Framing the DRM debate

Solveig Singleton gives us a good example of Debate Framing on the DRM issue. Information is "product", the recipient is a "consumer" and if someone doesn't like a DRM system, he or she should simply "walk away."

The framing here is that transfers of information within the technical, contractual, and legal sphere of a DRM system are commercial transactions.

This is not always the case, and many of the situations where it's not are the most important ones. We build information systems for different purposes, some would say higher and better purposes, than selling each other copies of songs for 99 cents. Information transfer is not a subset of commerce, and a DRM system that might adequately represent the EULA for commercial use of some information is not sufficient to regulate all usage. Here's a counterexample -- a use of copied bits that is (1) not a commercial transaction, and (2) not a case in which the user can refuse the copyright holder's terms and get replacement information somewhere else. A documentary.

Outfoxed was produced using clips from Fox News without permission but clearly within the US tradition and law of fair use. Robert Greenwald and his team made the decision to record Fox News and use the recordings in the documentary in order to substantiate the film's arguments.

This is classic political speech and fair use, and American judges would give it the highest-available consideration under the law. Fortunately for Greenwald, Fox News is still available in formats whose copying is not restricted under the DMCA.

Here's the problem for the future, though. Documentarians typically don't reverse engineer media technologies. And the DMCA doesn't allow a developer to invent a DRM-circumventing tool and distribute it for non-infringing uses. So, without serious DMCA reform, the Digital Television Transition means we're likely to end up with a form of political speech, delivered via CableCARD, that's not legally available for the kind of quotation in context of criticism that previous media generations have grown up expecting.

If you're criticising Rupert Murdoch's politics, you don't have an alternate supplier of bits. You can't comment on his decisions regarding coverage of the war in Iraq and then paste in a Jonathan Coulton video to back it up. Some of the most important uses of information depend on copying bits from people who do not choose to enter into a commercial relationship with you.

When we're talking about what is and isn't reasonable to include in a software license or in laws covering DRM, we have to resist the "copying is transaction" framing and keep in mind that a communications relationship is not necessarily a commercial relationship. You can have a political discussion, or an argument on the Internet, with someone who is neither your supplier nor your customer.

Does the threat of fair-use copying as part of a debunking piece help keep the polarized and fragmented American media honest? Is the fact that the Spocko of the future won't be able to cut and paste clips really a good thing? Let's think about those kinds of questions when the subject of DRM comes up, instead of slamming everything into the product/transaction box.