Author: Cory Doctorow
Doctorow's First Law
Any Time Someone
Puts a Lock on
Belongs to You
and Won’t Give
You the Key, That
Lock Isn’t There
for Your Benefit
On the coining of laws
I gave a speech to a bunch of publishers at the O’Reilly Tools of Change for Publishing Conference in New York in 2009, and halfway through, I said: “I’m not often certain about something, but I’m certain of this. I’m so certain of it that I’m willing to call it ‘Doctorow’s Law.’” Everyone laughed. Later, I mentioned this casually to my agent, Russ Galen. (I like to repeat my laugh lines until they’re worn rather thin, I’m afraid; it’s a habit I inherited from my grandfather, who liked to grind away his jokes to micron-thicknesses.) Russ sat up very straight and said, “No. You must have three laws.” Russ represented Arthur C. Clarke through much of his career, and continues to represent Clarke’s estate, and of course Clarke got a lot of mileage out of “Clarke’s Three Laws,” so I took the advice to heart.
EVERY GRAND THEORY has to start somewhere, ascribe some first cause to all that comes after. It’s a bit of an artificial exercise, of course, because everything complicated has complicated causes. But you need to start somewhere.
I’m going to start with the World Intellectual Property Organization. Founded in 1967 as a successor to the Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (the BIRPI, then just shy of its seventy-fifth birthday), WIPO was later subsumed into the United Nations as a “specialized agency.” WIPO writes the world’s major copyright treaties (with two recent and important exceptions, ACTA and the TPP, that I’ll get to later), and in that regard it has the same relationship to stupid copyright laws that Mordor has to evil in Middle-earth. It is the origin, the prime mover.
In 1996, WIPO approved the WIPO Copyright Treaty, or the WCT, and its cousin, the WIPO Performers and Phonograms Treaty (WPPT). Collectively, they are called “the Internet treaties” by international copyright wonks, and if you want to understand the market for creative works on the Internet—the market for movies, books, songs, and anything else that can be sold digitally—you have to understand something about these treaties.
Specifically, you need to understand one key aspect of the WCT: anti-circumvention. That’s what I’m going to discuss in this chapter.
The WCT is everywhere
When the UN writes a treaty, it asks the countries of the world to sign on to it. These signatories go on to pass national laws that reflect their obligations under these treaties. In the USA, the WCT was enacted into law in 1998 as the Digital Millennium Copyright Act (the DMCA). A few years later, the European Union created the EU Copyright Directive (EUCD), which each EU country then turned into law in its national body. What that means is that most of the world’s industrialized countries have some version of the WCT on the books. These implementations of the WCT vary, but usually the variations are small. For that reason, I’m going to talk about the effect of the WCT as a global phenomenon, not limited to the USA, the EU, Australia, Japan, or anywhere else.
WHAT THE HELL is anti-circumvention? Loosely speaking, it’s a law against “circumventing” (getting around) a digital lock. Pretty much everyone in the world has experienced a digital lock. Ever tried to fast-forward through the anti-piracy warning at the start of a DVD and gotten an action not allowed message? That’s a digital lock. In order to legally allow you to descramble the movie on your DVD, your DVD-player manufacturer has to sign a licensing agreement that says, “I promise I will design my player so that users can’t skip anti-piracy warnings.”
It’s not hard to make a DVD player that ignores this requirement. DVD encryption was first broken fifteen years ago, and there are now tons of software-based DVD players (like HandBrake) that can play back any part of a DVD at any speed, no matter what “region” it’s from. (DVDs contain a region code meant to prevent discs from being bought in one part of the world and played in another.) These players also let you save DVDs to your hard drive, copy them to your tablet or phone, and back them up to your home media server.
Curiously, there’s no copyright law that says it’s illegal to skip piracy warnings. There is a law (the DMCA, in the U.S.) that says it’s illegal to descramble a movie without permission—and this is what makes anti-circumvention so pernicious. Fundamentally, anti-circumvention is a way of making up new copyright laws. You can prohibit quotation, eliminate the rewind button, limit pausing to ten minutes, and force viewers to sit through ads, just by scrambling your art and then saying to the player manufacturers, “You can’t descramble this unless you honor my requirements.”
