DRM: Who's Rights are They?

The announcement from Universal last week brought up the subject of DRM, a sore spot for me and most of the people who listen to online music. But you would think that it had been smooth sailing for all these online years, if you believed the arguments that I've seen over the last week.

Napster and it's overseas descendants aren't and never were a problem, MP3.com wasn't virtually hounded off the 'net for daring to exercise fair use, DRM is a completely logical exercise of the rights holders over copyrighted material, which presents no problems to the end users who purchase the material.

...And if you believe that, I've got a bridge in Brooklyn that I want to sell you.

First off, let's get a few definitions straight. The term piracy, as it is used in software circles these days, is a completely unworkable definition. Piracy involves profiting through theft, not copying files. While it can be argued that the end user 'profits' from copying files that he has not paid for, that sort of profiting is in a whole different league from the person who sells CDs and DVDs (and even the computer files themselves) that he's made without license from the copyright holder. However, there is no distinction between the two in the eyes of Microsoft (and the other corporate software vendors) the RIAA and the MPAA; a completely ridiculous proposition on the face of it.

Then there is the term contract, in which the software industry claims their EULAs and online contracts are no different than a printed, signed and witnessed contract of a truly legal nature. However, if you trotted out the verbiage contained in the average EULA, I doubt you'd find many people willing to commit to the agreement, since the agreement invariably holds the software company innocent of any possible wrongdoing, while setting up a legal fence around the user so as to tightly constrain what uses the material can be put to.

Here is a piece of timely advice; never sign a contract that has been written by an attorney other than one in your employ without first having an attorney who is in your employ look it over. Contracts are always negotiable by both parties if they are to be considered valid. When you sign your name to a contract you agree to the terms, thereby waiving your right to negotiate terms in advance. A EULA does not allow for physical signatures and so consequently are not really contracts at all.

Additionally any contract that you have to accept without negotiation is a contract that no one should hold themselves constrained by, since they had no say in what the exact contents of the contract would be.

Now when it comes to EULA's I have to ask; Do you support the dishonest business practice of attempting to hold a customer to a contract that isn't presented until after the transaction has taken place, or are you an honest businessman who presents the contract before any other business occurs? Anyone who thinks that it is commonplace and acceptable to withhold conditions of a sale until after the transaction has taken place is by definition a dishonest businessman. Honesty requires full disclosure before the sale. Restrictions that are revealed after the sale is finalized are not enforceable, as they are generally held to be outside of current law, and are a violation of the standard of full disclosure. In a nutshell, it is a dishonest and/or fraudulent business practice to withhold this type of information.

With the above as the generally understood standard of doing business, that contracts which I have not explicitly agreed to in writing are not binding, and that contracts that are not revealed until after the sale is finalized are not enforceable...

...Should I be faulted for holding the opinion that "All sales are final. The files are mine. Anything they have to say about my treatment of my files after that point is a claim. There is no agreement, other than cash for music files. There was no other legal contract presented." and stripping the DRM from files that I had paid for and wished to listen to on a device of my choosing?

Apparently I am to be faulted. At least in the eyes of the people who plan on making money off of the legally clueless out there.

Fair use allows the user to make copies of copyrighted material for his own use. My own use requires that I strip the DRM from music files sold on most popular websites. If the websites attempted to enforce the contract terms, they would only alienate their customer base; ergo, it is nothing more than a paper tiger, never to be enforced except to remove individual user accounts.

...And if I can't actually make the files usable, I don't know why I would need an account in the first place.

The last definition that needs clarification: DRM, Digital Rights Management. The corporations that own the content have rights (which DRM manages) but you the user don't. You have privileges that they can take away if they please. Welcome to the digital millennium.

My experience with the difficulty of using iTunes (and other DRM restricted services) has convinced me that DRM regimes are soon to be a thing of the past. It's also convinced me that I will spend money on sites that don't add DRM to the files. Sites like Sound Click for example. I don't need to go to full out piracy sites (I find real pirates and their practices quite distasteful) I have no problem going down to the used CD store and getting the music I'm looking for at less than the dollar a song most sites are charging. I might download songs from Universal's announced site, but only if I can remove the DRM.

Which brings us to the crux of the problem. The only way to make DRM enforceable is to appoint an ultimate Sys-Admin, a company that has the power to open back doors on all the computers currently in operation, and snoop through the files to make sure that no one is using files that they haven't paid for. A job that Microsoft desperately wants to be given, as they quite eagerly pointed out when they announced the rollout of Longhorn (now Vista) two or three years ago. A big brother situation that I shudder to contemplate.

Otherwise DRM is an unworkable solution in the long term. As more content becomes available on the 'net, more and more of it will appear shortly after it's initial release with DRM, sans it's protective wrapper, ready to be copied by anybody who doesn't have an aversion to dealing with pirates.

Might as well just come up with a different solution now, save us all the hassle.

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