Introduction
Over the last twenty years we’ve seen extraordinary changes in the landscape of intellectual property, wrought by the speed of adoption of the general purpose computer and the internet. Even as recently as a decade ago only visionaries like John Perry Barlow understood that the widespread ability to reproduce and distribute digital content would change the assumptions that underpinned the music, and movies industries (Barlow 1994). He suggested that intellectual property was going to be set loose from its physical moorings, and the digital age would see the overthrow of large segments of the music, movie, and content businesses. Now, after the rise-and-fall of Napster and the rise-and-rise of bitTorrent, it is clear to everyone that the business model of established content providers is under threat. And so access control and Digital Rights Management (DRM) have emerged from the incumbent content industries as their last, best hope to control the uncontrollable spread of content that they used to be able to regulate through the architectures of cost structures and physical limits.

The war over content can, then, be seen as a fairly simple battle between file-sharers and their supporters versus the music and movie industries. This is a war fought on the battlegrounds of technology, and in the courts and legislatures around the world. But viewing it only in this way is a mistake. Focusing on this war misses the profound changes that have occurred for those who don’t create content for the purpose (primarily) of commercial gain. The digital revolution makes it easy to share sound recordings; but it has also reduced the cost of creation, production, and dissemination for amateur producers of content, and the significance of these producers represent the most extraordinary change in intellectual property that we’ve seen in hundreds of years.

It probably has always been the case that brilliant authors, artists and creators have always been walking amongst us, unrecognized. But now these creators can produce their culturally-significant, expressive work, and send it out into the world to compete for attention with professionally-produced content. Examples abound: the eight or ten million blogs that are challenging mainstream media sources; open source software like Linux, Apache and mySQL; the open access movement within scholarly literature; the citizen journalism experiments of online newspapers like South Korea’s Ohmynews; the Wikipedia, the growing list of amateur podcasters; and so on. These disparate examples represent the beginning of the amateur content movement, a movement that has been largely ignored by the commercial content industries. But this movement is quite radical, and gaining in significance.

The purpose of this essay is to sketch some issues that the amateur content movement poses for DRM, and vice versa. In the next sections I want to focus on some aspects of amateur content, and ask how they intersect with DRM. Then I’ll look at the open access and open source movements. As I’ll demonstrate, the mass amateurization of content generates interesting, counter-intuitive responses to DRM.

Mass amateurization
In order to understand why amateur content is only now becoming significant, it’s necessary to look at our assumptions of copyright and the way that expressive content has traditionally been generated. Copyright has played an important social role because it provides incentives to the intermediaries of the content industries – publishers, agents, movie studios, retail stores, etc. –where the processes of moving content from creator to user have been capital-intensive. These "content processes" include the creation of the content, the selection of the content for commercial publication, its production and dissemination, its marketing and its eventual use. Each of these processes has been too-expensive or too-difficult or too-specialized for amateurs to undertake. Consider magazine or book publishing: apart from the creation of the text, each stage in getting the work to market either costs money (offset printing requires large print runs, and large amounts of expensive paper), requires special knowledge (how does one request an International Standard Book Number?), or is just plain difficult (try to get a bookstore to devote shelf-space to your self-published magazine). Hence we have needed highly-capitalized intermediaries to provide these services, and this has reduced the opportunities for all but the most devoted amateurs.

But as Greg Lastowka and I have explain elsewhere, each of the content processes have moved into the hands of amateurs (Hunter and Lastowka 2005). With the advent of the general purpose computer together with content-creation software for desktop publishing, music creation, film editing, and so forth the cost of creation and production has fallen. To give you an idea, Jonathan Caouette’s first movie, Tarnation, was shown at the Sundance Festival. It is probably the first feature-length film edited entirely on iMovie, and it cost $ 218.32 in videotape and materials (Silverman 2004). Beyond creation and production, the internet means that distribution is effectively costless for digital content. Which leaves us only with the selection and promotion processes, which have traditionally involved expensive advertisements, and specialized marketing expertise. But recently we’ve seen the development of social software, which leads users to content they will like, without the intervention of marketers. An example of this is the Amazon.com feature that suggests other purchases based on the metric that "People who bought this book also bought…" This type of algorithm can suggest all manner of content that users might be interested in, based on their previously expressed preferences. This means that the amateur content-producer is no longer dependent on the highly-capitalized publisher, record label, or movie studio for selection and promotion of content.

