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The Federal Trade Commission kicked off its big DRM conference in Seattle Wednesday morning by saying that the goal was not to "take sides" over the question of whether DRM is good or bad—but the conference nevertheless opened with a warning. Mary Engle, an FTC Acting Deputy Director, began her remarks by warning that those who use DRM had better get serious about disclosing it and the limits that it places on products. She referenced the Sony BMG rootkit debacle, saying that "sellers who use DRM technology to enforce the terms of bargains with consumers need to be particularly careful to disclose in advance" what those bargains are. An executive vice president at the MPAA kicked things off by talking up the merits of DRM. Far from being a soul-crushing, computer-polluting, freedom-slaying hydra, DRM actually makes all sorts of great things possible.And just stuffing the disclosure into the fine print of an End User License Agreement (EULA) isn't good enough. "If your advertising giveth and your EULA taketh away," she said, "don't be surprised if the FTC comes calling." She stressed that it was not permissible for companies to play Lucy to consumers' Charlie Brown, holding the football and promising that this time she won't yank it away at the last minute. Promising "if you buy our DRM downloads, we won't shut down the authentication serves this time," she said, wasn't enough. No consensus The FTC wasn't using the conference to announce new policy initiatives or regulatory principles, so most of the event consisted of short presentations by speakers from across the spectrum. Not surprisingly, disagreement wasn't hard to find. Fritz Attaway, an executive vice president at the MPAA, kicked things off by talking up the merits of DRM. Far from being a soul-crushing, computer-polluting, freedom-slaying hydra, DRM actually makes all sorts of great things possible. "Without DRM technology, how could we provide consumers with choices?" he asked, referring to streaming, rental, and subscription models. Besides, "DRM technologies are for the most part transparent," Attaway added, pointing to DVDs as his example. DVDs just work; no one has to think about DRM, it gets out of the way and allows people to enjoy films while preventing them from making a copy for everyone on the block. Professor Salil Mehra flipped this around, saying that DRM wasn't quite fraud but that "something like fraud happens with the way in which DRM is implemented." While companies rarely lie about what a particular DRM scheme will do, plenty are willing to bury that information, knowing that consumers won't be happy about the limitations.This brought an almost incredulous response from Jason Schultz, who heads the Samuelson Law, Technology, and Public Policy Clinic at UC-Berkeley. Consumers certainly are befuddled and angered by DRM, even the relatively tame version found on DVDs, he said. Plenty of people don't understand why they can't copy a movie to an iPod or make a backup, and they don't understand why a DVD won't play when they take it to another country. Schultz even referenced the recent gift of DVD gift set from Barack Obama to UK Prime Minister Gordon Brown. When Brown returned home from his US visit and popped one of the discs in his player... region encoding prevented it from working. This sort of back-and-forth continued all morning. A lawyer who works with the MPAA and RIAA said that DRM wasn't just a "necessary evil" but was actually a "key enabling technology" for the reasons that Attaway also described. It's a "useful rhetorical device" to talk about how DRM blocks people's rights, he added, but it's basically deceptive. Professor Salil Mehra flipped this around, saying that DRM wasn't quite fraud but that "something like fraud happens with the way in which DRM is implemented." While companies rarely lie about what a particular DRM scheme will do, plenty are willing to bury that information, knowing that consumers won't be happy about the limitations. One thing that received general agreement from all parties was that better disclosure was essential. Even the pro-DRM side stressed that nothing is gained for an industry by angering its customers, and that customers get furious about things like the SonyBMG rootkit. But Corynne McSherry of the EFF threw a bit of cold water even on this idea, saying that disclosure alone is "not going to solve the problems with DRM." Copyright law is too often just about the rights of the copyright owners, she said, and the key to good law is finding balance; DRM "all too often can upset that balance," and just making this clear to consumers isn't good enough.
