Photo: Mag3737

Michael Fricklas, Viacom’s General Counsel, gave a lecture to a Yale Law class in which he confessed that suing people for copyright infringement felt “like terrorism.” He says that this was bad strategy on the entertainment industry’s part, as was “bad” DRM.

That’s the good part — an admission that suing customers is bad news. But lest you think that Fricklas has learned anything from this experience, consider the rest of his talk.

First, like a lot of people who got bitten
on the ass by the magic DRM beans he bought a decade ago, he’s
unable to resolve his cognitive dissonance around DRM. The
problem isn’t DRM, he reasons, the problem is that he used the
wrong DRM. He argues that there are
“business models” that are enabled by DRM, and you just need to
get it right.

I hear this all the
time. It’s truly the mark of a magic-bean-buyer:
someone who has failed to absorb the first principle of DRM,
namely, “DRM is technically impossible.” There is no way that
you can send someone a scrambled message, and the key to
descramble the message, and then build a business on the
foundational principle that no one will descramble the message
except on the terms that you set.

And what’s more,
the effort to preserve DRM involves laws that prohibit telling
people about flaws in DRM (which doesn’t mean that the flaws
won’t be discovered and shared and used to undermine DRM, of
course — just because you cover your eyes, it doesn’t follow
that the danger goes away). It involves laws that prohibit
making products compatible with DRM without permission from the
DRM maker, even if you’re doing something otherwise legal (so
your customers can’t buy someone else’s music player, which
means that you’re locked into that vendor who can dictate terms
to you forever).

This often gets lost in the DRM
discussion: we get bogged down in what the DRM “allows” and
“prohibits” and forget that DRM doesn’t actually stop pirates
from doing anydamnthing they want to do. And since
most infringing users will “crack” the DRM
by finding a copy that someone else took the DRM off of and
uploaded, it doesn’t deter “casual” pirates either.

But if you’ve been buying magic beans for ten years, it’s hard
to stop believing in magic beans — certainly harder than
believing that you’ve just been buying the wrong beans.

And Fricklas’s wrongness doesn’t end there. He also
believes in a “three strikes” approach to copyright
enforcement, because it is “more proportional to the harm.”
That is to say, he thinks that cutting an entire household off
from the Internet (which supplies livelihood, civic engagement,
publication, communications, education, and family) because one
member stands accused (without conviction) of copyright
infringement is less bad than merely
bullying the family’s teenager out of ten or fifteen thousand
dollars.

This really is the most telling part of the
whole speech: to believe that issuing the digital death penalty
for entire families’ information lives will somehow be less of
a PR disaster than suing kids. It is the mark of a man who is
so monumentally out of touch with reality
that it’s easy to understand how he rose to a level of
prominence and power in an industry that made history by suing
30,000 of its customers.

Viacom’s
top lawyer: suing P2P users “felt like terrorism”
(Thanks, Marilyn!)