enjoying them, but the authors of these works were not getting paid. Why would all of the sudden authors were worried of getting paid? Because the stationaries were getting all their profits of their works, and this was a turn-off for literary and art creation.

The original copyright was created to address that problem, a measure to create a bargain between the author, the publishers and the public. Stationaries, as created by people, had the natural right to make copies. But they were a special kind of people: people who can afford the equipment to copy in a massive scale. Most people at that time could not do that.

The original copyright disposition recognized two things:

(1) The government should issue a temporal and limited monopoly over "copying" a work so that authors get paid for the commercial works they create, this would be an incentive for authors to create more works;

(2) this monopoly should cease to exist at some point, because it should enter into the public domain.

Why? Because, culture needs the public domain so that other people can use these expressions and ideas and keep working on them, modifying them, and make more and better literary and artistic works. So we should conceive Copyright as a trade or a bargain: the public trades away its natural right to make copies and in exchange they receive more and better artistic and literary works. If you are unable to have stationaries to make massive copies, and you give away a right you cannot exercise anyway, and you receive better works, the inevitable net result is that the public is gaining. Stationary industries were obliged to pay the authors as a condition to profit from their works.

So, in England we find the Statute of Anne, the first copyright law as we know it, and in the United States we find a disposition in the Constitution. Both of them stated that for the purpose of promoting the arts and sciences Copyright could be established as a way to accomplishing that task. In the United States, when the Constitution was drafted, it was proposed that Copyright should be considered a right of authors. This was rejected. Instead it stipulated that Congress can choose to create a law providing copyright for works as long as they promote the arts and sciences. If there is a point we reach that Copyright no longer serves that purpose, Congress is free to eliminate it.

However, notice that the public gave away the right to copy a work massively, but it did not give up other rights such as taking some works, creating parodies, creating new works based on others, and so on. Later, when technology provided the means to copy some works, it provided the notion of "fair use" of copyrighted works: copies can be permitted for many non-commercial purposes, educational purposes, and others which clearly the public did not profit from them, and other situations where the public reserved their rights to copy.

Today, unfortunately, the "fair use" rights, the notion of "intellectual property", as well as the terrible extensions to the period of copyright placing in danger the public domain, far from helping culture, are preventing its development. Authors and artists have been misled by the "intellectual property" ideology into believing that the content of their works belongs to them, when in reality what they own is a temporal and limited monopoly over copying a work ... that's what Copyright essentially means! And if we look deeper into the problem, for all practical purposes, many of them don't even own their copyrights, instead big corporations do. Most authors, contrary to popular belief, do not receive one cent from their works.

I agree that Stephen King has become a millionaire publishing, but he is the exception, not the rule. Today the story of an author with a publisher is mainly the one recently a friend of mine had to go through. He is a well-known philosopher, recognized internationally, and wanted to publish a book on Gottlob Frege. He had very few options, but found a publisher that said: "Yes! We will publish it!" Well, the publisher chose to publish it in hardcover in a list price of almost $100.00. And to be able to receive at least one cent, he has to wait until he has sold 500 copies of his book. Since the Gottlob Frege market is not that big, then he won't receive a cent in quite a while. Now he signed a contract with the same publisher to make a softcover version of the book, but for all practical purposes he won't receive much for that either. Worse than that, he previously co-authored another book about Edmund Husserl and Gottlob Frege which he published in 2000. Do you know how much money its authors received from then until now? I'll give you a hint! $0.00. The same thing happens with record labels. Musicians and artists of the major labels do not own their Copyrights, and the vast majority of them would have received better pay if they worked in Wal-Mart or a 7-11. So, think about this the next time these publishers and labels approach you and tell you not to copy saying: "Would someone think of the artist? ... the authors? .... Would somebody, pleeeeeeeeeaaaaaaaaassssseeeeeee think of the children?!"

Since corporations are in the business of creating "fences" over works, they try their best to create artificial fences such as DRM and say: "Hey! This is MY property", and most of us naïve people, believe their story. In fact, they create in us a sense of guilt if we dare copy something. They tell us that we are "pirates" and that we should be in jail for "stealing" a work. We are the only society in history where actually sharing, mixing, and copying is ethically equivalent to attacking a ship, as Richard Stallman eloquently puts it. All other societies in history see it as an essential aspect of their cultures. That's how cultures evolve! And now that we are in the world of computer networks, the public can be creative to its maximum capacity, share this information all over the net, and enrich itself from all kinds of art, music and literary content, as well as all kinds of experiences.

