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Re: [affs-project] Re: [Fsfe-uk] APIG inital report

From: Alex Hudson
Subject: Re: [affs-project] Re: [Fsfe-uk] APIG inital report
Date: Wed, 08 Feb 2006 22:48:20 +0000

On Wed, 2006-02-08 at 17:02 +0000, MJ Ray wrote:
> I've heard that APIG will be visiting the US Congress to see the US
> DRM lovefest and the Internet Caucus. Did you get any indication about
> that?

Yeah, they did say that they were going along to that. I don't really
recollect much more that they said on the topic; I think it was
mentioned in passing during introductions. 

> > thankfully, the pro-people all seemed to be pretty awful and whoever
> > kidnapped the music industry people and replaced them with hippies
> > really saved our bacon.
> As far as I could tell when I worked in a radio station, or later
> working next door to one, or later working in some gig venue offices,
> the music industry has always been an uneasy mix of suits and hippies.
> It really is an interesting area: I think we could get a lot of support
> by using the idea of "remixing" for all types of software.

Hmm. There's support there, but I would think that the number of people
willing to treat all digital works identically and then also agree that
remix rights are required is a pretty small set. I don't think you need
to buy into either of those options in order to oppose DRM.

The arguments "we" (FFII/ORG, but mostly ORG) made were weak for a
number of reasons, which I will go into in more detail, but briefly:

      * we didn't reject presuppositions when presented with them;
      * questions revolved around an anti-choice agenda.

First bullet point was simple - as an example, the group were presented
as the "open source" people, even though no-one there was presenting as
such in any way, and made no representation to speak as such. That set
the tone - the argument was presupposed to be one being made on a
pro-sharing agenda.

Second - questions we were asked centred around why we wanted to stop
people using DRM. Fundamentally I think that's difficult/impossible to
defend, it's a restriction on choice and the 'vote with your wallet'
response is compelling.

We first have to understand the arguments that are being put forward to
support DRM. The stuff about piracy is a part of it, but only a small
part. DRM is proposed as a way of creating markets where none can exist
- in particular, the micropayments in return for limited use model. The
idea is that DRM actually widens choice by making these limited use
licenses available as an alternative to what currently exists.

Now, the consumer organisations were able to destroy that argument
pretty effectively on two grounds: a) people don't understand these
bizarre limited "three plays and you're out" style scenarios, b)
although we don't have a fair use system in this country, the public
acts as if we do and an argument can be put forward to say that there
ought to have one. Putting a and b together leads to a fairly solid DRM
== unfair contract type argument.

I'm also pretty convinced, though not totally, that fair use rights
cannot exist alongside DRM. If we recognised the fair use rights which
people claim through their personal activity, I think DRM would be
virtually legally unworkable. I'm also pretty sure that those sitting on
the inquiry understood this particular point *very* well. Also, the DRM
as an economic enabler argument doesn't really hold water, but that's a
vastly more detailed issue.

I don't think it's possible to argue that DRM should be prevented, per
se. I can't think of an argument along those lines which works when you
stack it up against free trade or the rights of authors to control their
output. So, I don't think arguing that preventing DRM damage would
increase creativity and/or profitability can ever be a winning argument,
even if it's potentially true - Govt. just wouldn't ever get involved.

In order to argue effectively against DRM, I think we really need to
understand the premise for DRM. Basically, the APIG questions all boiled
down to "How would <x creative industry> work without IP protection?" -
and received a restatement of some minority economic viewpoint usually
founded on some belief of the gift economy. What we should have done was
to disengage from that economic/creative line, which I think tends to be
unconvincing anyway, and shoot down the link between "IP rights" and
"technological means of enforcement": when we should have been arguing
against the use of DRM technology, the arguments came out against the
use of IP law. We need to disentangle those two things - you don't need
to believe in strict copyrights/whatever to believe DRM is wrong, and it
again erodes the support base.



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