Sending Up the White Flag?: Music Labels Moving Away From DRM


Today, CNET reports that the music industry is backing off of DRM in part because download sales are not at the numbers it desired. In a previous post I highlighted what appears to be a misuse of the DMCA. In that post I offered that copyright might be seen as protecting a business model and what may be wrong when that is the case. What’s the connection? I think that if the CNET article is accurate and the music industry is moving away from DRM because of failed sales, that shift supports the idea that DRM is not about copyright but about protecting an unviable business model.

To elaborate, one might say that in general copyright protects an otherwise untenable position. That is, one argument holds that promoting the useful arts requires that the law provide protection for those who generate copyrightable or patentable subject matter. The nature of the thing created means that without intellectual property protection these items would arguably not be created, as once one invested in the creation others could copy easily.

I am suggesting that one could also say that the law is protecting a business model (in intellectual property) that otherwise would not survive. Yet, specifically in copyright that claim of necessity may not be as true as before because of the broad swath that copyright covers. Film and other capital intensive copyright industries may have an argument for copyright laws and strong protection. They may even have arguments that if we want to protect the incentives to produce these creations, we should offer remedies for those who work to get around copy protections (I am not saying these arguments are correct; I am simply saying there may be a logic to them). But in other less capital intensive copyright industries the premise for protection may not be present.

In addition, one could argue the DMCA was forced through Congress by the copyright industry. That may be. Regardless, the question is what does the DMCA or a specific copyright protection do? Does it foster or adhere to the incentive premise or not? And one should ask is the premise in play when we talk about using the DMCA to protect non-copyrightable areas such as a business model? Put differently is the law fostering creation and/or competition or merely being used to protect a market’s status quo?

The music industry offers an example of what asking whether the incentive theory is in play or not might reveal. In other words does music fit the premise regarding incentives to create? As the CNET article notes eMusic has “surpassed 100 million downloads; it’s the second-largest digital music retailer after iTunes, all sans DRM” which might indicate that the claims by the copyright industry for the need for extra protection are unfounded. Cory Doctorow offers that the advent of radio had a similar outcry as live performers gave way to recorded broadcasts:

Performers lobbied to have the Marconi radio banned, to send Marconi back to the drawing board, charged with inventing a radio they could charge admission to. “We’re charismatics, we do something as old and holy as the first story told before the first fire in the first cave. What right have you to insist that we should become mere clerks, working in an obscure back-room, leaving you to commune with our audiences on our behalf?”

Furthermore I suggest that similar to Doctorow’s position on the value of a creator being known and shared rather than locking up access to his works, the creator’s “biggest problem is obscurity, not piracy.”

One way to understand this position is that creators (those who need the incentives) may be showing that the incentives claim that holds that without prevention of copying creators would not create does not fit for writing and music in part because the capital needed to create has gone down and the ability to have income from those creations has increased. Using Creative Commons licensing and promoting their work for free can allow money to go more directly into the creators’ hands. In addition at least as Doctorow (and his colleagues) and eMusic have shown the creators can work with corporate copyright holders to still make money for all concerned but perhaps not in the way the major copyright corporations — that spend huge sums on marketing compared to creation of those items — envision such a profit project.

As Doctorow puts it:

the Internet makes it possible for recording artists to reach a wider audience than ever dreamt of before. Your potential fans may be spread in a thin, even coat over the world, in a configuration that could never be cost-effective to reach with traditional marketing. But the Internet’s ability to lower the costs for artists to reach their audiences and for audiences to find artists suddenly renders possible more variety in music than ever before.

Extrapolating from this view, I offer that perhaps we should tether copyright to its question of promoting the useful arts and incentives possibly needed to attain that goal. Insofar as copyright law is merely allowing an industry to hang on to a business model — either one that was unconnected to the premise of incentive to create copyrightable material in the first place (e.g., Tracfone where the copyrightable matter, the software, was not being copied but disabled to use a tool in this case a cell phone) or one that may have been based on economic realities that are no longer in play and thus no longer impact as directly if at all the fostering of creation – the law should rethink what, if any, type of copyright protection makes sense or whether it should clear the way for new economic models and perhaps larger if not more competitive markets.

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