There is a lot of disagreement about piracy and DRM (digital rights management) among thinkers in the publishing space. This post will express a few thoughts about both but, mainly, this post is a plea not to conflate the two into the same discussion. In fact, whether they are part of the same discussion appears to be as contentious a point as whether piracy is a threat to publishers and whether DRM should be employed at all.

First, let’s define some terms. I make a distinction (which is not universally accepted) between piracy — which I would define as making a copyrighted file available for free access to anybody who comes along — and “casual sharing”. Casual sharing takes place between people who know each other; piracy takes place among strangers.

It has been observed by many for a long time that DRM does very little to prevent piracy, which is usually executed through web sites that host unprotected versions of content. It has been frequently demonstrated that DRM can readily be “broken” (I have two friends who routinely break it for sport: one in the US who isn’t in the publishing business and one in Brazil who is. Neither of them ever sell or transfer the jailbroken files, but they peel off the protection just to prove they can. And they say they always can.) In fact, books which had never existed in digital editions, like the Harry Potter series, are served up on pirate web sites.

You can scan a printed book and create a digital file pretty readily. There’s recently been a gadget introduced that provides a little automation for that capability. But you can buy content conversion commercially that will give you an ebook file from a printed book for low hundreds of dollars per title. So I would emphatically agree that DRM would do little or nothing to deter a pirate who has a minimum of determination to deliver a pirated ebook file, whether there was DRM or not; whether there was an ebook at all or not!

But casual sharing is another matter, or so it seems to me. People share published material all the time through email, usually by forwarding a link to something they want somebody else to see but sometimes by attaching a file or embedding text or images in the body of an email. Some people (my wife among them) maintain mailing lists of people whom they alert about one thing or another. This kind of person-to-person curation is the new automation-assisted word-of-mouth, and it is a critical component of modern communication.

So here’s what I think. I have no idea whether piracy helps sales or hurts them but, whatever it does, I can’t see how DRM prevents it. But I do think DRM prevents “casual sharing” (it sure stops me; and I think most people are more like me than they are like my friends who break DRM for sport) and I believe — based on faith, not on data — that enabling casual sharing would do real damage to ebook sales with the greatest damage to the biggest books.

Big general publishers survive based on the performance of their biggest books. Agents survive based on the sales of their biggest authors. So the biggest publishers and the biggest agents, if they see it the way I do, would be in favor of DRM even if does nothing at all to prevent the kind of piracy they attempt to cure with take-down notices.

There are a lot of good reasons to dislike DRM. It can make purchasing or consuming something harder. It is apparently responsible for the lion’s share of customer service costs for all ebook vendors. It can foil legitimate use by a legitimate purchaser. And it costs money and adds complications. In general, the more comfortable you are with technology, the more likely you are to be annoyed by DRM.

But it drives me a bit nuts when people attribute the belief that DRM protects against piracy to everybody who accepts the sense of using it.

So with this as background, I picked up a link earlier this week to an interview on O’Reilly Radar with my office-mate (but a man who very much runs his own business) Brian O’Leary entitled “What’s the current impact of piracy on the book publishing industry?” Brian has been trying for almost three years to measure the real effect of pirated editions (not casual sharing) on sales. His method is to watch the pirate sites for the appearance of books and then to measure the sales for the weeks before the pirated edition appears and the weeks after. If piracy is cannibalizing sales, one would expect to see a decline following the appearance of the pirate edition. If piracy is stimulating sales through additional word of mouth, one would expect to see sales rise.

Of course, the data to do this analysis can only come from the publishers and publishers, despite their often-professed concern about piracy (and their apparent willingness to spend a lot of money to track and combat it), have mostly not been willing to participate in Brian’s efforts to measure its impact. But what Brian did see (mostly through O’Reilly data, and O’Reilly is a DRM-free publisher) suggested that piracy might lift sales more often than it hurts them.

In the interview, Brian makes some very good points but then I get to this:

“I’m pretty adamant on DRM: It has no impact whatsoever on piracy. Any good pirate can strip DRM in a matter of seconds to minutes. A pirate can scan a print copy easily as well.” (I agree about the “good pirates”, but is the “no impact” statement data-driven? I doubt it.) But then:

“DRM is really only useful for keeping people who otherwise might have shared a copy of a book from doing so.” So, he’s against DRM even though he agrees it prevents casual sharing. And I’m not aware that anybody, including Brian, has ever attempted to measure the impact of casual sharing.

This is interesting, because he and I have exactly the same opinion about what DRM can and can’t do, but we don’t have the same opinion about whether it should be applied or not!

The point that Brian makes which I take to heart, though, is about trying to base opinions on data whenever possible rather than on conjecture. Many of his colleagues-in-arms against DRM attribute its continuance with ignorant and wrong-headed thinking: publishers and agents who somehow are deluded into thinking that by using DRM they restrain piracy. At the same time, concern about casual sharing is either ignored or elided.

And while gathering data about the true effect of piracy is difficult and gathering data about the potential true effect of unfettered sharing of commercial books is impossible, I am in a good position to gather data about what senior publishing executives and powerful agents believe about piracy, casual sharing, and DRM. So I created an informal survey to find out.

I asked three questions.

1. Do you think DRM is necessary to protect the sales of ebooks for popular titles?

2. Do you think DRM is an effective check against piracy?

3. Do you think the main benefit of DRM is that it prevents casual sharing?

I asked top executives in major houses and agents who handle major authors.

Nine executives and four agents (more than half the number I asked) were kind enough to come back to me with answers (so far). I’ll report on the findings in my next post.