Questions for Gannon

James Gannon had a post last week which was rather honest about the purpose of DRM protection in copyright law. It is all about supporting the business model that the incumbent industries want to adopt.

Unlike some Ministers of her Majesty's government, I am genuinely interested in understanding the perspective of those in this debate whom I disagree with.

Gannon's site does not allow posting comments, but it did have a link for sending a message to him. I sent him the following message.

James I read your blog "Bill C-32 – User Exceptions and Digital Locks" and I agree that DRM allows this sort of market segmentation. I think you would find most critics agree with much of what you say, except for the part about it reducing consumer prices. One need only look at DVD region encoding to see that this is really a way to extract the maximum return from a fractured market rather than provide for reduced consumer costs. Protection for DRM will see higher consumer cost for the same rights they have now, or significantly reduced rights for the same cost. Either way the consumer will lose.

There are many issues with this legislation which you do not address, however two important ones from my perspective follow. I would be very pleased if you could address these, either directly or via another blog posing.

1) Why do you need legal protection for DRM in copyright law to achieve this end? The same business model could easily be protected via a contract model. Electronic goods could be water marked, and clauses within the contract could hold the renter liable, with significant penalties, in the event that these watermarked works are found on the public internet.

2) How do you justify the loss of private property rights? With this bill, it is not only illegal to break the locks on the DVD, it is also illegal to break the locks on the DVD player which is the property of the user, not the publisher. It also become illegal to jail break your Iphone, so that you are no longer tied to apples market place, but can instead run your own software of your own choosing. The same restrictions apply to countless other devices you may purchase. There is a significant and detrimental loss of tangible private property rights through this legislation which none of its proponents are choosing to address.

I am sincerely hoping he will reply with either another blog of his own, or a direct reply to this one. These are questions that proponents of legal DRM protection have so far avoided answering, but they are extremely relevant and it is important to know their answers to them.

So James. Please do respond....

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I too am interested.

Every legitimate justification I have ever heard for legal protection for technical measures related to technical measures that protected e-commerce sites or technical measures that protected copyright. In fact, you have to radically rewrite copyright law to create a brand new "access" right in order to justify legal protection for access controls in Copyright law, with this new access right effectively replacing all other aspects of the copyright act. I believe some of the other countries at WIPO recognised this, which is why they rejected this US position when drafting the two 1996 WIPO treaties.

I have a feeling that this is the intent in some cases, and that some TPM proponents really are opposed to Copyright and want it replaced by a new "access" right. For these people I think it is dishonest for them to be claiming to be pro-Copyright, when what they are advocating is as radical as those (largely straw man) abolitionists they like to pretend are common.

I have had the same critique of some of Barry Sookman's writing where he has falsely suggested that "access" has been part of copyright rather than being part of the business models used by copyright holders, but protected by other rights. Copyright is not the only tool at the disposal of copyright holders and their business partners. If you enter a movie theatre without paying you are guilty of trespass, not copyright infringement. This distinction is critical to the debate.

Free/Libre and Open Source Software (FLOSS) consultant.