As a consequence of all of these changes we will see the flowering of amateur content that will move directly from the creators to the users. Highly-capitalized intermediaries are no longer necessary for the creation, production, dissemination, and use of culturally-significant content. Witness the rise of blogs and amateur journalism, along with the various other examples: the band Wilco’s success in its net-release of Yankee Hotel Foxtrot; the extraordinary rise of the Wikipedia; the success of web-based cartoons that do not have print syndication; and so on.

Amateurs are increasingly competing with professional outlets, even though they lack all manner of the appurtenances that we expect of content creation. They don’t have paid editors, they don’t have any type of "quality control" et cetera. And yet, through various means often involving large numbers of amateurs contributing small amounts of time to the project they manage to fact-check, manage output, and maintain quality standards as high as their professional competitors. And in areas like web-logs, open source software, and textual references works, the amateurs are beating the professionals at their own game.

DRM and amateurization
The operation of DRM within the amateur content environment is extremely interesting. Amateurs, by definition, are not in it for the money, so they have little need for access control to "protect their investment". Amateur content is therefore likely to be released without DRM; indeed it’s hard to think of one amateur content provider which uses any type of access control on its content. This means that, as more and more commercial content is released with access control via DRM, we will see unlocked alternatives produced by amateurs. Consumers dislike the reduced functionality generated by DRM because they can’t use the content they’ve paid for, in ways that they consider fair but which don’t suit the content provider. The increasing reliance of commercial providers on hard forms of DRM is likely, therefore, to push users towards amateur substitutes for commercial content.

This leads to the somewhat counter-intuitive result that we might positively encourage commercial content providers to use DRM access control to lock up their content as tightly as they can, under the most restrictive terms imaginable, for as long as they want. If there were no competition to this type of locked content then we should be justifiably concerned about rent-seeking by monopoly holders, and we would see a reduction in creative activity, and a stifling of cultural expression. But as the amateur content movement progresses, competition in the marketplace for content will affect the degree to which professional providers want to offer this sort of locked content. If a record label wants to digitally-lock Christina Aguilera’s latest album and make it unplayable for a large number of consumers, then they should be free to do so (subject to some other policy concerns that they should not be free to break people’s computers in locking their content; nor should they be able to break into other people’s computers to lock their content; and so on). We can expect a range of amateur content to enter the market to compete on value, quality, and degree of access prohibition. We are likely to see two themes emerge from this. First, DRM access control in commercial content will encourage amateur content production (which is a good thing). And second, amateur content production will act as a natural brake on the imposition of over-broad access control by commercial content providers (which is also a good thing).

Thus the amateur content movement demonstrates that culturally-oriented and consumer-based concerns about DRM are (probably) less troubling than first imagined. However, two concerns remain, even if amateur content production provides some basis for hope. First, like many parts of our cultural experience, amateur content relies on the ability to reuse and remix existing material. Access control using DRM has the potential to affect the ability of individuals to engage in this type of creative reinterpretation (Lessig 2004). This point has been made before and I don’t want to belabor the point again. But it is important to note that amateur content production cannot occur without the ability to use (to some extent) material which is part of our cultural heritage. To the extent that DRM stops this from happening, then we need to place limits on the ability of commercial content owners to stop amateur content reuse.

