Keep DRM out of Web standards — Reject the Encrypted Media Extensions (EME) proposal

Connectivity (cc by laurelrusswurm)

My Letter

Mr. Clifford’s response,an argument in praise of DRM

My rebuttal:

Dear Mr. Clifford:

Just so you know, a devil’s advocate is one who argues against their own belief in an argument, clearly *not* what you are doing here.

1) If DRM is not in the specification, why is backwards compatibility required?

2) As you point out, since DRM is only effective when supported by law, it begs the question: why is DRM necessary?

It is the law, not DRM, which does the work of fighting bootlegging. DRM serves only to thwart ordinary people engaging in their own personal uses.

It has been demonstrated over and over again that the bootleggers that DRM is supposed to stop always find ways to circumvent DRM. DRM is really only most effective against those who can not circumvent it, whether they are blind people prevented from running an ebook though software that will make it accessible, or the student wanting to watch a public domain film, or the senior who wants to copy a grandchild’s home video.

3) I certainly never said “I create therefore its yours is a de facto truth.”

Like every creator since the beginning of time, you most certainly do have absolute control over your own creations, so long as you keep them safely locked up in your own private domain (i.e. unpublished). Once anyone publishes their work into the public domain, the work is no longer private, and the reality has always been that the creator loses absolute control over their work at this point.

When your work is performed in front of my eyes, or played into my ears, it stops being solely your work, because it is now part of my sensibility. When many people see/hear/touch a work it becomes part of our shared culture. We share and talk about our culture with our friends. A thriving culture, like a thriving Internet, requires interoperability because it is a shared thing.

Unless you have been raised by wolves in a cave, like all of us, the reality is that you have been influenced by all of the culture that you have been exposed to. Any creative work that arises out of your own sensibilities has been influenced by the work of the other creators you have been exposed to over the course of your life, whether you are consciously aware of it or not. There is no doubt in my mind that George Harrison believed “My Sweet Lord” was a totally original composition when he wrote it.

The imposition of copyright monopolies over the past few hundred years has attempted to alter that reality with the legal imposition of cultural restraint. When creators (or more often corporate rightsholders) impose state granted monopoly rights onto the culture, it violates the sovereignty of human beings to be influenced by the work of others and remix it into their own creations.

Copyright never did guarantee any creator a right to make a living. All it does is turn our former free culture into permission culture. The resultant copyright chill impedes the free creation of new work. Artists don’t dare expand on a theme, and writers can’t safely quote a few lines of prose without first consulting lawyers.

In fact, creators made a living long before there was copyright. Human beings have been creating art probably even before we painted pictures on cave walls.

Yet even with our current permission culture in place, Josh Woodward is one of the most successful independent musicians I know, and he licences all his readily available creative work with a Creative Commons Attribution 3.0 United States (CC BY 3.0 US) License.

It isn’t the W3C’s place to decide on the validity of the various copyright monopolies, however, but rather to establish Web Standards that support an interoperable open web. This is another compelling reason why copyright issues, up to and including DRM, should not appear in W3C specifications.

4) I agree there are legitimate arguments against encrypted media content. And as a creator from a creative family, I well understand the arguments in favour of copyright, and by extension, DRM.

As most of the world has seen over this past week with all the PRISM revelations, there are certainly good arguments for encryption. Banks employ good encryption now. Very often (as with PRISM) it is human action that endangers our private data. Encrypted email is certainly a good thing. When sharing digital photographs of private individuals, or sending out unpublished work, even I have plastered passwords over web content. This has always been possible without requiring the inclusion of DRM in the W3C web specification. It is a red herring to suggest that universal DRM is necessary to facilitate security.

As I said before, I have been certain that free culture will win out eventually. But that confidence presupposes a free market. If DRM can be used to shoehorn copyright maximalism into the very structure of the Internet, if DRM becomes both the default and the norm, independent creators will be shut out and the Internet will stop being open and interactive and become the modern incarnation of television.

5) This *is* advocacy.

Even if I wanted to coerce anyone, which I don’t, in order to dictate, I would require the power of coercion, which I simply don’t have. Unlike Copyright Law, which is itself an example of state backed coercion.

The funny thing is, even though all the influence, power and money resides in the hands of copyright maximalists, I don’t think coercion is necessary. Though the apparent advantage is theirs, culture and artistic creation are human essentials. We are driven to create and share. As creators come to realize that we can create as well or better without the state imposed coercion of monopolies, we will win out eventually. I think the special interests know, this, which is why so much effort has gone into changing the rules.

I don’t want to force you to share your work any way you are not comfortable with, Mr. Clifford. Lock it up with all the DRM you like. All I want is to reserve the right to avoid such content. My concern is that the inclusion of DRM in the web specification will lead to the imposition of DRM across the Internet. That would strip creators and users of our ability to make our own choices.

6) Attribution existed long before copyright law. Neither copyright law or DRM are needed to ensure attribution. If anything, the prevailing copyright maximalism is encouraging many people to not attribute the works they share for fear of reprisal. Best practice is to always attribute any cultural work.

Plagiarism is not covered by Copyright Law either, nor is it remedied by DRM.

Seriously, Mr. Clifford, if it were not for corporate incursions into the personal sphere, I would not be here arguing about the merits of copyright or DRM. Like most everyone else, I used to accept the legitimacy of copyright law. Copyright used only to be the concern of creators, publishers, lawyers and bootleggers.

In the zeal to impose control over the new digital mediums, Corporate Special Interests have been successfully lobbying governments to erode the rights of people, audiences, users, and creators.

Over the course of my life, the reach of copyright has spread from the commercial realm into the personal, making it possible for activities that used to be perfectly acceptable to result in criminalization. Today’s children need to understand copyright law before creating, copying or sharing anything for their own self protection. It is incomprehensible to me that anyone could be bankrupted or jailed for non-commercial copyright infringement.

Web Standards are intended to secure the free exchange of digital ideas and content, DRM exists to limit the free exchange of digital ideas and content. Were it not for the unrelenting efforts of dedicated corporate lobbyists, no one would even be considering incorporating DRM into the HTML5 specification.

Laurel L. Russwurm
This letter is now posted on the W3C Discussion List

See the whole list: W3C – DRM – HTML5.


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