January 13, 2007

Property rights in a virtuality, part II

Thunder and I were yakkin' about the whole property rights issue, and as so often happens, arguing about it with someone forced me to clarify my thinking. Heh.

There is a further division within the 'constraint of copying' part of property rights that is important. In fact, it may be critical. Specifically there is a qualitative difference between the act of first transfer (content or object being transferred to another holder) and any subsequent holders. DRM in the current sense is an attempt to control the second; an attempt to control the transfer of information once it has left the immediate possession or control of the originating party. When the iTunes Music Store restricts you from downloading music without a password, that's not technically DRM; that's normal access control. That is the first transfer, in which Apple is transferring the content to you the purchaser.

FairPlay is a system designed to control what you can do with that content after it has left the originating party (Apple in this case) and entered into your 'possession' (quotes due to the vagaries of licensing). However, the important part of this distinction is that there is no embedded technology required to prevent you from acquiring the content from Apple in the first place, simply because the structure of the Web means that that barrier is handled by access control instead. As an example, when you are 'shopping' in the iTunes Music Store, you are listening to clips of songs, not the songs themselves; the structure of the system means that the content is never presented to you in full until you have made payment.

In a virtuality, however, the actual function of code and content may (and in my opinion, should) be such that there is no differentiation between 'demo' and 'use.' You have virtuality content in order to use it inside said virtuality; you wouldn't walk around with your avatar (say) in 'low rez demo mode' until someone paid you to look at it. This reflects the fact that the content in the virtuality (some of it, at least) only has value inside the virtuality itself; it is not acting as a 'placeholder' for content or goods in meatspace. Its use is, in fact, in its display.

In any case, in a virtuality whose core design does not take into account the problem of the first transfer, we have a copybot problem, essentially. Anyone can 'Polaroid' anyone else's content for their own use without their consent simply because the user does not have the right, supported by the ability (in turn granted by the structural setup of the virtuality) to voluntarily control that first transfer of content from the holder.

What are the ramifications? Essentially, I think what I'm musing is that due to the difference in the nature of the transactions (first transfer versus distant transfers) the problem of controlling transfer may be technologically solvable in the first case even if it is not in the second. While I have no objection to entities attempting to solve 'distant transfer' (classic DRM) in my virtuality, I think they're probably doomed to fail - however, ensuring that they don't try is not the duty of the structure but of a market and of the users.

Perhaps users will compensate by simply adjusting pricing, assuming that the first transfer is (rather than a single sale) the equivalent of releasing the information into the public domain, since, if music in the current model is any indication, that's the effect if not the intent. You can control to whom you release your content; you cannot control or even perfectly divine their intent, and they might always choose to strip any protections and make that content freely available in future transfers to others.

I suppose this is a really long-winded way of saying that the structural duty of the virtuality is to provide a method of controlling the first transfer - i.e. to allow users to withhold content from transfer while still utilizing it. There is no structural duty to enable, enhance or even permit functional DRM attempts; however, if the virtuality fails to provide for control of first transfer, some of most fundamental requirements of private property are absent - and the virtuality will, in my opinion, fail.

Posted by jbz at January 13, 2007 9:56 AM | TrackBack

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