However, how can you create a fence around an expression or an idea? You can't! No corporation can do something like that. As humans we live in a society, we share ideas, we share expressions, that's what humans do. Practically we are asked to act against our own nature as rational beings to give it up for big corporations. The original balance between publishers, authors and the public is tipping in favor of publishers only. The idea of copyright is to create that balance once again.

DRM, in this sense, is stupid in two very important aspects: (1) You can never create a fence around expressions and ideas; (2) You can never benefit culture by restricting the people from their fair use rights as well as the public domain ... we need both!


DRM is in Principle a Stupid Technology: Part II

This part is more a technical reason why DRM is a stupid technology. Obviously, this has more to do with the aspect of cryptography. The following example is elaborated from Cory Doctorow's example, when he discussed this subject. If you want to send a message to a second person (let's call her Sarah), without a third person (Charles) knowing about it, you can choose to encypher a message so that only Sarah, but not Charles, can understand what it says. You can choose whichever algorithm you like, if Sarah knows it, she will be able to decypher the message. Great! But, the problem with encyphering messages is that people can find out how to decypher the message, and the message not always can be kept secret. There is another bigger problem to keep the message and the cypher secrets because today we can count on computers, with which we can find out any kind of cypher and be able to decypher messages.

So what do you do? Since Charles is an attacker, you don't want him to know anything about what you are telling Sarah, so you use a "key encryption". That is, you use a technology of encryption where the only person who can see the message is the person who has the right key. Charles, even when he knows the cypher will not be able to read the message without having Sarah's key. And as long as Sarah and you keep your private keys secret, you're both happy!!! Charles will never learn anything that you sent to Sarah. As Cory Doctorow would say: Hooray for you and Sarah!!!!

Now, let's translate this to DRM. Now, you are a filmmaker, and you want to sell Sarah a DVD. Let's say that you're George Lucas, and you want to sell the Star Wars Trilogy to Sarah. However, you don't want Sarah to make copies so that she can share it with her friends. This is a business! And business is as business does! Your goal is to maximize profits, otherwise your shareholders will penalize you in the marketplace. Sooooo.... you encypher digitally the movies, and place a key on it. Besides, if Sarah is a potential Copyright infringer, then she has to be considered an attacker!!!

Great! You placed in the movie a cypher and a key. Sarah won't be able to copy it!!!! Horray for George Lucas!!! .... Except ... that YOU have a problem. Sarah will complain against you because she cannot actually watch the movies. Since you placed a cypher and a key on it, she can't have access to the movie!!! She's right! You have to do something, or she'll ask the money back. Your business would be ruined! So, what do you do? You have no choice but to provide Sarah with a DVD Player which has the capacity to decypher it and a key decryption so she can watch the movie Get it?

In case you didn't get it, let me spell it out for you. DRM's essential stupidity consists in the fact that although it is designed to "protect" copyrighted content, its design defeats its goal. The problem with DRM, as Cory Doctorow says, is not that the people who create them are stupid, is not because the people who break them are smart, is not because there is a flaw in the algorithm. The essential problem with DRM is that you are providing "the attacker" with the copyrighted content, the cypher, and the key. Stupid, isn't it!!!!??? No wonder the hackers are able to break it in hours, sometimes days, and rarely in months!


DRM is in Principle a Stupid Technology: Part III

Now, sometimes people consider DRM to be a restriction for the average individual, not experienced hackers and crackers. However, this does not work. What do I mean it does not work? Well ... Have you seen the "Darknet Paper"? Yep the "Darknet Paper"! It is a paper actually titled "The Darknet and the Future of Content Distribution". Do you know who the authors are? People employed by Microsoft! You can see it as HTML content here or download it in PDF form here. What does the "Darknet Paper" say? Well, that if you place a DRM to people in order to avoid "piracy", you will have the effect of creating more illegal downloads.

