More thoughts on the DMCA

2004-09-13 13:54

Well, I talked a bit to someone at the ESA. They acknowledge that the notice they sent was in error. Apparently, a person did actually “review” that message, but… They also said they send out hundreds of thousands of messages a month. That would imply an awful lot of people, or very very cursory work. I suspect the latter.

This has me thinking, though. During my conversation with the guy I talked to, he mentioned that the DMCA is “self-correcting”; exemptions are made to the provisions against copyright circumvention, as technologies become “obsolete”.

That should be a big red flag right there. If you need to constantly revise a law’s list of what is and isn’t a criminal act to talk about… That’s a bad sign. That’s a bad law.

The DMCA’s major accomplishments so far are:

  • Locking up Dimitry Skylarov for a long time based on the possibility that his software might have led someone somewhere to copy a file, but no such copied files were ever produced.
  • Legal threats against someone who announced that a popular music CD could be read on Windows computers if you held down the “shift” key when putting it in the drive.
  • Legal threats galore sent to people who have no idea what they are or how to respond to them.

That latter is interesting. Mr. Allen assures me that the majority of the messages they send are legit. I have no idea how anyone would know. However, even if they’ve got 99.99% reliability, that means that one message in ten thousand isn’t legit, and that means that, if they are sending hundreds of thousands of messages a month, that’s at least twenty bogus messages a month. These messages are a little spooky. They are very unclear (Mr. Allen’s explanation of the confidentiality paragraph did not match any reading of it I could have come up with). They are couched in references to provisions of a large law which, according to Mr. Allen, is under active revision and modification.

In short… These messages are scary legal threats being sent to people who, by and large, have no clue what to do about them. That’s Bad.

Mr. Allen’s justification is that there’s a lot of “pirated” software out there. I recognize the brilliance of using the term “piracy” (which involves people being raped and killed and thrown out to sea) to refer to “copyright infringement”, but it’s brilliant propaganda; it’s not any kind of truth.

The thing is… Even if there were, what evidence do we have that the DMCA approach is mattering? Publishers have found good ways to make software work without copy protection. Stardock’s “Galactic Civilizations” is doing just fine on being an actually good game, with regular patches and updates available to registered users.

Baen books has the Baen Free Library, which has demonstrated that, not only do people still buy books you give away, they buy more of them and faster. Janis Ian, a songwriter, has also written about the internet debacle.

In other words… The people who actually questioned their assumptions, and tried giving stuff away, found that it improved sales.

The software industry blames illegal copies for reduced sales. I am very skeptical of this. They laud copy protection as a cure. I am even more skeptical of this. I have a collection of games whose copy protection is so bad that I was unable to get them to run… I do not generally buy from those vendors. You know what’s hurting sales of games with the word “ATARI” on the box? Copy protection. I still buy games with little or no copy protection. But games with too much will turn me off a publisher entirely. Games are supposed to be fun. If I can’t play a game, then I’m not getting much fun for my money.

So… The DMCA is still a bad law. I actually think it’s a worse law than I thought it was before I got this stupid notice. It is a law designed to ban cars because, if you wanted to, you could try to run someone down with a car. Its focus on copyright “circumvention” misses the entire point of our legal system; we don’t ban something just because you could misuse it.

Let me explain my interest in copyright “circumvention”.

I have a laptop. I play a lot of games.

Many games use “the original CD” as a dongle to prevent you from playing them without the CD. If I want to play these games, I have to have the CD with me. If I have to have a dozen or two dozen CDs with me on a trip, that’s starting to be an inconvenience. They can be lost or damaged. They can be stolen. In short, I am open to additional risks, and additional hassle. I can’t just play my games.

Circumvention systems allow me to run these games on my laptop. You could say “but they also allow people without the game to run it”. Well, that’s nice. Also, Nebraska is a state. These are similar, in that they are both factual claims with no relevance to anything. It is not my problem that someone could, if he wanted to, drive a car in such a way as to intentionally hit someone crossing the street. If I don’t drive that way, then the possibility that someone else would is not a basis for taking my car away.

If we want to deal with the problem of script kiddies copying games, I think the first step is gonna be admitting that, when you’ve got a twelve-year-old who has 400 illegally copied games, that doesn’t mean that the software industry has been harmed to the tune of $20,000 in “lost sales”. That kid never had $20k. You could take the games away, and he could buy two of ‘em back.

On the other hand… All those folks out there who think nothing of “sharing” a game with five people, all of whom play it at the same time on different computers… They actually probably are having some effect.

Still… There’s a lot of things that are worth $free, but aren’t worth $50. It’s hard to get an accurate sense of which people would stop playing if they had to pay or stop playing, and which would pay. I think some would pay.

This leads to an obvious conclusion: The first thing the people who want to see the DMCA go away should do is start lobbying for greater respect for intellectual property rights. The DMCA is a response to a perceived threat. It’s an intellectually and morally bankrupt response, catastrophically worse than the threat… But nonetheless, it might help if something were done about the perceived threat.

Of course, as Master Of Orion 3 shows, another problem with the software industry today is that games sometimes suck. Then no one wants them with or without copy protection.

Peter Seebach

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Comments

  1. You might also enjoy this:

    http://junk.haughey.com/doctorow-drm-ms.html -- Microsoft Research DRM talk

    It comes to the delightful conclusion that copy protection hurts everyone.


    — Bronwyn Boltwood · 2004-09-14 13:20 · #

 
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