This may sound like a pretty good deal for creators and their investors: after all, it lets you charge money for stuff that the audience used to get for free. When you sold someone a book, back in the day, they got the whole thing in one package. With digital locks, you can sell them only the right to look at the book after 6 p.m., while physically located in North America and not in a commercial establishment. If they want the “read on the subway” rights, those can be sold separately.
I’ll come back to what this means for audience members later in this book, but for now let’s stick with the impact this has on creators and investors. Is it really a good deal for them? Or has anti-circumvention ended up taking negotiating power away from people who make and finance art, and handing it to companies that make digital locks?
You don’t have to be a cryptographer to understand this stuff, but you do need to have a conceptual grasp of the way that scrambling and descrambling work. Fundamentally, this is about four things. First, there’s the unscrambled file, called the “cleartext,” which would be the movie you watch, the song you hear, or the book you read. Next, there’s an “algorithm”—a mathematical system for scrambling the text. These algorithms are usually public and well understood, because no one is ever sure if an algorithm is secure until all her peers get a chance to look at it and check it over for flaws. Third, there’s the “key,” a secret password that’s fed to the algorithm along with the cleartext in order to produce the scrambled file. This scrambled file (our fourth thing) is called the “ciphertext,” and in that state it’s an indecipherable mess of no value to anyone unless they have the key to descramble it. People can copy this encrypted file all they want, and it won’t ever substitute for the legit product, because it’s indistinguishable from random noise. If the algorithm works, the file can’t be unscrambled unless you have that key.
With a digital lock, the player— a Kindle, a DVD player, a software program that plays or displays locked files—has a copy of the secret key embedded in it. You load the ciphertext file onto the player, it unscrambles the file and lets you see the cleartext, and then it throws the cleartext away when you’re done.
How compatibility works
If you’ve been using computers for a long time, you probably remember when there were multiple, incompatible ways of creating documents. You’d send someone your AppleWorks spreadsheet, and they’d complain that they only had Excel. You’d send them a Word document, and they’d only have WordPerfect. Over time, this ceased to be a problem, mostly because these programs started including an automatic feature for reading and writing each other’s files. At first, this was complicated: you’d try to open a word-processor document, and your program would ask you if you wanted it converted from some obscure file format into one your program could understand. Then it became automatic: your computer stopped asking and just automatically opened every file you fed it, converting as need be.
Likewise, in the early days of web browsers, there were lots of warring graphics formats, a whole acronymsalad’s worth: GIF, JPEG, PNG, SVG, BMP. Depending on the page you visited and the browser you used, you’d get little red x’s or error messages telling you your browser wasn’t compatible with someone’s animated dancing hamster image. But today your browser just reads and displays all those files without batting an eyelash.
What happened? Well, programmers made their programs compatible with the other formats. This is something that is very hard to do in the physical world (making your toaster compatible with your dishwasher isn’t a project for the faint of heart), but it’s routine in the digital world.
But not where digital locks are concerned. Here’s where the problem for creators and investors comes in. Because anti-circumvention rules mean that only a digital lock’s maker can authorize you to open it, on-the-fly conversions to improve compatibility often aren’t allowed. That’s how copyright ceases to protect creative works and begins to protect digital locks instead.
Is This Copyright Protection?
THE PEOPLE WHO make digital locks sell them as “copy protection” (that is, protection against having a file copied), and sometimes as “copyright protection.” We can debate their claim to the former, but we should certainly reject the idea that digital locks protect copyright. As things stand now, it’s the other way around.
Many different reasons and rationales for copyright have been offered since its inception. The English Statute of Anne (1710) set out to protect the established English publishers from Scottish competition. Sixty-some years later, the U.S. Constitution provided for copyright “to promote the Progress of Science and useful Arts.” The Berne Convention for the Protection of Artistic and Literary Works, one of the first international copyright agreements (its text was based on a draft created by Victor Hugo in 1878), added protection of an author’s “moral rights”—the right to claim authorship of a work, for example, and to prevent its distortion or modification.
One rationale that has never been offered is that copyright exists to protect middlemen, retailers, and distributors from being out-negotiated by creators and their investors.
