Excerpted with permission from Information Doesn’t Want to Be Free: Laws for the Internet Age, by Cory Doctorow. Available from McSweeney’s. Copyright © 2014.
Is This Copyright Protection?
The people who make digital locks sell them as “copy protection” (that is, protection against having a file copied), and sometimes as “copyright protection.” We can debate their claim to the former, but we should certainly reject the idea that digital locks protect copyright. As things stand now, it’s the other way around.
Many different reasons and rationales for copyright have been offered since its inception. The English Statute of Anne (1710) set out to protect the established English publishers from Scottish competition. Sixty-some years later, the U.S. Constitution provided for copyright “to promote the Progress of Science and useful Arts.” The Berne Convention for the Protection of Artistic and Literary Works, one of the first international copyright agreements (its text was based on a draft created by Victor Hugo in 1878), added protection of an author’s “moral rights”—the right to claim authorship of a work, for example, and to prevent its distortion or modification.
One rationale that has never been offered is that copyright exists to protect middlemen, retailers, and distributors from being out-negotiated by creators and their investors.
Now, let’s say there’s a company with a wildly popular video-distribution technology. If you’re a filmmaker, they’ll sell your movies and give you 70 percent of the revenue, and even better, they’ll promise you that they’ll keep your movies safe from piracy by putting their digital locks on them. At first, everything’s great. You’re making money, they’re making money. You sell a million movies. Five million. Ten million!
But then they put the squeeze on: the 30-70 split was just an introductory offer. Now that they’ve proven how great their technology is, they want a 50-50 split. At the current rate of sale, that means you’ll be giving them millions of dollars every month: money you were putting back into your own business, using to create more art, using to pay your own overheads.
Without anti-circumvention, this is easy: you just call a meeting with the video distributor and say, “No deal. First of all, there’re plenty of other operators out there who can do what you do. You’re the distributor—your job is to provide invisible, commodity plumbing that puts our movies in front of our audience. Second of all, for the money you’re talking about, we could just skip the middleman and build our own system. So yeah: no deal.” It’s your copyright, after all; you have all the negotiating leverage.
But this works only if your audience can follow you from the old format to the new one. If I’m your audience, and I’ve spent a thousand bucks on my movie library, I don’t want to have to throw away that investment. I want to be able to use one family of devices and one program to manage my movies. I’m not going to try to remember which movie goes with which player and which device. And I’m certainly not going to get a new box under my TV just for your movies (let alone a new TV!).
This is how, once you add anti-circumvention to the mix, all of copyright’s protection is handed directly to the company that slapped a digital lock on the product in question. The filmmaker can’t authorize audiences to break those locks and convert their movies to play on a new device. The investor can’t authorize that either. Only the distributor has the right to allow this—the distributor who stands to lose everything if it happens.
Here’s another scenario: imagine for a moment that every book you bought at Walmart could be shelved only on a bookcase from Walmart. The books were designed with some kind of little divot in the spine, so that they could sit flat only on a Walmart shelf, and printed with a special ink that glowed only under a Walmart light bulb, and only when held at a special angle you could attain only by sitting in a specially designed Walmart chair. Every time you sold a $10 book through Walmart, that would be $10’s worth of investment in this Walmart ecosystem your readers would feel beholden to, even if you and all their other favorite authors were later offered a better deal at Barnes and Noble (meanwhile, you’d only get 50 cents of that $10 in royalties, if that!). It’s easy to understand why Walmart would love this—it creates a winner-takes-all market, where a small advantage quickly grows into an unbridgeable gap. The question is, why should authors or publishers want to have anything to do with a scheme like this?
Digital locks are roach motels: copyrighted works check in, but they don’t check out. Creators and investors lose control of their business—they become commodity suppliers for a distribution channel that calls all the shots. Anti-circumvention isn’t copyright protection: it’s middleman protection.
Hachette, one of the largest publishers in the world, learned this the hard way in 2014. Amazon demanded a deeper wholesale discount from Hachette, and Hachette declined. Amazon retaliated by blanking out many Hachette titles on its site (including books by best sellers like J. K. Rowling), either marking them as unavailable or on back order, and even suggesting books by other publishers, or used copies of the Hachette titles, as alternatives.
Hachette—the most fervent digital-lock advocate in the publishing world—was reduced to offering scolding comments in retaliation. If it hadn’t been for the locks on the Hachette titles, the company would have had a much more fearsome weapon at its disposal, when it came to its Kindle titles: it could have offered a 10 percent “Amazon Refugee” discount at Google, Barnes and Noble, and other retailers, and posted a free tool like the Calibre reader so that existing Amazon customers could easily convert their purchases to run on competitors’ platforms.
But under the DMCA, only Amazon can authorize the conversion of Kindle books to read on non-Kindle platforms. Good luck with that, Hachette.