After Web inventor Tim Berners-Lee's keynote talk at SXSW, he answered a question about the controversial plan to add DRM to next version of HTML. HTML 5, a standard currently under debate at the World Wide Web Consortium (W3C) is the latest battleground in the long-running war over the design of general-purpose computers. Berners-Lee defended the proposition, and claimed that without it, more of the Web would be locked up in un-searchable, unlinkable formats like Flash.

Some in the entertainment industry have long harboured fantasies about redesigning computers to disobey their owners, as part of a profit-maximisation strategy that depends on being able to charge you piecemeal for the right to use the files on your hard-drive.

Most famously, the industry convinced DVD manufacturers to add restrictions to players to prevent you from buying a DVD in one part of the world for use in another part of the world. For this to work, DVD players had to be designed so that they hid which programs were running on them – so that DVD-player-owners wouldn't just kill the "verify region" program. The players also had to be designed to hide files from their owners, so that users couldn't just find the file with the DVD-decryption key in it and use it to unlock the DVD using a different player – one that didn't check for region compliance.

Two important questions emerge from this historical example: first, did it work; and second, why on Earth did the manufacturers ever agree to this? Both of these questions are important to ask here.

Did region restrictions work? Not at all. After all, hiding files and processes inside of a computer that the "bad guy" can actually carry away with him to a lab or work-room is a fool's errand. If Berners-Lee believes that adding secrets to Web browsers that computer owners won't be able to access will somehow enable the marketplaces that the entertainment industry says it needs for its new business models, he's mistaken.

More importantly: why did manufacturers agree to add restrictions to their hardware? Region-coding is an anti-feature, a "product" no one is looking to buy. You can't sell more DVD players with a sticker that says, "Now, with region restrictions!"

Patent pitfalls

DVDs and CDs: their development was made possible because of the layed breathrough by Alf Adams. Photograph: David Chapman / Design Pics Inc. / Rex Features

Put simply, because the industry ginned up a legal requirement to add DRM to DVD players. When DRM bodies gather, they seek to identify a piece of "hook IP" – usually a patent. If there's some patent thrown into the process for decoding a file-format, then the patent can be used as a "hook" for licence terms that can be used to bind manufacturers.

In other words, if a patent (or patents) can be included in the decoding system for DVDs, you can threaten manufacturers with patent-violation suits unless they take out a licence. Patent licences are administered by a licensing authority (LA), which creates a standard set of terms for licensing. These terms always include a list of features that the manufacturers may not implement (for example, you may not add a "save to hard drive" feature to a DVD player); and a list of anti-features that manufacturers must implement (for example, you must add a "check for region" component to players).

Additionally, all DRM licence agreements come with a set of "robustness" rules that require manufacturers to design their equipment so that owners can't see what they're doing or modify them. That's to prevent device owners from reconfiguring their property to do forbidden things ("save to disk"), or ignore mandatory things ("check for regions").

Adding DRM to the HTML standard will have far-reaching effects that are incompatible with the W3C's most important policies, and with Berners-Lee's deeply held principles.

For example, the W3C has led the world's standards bodies in insisting that its standards are not encumbered by patents. Where W3C members hold patents that cover some part of a standard, they must promise to license them to all comers without burdensome conditions. But DRM requires patents or other licensable elements, for the sole purpose of adding burdensome conditions to browsers.

The first of these conditions – "robustness" against end-user modification – is a blanket ban on all free/open source software (free/open source software, by definition, can be modified by its users). That means that the two most popular browser technologies on the Web – WebKit (used in Chrome and Safari) and Gecko (used in Firefox and related browsers) – would be legally prohibited from implementing whatever "standard" the W3C emerges.

Copy catch

What's more, DRM is wholly ineffective at preventing copying. I suspect Berners-Lee knows this. When geeks downplay fears over DRM, they often say things like: "Well, I can get around it, and anyway, they'll come to their senses soon enough, since it doesn't work, right?" Whenever Berners-Lee tells the story of the Web's inception, he stresses that he was able to invent the Web without getting any permission. He uses this as a parable to explain the importance of an open and neutral Internet. But what he fails to understand is that DRM's entire purpose is to require permission to innovate.

For limiting copying is only the superficial reason for adding DRM to a technology. DRM fails completely at preventing copying, but it is brilliant at preventing innovation. That's because DRM is backstopped by anti-circumvention laws like the notorious US Digital Millennium

Copyright Act of 1998 (DMCA) and the EU Copyright Directive of 2002 (EUCD), both of which make it a crime to compromise DRM, even if you're not breaking any other laws. Effectively, this means that you have to get permission from a DRM licensing authority to add any features, since all new features require removing DRM, and the DRM license terms prohibit adding any features not in the original agreement, and omitting any of the mandatory restrictions featured in that agreement.

Compare DVDs to CDs. CDs had no DRM, so it was legal to invent technologies like the iPod and iTunes, which ripped, transcoded and copied music for personal uses. DVDs featured DRM, so it was illegal to add any features to them, and in the nearly 20 years since they were introduced, no legal technologies have been introduced to the market that do what iTunes and the iPod did in 2001. One company tried to ship a primitive DVD hard-drive jukebox and got sued out of that line of business. 20 years of DVDs, zero innovations. Now, DRM has not stopped people from making illegal copies of DVDs (obviously!), but it has entirely prevented any innovative legal products from entering the market for two decades, with no end in sight.

Penny pinching

Counting the pennies Photograph: AGB Photo Library/Rex Features

This is the regime that the W3C stands to add to the Web, and that Berners-Lee has endorsed with his remarks. A regime where every improvement is seen as an opportunity to erect a toll booth. A Web built on the urinary tract infection business model: rather than getting your innovation in a healthy gush, every new feature must come in a painfully squeezed dribble, a few pennies if you want to link in directly to a specific timecode on the video; a few pennies more if you want to embed a link from the video to a web page, more if you want to move a video to another device or timeshift it, and so on.

As the leading standards-setting body for the Web, the W3C has an enormous, sacred and significant trust. The future of the Web is the future of the world, because everything we do today involves the net and everything we'll do tomorrow will require it. Now it proposes to sell out that trust, on the grounds that Big Content will lock up its "content" in Flash if it doesn't get a veto over Web-innovation. That threat is a familiar one: the big studios promised to boycott US digital TV unless it got mandatory DRM. The US courts denied them this boon, and yet, digital TV continues (if only Ofcom and the BBC had heeded this example before they sold Britain out to the US studios on our own high-def digital TV standards).

Flash is already an also-ran. As Berners-Lee himself will tell you, the presence of open platforms where innovation requires no permission is the best way to entice the world to your door. The open Web creates and supplies so much value that everyone has come to it – leaving behind the controlled, Flash-like environs of AOL and other failed systems. The big studios need the Web more than the Web needs big studios.

The W3C has a duty to send the DRM-peddlers packing, just as the US courts did in the case of digital TV. There is no market for DRM, no public purpose served by granting a veto to unaccountable, shortsighted media giants who dream of a world where your mouse rings a cash-register with every click and disruption is something that happens to other people, not them.