Now, let’s say there’s a company with a wildly popular video-distribution technology. If you’re a filmmaker, they’ll sell your movies and give you 70 percent of the revenue, and even better, they’ll promise you that they’ll keep your movies safe from piracy by putting their digital locks on them. At first, everything’s great. You’re making money, they’re making money. You sell a million movies. Five million. Ten million!
But then they put the squeeze on: the 30-70 split was just an introductory offer. Now that they’ve proven how great their technology is, they want a 50-50 split. At the current rate of sale, that means you’ll be giving them millions of dollars every month: money you were putting back into your own business, using to create more art, using to pay your own overheads.
Without anti-circumvention, this is easy: you just call a meeting with the video distributor and say, “No deal. First of all, there’re plenty of other operators out there who can do what you do. You’re the distributor—your job is to provide invisible, commodity plumbing that puts our movies in front of our audience. Second of all, for the money you’re talking about, we could just skip the middleman and build our own system. So yeah: no deal.” It’s your copyright, after all; you have all the negotiating leverage.
But this works only if your audience can follow you from the old format to the new one. If I’m your audience, and I’ve spent a thousand bucks on my movie library, I don’t want to have to throw away that investment. I want to be able to use one family of devices and one program to manage my movies. I’m not going to try to remember which movie goes with which player and which device. And I’m certainly not going to get a new box under my TV just for your movies (let alone a new TV!).
This is how, once you add anti-circumvention to the mix, all of copyright’s protection is handed directly to the company that slapped a digital lock on the product in question. The filmmaker can’t authorize audiences to break those locks and convert their movies to play on a new device. The investor can’t authorize that either. Only the distributor has the right to allow this—the distributor who stands to lose everything if it happens.
Here’s another scenario: imagine for a moment that every book you bought at Walmart could be shelved only on a bookcase from Walmart. The books were designed with some kind of little divot in the spine, so that they could sit flat only on a Walmart shelf, and printed with a special ink that glowed only under a Walmart light bulb, and only when held at a special angle you could attain only by sitting in a specially designed Walmart chair. Every time you sold a ten-dollar book through Walmart, that would be ten dollars’ worth of investment in this Walmart ecosystem your readers would feel beholden to, even if you and all their other favorite authors were later offered a better deal at Barnes and Noble (meanwhile, you’d only get fifty cents of that ten dollars in royalties, if that!). It’s easy to understand why Walmart would love this—it creates a winner-takes-all market, where a small advantage quickly grows into an unbridgeable gap. The question is, why should authors or publishers want to have anything to do with a scheme like this?
Digital locks are roach motels: copyrighted works check in, but they don’t check out. Creators and investors lose control of their business—they become commodity suppliers for a distribution channel that calls all the shots. Anti-circumvention isn’t copyright protection: it’s middleman protection.
Hachette, one of the largest publishers in the world, learned this the hard way in 2014. Amazon demanded a deeper wholesale discount from Hachette, and Hachette declined. Amazon retaliated by blanking out many Hachette titles on its site (including books by best sellers like J. K. Rowling), either marking them as unavailable or on back order, and even suggesting books by other publishers, or used copies of the Hachette titles, as alternatives.
Hachette—the most fervent digital-lock advocate in the publishing world—was reduced to offering scolding comments in retaliation.
If it hadn’t been for the locks on the Hachette titles, the company would have had a much more fearsome weapon at its disposal, when it came to its Kindle titles: it could have offered a 10 percent “Amazon Refugee” discount at Google, Barnes and Noble, and other retailers, and posted a free tool like the Calibre reader so that existing Amazon customers could easily convert their purchases to run on competitors’ platforms.
But under the DMCA, only Amazon can authorize the conversion of Kindle books to read on non-Kindle platforms. Good luck with that, Hachette.
Platform as roach motel
Brewster Kahle is a bit of a software legend. He created the first search engine, the Wide Area Information Server (WAIS), sold it, founded another search company, Alexa, sold it, and then decided to spend the rest of his life running the Internet Archive (archive.org), an amazing public library for the Internet. Brewster tells a famous story about life in the shadow of Microsoft during the heyday of the packaged-software industry, when all software was sold in boxes hanging from pegs in software stores.
