DRM by asking nicely

The blogosphere has been pretty quiet about yesterday's first official podcast of This American Life. My guess is that nobody wants to jinx this long-awaited and happy state of affairs.

In early June, I was one of a number of folks who noticed that the show's website had switched audio formats from Real to MP3, and who interpreted that move as a tacit endorsement of do-it-yourself podcatching. On June 20, I published and then retracted a takedown request from TAL's web wrangler, Elizabeth Meister. In the flurry of ensuing conversation, here are some quotes that stand out:

Jared Benedict:

Contrary to posts on Boing Boing and elsewhere, Jon Udell and I did not receive a "nastygram" or formal ceast and desist letter. Rather we received friendly emails from Ms. Meister, This American Life's webmaster, making a request to take down the hyperlinks and RSS feeds, or she'd regrettably have to get lawyers involved.

While Ms. Meister did miss the mark by accusing us of copyright infringement without a clear understanding of what we were actually doing, or what copyright law allows, she was trying to be polite and friendly which I appreciate.

To be clear, I was not storing or making any copies of their work, I was simply providing links to publicly accessible MP3's hosted on This American Life's own servers. It is my position that hyperlinking to publicly accessible MP3's is perfectly legal (see Ticketmaster v. Tickets.com) and fundamental to the existence of the web.

While I am confident that I am breaking no law, I am respecting TAL wishes by taking down the podcast and archive page which points to their MP3's. This American Life has decided to take the bizarre approach to Digital Restrictions Management (DRM) by asking nicely... which I suppose is better than using some Windows only Microsoft Media Player DRM or Sony Rootkit DRM.

Nick Carr:

Now, Jon Udell is an honorable guy, and I'm sure he doesn't think of downloading those files as an act of thievery in any way, shape or form. But what kind of strange logic leads someone to say that "although the archive page at This American Life still says that you can't download files, it's not true anymore." That's like saying that if I go out to the supermarket and leave my front door unlocked, then it's ok to come into my house and steal my china. Just because something's not locked up doesn't mean you can help yourself to it.

David Berlind:

Context really doesn't matter. If the URL exists, you must acquit. Otherwise, if you're putting MP3 files on the Web and you don't want someone pointing to them from the contexts of their choice, then, instead of sending takedown notices to that someone, take down the content itself. That way, nobody will point to it.

A Typical Joe:

I'm a fan of This American Life; I never listen to it.

This was and remains a complex affair. Along with Jared Benedict and many others, I believe that use and recontextualization are fundamental to the web. But just because you can use and recontextualize doesn't mean you always should. So I withdrew a blog posting for the first and only time, and I regretted the grief I caused Elizabeth Meister and TAL.

But I went further than that. Like Typical Joe (quoted above), TAL became the favorite show that I never listened to. Many others did, on MP3 players, ignoring TAL's extraordinary "DRM by asking nicely" stance. But for me that option became as unappealing as Audible or iTunes downloads, or Real streams. So I've not heard TAL since June, and I'm greatly looking forward to Episode 203.

Former URL: http://weblog.infoworld.com/udell/2006/10/17.html#a1546