Microsoft Research DRM talk
By Cory Doctorow

Presented by

Public Domain Books

4. DRM systems are bad for artists

But what of the artist? The hardworking filmmaker, the ink-stained scribbler, the heroin-cured leathery rock-star? We poor slobs of the creative class are everyone’s favorite poster-children here: the RIAA and MPAA hold us up and say, “Won’t someone please think of the children?” File-sharers say, “Yeah, we’re thinking about the artists, but the labels are The Man, who cares what happens to you?”

To understand what DRM does to artists, you need to understand how copyright and technology interact. Copyright is inherently technological, since the things it addresses – copying, transmitting, and so on – are inherently technological.

The piano roll was the first system for cheaply copying music. It was invented at a time when the dominant form of entertainment in America was getting a talented pianist to come into your living room and pound out some tunes while you sang along. The music industry consisted mostly of sheet-music publishers.

The player piano was a digital recording and playback system. Piano-roll companies bought sheet music and ripped the notes printed on it into 0s and 1s on a long roll of computer tape, which they sold by the thousands – the hundreds of thousands – the millions. They did this without a penny’s compensation to the publishers. They were digital music pirates. Arrrr!

Predictably, the composers and music publishers went nutso. Sousa showed up in Congress to say that:

These talking machines are going to ruin the artistic development of music in this country. When I was a front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal chord left. The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

The publishers asked Congress to ban the piano roll and to create a law that said that any new system for reproducing music should be subject to a veto from their industry association. Lucky for us, Congress realized what side of their bread had butter on it and decided not to criminalize the dominant form of entertainment in America.

But there was the problem of paying artists. The Constitution sets out the purpose of American copyright: to promote the useful arts and sciences. The composers had a credible story that they’d do less composing if they weren’t paid for it, so Congress needed a fix. Here’s what they came up with: anyone who paid a music publisher two cents would have the right to make one piano roll of any song that publisher published. The publisher couldn’t say no, and no one had to hire a lawyer at $200 an hour to argue about whether the payment should be two cents or a nickel.

This compulsory license is still in place today: when Joe Cocker sings “With a Little Help from My Friends,” he pays a fixed fee to the Beatles’ publisher and away he goes – even if Ringo hates the idea. If you ever wondered how Sid Vicious talked Anka into letting him get a crack at “My Way,” well, now you know.

That compulsory license created a world where a thousand times more money was made by a thousand times more creators who made a thousand times more music that reached a thousand times more people.

This story repeats itself throughout the technological century, every ten or fifteen years. Radio was enabled by a voluntary blanket license – the music companies got together and asked for an antitrust exemption so that they could offer all their music for a flat fee. Cable TV took a compulsory: the only way cable operators could get their hands on broadcasts was to pirate them and shove them down the wire, and Congress saw fit to legalize this practice rather than screw around with their constituents’ TVs.

Sometimes, the courts and Congress decided to simply take away a copyright – that’s what happened with the VCR. When Sony brought out the VCR in 1976, the studios had already decided what the experience of watching a movie in your living room would look like: they’d licensed out their programming for use on a machine called a Discovision, which played big LP-sized discs that disintegrated after a few plays. Proto-DRM.

The copyright scholars of the day didn’t give the VCR very good odds. Sony argued that their box allowed for a fair use, which is defined as a use that a court rules is a defense against infringement based on four factors: whether the use transforms the work into something new, like a collage; whether it uses all or some of the work; whether the work is artistic or mainly factual; and whether the use undercuts the creator’s business-model.

The Betamax failed on all four fronts: when you time-shifted or duplicated a Hollywood movie off the air, you made a non-transformative use of 100 percent of a creative work in a way that directly undercut the Discovision licensing stream.

Jack Valenti, the mouthpiece for the motion-picture industry, told Congress in 1982 that the VCR was to the American film industry “as the Boston Strangler is to a woman home alone.”

But the Supreme Court ruled against Hollywood in 1984, when it determined that any device capable of a substantial non-infringing use was legal. In other words, “We don’t buy this Boston Strangler business: if your business model can’t survive the emergence of this general-purpose tool, it’s time to get another business-model or go broke.”

Hollywood found another business model, as the broadcasters had, as the Vaudeville artists had, as the music publishers had, and they made more art that paid more artists and reached a wider audience.

There’s one thing that every new art business-model had in common: it embraced the medium it lived in.

This is the overweening characteristic of every single successful new medium: it is true to itself. The Luther Bible didn’t succeed on the axes that made a hand-copied monk Bible valuable: they were ugly, they weren’t in Church Latin, they weren’t read aloud by someone who could interpret it for his lay audience, they didn’t represent years of devoted-with-a-capital-D labor by someone who had given his life over to God. The thing that made the Luther Bible a success was its scalability: it was more popular because it was more proliferate: all success factors for a new medium pale beside its profligacy. The most successful organisms on earth are those that reproduce the most: bugs and bacteria, nematodes and virii. Reproduction is the best of all survival strategies.

