There is a new law, tech and policy blog in town with a distinctly libertarian pedigree, The Technology Liberation Front. Read their introduction (Welcome to the TLF !):

This is why this site is needed. We aim to report on, and hopefully help to reverse, this dangerous trend of over-regulation of the Internet, communications, media and high-technology in general. We will not hide our love of liberty on this site and we will take every opportunity to castigate those who call for expanding the reach of government into these fields.

They have twelve listed contributors (About Us). The more the merrier.

In any case, Adam Thierer asked a number of different people to comment on his recent post on the TLF concerning DRM (Is DRM the Devil? The Debate over Digital Rights Management, Trusted Computing and Fair Use in Copyright Law). It is a debate I've engaged in often, so read on for my response ...

Thierer is basically trying to stake out a middle ground in the copyfight. He sketches two positions on opposing sides and places himself in the middle.

In particular, I’d like to comment on this very interesting battle over the role DRM should play in the future of copyright. The current debate pits those who generally claim that “DRM is the devil” against those who claim “DRM is our savior.” Just by way of background, DRM is generally defined as a system of content protection that employs various technological tools and capabilities to shield against undesirable use or distribution of digitized works or products. Trusted computing is essentially an extension of DRM, or a new, more robust flavor of it, which focuses on how to make computing platforms and technologies even more tamper-resistant.

Right away, I have a few problems with how he has framed the debate.

I've made this mistake myself, but we need to be careful about definitions when we discuss DRM. Are we merely talking about the technological protection measures some content owners use, or are we talking about a combination of technological protection measures and legal measures. You see, most of those on what Thierer would consider the "pro-DRM" side of the debate would never make the claim that technological protection measures alone are "our savior." What they see as successful is a combination of technology and law, more specifically, technology and the DMCA and/or Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). If content owners really believed that technology was the solution, they would invest in it. Instead, they are investing in lobbyists and lawsuits.

On the other side of the debate, Thierer also mischaracterizes many of the "anti-DRM" arguments. Most of the arguments against DRM are leveled not at the technology itself, but at the laws that essentially make the technology inviolable. Sure, many of those who oppose the DMCA think that DRM is generally a bad business decision, but so what? They aren't arguing for laws that would make DRM illegal; they believe the market will select against DRM without laws like the DMCA backing it up. Right or wrong, they are willing to let the market decide whether DRM is valuable or not.

This is really the crux of the argument that Thierer is making. DRM proponents want laws protecting DRM, Thierer's DRM opponents want laws opposing DRM. I think that is a mischaracterization of the debate.

Now what’s so ironic about all this apocalyptic talk of the technological end times coming is that while these pro-DRM forces lament the potential for circumvention or a technological arms race of one sort or another, there is another group of people who are claiming the exact opposite is the case; that DRM is dangerous because it could erode fair use by bottling up copyrighted works to the point that almost no uses—outside of the few the copyright holder permits—are possible. Critics like Cory Doctrow, Fred Von Lohman, Mike Godwin and Ross Anderson have argued that, in many ways, the industry is winning—or has already won—the technological arms race and that DRM and TC may need to be limited by force of law. [links in original]

But let's look at the arguments that Thierer links to here. In every case, the argument for a change in the law is to remove the DMCA, not to restrict the use of DRM (though the argument is made that DRM is a bad business choice).

Cory Doctorow (Microsoft Research DRM talk):

But anticirumvention lets rightsholders invent new and exciting copyrights for themselves -- to write private laws without accountability or deliberation -- that expropriate your interest in your physical property to their favor. Region-coded DVDs are an example of this: there's no copyright here or in anywhere I know of that says that an author should be able to control where you enjoy her creative works, once you've paid for them. I can buy a book and throw it in my bag and take it anywhere from Toronto to Timbuktu, and read it wherever I am: I can even buy books in America and bring them to the UK, where the author may have an exclusive distribution deal with a local publisher who sells them for double the US shelf-price. When I'm done with it, I can sell it on or give it away in the UK. Copyright lawyers call this "First Sale," but it may be simpler to think of it as "Capitalism."

The keys to decrypt a DVD are controlled by an org called DVD-CCA, and they have a bunch of licensing requirements for anyone who gets a key from them. Among these is something called region-coding: if you buy a DVD in France, it'll have a flag set that says, "I am a French DVD." Bring that DVD to America and your DVD player will compare the flag to its list of permitted regions, and if they don't match, it will tell you that it's not allowed to play your disc.

