DRM or not? a debate that won’t be over anytime soon

The one subject I didn’t touch in last week’s series of posts on ebooks was DRM: digital rights management, the software that controls what you can do with an ebook (or any other) file. This topic is so fraught with emotion and misplaced certainty that it has “third rail” aspects to it. So we tackle it today with the knowledge that we’re going to annoy many people: there’s no way to avoid it.

I hold two conflicting notions about DRM over time:

1. In the not-so-long run (5 to 10 years), we will be holding very little content in our devices or hard drives. We will access files — those we create and those we obtain — from the cloud. We will see only what we have license to see (as managed by our passwords, our iris scans, our fingerprints…) When that time comes, everything is, effectively, DRMed and, because we will all have our own private stuff up there, we’ll be damn glad it is and damn glad it works. Large elements of today’s DRM concerns will disappear (such as whether you, the purchaser, can access content on multiple devices); some other objections to DRM expressed today will become fights about the license, but not about DRM itself (lending your content or giving it to a friend.)

2. Also in the not-so-long-run, just about all of us will be in social networks that make file sharing (to the extent that we still have the files) with multiple users very efficient and very simple. When we’re all on Facebook and an unprotected file is posted, how many degrees of separation will there be between you and your friends and the entire world? Is it hard to imagine that every digital book would be available free on Facebook? Or through Facebook?

Both of these futures are within sight; very few people would say that either is impossible within a relatively short time. And both are very different from the world we have been living in for the past 15 years or so as the digital revolution has gotten started.

There is definitely a school of thought, which seems most widespread in the library community and among aspiring authors and aspiring publishers (those which are not, or not yet, making tons of money from selling content), that we should live in a DRM-free world. There are, broadly speaking, four lines of argument against DRM:

1. That it is commercially stupid, because it stops sharing and viral spreading of the word about content that will only increase sales. This is the “obscurity is a greater enemy than piracy” school of thought. Evaluating the scanty evidence about the effects of piracy for books so far would suggest that file sharing boosts sales more than it cannibalizes them. “So far” are important operative words.

2. That it violates the “first sale” doctrine, by which when somebody buys a copyrighted physical something, they can then do what they want with it, including lend it or sell it on to somebody else.  This argument is often couched in moral terms suggesting that the sellers of ebooks who put on digital controls are not just being unwise but also unjust (even though in the physical world “copying” is not something you’re permitted to do without paying for permission.)

3. That because of DRM, abuses occur such as people losing the use of files they bought (because they get a new device or computer and it won’t transfer or because the seller of the file, who was storing the backup copy, goes out of business or because, as happened last week, Amazon reaches into your Kindle and erases a book that they just found out they didn’t have the right to sell you.)

4. That it is futile because all DRM can be “hacked”. (Of course, more to the point, DRM can only raise the cost of getting an unlocked file: anybody can create one by re-keying or scanning and OCR-ing a text, the more expensive and cumbersome version of “ripping” a music CD.)

Let’s deal with these in reverse order.

Of course, all DRM can be hacked. The clearest evidence of this is that pirate sites carry books that didn’t ever have a digital file because somebody went to the trouble to scan or re-key them. There is pretty widespread agreement that DRM is like a lock on the door to keep an honest person out, not a security guard that will stop any interloper or thief.

I have been a longtime believer in what is called “social DRM”; the watermarking of information tying the file to its purchaser (or licensor). It is often said that those watermarks can be hacked off as well. True, but if the lock is to remind the honest person not to open the door, it would seem like social DRM should do it. Would you like a file with your name on it (let alone your phone number or your credit card number) on a pirate download site?

Using social DRM would make it easier (although not necessarily easy: interoperability problems are not all due to DRM) for you to share a book with your mother or your spouse, whom you could presumably trust not to spread your branded file far and wide. It would serve as a real deterrent to having the file end up on Facebook.

When Amazon erased 1984 and Animal Farm from their customers’ Kindles, it sparked widespread outrage. It properly raised the spectre of what a malevolent government could do in a connected world. That’s a big problem, but, in my opinion, not primarily an ebook problem.