"What???!!!" you may think. Well, as I said before (in Part I), despite illegal copying, there are perfectly "fair use" of copyrighted material based on the notion of the balance between the authors, the publishers, and the public. The public reserves some rights for copying, which is mainly legitimate copying. For instance, Cory Doctorow gave the example of a mother he knew, who has three kids. She bought a DVD, but given that her children damage almost everything they get their hands on, she decided to copy the original DVD, and give them a copy so they could watch it (and damage it) whenever they wanted. So, she began copying the DVD and waited .... but she failed! There was a DRM system that prevented her to make the copy.

Of course, the DRM can be broken with a device that can be bought on eBay. However, she doesn't know that. So, what will she do next? The "Darknet Paper" tells us ALL about it: She will know about KaZaa or eMule, and next time she wants to copy something for the kids, she will not waste her time and money buying it in Suncoast, instead she'll download a DRM-free version from the internet and burn.

Again, DRM ... stupid business strategy. Stupid, stupid, stupid!


DRM as Harmful to Society

There is another aspect of DRM that really creates problems, it harms society. To avoid situations like the mother who downloads stuff from the Internet, the lawmakers and corporate lobbyists have created a horrendous policy, forbidding anyone to break DRM systems, placing extremely high fines or sending people to jail for no good reason.

Take me for example. Under the Digital Millenium Copyright Act, I'm a criminal. Because I had an awful experience with Microsoft Windows, I changed my operative system to a free (in the sense of "freedom") operative system: GNU/Linux. What was the bad experience? Very simple! Due to a damage my computer suffered, I needed to change the motherboard of the computer and the CPU, so I bought another one. But I couldn't use exactly the same hard drive to boot up the computer since Windows XP is designed not to work with other motherboards or CPUs in case they are changed, so I bought another hard drive, and passed all the information from the older one to the newest one. I reinstalled Windows XP, and when I tried to play my music, it locked up because the music that I had "was licensed to someone else" (i.e. my own computer when it had the older motherboard and CPU. So, I was restricted from playing my own music. I need to emphasize that this was not music downloaded from the Internet, but actually bought in record stores.

But the problem was deeper than that: Microsoft was spying on me! It wanted to know what I had in my computer. And in the end, it restricted my access to what was rightfully mine. I did not want that. I changed to a GNU/Linux operative system so I would be able to listen to my own MP3's (now they are in Ogg_Vorbis format). However, with GNU/Linux I had some problems. I could not play DVDs. There is something that all DVDs have that is called CSS (Content Scrambling System) which scrambles the data of the DVDs so people cannot watch it unless they have an authorized program to do that. However, I learned there was something called DeCSS, which serves to decrypt the CSS and make me able to watch DVDs. I downloaded it and installed it in my computer, and then I was completely happy!

But there was a problem: DMCA says that I'm a criminal for doing that. But why should I be called a criminal? Hollywood should be happy for my illegal move! Thanks to DeCSS I was able to buy The Passion of the Christ, the complete X-Files series (all 9 seasons), the complete Star-Trek Voyager series, the complete Batman series, Batman Begins, both of Star Wars Trilogy, Batman Beyond, Batman Begins (yeah.. I'm a Batman freak), People v. Larry Flynt, Dances with Wolves, Shaka Zulu, V for Vendetta, Stephen Hawking's Universe, the complete Monk series, House series, as well as independent films bought from "The Film Movement". Sometimes I have so much movies that I have the impression I'm financing Hollywood. But if I don't use DeCSS, what would be my option? Well, download all of these wonderful movies from the Internet .... Does Hollywood want that? I don't. If I like a movie, I believe that I should pay aritists, authors, as well as the industry.

But notice the paradox, my hero, Jon Johansen, the Norwegian hacker who created DeCSS, was sued and has been in jail. His crime? He was accused for illegal trespassing on a computer. Do which to know which computer? His own computer! I'm doing exactly the same thing.

But there are other harms that people don't notice. DRM usually are created also for "security" reasons. Of course, it is a lousy way to secure something: giving your attacker the key to enter your house! In the computer world, specially in the free software world and the open source world, we know that the surest way to guarantee security is to expose the flaws to others. Cory Doctorow called "Schneier's Law" the following statement: Everyone can create a security system so clever that he or she will not know how to break it. What does it mean, that anyone can create a system that is unbreakable? No. It means that I can create a system that for me it will seem that is unbreakable, but that does not mean it is unbreakable. So, what do I do? I make it available to as many people I can about it, so they are able to find flaws in the system, to then be able to build a better security!

