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Re: [affs-project] Re: [Fsfe-uk] Re: APIG inital report

From: Alex Hudson
Subject: Re: [affs-project] Re: [Fsfe-uk] Re: APIG inital report
Date: Thu, 23 Feb 2006 00:11:18 +0000

On Wed, 2006-02-22 at 23:10 +0000, MJ Ray wrote:
> If you are the copyright holder or sole licensee of the holder
> (a common situation created by publication contracts), then
> you have a 100% market share and can pick and choose who can
> enter the market in that copyrighted work. Were it not exempt,
> most copyright licences seem be right up there among the worst
> anti-competitive practices. How is that not a monopoly?

Well, it's a monopoly in a colloquial sense - we're talking about
exclusive control of something - but not in a economic sense. It's not
control of a market, it's control of supply of a particular product in
a market. 

As with most things, it's a balance - control of a market is seen as a
bad thing, control of the fruits of your own labour is seen as a good
thing. There is a continuum there, but labelling copyright as a monopoly
on your own labour isn't going to convince many, I don't think.

> > For that argument to work, you have to show that the presence of DRM is
> > anti-competitive or otherwise abusive of a market in a "real" (i.e.,
> > provable in court) sense. And I can't see how you can make that
> > argument.
> That part would only need you to show they are imposing an
> unfair prices, limiting production, markets or technical
> development to the prejudice of consumers, applying different
> trading conditions to equivalent transactions or attaching
> unrelated supplementary conditions

I know what you'd need to do to show abuse of market; I'm just not sure
that it particularly applies to DRM (as an aside; I think "DRM" is too
wide a term - for example, DRM is used in industry to calculate royalty
payments, and it's not the kind of thing we're talking about here).

For example, in the case of console games, it's quite clear that there
is absolute control of supply via DRM. No-one has been taken to court
over market concerns though.

Making a case on anti-competitive behaviour is notoriously tough -
again, MS are a great example of a company we know effectively control a
market, but aren't a monopoly.

I'm not sure about the football example, but I was under the impression
that the agreement reached was a whitewash - I guess time will tell, but
I recall people in the know were saying pretty clearly that the FTA
provision of live games wasn't exactly going to be BBC 1 at 3pm on
Saturday afternoon.

> For it to be a free market, there needs to be multiple sellers
> and buyers in the market. With current books, there are
> second-hand sellers, imports and sometimes other sorts of
> seller. If publishers directly sell non-transferable single-user
> books, how will that happen?

I don't think free market theory involves multiple sellers and buyers of
the same product. So, I would disagree with the premise - not that I
particularly disagree that it's a bad position, though.

> I'm not seeking a law *against* DRM, but I can't see how
> "free market" arguments can be used to support protectionism.
> The author should be able to distribute & monetise fairly as they
> choose, but any "technological measures" should stand or fall
> on technological features - not be propped up by legislation.
> If someone can crack it, that's a cost for the system owner.

Right. But I think there are actually two issues there - one is the
protection of DRM enforcement mechanisms, and the second is the rights
you actually have anyway.

E.g., going back to the example of console games - legally speaking, if
we imagined that the DRM wasn't protected, it still wouldn't be legal to
play Xbox games on a normal PC - the copyright licence doesn't allow it.

To the extent that there is a difference between the rights DRM allows,
and the rights that the licence allows, sure, it's stupid that the DRM
disallows something that the licence allows. But I actually think the
real problem is not DRM, but the licensing terms.

> I'd also like it if gov.uk reviewed whether all proprietary
> software practices are in the public interest, or whether
> software copyright is still a good compromise, but there
> seems little prospect of that.

Well, I get the feeling that there is a significant worry over the
question of fair use. What impact that could actually have, though, I
don't know...

> > > > In order to argue effectively against DRM, I think we really need to
> > > > understand the premise for DRM. Basically, the APIG questions all boiled
> > > > down to "How would <x creative industry> work without IP protection?" -
> The default space for creative work that doesn't have the legal
> protection of copyright seems to be the public domain. Do you
> think the public domain is similar to a commons?

Ah, ok, I think you misunderstood what I was trying to say - not that
the removal of DRM would imply the removal of IP rights, but that
protection of IP rights was required "in this modern day and age" and
that implies DRM.

I think they're two different things. The equation of IP rights and DRM
is obviously wrong, but also the notion that DRM is the only method to
enforce IP rights. 



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