Tim Lee

Is the DMCA a Legal barrier?

Solveig Singleton comments on my recent post about the dismal state of DRM standards.

She emphasizes that DRM, however imperfect, is a second-best solution to the problem of piracy. I think we just disagree about that: I don’t think DRM is an effective piracy deterrent, nor do I think employing DRM technologies is an effective business strategy. But since I’ve made that point in the past I won’t rehash it now.

What I do want to comment on, though, is this:

Physical or technological barriers, DRM included, are in a lot of ways preferable to legal ones. They operate by prevention. They are responsive to consumer demand. They operate across international boundaries. They don’t have associated policing or enforcement costs (though they aren’t free, either). Imagine if the police had to keep burglars out in an environment where no one had thought of or invented locks on doors, or even walls. It would be grossly inefficient, even absurd.

I’m not sure what to make of the contention that DRM has no enforcement costs, and is not a “legal barrier.” DRM gets its force not by technology alone, but by a legal prohibition on tinkering with that technology. It requires doing such things as punishing people who make unauthorized DVD-playing software, unauthorized streaming video players, and unauthorized iTunes Music Store clients.

Ms. Singleton may consider these restrictions to be a necessary cost of preventing piracy. But regardless, they are legal restrictions. They require the use of police and courts to enforce. They restrict our freedom to tinker with the electronic devices we legimately own–a right that may not be important to her but is of importance to a lot of computer geeks. And they should, I would hope, at least be treated with skepticism by libertarians.

February 6, 2006 | Comments |

Viewing 8 Comments

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    The DMCA is certainly a legal barrier. And to some extent, effective DRM, or some of it, relies *indirectly* in turn on some kind of backup by the DMCA, enough to stop the commercial proliferation of cracking tools. But DRM and the DMCA are not the same thing!!! DRM is a *private* mechanism. Its basic operation is physical. Like a lock on a door. The fact that a policeman will bust you if you break a lock doesn't make the lock any less a private mechanism. It has costs, but these are quite different from the costs of a legal mechanism as such.

    I find it hard to believe that your answer was typed up so spontaneously that this distinction escaped you. Perhaps it did. Either way, you get a spanking, as follows:

    Anyone who wants to admonish libertarians about what they should and should not be skeptical about will need to *earn* some respect first. Listen. Get your facts right (you might want to look into the history of the PDF standard). Figure out how the Blackberry work-around might work *before* you venture to comment on it in public.

    Or teach your grandmother to suck eggs. I've been an IP skeptic, and a hard-core one, for the last twenty years. It took several years of debate to drag me out of that intellectual position. (The difficulty of some of the issues aside, it involves, after all, public and private admissions that my previous views were wrong). But given the effort I have put in on the front lines inside the annoying Beltway far from home, I've earned a thoughtful response to my views. And I get it, from everyone who knows me, even those WAY WAY over on the other side.

    My apology for the spanking. A little self-indulgence on my part. It won't happen again. Since I apologized, I expect a good-humored response from my fellow blogger.

    Finally, a question, to discuss amongst yourselves:

    What does it mean to support the core idea of copyright, and to be opposed to any system that would make it meaningfully enforceable?
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    Well, that was rather bitchy of me. Gosh, now I really am sorry. It's late. Yawn.
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    Well gosh. I didn't intend to impugn your thoughtfulness or your libertarian bona fides. I recognize that you've been in the trenches of liberty longer than I have and I certainly wouldn't imply that you should have your libertarian card revoked if you don't agree with me about this subject. My apologies if I came across that way.

    On the substantive point of disagreement here, you're right that I phrased my response carelessly. It's true that DRM, considered by itself, is not a legal barrier. I don't have any quibble with DRM as a purely private mechanism. What I have a problem with is the legal harassment of people who want to do legitimate things like watch DVDs with their Linux computers. But we are frequently told by DMCA supporters that the latter is necessary to make the former work. So I don't think it's unreasonable for me to treat DRM and the legal barriers that attempt to make it effective as part of the same package.

