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Twenty years ago, I was a computer consultant, earning my living by knowing just a little bit more about computers than the people buying them. I made a lot of mistakes, and on one occasion I made a whopper. Not knowing anything about MS-DOS 2.1′s then-new support for subdirectories, I installed both of a client’s expensive copy-protected programs into the “root,” or top directory, of the client’s computer hard drive. My mistake made it hard for him to find anything on his drive because it consisted of a long list of funny-looking file names, which were not grouped in any logical way. Copy protection — an early form of what we now classify as “digital rights management,” or DRM — made it difficult or perhaps impossible for me to correct my error and clean up his hard disk by reinstalling the expensive software in its own subdirectory. (In order to prevent copyright infringement or license violations, the DRM for this software allowed it to be installed only once, and only on one machine.) Ever since then, I’ve believed there had to be better and more flexible ways to implement copyright protection schemes. The kind of unforgiving DRM I encountered in 1983 was mostly supplanted in the next few years by what I call “more humane” versions of copy protection. These more flexible measures were implemented by Microsoft Corp. and others in response to competition from upstarts like Borland Software Corp., which offered DRM-free versions of spreadsheet and programming language software at much lower prices. Consumers bought this software from Borland even though they could get a pirated copy for free, in order to receive the original documentation, plus support from the vendor. That experience makes me wonder what it would take to create “humane DRM” in this century. Such schemes, of course, would have to be responsive to the needs of copyright holders. “The owner or distributor of any creative work should have the right to determine its use,” says Andy Moss, Microsoft’s director of technical policy for Windows. There are other stakeholders. Consumers have a legitimate and lawful interest in copyrighted works on flexible platforms that may even allow a degree of unauthorized copying. And technology companies are unlikely to build machines with overly restrictive copy-protection locks. These are, of course, difficult needs to harmonize. I cannot imagine, for example, a government-based regulatory framework pulling it off successfully. The Federal Communications Commission last November put forward the so-called broadcast-flag scheme, which requires digital equipment makers to build in anticopying technology to their machines, but it can’t evolve quickly in response to new threats or a changing marketplace. Some content and technology companies maintain that we already have humane DRM. Sandra Aistars, intellectual property counsel at Time Warner Inc., says her company has worked closely with consumer electronics and information technology players and consumer groups to develop DRMs that give consumers “content flexibility.” Some of these systems, she says, are more permissive than what would traditionally be allowed by fair use. Even so, Time Warner supports government-imposed DRM mandates such as the FCC’s new broadcast-flag scheme. Electronic books are one of the most visible forms of digital rights management. Remember Stephen King’s e-book novella “Riding the Bullet?” It was an electronic book, all right, but it was more difficult to use (and to copy from) than if it had been published on paper. You couldn’t, for example, cut and paste a passage or print it out. Most e-books have similar restrictions, and these restrictions create a clunky and burdensome consumer experience. It’s no wonder that the market for e-books has stalled. There is nothing inherently clunky about DRM. It’s technologically possible to cut and paste and print from an e-book, but most publishers turn off those features. Imagine, however, if e-books could be easily copied, printed, and otherwise shared. Consumers would warm to the DRM experience and learn that there is nothing wrong with DRM itself. I think there’s a way to create markets in which the publishers, over time, choose more “relaxed” implementations of DRM. The key to these markets is to create the consumer expectation that, absent a publisher’s decision to invoke the DRM features of a software platform, the use of a digital work is essentially unrestricted. We begin with a thought experiment: Suppose that some enterprising company based in Redmond, Wash., or Cupertino, Calif., set out to take public-domain works and make them available on e-book platforms — with all the DRM copy protection turned off. That company could sell the e-books at a nominal price over the Web, but might even expressly allow that these e-books be freely copied, excerpted, subjected to cut and paste, and so on. This project might be a golden opportunity both to educate the public about the potential convenience of digital reader or playback software platforms, and to help consumers grow more accustomed to using them. Such e-books — including, perhaps, the lesser-known Mark Twain works, or Constance Garnett’s translations of Russian novels, the copyrights of which have lapsed — would have all the advantages of being based on a digital platform (scholars, for example, could index a novel’s use of certain words or character names) and none of the disadvantages (you could even print out your copy). Suppose, further, that DRM-disabled digital-format public-domain works became widespread — this would be a boon for cash-starved school districts. And an e-book publisher might even produce DRM-restricted teacher’s editions of the same works, including critical commentary and lesson plans, and generate a separate revenue stream from the “teacher’s edition.” Yes, some publishers using the same platform might insist on (and receive) limitations on the extent to which users could copy or excerpt the digital work in question. At the same time, however, consumers, armed with their experience of public-domain works in digital formats, would know that the limitations on their use of these works came from the publisher (or even the author) and not from the platform itself. I can see some immediate advantages to my modest proposal. First, consumers would have a whole new way to explore the classics and other older works. Second, the works would be less costly than they are today. Third, it would give both publishers and digital-media platform makers incentives to loosen restrictions rather than tighten them. Fourth, it would help manufacturers build platforms for digital media that are more familiar, commonplace and user-friendly. Aistars likes this approach in theory, saying she sees “the benefit of making public-domain works available as easily and inexpensively as possible.” She wonders, however, who will invest in such an enterprise if there’s no assurance that the investment will be recouped. Robert Hamadi, head of communications at the Publisher’s Association, a British trade group, takes a less cautious view. “It’s important to try things — you don’t know which business model is going to be the killer app,” he says. Can companies make money by selling public-domain works in DRM-enabled but unrestricted digital formats? I think so. For one thing, it could energize dormant media formats such as the e-book and jump-start the currently limited market for public-domain books, especially if the format adds significant value (such as the ability to index a text). What’s more, even though it would be possible for a reader to get the e-book for free from some downstream file-sharing site, there will always be readers who prefer to pay a modest fee to go to “the source” to obtain a copy they know to be pristine, uncorrupted and unaltered. The lesson the software companies learned in the 1980s was that they could compete against pirated versions of their software because consumers would be willing to pay a reasonable price for a reliable product from a recognized brand. The lesson applies here. Most of us believe that artists and authors deserve to be compensated and that publishers deserve compensation for bringing them to us. At the same time, it is a natural human impulse to share the creative works we love. (There are few greater testaments to this impulse than the Nick Hornby novel “High Fidelity” and the movie starring John Cusack made from Hornby’s book.) In the absence of a more humane variety of DRM, these interests may be at odds with each other. It seems to me, however, that market forces can help reconcile both sets of interests without resorting to government regulations. Want copy protection with a human face? Let a thousand DRMs flower. Mike Godwin is senior technology counsel at Public Knowledge (publicknowledge.org), a public interest organization. He was previously chief correspondent of IP Law & Business . His e-mail is [email protected].

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