What happens to DRM? The DMCA essentially forbids this kind of research. If you are a researcher, programmer or investigator, and you create a DRM to "secure" copyrighted content, then whoever breaks the security and inform people about it turns instantly into a criminal. Academic works on computer security are precisely in danger because of this, professors and programmers who are creating these kinds of academic works have been sued or even have been placed in jail. What is the result? That the corporations and the public will live in a fool's paradise with the illusion that they can be secure with this so-called "protection of copyrighted content", but in reality providing the means for crackers to do whatever they want to do. See why free/open-source software is genuinely more secure than proprietary software?!

But worse than that, it creates an environment where people are more afraid to share, and to provide information. Today, fields like science are harmed by these overwhelming copyright restrictions by corporations. If scientists cannot share their ideas of their findings, the result is that it will hinder research and provide less knowledge to society. That is why the Public Library of Science project is so important, because it is free for everyone to access to scientific research and information.

And still worse than that, societies like Europe and the United States are de-evolving from societies which protected the right freedom of expression to more closed societies like the former Soviet Union. Think I'm exaggerating? Read a comparison made by Richard M. Stallman of today's Copyright law with the repressive regime of the Soviet Union:

There [in the Soviet Union], they developed a series of methods: First, guards watching every piece of copying equipment to check what people were copying to prevent forbidden copying. Second, harsh punishments for anyone caught doing forbidden copying -- you could be sent to Siberia. Third, soliciting informers, asking everyone to rat on their neighbors and coworkers to the information police. Fourth, collective responsibility: "You! You're going to watch that group! If I catch any of them doing forbidden copying, you are going to prison. So watch them hard." And fifth, propaganda, starting in childhood, to convince everyone that only a horrible enemy of the people would ever do this forbidden copying.

The US is using all of these measures now. First, guards watching copying equipment. Well, in copy stores, they have human guards to check what you copy. But human guards to watch what you copy in your computer would be too expensive; human labor is too expensive. So they have robot guards. That's the purpose of the Digital Millenium Copyright Act. This software goes in your computer; it's the only way you can access data and it stops you from copying. [. . .]

Second, harsh punishments. A few years ago, if you made copies of something and handed them out ot your friends just to be helpful, this was not a crime; it had never been a crime in the US. Then they made it a felony, so you could be put in prisons for years for sharing with your neighbor.

Third, informers. Well, you may have seen ads on TV, the ads in the Boston subways asking people to rat on their coworkers to the information police, which officially is called the Software Publishers Association.

And fourth, collective responsibility. In the US, this has been done by conscripting Internet service providers, making them legally responsible for everything their consumers post. The only way they can avoid always being held responsible is if they have an invariable procedure to disconnect or remove the information within two weeks after complaint. Just a few days ago, I heard that a clever protest site criticizing Citibank for some of its nasty policies was disconnected in this way. Nowadays, you don't even get your day in court; your site just gets unplugged.

And finally, propaganda starting in childhood. That's what the word "pirate" is used for. If you'll think back a few years, the term "pirate" was formerly applied to publishers that didn't pay the author. But now it's been turned completely around. It's now applied to members of the public who escape from the control of the publishers. It's being used to convince people that only a nasty enemy of the people would ever do this forbidden copying. It says that "sharing with your neighbor is the moral equivalent of attacking a ship.(See more in his article Copyright and Globalization in the Age of Computer Networks)

For more on how the DMCA has harmed the public read EFF's article on the Unintended Consequences of the DMCA. For more on harms caused by DRM to society see this EFF page on the subject.


Conclusion

We should all reject DRM not only because it is stupid, but because it also harms society. It is based on a very flawed conception of Copyright law that takes rights away from the public, specially of legitimate uses.

Copyright ©2006 Pedro M. Rosario Barbosa. Permission is granted to anyone to make or distribute verbatim copies of this document, in any medium, provided that the copyright notice and permission notice are preserved, and that the distributor grants the recipient permission for further redistribution as permitted by this notice. Modified versions may not be made.