The previous 2 DRM posts discussed the definition of DRM, gave examples of DRM methods and discussed internet business models utilizing DRM.
In this article, I will begin to explore the rhetorical roots of the various arguments for and against DRM. This way - next time you're at a cocktail party and someone starts discussing DRM, you'll be able to blow their mind with your depth of understanding.
Yes - everyone seems to have an opinion on this controversial topic. But as the entertainment and technology industries search for commercial and legal equilibria between authors and users of digital content, it is important to look beyond the face value of their various DRM proposals.
In the next several posts, I will isolate the rhetorical layers in any one DRM argument or proposal, like a chemist using a centrifuge to separate layers of an emulsion. Hopefully this will shed some light on how to scrutinize those layers in their relationship to one another and to the argument or proposal as a whole.
Essentially, my goal is to “strain” these arguments for and against DRM through a sieve of copyright rhetorics.
Professor David Franklyn at the University of San Francisco Law School has identified at least 6 major copyright rhetorics. They are:
1. Incentive Theory
2. Lockean Labor Theory
3. Neo-Classical Economic Theory
4. Hegelian Personality Theory
5. Territoriality Theory
6. Public Domain Theory
This post will focus on Incentive Theory, and subsequent posts will focus on the others.
Incentive Theory is often said to be the greatest ideological force behind U.S. copyright law.
Through an Incentive lens, the purpose of copyright law is to incentivize creative behavior by granting certain monopolistic rights to producers or creators.
The negative pregnant of this theory is that if ever the granting of such rights should fail to incentivize such behavior, the rights should be rescinded or limited.
According to this view, copyright is instrumentally valuable. Copyright is a social construct created, not to support any natural or fundamental human right (as with Lockean Labor Theory, which I will discuss in the next post), but to induce and entice people to contribute artistically to the advancement of society.
Built into Incentive theory is the delicate balance between:
- fostering creativity by giving authors control and
- fostering social advancement by giving users access
Sometimes the need for society to have access to creative works outweighs the need to stimulate creativity, and when it does, Incentive theory requires that limits be placed on copyrights.
Incentive Theory & DRM
One area where Incentive Theory shows up in DRM arguments is piracy.
DRM enthusiasts argue that DRM is necessary in a world where piracy of copyrighted digital content abounds.
If copyright owners are unable to turn a profit or even make a living on the creative works that they invested a great deal of time and money in, then there is no INCENTIVE for them to continue to contribute creatively to society.
DRM detractors may disagree that humans need ANY incentive to create art. Perhaps the creative wellspring bubbles up from somewhere innate in all of us, without coaxing of any kind. In this notion, exclusive rights granted to creators are monopolistic and unnecessary. They make access to art permission-based, which somehow harms society on a grand scale.
On the other hand, DRM detractors might agree that creators need to be incentivized to create art, but would argue that DRM can be harmful to society as a whole when it excessively limits people's access to that art. This may be especially true today, as users are not just wanting access to art - but also interactivity with that art.
Users want to be able to mash-up other people's art to create their own art. These mash-ups are called "derivative works" in copyright law, meaning that the new work is "derived" from an old work or works. DRM can hinder a users ability to create derivative works by limiting access to works, and if creating derivative works is technologically difficult - what's the INCENTIVE?
Another area Incentive Theory appears in DRM arguments is in market economics.
Here, in addition to focusing on incentivizing the creation of digital content, DRM enthusiasts are also interested in using incentives to create a thriving online market for digital content.
Presently, though online retail for all types of copyrighted content continues to grow steadily, there are still problems with directly translating business models from the analog world to the internet.
These problems have made participants at all levels wary of whole-hearted commitment to the digital marketplace and have ensured that it remains something less than fully standardized, efficient, and profitable.
Many see DRM as an INCENTIVE for major copyright players to make their content available online. For such copyright owners, the incentive is control - the control over how, when, where and to whom content is sold AND the control over how, when and where that content is used after the sale.
Thus, according to Incentive Theory, the more control authors have over their works in the marketplace, the more authors and potential authors are incentivized to create future works AND the more they are incentivized to fully participate in a burgeoning standardized, efficient and profitable online market.
However, we must still keep in mind the delicate balance of Incentive Theory - owner's control vs. user's access.
DRM advocates would argue that the more control owners have over their works in the marketplace, the more incentivized they are to place their works in streams of commerce. And the more of these works there are in the marketplace, the more access user's will have to a broad spectrum of works.
DRM detractors would counter that even though DRM might encourage more content owners to put their works online, thus increasing the overall quantity of goods in the marketplace, the quality of access to those goods is severely limited through the application of DRM - even to goods which users have legally purchased.
This last argument is especially current, as Apple's iTunes has been making deals with record labels (most notably EMI) to sell DRM-free music on the iTunes online store. The DRM-free tracks are slightly more expensive than the DRM tracks, but initial sales reports support the notion that users are indeed interested in having unfettered use of the music they purchase legally.
I'm interested to hear other ideas in the Incentive Theory vein - so feel free to leave a comment.
The next post will discuss Lockean Labor Theory as it applies to DRM arguments.
by Howie Cockrill, Esq.
Nice information, it was very helpful at the moment of the post.
Posted by: safemeds | October 05, 2011 at 06:34 AM