On the heels of the long post I made the other day in response to Wired's Editor-in-Chief own blog-post on DRM, lots of people have commented on the debate. Generally the comments are very good, but there's this pack of straw-man arguments that keeps popping up: "The companies are just trying to do what's best for their shareholders by making as much money as possible. If the DRM isn't too restrictive, then the market will accept it. Just wait and see how successful a DRM is in the market, that will tell you how good it is."

They're straw-men, and I decided after reading them re-stated in this post, that it was worth setting them ablaze. Here goes:

For starters, any market-correction for DRM will surely involve informed customers making good purchase decisions about the DRM in their devices. That's what this debate is all about. The implicit, "Stop complaining and let the market sort it out" in these comments ignores the fact that complaints about DRM are vital to the market sorting it out.

"I noticed last month that Chris A (as befits an ex-Economist writer) is keen to encourage commercial companies to sueeze every last penny of value out of their intellectual property"

This is a straw-man. Neither Chris nor I question Disney, Fox, et al's desire to suck the consumer electronics companies' customers dry with DRM. The argument we're having is over whether it's in the CE companies' best interests to be accomplices to this.

To have a functional market, you need companies and individuals who act in their own best interests. Traditionally, the entertainment companies have wanted fewer devices of less capability in the market -- which is why they strongly opposed the phonogram, radio, jukebox, cable TV, VCR and Internet.

Traditionally, the CE companies have perceived a market opportunity to give their customers more devices and more capable devices, because customers want to get more for less.

This has resulted in a tension that yielded a balance to everyone's benefit. The CE companies built devices that were capable, customers got more freedom, and entertainment companies discovered new opportunities to expand their revenue.

Today, the CE companies are agreeing to participate in secret consortia where a maximum threshold for functionality is being set out by the studios. The CE companies are promised that if they play within the cartel's rules -- i.e., if they don't ship the products their customers want -- then the cartel will sue into oblivion any competitor who enters the market with a more-capable device.

This has nothing to do with "bits-want-to-be-free," an even bigger strawman than the idea that this is about whether companies should be trying to make as much money as possible.

Bits may or may not want to be free. The point is that customers of the CE companies certainly want to know how free their bits will be before making a purchase: if we are to have a functional market for devices with educated purchase decisions, then reviews should make note of the salient fact that these devices, unlike every device that a reader has ever owned up until this point, has features that can be revoked at the whim of the studios.

If you are thinking about buying a stereo with a key feature and the choice is between two models, wouldn't it be useful to know that in one model, the feature is guaranteed to last forever, while in the other, the feature can be revoked at any time due to factors that are beyond your control and shrouded in secrecy?

Take the example of the Media Center PC. There is one show -- the Sopranos -- that is currently being cablecast with a flag switched on that prevents you from burning a DVD of the shows you record.

If you're not a Sopranos fan, that's not a big deal -- maybe you're a classic movie buff building a collection of Cagney films off of TNT. $2,000 for a Media Center PC seems like a good buy for you right now.

But how are you to know whether TNT will switch on that same flag? Are you a party to those negotiations? Is there anyone who considers your interests who's in the room where that's being decided? Is there even anyone in that that room who can tell you how it's going, so that before you buy the box, you can read up on the current negotiations and make an informed decision?

Do you even know which flags exist? Now that HBO has switched on the no-DVD flag on The Sopranos, people who are paying attention know that they have no reason to believe that they will be able to burn anything to DVD -- if the DVD burner works today, don't count on it tomorrow!

But what if you've bought the box in order to fast-forward past commercials? Is there a "no-fast-forward" flag lurking in XrML, the "rights expression language" used by the media center? (There is). Under what circumstances can it be activated? Can it be used to stop you fast-forwarding through an objectionable scene in a movie while your kids are in the room? The Directors Guild of America is suing a company that makes it easy to do this with DVDs; will they ever convince the studios to turn it on in your Media Center PC?

The final straw-man here is about whether DRM is "too restrictive" -- whether it impinges on "reasonable expectations." But that's not what anyone in this fight actually is arguing about. It's about the ability of the studios to change the rules of the game: whether the factors that influence your purchase today are subject to change later. Not whether the device is too restrictive today, but how restrictive it might someday become. What are the anti-features of the device, the technologies that can be used to remove features you enjoy today?

That is the question, not "how restrictive is the DRM today?" If you believe in markets, in making money, in providing shareholder value, in all the cant of capitalism, then this is the question you should want to see uppermost in the minds of "consumers" when they make a purchase decision, because that is the only way that the market can "correct" DRM that overreaches.