Piano rolls didn’t sound as good as the music of a skilled pianist: but they scaled better. Radio lacked the social elements of live performance, but more people could build a crystal set and get it aimed correctly than could pack into even the largest Vaudeville house. MP3s don’t come with liner notes, they aren’t sold to you by a hipper-than-thou record store clerk who can help you make your choice, bad rips and truncated files abound: I once downloaded a twelve-second copy of “Hey Jude” from the original Napster. Yet MP3 is outcompeting the CD. I don’t know what to do with CDs anymore: I get them, and they’re like the especially garment bag they give you at the fancy suit shop: it’s nice and you feel like a goof for throwing it out, but Christ, how many of these things can you usefully own? I can put ten thousand songs on my laptop, but a comparable pile of discs, with liner notes and so forth – that’s a liability: it’s a piece of my monthly storage-locker costs.

Here are the two most important things to know about computers and the Internet:

1. A computer is a machine for rearranging bits

2. The Internet is a machine for moving bits from one place to another very cheaply and quickly

Any new medium that takes hold on the Internet and with computers will embrace these two facts, not regret them. A newspaper press is a machine for spitting out cheap and smeary newsprint at speed: if you try to make it output fine art lithos, you’ll get junk. If you try to make it output newspapers, you’ll get the basis for a free society.

And so it is with the Internet. At the heyday of Napster, record execs used to show up at conferences and tell everyone that Napster was doomed because no one wanted lossily compressed MP3s with no liner notes and truncated files and misspelled metadata.

Today we hear ebook publishers tell each other and anyone who’ll listen that the barrier to ebooks is screen resolution. It’s bollocks, and so is the whole sermonette about how nice a book looks on your bookcase and how nice it smells and how easy it is to slip into the tub. These are obvious and untrue things, like the idea that radio will catch on once they figure out how to sell you hotdogs during the intermission, or that movies will really hit their stride when we can figure out how to bring the actors out for an encore when the film’s run out. Or that what the Protestant Reformation really needs is Luther Bibles with facsimile illumination in the margin and a rent-a-priest to read aloud from your personal Word of God.

New media don’t succeed because they’re like the old media, only better: they succeed because they’re worse than the old media at the stuff the old media is good at, and better at the stuff the old media are bad at. Books are good at being paperwhite, high-resolution, low-infrastructure, cheap and disposable. Ebooks are good at being everywhere in the world at the same time for free in a form that is so malleable that you can just pastebomb it into your IM session or turn it into a page-a-day mailing list.

The only really successful epublishing – I mean, hundreds of thousands, millions of copies distributed and read – is the bookwarez scene, where scanned-and-OCR’d books are distributed on the darknet. The only legit publishers with any success at epublishing are the ones whose books cross the Internet without technological fetter: publishers like Baen Books and my own, Tor, who are making some or all of their catalogs available in ASCII and HTML and PDF.

The hardware-dependent ebooks, the DRM use-and-copy-restricted ebooks, they’re cratering. Sales measured in the tens, sometimes the hundreds. Science fiction is a niche business, but when you’re selling copies by the ten, that’s not even a business, it’s a hobby.

Every one of you has been riding a curve where you read more and more words off of more and more screens every day through most of your professional careers. It’s zero-sum: you’ve also been reading fewer words off of fewer pages as time went by: the dinosauric executive who prints his email and dictates a reply to his secretary is info-roadkill.

Today, at this very second, people read words off of screens for every hour that they can find. Your kids stare at their Game Boys until their eyes fall out. Euroteens ring doorbells with their hypertrophied, SMS-twitching thumbs instead of their index fingers.

Paper books are the packaging that books come in. Cheap printer-binderies like the Internet Bookmobile that can produce a full bleed, four color, glossy cover, printed spine, perfect-bound book in ten minutes for a dollar are the future of paper books: when you need an instance of a paper book, you generate one, or part of one, and pitch it out when you’re done. I landed at SEA-TAC on Monday and burned a couple CDs from my music collection to listen to in the rental car. When I drop the car off, I’ll leave them behind. Who needs ’em?

Whenever a new technology has disrupted copyright, we’ve changed copyright. Copyright isn’t an ethical proposition, it’s a utilitarian one. There’s nothing moral about paying a composer tuppence for the piano-roll rights, there’s nothing immoral about not paying Hollywood for the right to videotape a movie off your TV. They’re just the best way of balancing out so that people’s physical property rights in their VCRs and phonographs are respected and so that creators get enough of a dangling carrot to go on making shows and music and books and paintings.

Technology that disrupts copyright does so because it simplifies and cheapens creation, reproduction and distribution. The existing copyright businesses exploit inefficiencies in the old production, reproduction and distribution system, and they’ll be weakened by the new technology. But new technology always gives us more art with a wider reach: that’s what tech is for.

Tech gives us bigger pies that more artists can get a bite out of. That’s been tacitly acknowledged at every stage of the copyfight since the piano roll. When copyright and technology collide, it’s copyright that changes.

Which means that today’s copyright – the thing that DRM nominally props up – didn’t come down off the mountain on two stone tablets. It was created in living memory to accommodate the technical reality created by the inventors of the previous generation. To abandon invention now robs tomorrow’s artists of the new businesses and new reach and new audiences that the Internet and the PC can give them.


Introduction  •  1. DRM systems don’t work  •  2. DRM systems are bad for society  •  3. DRM systems are bad for biz  •  4. DRM systems are bad for artists  •  5. DRM is a bad business-move for MSFT  •  Copyright