While others have covered the Macrovision response more succinctly, I wanted to expand further on some of the ideas implicit in the Macrovision letter.
In its second bullet point, the letter says the following:
DRM increases not decreases consumer value –
I believe that most piracy occurs because the technology available today has not yet been widely deployed to make DRM-protected legitimate content as easily accessible and convenient as unprotected illegitimate content is to consumers. The solution is to accelerate the deployment of convenient DRM-protected distribution channels–not to abandon them. Without a reasonable, consistent and transparent DRM we will only delay consumers in receiving premium content in the home, in the way they want it. For example, DRM is uniquely suitable for metering usage rights, so that consumers who don't want to own content, such as a movie, can “rent” it. Similarly, consumers who want to consume content on only a single device can pay less than those who want to use it across all of their entertainment areas – vacation homes, cars, different devices and remotely. Abandoning DRM now will unnecessarily doom all consumers to a “one size fits all” situation that will increase costs for many of them.
Let's take a closer look at that second example. Macrovision is actually saying that there are people out there paying too much for, say, a piece of music, because they only
want to listen to it on one device. These people want to buy music that will only play in their cars, or in their living rooms, but not their bedrooms or offices. These people will never have the desire to lend an album to a friend to enjoy at their leisure. These people are completely happy that when a device dies, they will lose the content on it as well.
These people don't exist.
Macrovision's reasoning is that users will be willing to pay less in order to get more restricted content. They get less, so they pay less. The assumption seems to be that there are users who will find value in content sold to them with fewer rights than they're used to having. But how much of a discount is worth the hassle of navigating through layers of restrictions just to transfer content from one platform to another.
Macrovision claims that DRM interoperability is a goal for the industry, but that's hard to believe, given what we have now. Looking around at the DRM systems in place, a lot of them do the exact opposite–they actively prevent interoperability so that platform providers or service providers can arrange exclusivity deals with content providers.
- If you have a music-capable phone on Verizon, DRM forces you to download from their store.
- If you have an iPod, DRM prevents you from ripping purchased DVDs to it–you have to buy from iTunes.
- If you legally purchase a foreign film DVD overseas, there's a good chance it won't play at home.
This is not a consumer's future. It's a vision of the future only a cartel could love.
Now let's go back to Macrovision's take on DRM and rentals. One of the major problems with DRM is that it elevates what should be a question of private contracts into a matter of copyright law, which can impose disproportionate penalties. For instance, if I don't return a rented DVD on time, I pay a small late fee. If I simply keep the DVD, I pay more–often a just a little more than the cost of buying it outright. Even if that weren't a particular store's policy, they'd have a hard time getting a court to award them much more than the cost of what they'd actually lost.
But if I “rent” a DRM-encoded digital video, and break the DRM so that I keep the copy of the movie, I'm liable for at least $200, and up to $2500, according to the DMCA.
It's important to remember that my rights to use a movie under copyright are the same, whether I've bought it or rented it. The difference between these two scenarios is not my relationship with the copyright owner; it's the fact that I have a contract with Blockbuster–they're letting me borrow their movie for a price, and I've promised to give it back in a week or so. Whether I buy or rent a movie, I have the same fair use rights for commentary, criticism, parody, or any other of the myriad fair uses available to me.
The problem with using DRM to enforce lending, under the DMCA, is that instead of leaving that contractual arrangement in the flexible private sphere, it entangles it in the increasingly perverse and draconian sphere of copyright law.
Companies like Macrovision argue that DRM gives consumers more choices, since it lets content companies dole out bits of restricted content in little bits. One common counter-argument to this is that, in doling out these bits, the whole will be withheld from consumers. But a more basic question would be whether these bits are worth consumer dollars in the first place.