Adobe and Nikon’s Master Plans

This is just a red herring

Maybe you heard the one where a monopolistic photo editor software developer complains that someone is screwing up their plan? That’s what happened the other day when one of the Photoshop original developers complained that Nikon wasn’t playing fair. Some bad-ass digital cameras today have the ability to save the photos in a raw mode, including info on light intensity, which allows for much more powerful digital photo editing.

Nikon apparently decided they didn’t like the idea of photographers using other software to access their raw mode, so they did what any reasonable company would do — they encrypted it. Now Photoshop is claiming they can’t decrypt it without potentially being liable under the DMCA for breaking that encryption. This is either a serious misinterpretation of the DMCA or a huge smokescreen for Adobe’s eventual goals.

For those of you not familiar with the DMCA, it prohibits breaking digital protection schemes, such as encryption, under a variety of circumstances. I think the intent was primarily to prevent people from profiting from the sale of such software or devices (think Sklyarov and the Adobe eBooks encryption). It’s also being used to stop individuals from releasing software into the wild that breaks business models (like DeCSS).

I find any claim of copyright on a photograph’s format highly dubious, much less encryption of that format. The hidden secret is that to violate the DMCA you must also violate copyright laws. No copyright violation means there’s no DMCA violation. If that’s Adobe’s justification for this mess, they’re just lying.

Furthermore, I don’t think they’re violating the DMCA’s tests. The DMCA has three main “tests” as written into the law to determine whether you’re liable or not — the primary function of the technology is to break the protection (for Photoshop, editing photos), the technology has little value other than breaking the protections (again, photo editing), and the technology is marketed as something to remove such protection schemes which then violates copyright (and again, editing photos). I don’t see how adding decryption of this raw photo format breaks any of these rules.

In fact, the DMCA says in section a.1.B that it “shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are … adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title.” I think this raw format encryption represents exactly this exemption. Accessing and editing your own photos are probably the best noninfringing uses I’ve ever heard in the history of DMCA issues.

Of course, I’m not a lawyer, but I know bullshit when I see it. So what’s Adobe’s game? For one, they want to avoid a costly lawsuit as does Nikon, but that’s a bit naive. They might also want to avoid paying Nikon for their software or Adobe’s own software engineers to break the encryption. I see two other big issues that they may be thinking about. First, Adobe is worried about losing their position in the digital photo editing realm. It’s not that there’s any fear of another piece of software competing with Photoshop in the near future. It’s just that they worry about people buying any other piece of software from any other vendor because of technology lock-in, wasting valuable money that they might not spend on Photoshop or other Adobe products.

Second, Adobe worries that this is the tip of the iceberg for photo companies adding similar “features” to their digital cameras. Adobe wants this to stop now before things get worse. Of course, Adobe doesn’t care about whether or not the file formats are encrypted. Adobe does care that their software is compatible with all those protected formats. In short, Adobe wants free or cheap licenses for those file formats, and there’s no better way to reach that goal than after a storm of free negative publicity against Nikon. Politicians already knew the value of free publicity, getting free airtime for their campaign commercials on news programs. This is the Internet way of doing the same thing.

So Nikon looks to be the loser in this little game, right? I guess they are. They’re probably worried about a couple of things — that someone will break their proprietary raw file format (which has already been done), that their competitors will use the unencrypted format to their advantage, that they won’t collect rent from Nikon digital camera users by requiring them to pay for the decryption software or for enhanced features in such software, or that they won’t collect rent from groups like Adobe or other software developers who want to be compatible with their new cameras. In this case, Nikon simply had the unfortunate honor of being the sacrificial lamb for Adobe’s holy vision.

What’s the best solution? Nikon should open their protection scheme for anyone who wants it for free. Simply protecting the data will ensure a protest by users, other software developers, and Richard Stallman. Nikon won’t sell any more cameras by protecting their photo format, so is it worth even the potential of negative publicity? No. The value is in the camera, not the file format. For Adobe, open formats are good, but twisting the arms of companies in related lines of business won’t accomplish anything either.

This should serve as an example to all you companies out there with proprietary, encrypted, or otherwise sheltered formats. Don’t protect the stuff that doesn’t mean anything to you. Selling high quality products will sustain your company, not improving your crappy encryption. If anything, making the formats open will improve your status and bump up your sales a bit.

There’s a right way and a wrong way to get people to play with you. Adobe and Nikon demonstrated the wrong way of doing it this time. But they are not alone, and I’ll be sure to point out as many acts of technology stupidity as I can in the future of this web site.

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