Don’t celebrate the end of DRM?

Interesting post on the faculty blog of the University of Chicago Law School, by professor Doug Lichtman, that argues that the end of DRM would be disastrous for the music industry and music lovers. He suggests that without DRM, the industry will have no incentive to invest in music or will develop some other draconian response to piracy, such as streaming music to proprietary players. He also argues that improvements in labeling law or changes to the law to prevent the use of DRM as draconian as Sony’s would backfire, as this would lead to legislating over what types of DRM are permissible.

It’s good to see someone even try to argue the value of DRM after the whole Sony rootkit fiasco, but in this case Professor Lichtman has it wrong.

First, as Doug Lay points out in the comments, imagining the major labels moving to supporting only a single proprietary player leads to some interesting speculative schadenfreude. Certainly it’s easy to imagine the major labels continuing their downward spirals by fragmenting the playback market and alienating their channel. But just because the solution to come might be further detrimental to the labels’ interests is no reason to keep an antipiracy solution that has been proven harmful.

Second, Professor Lichtman suggests that the law needs not only to require better labeling for DRM but also to identify what is and is not allowed:

DRM of the sort adopted by SonyBMG might similarly be so bad as to beimpermissible. But then we need to say more about what forms of DRMwould be permissible, just as we similarly today allow shopkeepers toput locks on their doors, call the police in the event of a burglary,and so on.

If I’m not mistaken, there are a few lawsuits out there that point out ways in which Sony BMG’s DRM is in violation of existing laws against spyware, computer fraud, false or misleading statements, trespass, false advertising, unauthorized computer tampering, and other generally consumer hostile acts. I think this point of Professor Lichtman’s is a red herring. As Doug Lay points out, we don’t need new laws, we need Sony to be punished for violating the laws they’ve already done. In fact, I’m not sure I’d say that legislation against DRM is needed at this point even after this case, and perhaps on this point I do agree with Professor Lichtman, though for different reasons. I think we still need to see what the market, competitive pressures, and general customer awareness will do to address the labeling problem, and in the meantime the fallout from lawsuits will hopefully force Sony BMG and other labels to reconsider their choices.

Finally, Professor Lichtman assumes that the major labels’ investment in music somehow creates value for the musician and the customer. I’m not going to comment except to point out that the list of XCP infected discs contained albums by Celine Dion and Our Lady Peace. And I’m not sure how anyone could construe putting XCP on discs of reissued material by Dexter Gordon, Louis Armstrong, Art Blakey, Shel Silverstein, Horace Silver, Gerry Mulligan, or Dion, all on the XCP list, as constituting protecting an ongoing investment in music.

9 Responses to “Don’t celebrate the end of DRM?”

  1. Tony Smith Says:

    Slightly off topic, but is there a tech guru who could explain this post. I’m can’t do some of the tasks suggested.

    Its from the SonyRootkit blog

    Anonymous said…
    Me again…

    I don’t get you guys. Try to give you hints and you don’t follow through.

    “This explains some of the relationship between Media Max and SunnComm.”

    Have you seen this sunncomm PR:

    “MediaMax Technology Corporation Signs Letter of Intent to Merge with SunnComm International, Inc.”

    Note the date: 03/31/2005

    Now go to

    Select WHOIS half way down the left hand side. Put and later as the domain name. Notice the similarity. For, notice the Create Date:

    Record create date - 2004-12-01

    Compare that to the PR.

    Open a Command Window on your windows PC and type:



    Notice anything about the IP address of each company.

    On your browser, go to and later to Go to the contact information and look at both fax numbers. Notice anything?

    Look at an old SEC filing from MediaMax Technology. For example, this one from 3/31/03, when it was still called Quiet Tiger

    Look at the contact info at the bottom:

    Mailing Address
    668 N. 44TH STREET, SUITE 248
    PHOENIX AZ 85008

    Now look at the SunnComm’s address on their website again. Interesting isn’t it.

    Based on the above, how do you account for this PR from Quiet Tiger (now MediaMax Technology) from 1/23/2004

    “Quiet Tiger Enters into Marketing Agreement with SunnComm Technologies”

    followed by this one from 3/31/2005

    “MediaMax Technology Corporation Signs Letter of Intent to Merge with SunnComm International, Inc.”

    Pretty weird, huh? And all explained in

    The big story here is not Spyware or Rootkits and EULAs. We are talking about investors being taken to the cleaners.

