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Kevin Marks |
03-06-2003 05:37 AM ET (US) |
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This is a mirror of the original proposal which is online at https://www.law.berkeley.edu/institutes/bclt/drm/papers/sobel-drm-btlj2003.html
Do please comment on it.
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| 2 | II. DRM-based business models |
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stefania |
09-02-2003 08:40 AM ET (US) |
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important article
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| 31 | Second,
DRM will be at the foundation of whatever business models actually succeed in
the digital age. Though The Wall Street
Journal didn’t offer the record industry any particulars for a new business
model, others have; and at least some DRM features have been at the heart of
all of the suggested models. |
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Kevin Marks |
03-06-2003 05:39 AM ET (US) |
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| 38 | Another
business model also goes beyond copyright, but not quite as far. It is a model
that uses DRM to control access to public domain materials, but doesn’t control
copying or redistribution of those works. In this model, digital versions of
public domain works are distributed to subscribers, unencrypted; and copying
and redistribution is controlled, if at all, merely by contract. This model is
used by Westlaw and Lexis, and even by the United States government in its pay-per-page
PACER system for the digital distribution of federal court judicial decisions.[6] |
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Kevin Marks |
03-06-2003 05:44 AM ET (US) |
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The author uses DRM very loosely, to the point of meaninglessness. If any digital work is deemed to involve DRM then the term loses all utility.
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| 103 | Under
the Digital Retailer model, the technology to used to identify watermarked and
fingerprinted files would reside on ISPs’
servers, not on end-users’ computers or consumer electronic devices. This
is key, for three reasons. |
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Kevin Marks |
03-06-2003 06:33 AM ET (US) |
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This is where the whole edifice crumbles. Once the file has moved off the server onto the customer's computer, it can readily be encrypted or obfuscated and passed to someone else. There's nothing magic about a server, it's just a computer with a net connection running code.
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| 108 | Files
that were not watermarked would be checked against a fingerprint database,
which (like the watermark database) would identify the owner of the copyright
to each of those files, as well as the wholesale royalty the copyright owner
decided to charge for its use. In order for works to appear in a fingerprint
database, copyright owners would have to arrange for their works to be
fingerprinted and included in the database. |
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Kevin Marks |
03-06-2003 06:38 AM ET (US) |
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And unfingerprinted files? What happens to them? You are ignoring the end-to-end model on which the internet is based. A model such as described here is possible, but it would require the replacement of the entire existing Internet structure with a new network with protocols designed around packet-level snooping , with default rejection of anything not understood.
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| 161 | Music
recordings embody at least two copyrights per track: a copyright in the musical
composition, usually owned by a music publishing company (though if a song is
co-written by more than one songwriter, the musical composition copyright is
likely to be co-owned by more than one publisher); and a copyright in the
recording itself, usually owned by a record company. As a result, royalties for
the online performance or download of a single recording must be split between
two (or more) copyright owners. What’s worse, music publishers license
performances and downloads through separate agencies (ASCAP, BMI or SESAC for
performances; and the Harry Fox Agency for downloads). So today, royalties for
the online use of a single music recording may be claimed by three separate
agencies on behalf of two (or more) separate copyright owners. |
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Kevin Marks |
03-06-2003 06:46 AM ET (US) |
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This is not a real problem, as you can build a hierarchical database of copyright contributions for derivative works. However, if you are planning the kinds of huge distribution (or rather, cash collection) markups mentioned here, the model becomes less tenable.
The real problem though is forgery - people replacing the watermarks on one work with that for another.
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| 168 | The Digital
Retailer model requires ISPs to compile records of copyrighted works accessed
by their subscribers, for billing purposes. I characterize this as a loss of
“some” privacy, because the degree of the loss should not be measured from a
baseline of complete privacy. Credit card companies already know where we shop
and how much we spend; and when we shop in places, or spend amounts, that look
unusual, company employees call us on the phone to ask whether we used our cards,
or thieves did. Likewise, phone companies already know who we call and when,
and how long we talk. Even cash transactions in brick-and-mortar retail stores
are likely to be videotaped. And in many American cities, highway and toll
bridge users and their passengers are likely to be videotaped as well.[31] |
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Kevin Marks |
03-06-2003 06:48 AM ET (US) |
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But the customers get nothing in return. In the mediAgora plan, they get the right to sell on and receive promotion fees.
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| 172 | The Digital
Retailer model does not require payment for each use of a work. It requires payment each time a work passes through
an ISP’s server. So, rather than characterizing the model as a pay-per-use model,
it should be thought of as a pay-per-redistribution model. Downloaded works may
be used on the computer to which they are downloaded, countless times without
additional payment. Only the initial download triggers a royalty fee. |
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Kevin Marks |
03-06-2003 06:52 AM ET (US) |
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This quaint notion that computers cannont transfer files without ISPs is very odd.
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| 183 | There
has been debate over the appropriate scope of the derivative work right (the
right to make new versions of copyrighted works).[41] But the
derivative work right is not at the heart (or edge) of the digital copyright
controversy. Digital copying and online redistribution involves exact
duplicates of copyrighted works. |
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Kevin Marks |
03-06-2003 06:57 AM ET (US) |
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This is another key mistake. The abilty to juxtapose and remix works is greatly enhanced by digital technology, and any useful plan needs to consider this.
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