Remember: there is no copyright that says that an author gets to do this. When we wrote the copyright statutes and granted authors the right to control display, performance, duplication, derivative works, and so forth, we didn't leave out "geography" by accident. That was on-purpose.

So when your French DVD won't play in America, that's not because it'd be illegal to do so: it's because the studios have invented a business-model and then invented a copyright law to prop it up. The DVD is your property and so is the DVD player, but if you break the region-coding on your disc, you're going to run afoul of anticircumvention.

Here, anticircumvention (DMCA) is the problem. Doctorow wasn't trying to convince Microsoft that DRM was so attractive and useful we need laws against it, but that it didn't work and would harm Microsoft's interests in the long term.

Fred von Lohmann (Fair Use and Digital Rights Management: Preliminary Thoughts on the (Irreconcilable?) Tension between Them):

Digital rights management (DRM) technologies are aimed at increasing the kinds and/or scope of control that rights-holders can assert over their intellectual property assets. In the wake of the Digital Millennium Copyright Act's (DMCA) ban on the circumvention of DRM technologies used to control copyrightable works, DRM restrictions are now backed up with the force of law. In essence, copyright owners now have the ability to write their own intellectual property regime in computer code, secure in the knowledge that the DMCA will back the regime with the force of law.

It's not surprising that in light of these developments many have expressed alarm that DRM technologies may be used by copyright owners to erode capabilities that had previously been permitted to the public by copyright law under the "fair use" doctrine (or its cousins, such as first sale or limited term).

What is the nature of the tension between DRM (as backed by the DMCA) and fair use? Is the tension irreconcilable? If so, which should give way?

Again, very specifically, von Lohmann is arguing against the combination of DRM and DMCA, not DRM alone.

Mike Godwin (What Every Citizen Should Know About DRM, a.k.a. “Digital Rights Management” [PDF]):

One obvious result of this scenario is that consumers become educated that it’s not e-book or digital-media formats that are inherently limited — it’s that the limitations have been insisted upon by particular publishers or artists. This additional information enables consumers to make better informed choices — they might choose one work over another because its DRM-enabled player has been set to be more flexible or less restrictive. They might forgo buying books from a particular publisher if that publisher insisted on too many restrictions. A more informed market for digital works is likely over time to become a more rational market, making better-informed choices about what kinds of access to a work they are willing to pay for. And because the consumer-expectation baseline is set by the unrestricted availability of public-domain works in DRM-enabled formats, publishers know that the restrictions they choose to impose upon a copyrighted work are going to be communicated directly to the buyer.

Heck, sounds as if Godwin is proposing a DRM-based solution himself. Indeed, in the comments to Thierer's post Godwin states:

Adam, I think you'll find in my DRM essay, which you link to, quite a bit of sympathy for a DRM arms race. Indeed, the market distortions right now are due to legislative measures like the DMCA, which is used to prevent DRM from being circumvented (a key part of the arms race).

Ross Anderson (`Trusted Computing' Frequently Asked Questions). Here is another problem with Thierer's post. Trusted computing is a different creature than DRM. It can be used for DRM, but it has many other uses as well. Thus, the policy arguments for and against trusted computing are distinct from many of the arguments regarding DRM. I wouldn't lump the two together so readily. However, one wonders how TC would get off the ground without the DMCA to back it up.

So, I don't think that these authors on the "anti-DRM" side support Thierer's thesis:

To summarize, it appears that what both sides in the debate over DRM really lament is the prospect of a technological arms race. The producers claim they just can’t keep up with unrestricted P2P and file sharing since they “can’t compete with free.” At the same time, the consumer groups argue they cannot exercise their fair use rights if the producers can use DRM or other tools to “bottle up” and secure their IP.

While some of those on the "anti-DRM" side might lament the costs of DRM, they aren't arguing that the government should make it illegal. Indeed, I think most of them would agree with Thierer's conclusion:

In summary, therefore, I guess my argument can be stated as follows: Let the Technological Arms Race Continue! Don’t tie the hands of firms who want to develop innovative methods of self-policing or self-protecting their IP. An unrestricted market in DRM technologies and business methods is a good thing. At the same time, let’s not call in government every time some one out there cracks one of these systems or does an end-run around a given technology or business model. I don’t really have any idea if DRM and TC will work or not, but I’m very interested in sitting back and watching this battle unfold. Again, I just don’t want government to tilt the balance one direction or the other.

Indeed. I'm really not sure there is as much disagreement with the "anti-DRM" side as Thierer claims.