    It’s so frustrating to see Inspector Jacques Clouseau looking for fingerprints on the shift stick of the car and missing the dead body in the passenger seat.

  2. Matt Says:

    Slow news week?

  3. Mike Says:

    I can’t say I have a very high opinion of the man after reading that. And it may be a blog from a law school but much of it is less professional legal opinion and more amateur opinion on economics, music, the recording business, and computer science.

    This is particularly absurd: “music industry will continue to invest in music at the same or a higher clip”. The idea that the existence of worthwhile music depends on “investment” from the likes of Sony BMG is so absurd as to be laughable. The recording industry didn’t even exist when most of the West’s great music was being written.

    And if the professor dislikes art music and prefers, say, gansta rap to Bach or Hildegard von Bingen, then I still don’t see his point. Production costs for pop music need not be high, because of technological advances, so “investment” at a “clip” (whatever that is) is not necessary:

    Whatever the point is here it is a thoroughly confused one:

    “For instance, might we see more services (like the SBC Yahoo Music Engine) that stream music but only to a specific proprietary player? That is, one response to a world without DRM is to stop selling CDs entirely and instead stream encrypted music to a compliant player that in turn protects the music.”

    How is a “compliant player that … protects the music” not a form of DRM? And precisely what is the significance of the music’s being streamed to it? So far as, I can see this only means that the technological problem for someone who (perfectly resonably) wants to listen to the music he’s paid for on a different device in another room becomes one of capturing the stream. Either he can get hold of the means to do it fairly easily, in which case the DRM is broken; or he can’t, in which case the product is unlikely to sell (qv. the ATRAC Sony player that lost “the Walkman market” to the iPod.)

    We’ve had the absurd and the confused. But this I think is actually despicable:

    “… we similarly today allow shopkeepers to put locks on their doors, call the police in the event of a burglary, and so on.”

    It’s a thoroughly dishonest attempt to claim sympathy for a company that has installed spyware on people’s computers and almost certainly broken the law in numerous ways in the process by trying to equate them with the victims of crime when they are, rather, the ones committing it.

    We certainly do not allow shopkeepers to enter people’s homes in order to attempt to control what they do with goods they’ve purchased from the shopkeepers after they’ve bought them.

    Perhaps someone should install a hidden videocamera in Professor Lichtman’s house just to check that he doesn’t beat his wife. That would seem to be the logic of his position, so how could he complain?

  4. Dave Says:

    Nicely put, Mike. And that link above to SunnComm’s shady history makes for some interesting reading. I wonder how closely Sony screens its vendors… apparently not very.

  5. Doug Lichtman Says:

    Thanks for the thoughtful post, though I do wish you were a little more careful in how you characterize what I say. Contrast, for example, your summary line of “[Lichtman] suggests that without DRM, the industry will have no incentive to invest in music or will develop some other draconian response to piracy” to my actual statement: “isn’t it likely that the music industry will (say) invest less or develop other ways of fighting piracy?”. Your moves — “no incentive” and “draconian” — aren’t mine, and just set up my points as strawmen. (”No incentive” is clearly wrong, right?)

    Regardless, the substance of your post is interesting. I agree with you that a proprietary player is not a great solution. I offered it as an example, and explicltly asked for others. That is, if DRM in the form used by Sony isn’t good, what kinds of technologies do we think they will and should use instead? (Commenter Mike, you are right that my language there was sloppy; yes, yes a proprietary player is “DRM”; I just was trying to distinguish it from the DRM pseudo-spyware approach used by Sony.)

    Similarly, you are right that there are a bunch of laws already in place that influence what DRM is used. I’m not sure I meant to ask for more law; I was meaning to ask for more ideas and suggestions about what kinds of DRM should be permissible versus not. (My examples and analogies to shopkeepers were in similar spirit; on that, Commenter Mike, I think your response is unfairly harsh.)

    I disagree, however, in your last point: I do think the music industry represents one important way to ensure music is created, marketed, and distributed. I don’t at all imagine it to be the only way. Folks are free to make music on their own, give it away online, and so on. I claim only that it is one attractive way and we might want to support it. I don’t see how DRM stops other approaches — artists can still give their music away for free if they want to, for example — so even if you disagree, I don’t see why that would make us oppose DRM.

    In any event, thanks for the thoughtful pushback. Hopefully good conversations like these will help all of us get a better sense of these issues.

