16 November 2005

Remember Why the Good Lord Made Your Eyes: Digitize

I offer no apologies to Tom Lehrer whatsoever for the title of this entry. Those with particularly sardonic senses of humor might consider the relationship between "digitize" and "plagiarize."

In any event, for about two more weeks the Copyright Office is accepting comments on digital rights management.

The Copyright Office of the Library of Congress is preparing to conduct proceedings in accordance with section 1201(a)(1) of the Copyright Act, which was added by the Digital Millennium Copyright Act and which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention. This notice requests written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers and members of the public, in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by this prohibition on the circumvention of measures that control access to copyrighted works.

70 Fed. Reg. 57526, 57526 (Oct. 3, 2005). Given the recent controversy over Godzilla's ineptware version of DRM,1 this particular rulemaking appears unusually timely.

The underlying difficulty is that DRM is inherently an inept solution to the basic problem, no matter how elegantly implemented; the problem extends far beyond limitations on (or expansion of) fair use. Instead, this is a matter of economics and price points. The fashion industry in the 1980s provides an excellent case study of the problem—and continues to do so today. Particularly among US military personnel, off-base shopping in Korea was not just a job, or adventure: It was a matter of principle. The typical purchase was not of high-end counterfeits, but of mass-market counterfeits. In other words, it wasn't Prada, but stuff that one might have found at Penney's. The servicepeople wanted the K-Mart/Target/BX price on material largely distinguished from the "brand names" by the brand name itself, not anything inherent about the quality of the materials.2 Conversely, whatever the whinging coming out of Manhattan (and Milan, and Paris), counterfeit Prada purses don't seem to be jeopardizing Prada's profitability—probably because anyone who cares enough to buy (or be impressed by) Prada in the first place can spot the counterfeits.

This points out the economic model for preventing (or combatting) piracy: The perceived quality and availability of the genuine article must substantially exceed the premium over the counterfeit. One reason that I haven't bought a recently released CD in about three years is that the quality—either of the material on the CDs or the materiel comprising the CDs—does not justify the $14–$18 list price of the CDs; even purchasing them at a discount store for $12 seems overpriced.3 On the other hand, I've purchased several DVDs recently when their prices dropped to the point that the marginal cost over my VHS copies was less than the perceived value of the material. For example, The Princess Bride and Sneakers were both under $8 at a mainstream discount store—two-thirds the price of a crummy CD that is half as long, in higher-physical-quality packaging and a more-reliable media format. Thus, I signalled that the price I'm willing to pay for that particular product is around $8.

Contrary to film-industry and music-industry whinging, downloading audiovisual media off the Internet is not entirely costless; there's the marginal cost of the hard disk space occupied, connection costs, time, etc. Then, too, there's the comparison to the cost of seeing a film in first run. My experience with pirated electronic books shows a parallel effect: Virtually the only ones that get pirated quickly are those available only as overpriced casebound editions, even when they're reprints.4 All of this implies that instead of DRM, the media giants need to take a close look at their pricing structures, accounting, release timing, and value added to physical products. However, since that might involve admitting to themselves that many of their products are shoddy, the media giants aren't going to do so.

  1. Godzilla was/is a Japanese movie monster. This particular monster also has both "good" and "evil" aspects—its hardware is usually first-rate materiel, but its content… better left unsaid.
  2. In several blind tests of casual outerwear products in the mid-1980s, the discount-chain versions were found to be of substantially higher quality than a certain commonly counterfeited brand that sold for a $10-$12 premium on an item ordinarily listing under $30.
  3. That's what libraries are for, kids. My local library has an exceptionally fine lending collection of music, so I can clearly determine that only a couple of tracks off the latest album by [artist name masked to protect the guilty] are worth even listening to all the way through.
  4. OK, some of this might relate to durability of editions as they get squashed onto the scanner and to the inherently better OCR quality of larger-print versions. It does not explain, though, why so few paperback originals—many from authors embraced by the e-book pirate community—make their way through. The difference between a $7-8 mass market paperback and a $27 casebound, however, does.