Why “Reforming” Copyright Will Kill It

The Electronic Frontier Foundation recently filed a lawsuit challenging Section 1201 of the Digital Millennial Copyright Act (DMCA) on constitutonal grounds. According to the suit, that section — which criminalizes not only the circumvention of Digital Rights Management (DRM), but criminalizes the sharing of information about how to do it — is a violation of free speech rights under the First Amendment. At Defective By Design, Zag Rogoff argues (“This lawsuit could be the beginning of the end for DRM,” Aug. 17) that overturning Section 1201 may well destroy DRM altogether. “Hopefully, when 1201 is gone, circumvention tools will spread more widely and it will be so difficult to restrict users with DRM that companies will just stop trying.”

This would amount to obliterating the “DRM Curtain” model of capitalism in the information field — a system of economic extraction and class rule comparable to the system of bureaucratic privilege in the old Soviet Union in its reliance on suppressing the free flow of information. It would put an end to the centerpieces of copyright culture today — DMCA takedowns, “three strikes” laws cutting off ISP services to illegal downloaders, and domain seizures of file-sharing sites.

But as Cory Doctorow points out (Courtney Nash, “Cory Doctorow on legally disabling DRM (for good),” O’Reilly Media, Aug. 17), this won’t just destroy the draconian legal regime in what’s conventionally regarded as information industries — music, movies, software, etc. — but increasingly prevalent use of copyrighted software to enforce proprietary designs and business models for physical goods. This includes limiting appliances to proprietary replacement parts and accessories (like printer cartridges), by DRMing the appliances to reject replacement parts that don’t pass an “integrity check” that verifies they come from the manufacturer.

“This is a live issue in a lot of domains. It’s in insulin pumps, it’s in voting machines, it’s in tractors…. Several security researchers filed a brief saying they had discovered grave defects in products as varied as voting machines, insulin pumps and cars, and they were told by their counsel that they couldn’t disclose because, in so doing, they would reveal information that might help someone bypass DRM, and thus would face felony prosecution and civil lawsuits.”

In short, eliminating the legal enforcement of DRM — by criminal, mind, not civil law — would effectively destroy all business models based on proprietary digital information, both in the “information industries” as such and in manufacturing. And these are, mind you, the primary source of profit in today’s global corporate economy.

Interestingly enough, thinkers like Doctorow and Lawrence Lessig say they’re not against copyright — they just want to reform it and make it more reasonable. But from what we’ve seen above, it’s absolutely dependent on police state measures like the DMCA and the “intellectual property” provisions in “Free Trade” Agreements like TPP for its survival in any remotely recognizable form.

That’s not to say copyright would cease to exist or be enforceable in any form. But what would be left of it, absent DMCA takedowns and criminal prosecution for file-sharing, would be the quaint world of copyright in the 1970s. The main material effect of copyright law would be to prevent the mass printing of unauthorized versions of copyrighted books, or of hard copies of recordings for sale in stores. And that would be far less significant for readers and listeners than it was back in the ’70s, when the inconvenient or poor quality output of photocopiers and casette recorders was the main threat to the publishing and record industries. Back in those days, the relative significance of copyright as a mechanism for rent extraction was relatively marginal, compared to capitalism’s other sources of profit.

The model of proprietary digital capitalism we’re familiar with — the central model of global corporate rent extraction — is absolutely dependent on police state measures like criminalizing the circumvention of DRM, the takedown (without due process of any kind) of allegedly infringing content online, and government seizure of Internet domains and web hosting servers without due process. Without them, it would simply collapse.

But fortunately, that model of capitalism is doomed regardless of the outcome of EFF’s lawsuit (and I wish it well!). Even as it is, circumvention technologies have advanced so rapidly that DRM-cracked versions of new movies and songs typically show up on torrent sites the same day they’re released, and Millennials accept it file-sharing as a simple fact of life. This culture of circumvention is now spreading into academic publishing with SciHub. How long before it spreads to proprietary spare parts and diagnostic software?

As always, as Center for a Stateless Society comrade Charles Johnson says (“Counter-Economic optimism,” Rad Geek People’s Daily, Feb. 7, 2009), an ounce of circumvention is worth a pound of lobbying.