Second, the above comments about access control do not extend to its bad big brother, trusted systems computing. In trusted systems, only content signed by certain providers can be used by the computer system. An example of this is found in Microsoft’s newest Media player. This type of DRM is an actively bad thing for amateur content, since amateurs are unlikely to be able or unwilling to obtain the appropriate license for their content to be used by the trusted system machine. To the extent that one thinks that amateur content is a good thing and I think it’s a very good thing indeed trusted systems must be resisted. The market acceptance of trusted computing has been low to date, but future generations may have wider uptake. This is likely to reduce the opportunities for amateurs, and we should think seriously about changing copyright laws and using antitrust actions to ensure that amateurs retain the same access to users as multinational media companies.

Open Access and Open Source
The open access and open source movements can also be characterized as elements of mass amateurization, since they both stem from the same technological changes and they both rely on non-commercial motivations of the producers. Moreover, both movements demonstrate important lessons about amateur content and DRM.

"Open access" is the label for the principle that scholarly publishing should be freely available to everyone, without charge, political censorship, or commercial interference (Bethesda Statement 2003). The idea is, in short, to provide a publicly-accessible and useable commons of scholarly literature for everyone. "Open source", on the other hand, usually refers to collaborative mechanisms of content production. Open source, like open access, does involve the free distribution, copying and use of creative content, but it adds the requirement that users are also free to alter the content (Open Source Initiative 2005). Open source software like Linux or MySQL provides the model for distributed production of complex creative objects, and the open source model has been adapted for the production of news, commentary, and many other types of content.

Open access and open source usually have no truck with DRM. Clearly the common view of DRM that it is about access control is inconsistent with both open access and open source philosophies. One cannot subscribe to open source or open access principles without accepting that the user is free to pass the material on to others, to read without cost, use and reuse, and so on. But as Poynder (2005) explains in an earlier INDICARE article, if one views DRM in its widest form, it is not necessarily inconsistent with open access. He makes the important point that open access authors still want to retain some rights, most notably the right of attribution, and he suggests this interest can be supported by DRM. Purists might argue that this can be achieved with digital watermarking, which is of course correct. But watermarking is a form of DRM; and this form of DRM happens to support the interests of open access.

I agree here with Poynder, and suggest that the same interest can be found in the open source movement, in the rise of amateur content generally, and in Creative Commons licenses. The vast majority of Creative Commons licenses that have been adopted to date (around 95%) require the licensee to attribute the work to its author, no matter what other conditions of use are attached. The lesson of this, and of various other examples of amateur content, is that the attribution interest is probably the most fundamental incentive of creativity in areas that are not driven by commercial concerns. It is possible then that a truly beneficial role for DRM exists in making attribution run with content, so that the author will know that her name will live as long as the content is being used.

Of course this is not the traditional view of DRM, and indeed DRM generally speaking does not handle this particularly well. While the emphasis in DRM is to remove content from use, it will be inimical to the open access and open source movements. But if one looks to the future, it is possible to suggest a beneficial role for DRM within the amateur content movement.

Bottom line
Amateur content is the elephant-in-the-kitchen of content production. It’s been around us so long that we no longer see it, even as we walk around it. In its newly visible form it promises to provide meaningful alternatives to commercial content, and equally promises to be a brake on commercial over-reaching in the DRM arena. Further, DRM has the possibility of spurring the uptake in amateur content (especially in the amateur content fields like open source and open access) by providing a simple and effective way of denoting attribution interests for the long term. We should be careful therefore to assume that DRM is always bad, and that commercial use of DRM will always trend towards over-control of the content.

Sources

About the author: Dan Hunter (BS LLB (Hons) LLM PhD) is the Robert F. Irwin IV Term Assistant Professor of Legal Studies at the Wharton School, University of Pennsylvania, where he teaches intellectual property law and cyberlaw. He previously taught at the law schools of the University of Melbourne (Australia), and Cambridge University (England). He regularly publishes on issues related to cyberspace law & policy, and intellectual property. He is currently researching a book on information policy for the coming era of amateur content production. Contact: hunterd@wharton.upenn.edu

Status: first posted 30/05/05; included in INDICARE Monitor Vol. 2, No. 3, 30 May 2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=106