IPR enforcement and myopia

[While I am working on a post that presents my view on “intellectual property rights”, this is not the one]

I am not a utilitarian or consequentialist. So I don’t accept the utilitarian premises – “promoting art, science etc” – that present intellectual property laws are based on (To see how dangerous utilitarianism is, just follow the comments on this post; what started out as a defense of capitalism soon became a full-fledged philosophical debate on capitalism vs. utilitarianism). But content owners find it useful because utilitarianism allows them to shift the goalposts in a manner of their choosing. These cases are examples of the pernicious side-effects of our present IPR regime.

The reason I began writing about it is this – MPAA’s decision to sue RealNetworks on charges of anti-circumvention. This is in relation to Real’s DVD copying software – RealDVD. The DMCA (and similar laws; India will have one pretty soon) is a pain in the a*** for every legitimate consumer; the “pirate” has it easy – why would someone who does not pay for a film or song or software bother about circumventing technological restrictions in the first place. For the consumer however, it restricts everything from reverse engineering to circumventing copy protection measures – even if you have paid for the DVD or audio CD and even if you want to do it for your personal use. In Real’s case, the software creates a “carbon copy” of the DVD on your hard disk (including the CSS protection), downloads information relevant to the film (consider it similar to album art and tagging your music), and allows you to skip directly to the start of the film. But the MPAA is pissed off because the software thus allows people to watch their movies in a manner of their choosing, without having to lug DVDs around, and frees them from having to find and insert the DVD into the optical drive every time – the MPAA wants to prevent the mp3-ization of films. Real will probably win this case on a technicality – its accepting the DVD CCA agreement did not include the acceptance of the requirement that the DVD be physically present in the drive. But as Ars Technica suggests-

DVD CCA has attempted to modify the CSS License to include the physical DVD requirement, but so far has been unable to pass it. Should it do so, however, the change would apparently affect current licensees, such as Real and Kaleidescape.

According to DVD CCA, “Every CSS Licensee who signs the CSS License specifically acknowledges and agrees the CSS Specifications ‘may be amended from time to time in accordance with the DVD CCA Bylaws.’ In addition, every CSS Licensee agrees it will be bound by such amendments and it must comply with such amendments within the time limits set forth in the CSS License.”

In other words, whatever the legal wrangling finally concludes about the current CSS license, that license can be changed by a DVD CCA vote, and the whole issue becomes moot.

So much for not inconveniencing your customer.

Windows users might not see the DVD Copy Control Association and its $10,000 license as a problem – every DVD player/ writer comes bundled with a “basic” DVD player software whose developer has received a license from the DVD CCA. But the Open Source Community, and hence Linux users, do have one because the terms of the DVD CCA license make it impossible to create a “legal” open source DVD playback application. Some open source applications like VLC Media Player have chosen libdvdcss to circumvent both copy protection as well as the absolutely irritating region code lock. But using such software depends on where you stay and what risks you are willing to take – just because people have not being prosecuted does not mean they will not be. The issue is so important that it is the subject of vitriolic as well as philosophical discussions – see this and this.

DVD-Audio is another example of the short sightedness of content owners. It is superior to audio cds as far as quality is concerned. But the only time I bought one, I found that I either had to purchase a dedicated DVD-Audio player, or be resigned to listening to cd-like stereo quality sound, albeit at 48,000kHz. No ripping software was available – that changed with DVD Audio Explorer, but its still on the murky side. The lesson I learnt – stay away from DVD-A and stick to CDs.

I don’t deny every content creator’s absolute right to control the monetization of his work. But the question is, in the real world, how much is too much as far as IP enforcement goes. Michael Crichton sounds a warning about taking IPR to extremes, particularly with reference to the dangers of gene patenting (something he covers in his book – Next)-

Stop gene patenting. Gene patents might have looked reasonable 20 years ago but the field has changed since in ways nobody could have predicted. And we have plenty of evidence that today, gene patents are bad practice, harmful and dangerous. End the practice now.

In saying this, I remind you that I am an intellectual property veteran. For forty years I have made my living from IP—selling it, licensing it, litigating it, negotiating it. I’ve lived through generations of change in IP agreements caused by changing technology in my particular areas. I’ve been to court over IP more than once (and I always win.) But I viscerally understand that IP creators need to protect their work and to make a profit.

But let me report the single deep truth about intellectual property that I learned in my life working in this area. The single truth is this—an IP worker will take possession of everything he can get. Everything.

Of course I copyright Jurassic Park. But if I could copyright all dinosaur stories on an island, I would. If I could copyright all rampaging animal stories, I would. I will take everything I can get. It’s just common sense.

Jumping from copyright to gene patents is jumping a bit too far, but all I can say is I hope governments and content owners come to their senses sooner rather than later. If wishes were horses…

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