  6. TomCS Says:

    I am neither a lawyer nor an economist, and unfortunately cannot access the full text of Professor Lichtman’s piece from the above link. So I hope that allowances will be made as appropriate. But I’m going to try to stand back a little from the current cases.

    I suspect we, who take the on-line channel for music in our stride if not for granted, underestimate the threat which “big music” belatedly now sees in the new digital developments. Their business model has traditionally found the music (song-writer), the performer (soloist and/or band/session musicians), the technical input (producer, studio services, mastering etc), and put them together with the manufacturing, marketing and distribution. They have long-standing and well-defined relationships with the distribution channel (primarily specialist outlets, including specialist multiples, but later with some pain even the discounting super-market chains). They assemble and finance the package, and pull their investment back from sales through the channel over time. (And incidentally the legal departments and lobbyists to protecttheir investment.)

    They have so far weathered the periodic threat of new media primarily through a klutziness factor: in the sixties, you could rerecord vinyl onto tape, later vinyl and CD onto cassette, but it was a struggle, and the quality wasn’t always great. Indeed, they turned it into a new income source, re-issuing vinyl as CD.

    There were always garage bands and independents (look at much of the history of alt-country) and little labels, but they didn’t threaten the model, and most artists would take the “big music” deal (”get signed”) if they could. It is after all the only real chance of getting seriously rich/moving into the big leagues. The best baseball player in the world still needs to play in MLB to get seriously rich. Getting seriously rich can attract even the purest musician.

    It’s not just the distribution bit of the business model that is at risk here and now, though it may be the most obvious. Apple are now giving away free an amateur “virtual studio” application for wannabee artists. Professional producers use the full versions, and don’t need the same physical studio facilities. Songwriters have a new medium (the Internet) for hawking their work and joining up with artists, signed or not: they are no longer as totally dependent on publishers and record companies. Artists can indeed in principle use loops or multi-tracking themselves to dispense with the need to rely on “A & R” to find session musicians. Many perform with laptops. Anyone can rip digital high quality copies of music files.

    So what is the future for “big music”? Their residual USP seems now to be only the finance and marketing (and lawyers and lobbyists): the rest, and in particular the pulling together of the specialist resources can be more and more convincingly done without them. They could easily be supplanted in the others: imagine VCs moving into IT style start-ups formed around artists or bands rather than software developers. And what would happen if an iTunes music store specifically for “unsigned” artists were to come on line?

    So if I were “big music”, I would be really worried. The important thing is that it is not just the threat of consumer duplication of CDs or on-line distribution: if the analysis above is half right, the business model is crumbling at many if not all points. So RIAA feels attacked, if not cornered, so it defends itself. The French term is “mechant” which, applied to a dog, translates closer to “vicious” than “naughty”.

    I am not therefore at all surprised to see “big music” behaving as they have, over half-baked DRM as over suing mothers.

    Little music does however need content protection, probably more even than big music. Independent songwriters need their royalties too. Copyright is good. Bad DRM is bad, but all music needs a way of restricting gross abuse of copyrights, whether in CD duplication farms or MP3 servers.

    This is I think a potential challenge for the open source community, since “big music” with its potential suppliers has no interest in producing reasonable DRM. The limitations on burning and electronically distributing tracks bought from the iTunes store seem to be an acceptable model to most of those prepared to pay for music on line. If this cannot in principle be done acceptably by the Sony-BMG route of adding applications to your carefully protected system, possibly the acceptable answer will have to lie in the next generation of OSs.

  7. TomCS Says:

    Sorry, but a PS. This analysis also answers your final puzzled query about why SonyBMG are trying to enforce DRM on the high volume end of their back catalogue. If they see the task of controlling the entry of new talent into the market, “Best ofs” are the highest value property they have, and potentially the best earners. And it’s all profit. Bit like the software patent store business model.

  8. SemNome Says:

    It’s funny, the way he reasons…It’s the same as saying I should let someone hit my arm with a crowbar, because otherwise they might resort to shooting me in the head.

  9. John Says:

    Yo, you people be wasting words. This has become an argument betweem people who surff the net. If you gonna debate about all this stuff then post your texts in a better known page, or contact some local newspaper and pay to put an article in there. Then if a lota people be complaining through media that is more common to all people then everyone will get the news sound and clear… Interesting stuff though, a bit confusin though…
    Don’t be hating each other.. CIAO

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