Back in those days, Microsoft owned 95 percent of the operating-system market, and spent a lot of time extolling the virtues of its “platform” (Windows) to its “partners”—the software creators who wrote Windows programs. The software vendors’ associations also spent a lot of time warning programmers about the risks of piracy, and the problems they’d have if their customers decided to copy them into the poorhouse. This served to drive still more creators to the Windows platform, which was meant to provide a shield against this threat.
But then Microsoft started to undercut the same companies that had trusted its platform. In my hometown of Toronto, Delrina built itself into a huge, successful company by selling a ubiquitous fax program, WinFax, right up to the day that Windows 95 shipped with a free competitor, straight from Microsoft. Delrina, seeing which way the wind was blowing, sold itself to Symantec.
As Brewster tells it, Microsoft spent years waving one hand over its head, shouting, “Look out! Pirates! Pirates!” In the other hand, it held the knife.
Amazon MP3s: a lateral move
What happened to digital locks for music, anyway? How did that get to be the only entertainment category to completely abandon them? Funny story.
In the beginning, there were a bunch of “proprietary” music stores that signed up one or two labels each, and distributed music using their own digital locks. No one liked these stores very much. Then Apple created the first iPod, in 2001, and went around to the labels and said, “Look, these things only work with Macs, because they require an obscure cable-port called Firewire. That’s only 5 percent of the market. Why don’t you try an experiment with us?” And the iTunes Store was born, with music from all the big labels. The experiment turned out to be successful—so successful that the labels didn’t dare pull out when the iPod started to work with Windows as well.
But Apple had lots of rules about selling music. You couldn’t buy the kind of promotion that the labels wanted, and you could sell songs for only one price: ninety-nine cents. The labels hated this. Apple wouldn’t budge on it. The labels came to realize that they’d been caught in yet another roach motel: their customers had bought millions of dollars’ worth of Apple-locked music, and if the labels left the iTunes Store, the listeners would be hard-pressed to follow them. Just to make this very clear, Apple threatened a competitor, RealNetworks, when Real released a version of its player that allowed users to load (digitally locked) songs bought from the RealPlayer store onto an iPod, enabling customers to play both Real’s and Apple’s music on the same device. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA and other laws,” Apple said.
But Amazon offered the labels a lateral move: give up on digital rights management (DRM) software and sell your music as “unprotected” MP3s (which also play on iPods), and you can start to wean your customers off the iTunes Store—or at least weaken its whip-hand over your business. You can set your own pricing, Amazon said; we’ll help you with the promos you’re looking for, and together we can get some competition into the market. The music industry bought into it, and iTunes dropped DRM not long afterward.
Of course, book publishers totally missed this, and happily turned their catalogs over to Amazon to lock up with its proprietary Kindle format. Yikes!
So Is This Copy Protection?
WELL, IF ANTI-CIRCUMVENTION hands the keys to the business to digital-lock companies, at least it stops people from making infringing copies, right?
There’s an Internet meme called “Now you’ve got two problems.” As in: “Your shower broke, and you decided to fix it yourself instead of calling a plumber. Now you’ve got two problems.”
That’s just what’s about to happen with our digital-locks explanation.
You wanted to stop people from copying your file, so you gave them a ciphertext version and a player with a key hidden in it. But that player decrypts the file, and if your audience can save the file while it’s decrypted, then they can start to copy it.
And now you have three problems, because they can also just take your keys. If they can find those, they can just throw away your special player and make their own.
And now you have four problems, because users who figure out how to get the keys out of your player can tell other people how to do that, too.
And now you have five problems, because they can also just publish the keys, which are small and exceedingly difficult to suppress. Blu-ray’s keys are 128 bits long—you could spraypaint one of them onto a smallish wall.
Is Apple for or against digital locks?
One of the world’s most successful digital-lock vendors is Apple. Despite public pronouncements from its late cofounder, Steve Jobs, condemning DRM, Apple has deployed digital locks in nearly every corner of its business. The popular iOS devices—the iPod, iPhone, and iPad—all use DRM that ensures that only software bought through Apple’s store can run on them. (Apple gets 30 percent of the purchase price of such software, and another 30 percent of any in-app purchases you make afterward.) Apple’s iTunes Store, meanwhile, sells all its digital video and audiobooks with DRM. Many people assume that this is at publishers’ insistence, but it’s not so: when Random House Audio published the audiobook of my novel Little Brother, Apple refused to carry it without DRM.