    Is this like a policeman busting you for breaking a lock? I don't think the analogy is a very good one. It's not illegal to break a lock on property I own. Moreover, few libertarians would support a blanket ban on lock-picks and crowbars, yet the DMCA imposes an analogous restriction on "hacking" tools, many of which have perfectly legitimate uses. For this reason, the legal restrictions backing up DRM are far more sweeping than the corresponding legal restrictions backing up physical locks. It impacts a lot of legitimate activites, such as watching a DVD on an iPod. So I don't think it's unreasonable to argue that DRM is more of a "legal barrier" than physical locks are, although I apologize again for not putting the point more precisely.

    As for your question about how I can support copyright while opposing any system that would make it meaningfully enforceable, I think you're begging the question. One of our central points of disagreement is over precisely whether DRM helps to make copyright "meaningfully enforceable." I think it doesn't, and frankly, I think my background in computer science gives me at least a little bit of expertise on the subject. So while I'd be happy to share some of my ideas about how copyright enforcement could be improved, I don't think I'm obligated to come up with a good solution to the problem before I'm allowed to criticize a counterproductive one.

    A couple of quick comments on other points you raised:

    * I'm not sure what your point about PDF is. PDF was certainly developed by a private company and has its origins in proprietary formats. But the PDF standard as it exists today is, as far as I know, an open standard: anyone can implement it without getting permission from anybody. If I'm mistaken on that point, I'd love to be corrected.

    * I'd likewise love to be corrected on the BlackBerry issue. I have a hard time imagining how you could design a BlackBerry that doesn't infringe on a wireless email patent, but if someone has explained how the trick would be done, I'm all ears.

    Anyway, I hope I haven't caused offense. This is a issue I've been following for 5 years and researching intensively for nearly a year, and so I have some pretty strong opinions about it. But I hope I've expressed them in a thoughtful and respectful manner.
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    >> But DRM and the DMCA are not the same thing!!!

    Tell that to your PFF compadres, who argue passionately before Congress that all the supposed market benefits of DRM will wither and die should the DMCA be amended.
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    Goodie! Someone from PFF is finally engaging with Tim Lee! A tribute to Solveig's openness to debate - and fierce debate, as we've seen demonstrated here.


    I'll say that I can see both sides in both sides. Tim has been careless to equate DRM with the DMCA, but I see his point: Internet distribution means that one copy can be distributed worldwide, so while people who can't break DRM on content they've purchased can't make full legal use of it, it's still pirated like crazy. DRM doesn't work.


    Solveig's point is "live and let live": If content producers want to use DRM to limit use of content, all power to 'em. Back off, Tim! But Doug Lay suggests that Solveig (at least through institutional affiliation) ALSO equates DRM and the DMCA. Does she believe that Congress should outlaw the possession, distribution, and use of tools that can break DRM even if there are lawful, beneficial reasons to do so?


    Keep goin' kids!

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    There's more immense cost associated with DRM. Trying (and still failing) to enforce it involves passing legislation to make most media-aware hardware conform to it - at great cost. Ratifying this status quo squelches innovation, a great long-term cost. And passing laws to make it illegal to try to reverse engineer DRM infringes on our rights to communicate, leading to more costs. (Witness the concrn of Ed Felton that by publicizing how Sony DRM works, and what it can do to your computer, he was infringing the DMCA.)

    Finally, DRM prevents both fair use and library archiving. Libraries present us with books that are over a hundred years old, many of them great entertainment, classics and useful reference works. In 100 years there will be no way to access works protected by out of date DRM, and nobody is developing DRM software that expires when its copyright expires, because that simply adds to the ways it can be defeated.

    - The Precision Blogger
    http://precision-blogging.blogspot.com
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    DRM does create a problem when it substitutes a software program for jurisprudence. Copyright law has many exceptions for legitimate uses, it expires, and it has an assumed leeway for private purposes.
    DRM enforces 'no copying' in a crude mechanistic way, with no ability to weigh these aspects.
    Copyright can be meaningfully enforced when you show economic harm.
    Much more on this in my reaction to the UK parliament's DRM hearing
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