Congress Should Not Mandate a Single DRM, But Rather Compel Access to All Major DRMs
As much as it grates on consumers, it's not likely that the leaders of the music industry are going to supply their product without some sort of protection given the ease of reproducing the product. Even if most of us are not going to download illegally (a big assumption), there will be enough people who will take partake of illegal downloading and thus the copyright owners will demand protection. While this protection will ease the worries of the producers, consumers get stuck with irritating restrictions. In the nascent digital download industry, one of the most irritating problems to emerge is the lack of interoperability between various hardware and software products because of competing digital rights management (DRM) formats.
Congress has taken the preliminary steps in an attempt to resolve this problem. The U.S. House of Representatives Committee on the Judiciary Subcommittee on Courts, the Internet, and Intellectual Property held an oversight hearing this week on "Digital Music Interoperability and Availability" focusing on the question of whether to mandate a specific DRM format for for all digital music players.
Congress' power to do this stems from Article I, Section 8, Clause 3 of the Constitution granting power to regulate interstate commerce and possibly also Clause 5 of the same part granting Congress the power to establish standard measures. So contrary to many of our initial responses that this is something Congress shouldn't be doing, they nonetheless have the power to do so.
Being able to do so, however, is not the same as should. Congress' mandating of a single DRM as the industry standard would have a serious chilling effect on development, just as opponents say. Let's say you're a company who's got a great idea for a new DRM system, one that would offer significantly improved protections for artists but greater flexibility for users. If Congress has already mandated one to rule the market, you're unlikely to develop this idea because to get it used it would have to become the Congressionally approved standard. Or let's say you've come up with a great new music file format that stores more and better data at a lower memory footprint but it wouldn't work with the existing Congressionally-mandated DRM. You'd be unable to provide this innovation to consumers because the Congressionally-mandated DRM would work with it.
Nevertheless, I think Congress has a worthy goal in mind when seeking to make things as easy for consumers, something the industry has thus far failed to do. To this end, I would make an alternative proposal. Instead of mandating a single DRM scheme, Congress should mandate instead that support of popular DRM schemes in software and hardware. They could set some kind of threshold, such as if a given format has 5% or more of all music downloads over a three-month period, then all software and hardware produced thereafter must support that format. In theory, this example would mean that there could be as many as 20 formats to be supported but in practicality right now it would mean that Apple products would need to support WMA and WMA products would need to support Apple's protected AAC. A natural corollary is that DRM format producers would need to cooperatively share their formats with others.
Doing it this way, any format that begins to take on power would need to be supported by all the other players. So obviously this would mean iTMS formats would be supported on non-iPod players and non-iTunes software. Conversely, iTunes and the iPod would need to be compatible with the DRM protection from the MSN Music, Napster, Real Music Store, Sony Connect, and other competitors. This would give consumers the ultimate in power in choosing format, software in hardware rather than being locked in just because of their preference in one of those areas.
Congress has taken the preliminary steps in an attempt to resolve this problem. The U.S. House of Representatives Committee on the Judiciary Subcommittee on Courts, the Internet, and Intellectual Property held an oversight hearing this week on "Digital Music Interoperability and Availability" focusing on the question of whether to mandate a specific DRM format for for all digital music players.
Congress' power to do this stems from Article I, Section 8, Clause 3 of the Constitution granting power to regulate interstate commerce and possibly also Clause 5 of the same part granting Congress the power to establish standard measures. So contrary to many of our initial responses that this is something Congress shouldn't be doing, they nonetheless have the power to do so.
Being able to do so, however, is not the same as should. Congress' mandating of a single DRM as the industry standard would have a serious chilling effect on development, just as opponents say. Let's say you're a company who's got a great idea for a new DRM system, one that would offer significantly improved protections for artists but greater flexibility for users. If Congress has already mandated one to rule the market, you're unlikely to develop this idea because to get it used it would have to become the Congressionally approved standard. Or let's say you've come up with a great new music file format that stores more and better data at a lower memory footprint but it wouldn't work with the existing Congressionally-mandated DRM. You'd be unable to provide this innovation to consumers because the Congressionally-mandated DRM would work with it.
Nevertheless, I think Congress has a worthy goal in mind when seeking to make things as easy for consumers, something the industry has thus far failed to do. To this end, I would make an alternative proposal. Instead of mandating a single DRM scheme, Congress should mandate instead that support of popular DRM schemes in software and hardware. They could set some kind of threshold, such as if a given format has 5% or more of all music downloads over a three-month period, then all software and hardware produced thereafter must support that format. In theory, this example would mean that there could be as many as 20 formats to be supported but in practicality right now it would mean that Apple products would need to support WMA and WMA products would need to support Apple's protected AAC. A natural corollary is that DRM format producers would need to cooperatively share their formats with others.
Doing it this way, any format that begins to take on power would need to be supported by all the other players. So obviously this would mean iTMS formats would be supported on non-iPod players and non-iTunes software. Conversely, iTunes and the iPod would need to be compatible with the DRM protection from the MSN Music, Napster, Real Music Store, Sony Connect, and other competitors. This would give consumers the ultimate in power in choosing format, software in hardware rather than being locked in just because of their preference in one of those areas.
posted by Vincent at 11:08 AM
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