Both TiVo and Replay have agreed to put Macrovision DRM technology into their personal video recorder devices, The Mercury News reports. With this DRM, they say they'll be able to offer recording of pay-per-view shows that expires from the PVR after 90 minutes or 24 hours. EFFer Fred von Lohmann points out that consumers aren't asking for this 'feature,' and hopes that the consumer marketplace will punish those who implement it. Unfortunately, information failures and collective action problems make it difficult for the public -- the end-user consumers of these devices -- to resist restrictions.

The movie studios and sports leagues will support their restrictions, as they have in the past, with claims that opting for DRM increases consumer choice. The story, as these entertainment producers tell it, is that without DRM, no recording at all would be permitted of pay-per-view. Or, if they couldn't control the tech to stop consumer recording, they wouldn't even broadcast some content in the first place. (See, for example, the arguments made about the need for protection for DVD encryption.)

In the entertainment companies' story, DRM solves a collective action problem. The public wants cheap, secure mass entertainment, but without DRM, there will be some bad eggs who spoil that promise for all the rest. With DRM, however, buyers can collectively commit to not being able to copy or redistribute content (up to the strength of the DRM, at least [FN1]). In that case, individuals are left with the choice between DRM-encumbered content and none at all. Then, as the platform gains hold, more and more content shifts to the pay-per-view side.

But is the entertainment companies' dichotomy really our only choice, long-term? Would mass entertainment cease to be if mass producers couldn't restrict the choices of their audiences? No, no more than musical composition stopped when courts ruled that the piano roll wasn't an infringing reproduction or sound recording stopped when audio artists had no public performance right. Scrappy upstart technology companies disrupted the business of producing music, but when producers couldn't control the technologies of distribution, they changed their business models instead.

Taking an even longer-term view, then, DRM creates a collective action problem of its own by pitting short-run access to entertainment content against long-run ability to innovate. Once we've accepted DRM (or its host trusted computing platform, see the dialogue between Seth and Unlimited Freedom on slow attestations), we can be forced into using only "authorized" playback devices, and forced to gain permission before creating a new media-centered application. Too much of the public is willing to sell out the benefits of competition and creative destruction for the shorter-term promise of entertainment content. If we could instead commit ourselves to rejecting DRM, we'd force the entertainment industries to a test of whether they'd really shut down rather than offering open content, and we'd leave room for innovation in the creation and delivery of mass entertainment content.

Back to TiVo and Replay. The entertainment companies play the PVR makers against one another, saying that only those that provide DRM will get the "premium" pay-per-view content. The PVR companies, recognizing the entertainment companies and their cable/satellite intermediaries as their real "customers," accede to demands for restrictions on their end-users. [Copyright law serves as a neat way for the entertainment companies to avoid having their anticompetitive conduct deemed an antitrust violation, while the cooperative effort of technology companies to resist DRM might face hurdles.] In the short term, subscribers using collaborationist PVRs get their pay-per-view, in the long term, we end up with only pay-per-view. We'll find we can build a better piano roll, but won't have any content to play on it.

[FN1] This analysis is largely independent of whether DRM works perfectly, which it can't as a technical matter. When it's backed by anticircumvention law like the DMCA, no commercial innovator can afford to break DRM, even if many individuals can. DRM serves as a barrier against disruptive competition even when it can't stop copying or retransmission.