Re: [Fsfe-uk] Re: APIG inital report

[MJ Ray]

Alex Hudson <address@hidden>
> MJ Ray wrote:
> > It's a pretty easy one to defend IMO. DRM is a weak lock-out
> > propped up by legal protectionism. You can't "vote with your
> > wallet" because the only copy of these monopoly goods (and
> > copyright is a monopoly) is the DRM one in most cases. There
> > is no choice, no competition.
> 
> Well, technically, that's not true. Being the sole distributor of a
> particular artist doesn't put you in a monopoly position in anything
> other than a colloquial sense. 

If you are the copyright holder or sole licensee of the holder
(a common situation created by publication contracts), then
you have a 100% market share and can pick and choose who can
enter the market in that copyrighted work. Were it not exempt,
most copyright licences seem be right up there among the worst
anti-competitive practices. How is that not a monopoly?

> For that argument to work, you have to show that the presence of DRM is
> anti-competitive or otherwise abusive of a market in a "real" (i.e.,
> provable in court) sense. And I can't see how you can make that
> argument.

That part would only need you to show they are imposing an
unfair prices, limiting production, markets or technical
development to the prejudice of consumers, applying different
trading conditions to equivalent transactions or attaching
unrelated supplementary conditions (Article 82 of the EC Treaty
http://europa.eu.int/comm/competition/legislation/treaties/ec/art82_en.html
). There are probably quite a few examples where
"technological measures" are used to limit markets.

Personally, I think a problem involving multiple copyright works
(all football matches) are the attempts and publications by
BSkyB, MPS, FACT and FAPL seeking to stop conditional access
TV reception equipment sold in other EU states from moving
to the UK. The EC is trying to correct this problem now,
http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/03/1748&format=HTML&aged=0&language=EN&guiLanguage=en
but through an attack on joint selling rather than geographic
market limitation.

[...]
> > I can't see how anyone can put forward a "free market" argument for 
> > this protectionism with a straight face.
> 
> Because mandating against DRM is a restriction on the types of products
> you can sell? E.g., could you tell a publisher it's ok to sell books,
> but not encrypted e-books? To do that, you're arguing against the author
> distributing & monetizing as they see fit, which is fairly obviously
> anti-free market.

For it to be a free market, there needs to be multiple sellers
and buyers in the market. With current books, there are
second-hand sellers, imports and sometimes other sorts of
seller. If publishers directly sell non-transferable single-user
books, how will that happen?

I'm not seeking a law *against* DRM, but I can't see how
"free market" arguments can be used to support protectionism.
The author should be able to distribute & monetise fairly as they
choose, but any "technological measures" should stand or fall
on technological features - not be propped up by legislation.
If someone can crack it, that's a cost for the system owner.

> To the extent that I've thought about it, legislating against DRM seems
> pretty similar to legislating against proprietary software. I'd be
> interested to know if you thought there were differences.

Actually, I'd prefer no legislation for or against DRM.
I'd also like it if gov.uk reviewed whether all proprietary
software practices are in the public interest, or whether
software copyright is still a good compromise, but there
seems little prospect of that.

> > > In order to argue effectively against DRM, I think we really need to
> > > understand the premise for DRM. Basically, the APIG questions all boiled
> > > down to "How would <x creative industry> work without IP protection?" -
> > 
> > This is essentially a repeat of "how can a commons ever be
> > sustainable?"
> 
> Hm, not sure about that. Treating the output of a creative industry as a
> commons is not a given - the right to share the work isn't an
> assumption. 

The default space for creative work that doesn't have the legal
protection of copyright seems to be the public domain. Do you
think the public domain is similar to a commons?

-- 
MJ Ray - personal email, see http://mjr.towers.org.uk/email.html
Work: http://www.ttllp.co.uk/  irc.oftc.net/slef  Jabber/SIP ask