Flash and DRM: Does Adobe really have any choice?

The Electronic Frontier Foundation is taking Adobe to task for including DRM in Flash Media Server 3 and Flash Player 9. But does Adobe really have much choice, now that social networking sites such as YouTube are under pressure from content providers to implement DRM?

In an article posted today on its Web site, the EFF is now arguing, among things, that Adobe is using DRM as a revenue vehicle, by charging more for the latest edition of its Flash server.

EFF Staff Technologist Seth Schoen contends that the introduction of encryption in Adobe's new products "locks out non-Adobe software players and video tools."

"We imagine that Adobe has no illusions that this will stop copyright infringement -- any more than dozens of other DRM systems have done so," Schoen wrote. "But the introduction of encryption does give Adobe and its customers a powerful new legal weapon against competitors and ordinary users through the Digital Millennium Copyright Act."

According to Schoen, open source alternatives to Flash, such as Gnash, might not be able to play encrypted video streams, and third-party software previously capable of downloading Flash -- like the most recent RealPlayer -- will break.

But he seems to be even more adamantly opposed on the basis that Flash's adoption of DRM "threatens to squash a growing tradition of expressive fair use of online video."

This "growing tradition," he notes, is now coming into play among users who are employing Flash not just for downloading, but for remixing video. This trend has recently been taking off in such places as college classrooms, where students are learning about how media messages are created. Other folks are taking up remixing, Schoen remarked, as "part of a new ecosystem of amateur entertainment."

He went on to warn that "remixers who find and use tools that break the Flash Video encryption could be sued, even if their transformative creations would otherwise have been fair use."

Beyond that, Flash users might have to upgrade their players in order to download video, and Adobe "now has an incentive to push the use of DRM" by charging more than over $4,000 for Flash Media Server 3," according to the EFF's staff technologist.

"DRM doesn't move additional product. DRM is grief for honest end users. And there's no reason to imagine that the new DRM systems will stop copyright infringement any more effectively than previous systems," closed Schoen.

While all of these points may well be valid, there are good arguments on the other side of this debate, too. Flash video is increasingly important as a delivery mechanism for YouTube and several other sites these days, and these sites are being pushed to provide protection for rights holders.

YouTube can't implement DRM and stick with Flash unless Adobe includes DRM in there somewhere, right?

So for Adobe, it's a case of being lodged between a technological rock and a legal hard place.