We are headed for a world where our files are in the cloud and we need to be tethered to access them across our devices. The advantage to that is that we’ll have access to all our files in the cloud all the time on any device wherever we are. The drawback is that the cloud also will have access to our devices and that our files could be made inaccessible at any time. That’s a big problem that requires legal protection, but focusing on ebooks would really miss a much bigger point.

As for inaccessibility that results from device changes or people going out of business, I wonder where people making that argument have been for the past 40 years. Can you play a record on your cassette player? Can you load the program you bought on 5.5″ floppies twenty years ago on your new computer? We have been living with format changes that render our content or software impossible to use for the lifetime of most people living. Why should ebooks be exempt from a problem that existed even before the digital age?

It is absolutely true that ebooks reduce “first sale” flexibility. It is reasonable to say that an ebook “purchase” is not a purchase in the way we used to understand the word: it is a license with real limitations. And DRM is the tool by which the file creator and seller enforces those limits: enabling or disabling print or copying capability; allowing or forbidding some number of pass-alongs or use on multiple computers or devices.

But it is also true that digital files don’t “wear out” and books do. And books aren’t infinitely replicable for free (quite aside from any licensing cost), and unprotected digital files are. And the copying and printing you can’t do with a DRMed ebook file, you also can’t do with a book.

The argument that ebook pricing should reflect reduced useability is a reasonable one, although pricing is really decided by supply and demand, not by reason or rectitude. (History suggests that all new formats — from CDs to VHS tapes to DVDs — arrive at a premium price and it is ratcheted down over time.) The argument that ebook ownership and rights need to replicate the world of the print book is just that: an argument. And I don’t think it is an argument that would move me as a content owner if I believed that enabling that replication might also result in many potential purchasers of the IP just securing it for free.

From my perspective, the “commercial stupidity” argument against DRM is the strongest one of all. But I believe the evidence that supports the idea that it is stupid is about to become dated. Most of our ebook experience so far has been in what we called the “vision” stage of adoption: a time when very few people read ebooks. We have only recently moved into the “establishment” stage, largely enabled by the Kindle and the iPhone. The Kindle and iPhone are devices for the affluent and the Kindle, particularly, appeals to an older demographic. I can’t prove it, but I’d say the more affluent and the older are less likely to steal content than the population at large. (I don’t know an adult that downloads free and illegal music; I don’t know a millennial who doesn’t!)

So we have evidence from a world where, a) very few people read books on screens at all and b) those who do skew older and more affluent, that pushing out free copies — and indeed, the effect of piracy as well — tends to increase sales of a printed book. With evidence of what is really happening sketchy (although many people, I among them, believe the “obscurity is more damaging to sales than piracy” argument has held true so far), trying to attribute reasons for it is a pretty speculative exercise. But I would speculate that people are buying books of things they get free digital files of because most people don’t want to read digital files.As ebook uptake grows and, according to our paridigm of adoption becomes damn near universal over the next ten years or so, that will change. In an ebook-consuming world, a free ebook will satisfy the potential purchaser, not spur them to a sale.

There are ebooks available without DRM. Many publishers, including O’Reilly, Harlequin, and Baen, sell them from their websites. There are some non-DRMed files available from Kindle (according to my best source), but it isn’t easy to figure out which ones they are. Fictionwise once reported that as many as 50% of the ebooks they sold were without DRM (publisher’s choice), but we don’t know how that experience will port over to BN.com, Fictionwise’s new owner. Smashwords, the new open-source ebook developer and retailer (you send them your .doc file; they’ll put your ebook on sale at the price you want to charge) has no DRM option and they say they never will. But at least so far, Smashwords is for self-published content, not for big publishers or big authors.

My hunch is that the biggest authors will continue to insist on DRM and that they are sensible to do that. And that lesser authors will often be comfortable without DRM, and they are probably sensible to do that as well. But as the establishment stage of ebook adoption continues, I’d also expect that the “viral effect” of non-DRMed titles will stop being healthy for sales. This is an argument that still has a long time to run.

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