The Digital Media Manifesto



Greg Colyer


Comments on "Complete draft of Digital Media Manifesto"




This is in response to a request for comments on the 7 September version of the DMM. I apologise for anything that is now out of date or has already been discussed extensively -- I have only been subscribed to the reflector since yesterday, but in view of the timescale I did not want to wait longer before contributing.

For information, I am a UK delegate to JPEG, "sister" committee of MPEG. However, the views below are entirely my own.

Overall I think the DMM contains good ideas and has a balanced approach. There were a couple of things that I thought may be missing:

  1.  It refers to three communities: users, device manufacturers and the media business. The distinction between creators and distributors, e.g. musicians and music publishers, may also bear re-examination as part of this programme (I mean the Project as a whole). Whose interests does copyright protect, for example? (It's not solely a Digital issue, of course, but it is certainly relevant.)
  2. I didn't notice anything, apart from the section on levies, about the restrictions currently placed on end-users as creators, for instance that original minidisc recordings can't be copied digitally on a typical system without being automatically inhibited from further digital copying. This is the kind of restriction that really annoys honest end-users, not least because "professional" systems that bypass the restriction can be had simply for more money, and I'm sure that real pirates have them! Solving the conflicts between the different communities involved is certainly one aspect of the Digital Media Problem, but they are not always distinct communities, and in any case all should have equal access to technical features and equal legal rights. In the example I gave, the user is really a creator, is being treated erroneously as a consumer only, and is denied any power to correct the error.

Here is an additional point that you may or may not wish to consider:

I believe that traditional rights such as fair use or access to material whose copyright has now expired should somehow be available, as is usually the case at present, outside the scope of any [proprietary?] DRM system, in the sense that, at least roughly speaking, you shouldn't even have to ask the system for permission to exercise something that is your legal right. Because I can't yet see how you would do that technically -- at least not to the satisfaction of all parties! -- I accept that it is for discussion and perhaps not part of the Manifesto.

But I think it is an important point that it is ACTIONS which are currently governed by copyright law. The concept of a DRM system that totally "encloses" the "content", and is the only access method to it, leads people to think that the information itself is owned, which has not previously (pre-digitally) been the case. This is why the move towards DRM has been likened to the enclosure of the common land: whatever its economic benefits, or otherwise, it was/would be/is a definite change in the legal framework and a definite power shift in society.

More generally, the point could be made that bits, which are duplicatable identically at almost no cost, are a fundamentally different kind of stuff than physical objects. "Possession" of bits is essentially a meaningless concept, as is "theft" (in English law, the taking of something with the intent to deprive someone permanently of it). In both cases the concepts rely on there being always exactly one instantiation of the thing possessed or stolen. When the media business accuses unauthorized copiers of theft, it really means something more like consequential loss (sc. of revenue), which has a somewhat different legal status -- at least, it would were it not for the fact that copyright violation has explicitly (and recently) been made criminal -- and arguably a somewhat different moral one (which is why intellectual property is contentious in a way that physical property, in the main, is not). An obvious example of the difference is that if an act of unauthorized copying had not taken place, it does not necessarily follow that a purchase would have taken place instead -- this may or may not be true -- whereas an object that is not stolen is certainly still where it was.

It might be helpful as part of the Project to investigate and clarify some of these issues, and to encourage a consensus move away from misleading terms like "content", "theft", and perhaps even "intellectual property".