Musing on IPR and DRM

Imagine there was a significant risk of a life-threatenic epidemic of some medical condition or the other. Imagine there was a vaccine or perhaps an antidote for this condition. Imagine there was only one patent-holder. Imagine that the short-term demand for the medicines far exceeded the supply capacity of the patent holder.

Thankfully people far more learned than I’ll ever be have considered scenarios like this, and as a result the concept of compulsory licences exists. In simple terms, a government or equivalent body can overturn the rights of patent holders in such situations and grant licences to their competitors, using a Malcolm Quantum Energy approach to the problem. Malcolm loves isolating a problem and then giving it some Tipping Point level of energy and resource to see if innovative solutions emerge. He’s wise beyond his hair.
It nearly happened in the US with anthrax in 2001. It nearly happened in many parts of the world with bird flu. I suspect it probably happened in some form or shape with SARS; weak versions of the process have already been used for HIV and for AIDS. The TRIPS legislation, inadequate and almost-dangerous in many respects, nevertheless tries to do something about this from a world trade perspective.

So we have some sort of sledgehammer for the lock-in of patents, but these are for physical things and so they are easyish to understand. There are many problems to do with the way compulsory licences work; these relate to import and export and localisation and recompense to patent holders and a host of other things. But at least there is a sledgehammer. And we are learning. And we will get better.

Until people started talking about trying to patent software, my primary interest in patents came from pure curiosity, and was concentrated on “functional” and “life-saving” medicines. I couldn’t for the life of me understand how anyone could justify making something as essential as a life-saving drug hard to get, particularly by the use of artificial monopolies and their subsequent monopoly rents.

Even then I was no more than an active bystander, an interested observer. Until people tried to patent software. Then, as I began to perceive the unholy messes that could be caused, I started getting interesting in everything to do with patents. So that I could learn to do the right thing.

My family business was in journalism, and we had a printing press. At school and in church we had “cyclostyle” machines which we used to churn out various types of pamphlet and journal. We had dozens of typewriters at home. And over the last 20 years, I have seen the technology and costs of reproduction and transmission of the reproduced copies improve dramatically, with photocopiers and fax machines and scanners and digital cameras.

The same happened with music. My girlfriend had a massive Akai reel-to-reel tape system, and used it to record things. I grew up with cassette tapes and recordable CDs through to today’s iPod Generation.

The same thing happened with video. And with cameras in general.
Yet I bought books, I didn’t photocopy them. I bought prerecorded tapes. I bought CDs and DVDs by the cartload. And I never let anyone copy them. Never made a copy of them either. I’ve never bought anything from iTunes, though my children have. I use iTunes as a means of transferring music I already own on to my iPods.

I am not unique. There are many people who care about IPR and DRM because of the things that go wrong, not because they want to cheat “the system” or authors or musicians. They want to do the right thing.

We have a lot of things wrong with the “system” of IPR and DRM. They are no longer fit for purpose, they create behaviours and consequences that are diametrically opposed to the original intent of the rules and regulation. Innovation is hampered. Productivity is impeded and reduced. Incentives are used for intermediation and lock-in rather than disintermediation and freedom. Costs rise instead of dropping. The wealth created by the passage of Moore’s Law and Metcalfe’s Law and Gilder’s Law is frittered away, to a point of absurdity.

Patents are hard to write, to protect. Prior art is hard to discover. The process is creaking to a point of gridlock. The “system” is being corrupted and arbitraged to a point beyond absurdity.
That’s why we have to figure out how to do the right thing.

Let me take a simple example. Let’s say Clarence Fisher or Judy Breck come up with a scheme to create a global market for podcasts of lessons. That children are encouraged to trade their favourite podcasts, issued under a Creative Commons label. That the children contribute the podcasts, that they use social networking and collaborative filtering. That this trade happens internationally, similar to the legendary Grateful Dead tapes. [I quote from Wikipedia: The Grateful Dead allowed their fans to tape their shows like several other bands during the time. For many years the tapers set up their microphones wherever they could. Naturally the best sound was in front of the sound board. The eventual forest of microphones became a problem for the official sound crew. Eventually this was solved by having a dedicated taping section located behind the soundboard, which required a special “tapers” ticket. The band allowed sharing of tapes of their shows, as long as no profits were made on the sale of their show tapes. Recently, there was some dispute over what recordings archive.org could host on their site.] [Told you that Jerry Garcia influenced my opensource thinking!]

Wouldn’t it be great if there was a Dick’s Picks of favourite lessons on podcasts?

Then imagine that these kids, worldwide, needed media players in order to play these podcasts. Imagine that Apple or Microsoft or Real or Someone New dominated the media player space.

And imagine that the media players had bad DRM built into their DNA, so that the kids couldn’t play the Creative Commons-licensed podcasts. Imagine the media players were themselves locked in to specific and expensive devices. Imagine that the media player producers and the device producers and the connect providers and the “content” providers all banded together and made sure that the DRM chain was pure and ensured complete lock-in.

Imagine the kids who couldn’t listen to or watch the podcasts. Just because of bad DRM. What a shame that would be.

And this is not science fiction. It is happening. Now.

We have to learn to do the right thing. 

[An aside. We’re going to see a lot of legal activity on this front. This story (thanks to Cory), challenging what a digital copy is, who made the copy, what the original was, who owned the original, and so on, is just the beginning. Every enterprise has its hands full trying to prove that Person A is associated with Password B and Second-Factor authentication C and worked at device with IP address D and downloaded/altered/deleted E.  It is not as easy as it should be. Even in controlled work environments. ]

We have to learn to do the right thing.