Is DRM the Devil? The Debate over Digital Rights Management, Trusted Computing and Fair Use in Copyright Law

by on August 26, 2004

Like my TFL colleague Tim Lee, I’ve been spending some time lately thinking about digital rights management (DRM), trusted computing (TC) and copyright skirmishes. Just so you know right up front, I consider myself to be right smack in the mushy middle of most copyright battles going on out there these days. I’m hopelessly undecided on many of the more controversial issues out there, but I’d like to think I still might have a little something to contribute to the debate.

In particular, I’d like to comment on this very interesting battle over the role DRM should play in the future of copyright. The current debate pits those who generally claim that “DRM is the devil” against those who claim “DRM is our savior.” Just by way of background, DRM is generally defined as a system of content protection that employs various technological tools and capabilities to shield against undesirable use or distribution of digitized works or products. Trusted computing is essentially an extension of DRM, or a new, more robust flavor of it, which focuses on how to make computing platforms and technologies even more tamper-resistant.

What DRM is Suppose to Accomplish:
In a sense, DRM has been around for a long time but in far more primitive forms. Any password-protected document, program or website illustrates simple DRM at work. The difference today, however, is that DRM has become far more sophisticated as technological capabilities and computing power have exploded. I’ve recently been editing a wonderful new paper by Michael Einhorn of the Brattle Group and Bill Rosenblatt of GiantSteps Media that documents the many flavors of DRM already at work in the marketplace. Their paper also highlighting some cutting of the edge technologies and business models in the works. I’ll make sure to post a link to their paper when it’s out.

For now, all you need to know is that DRM is already at work in the marketplace, and far more sophisticated stuff is on the way. Of course, as Tim Lee points out in his post earlier today, for both technological and business reasons, it could be that none of these schemes work out in the long run. But that certainly won’t stop companies from trying to implement new DRM / TC models. And it also tells us nothing about whether government should have any say over these methods or models as they are implemented in the marketplace.

Regardless, many creators and copyright industry representatives hope that DRM or TC tools and techniques will provide them with a way to minimize undesired uses of their works and maximize profits in the process. For example, movie companies currently place restrictions on DVDs so they cannot be easily copied and can only be viewed in certain regions or countries. That’s a simple example. On the other end of the scale might be a DRM/TC scheme that requires you to register a specific application or piece of media on your computer before using it and then demands that you allow them to monitor how and when you use it, or with whom you share it. It might even charge you a small fee every time you use it or share it. Or it might limit the number of uses and stop working after a two or three days. (Remember DIVX?) Finally, the DRM/TC scheme might also monitor you specific uses of the media in question and report them back to the company for future marketing purposes.

This might sound sinister to the privacy paranoid crowd out there, but it really isn’t a big deal. In a sense, it’s a little bit like your grocery store using discount cards to monitor your purchasing patterns so they can send you targeted offers / coupons. With more sophisticated DRM/TC techniques (including consumer tracking), targeted marketing efforts could become much easier and could help consumers get more info and better deals on the goods and services they desire. Moreover, many copyright industries believe that limiting consumer uses in this fashion will help them find innovative ways to employ price discrimination techniques to recoup their investment and make sure IP creators get paid. Eventually, for example, your TiVo might become a tool of near-perfect price discrimination as the content and computing industries work together to concoct DRM/TC schemes that allow them to almost perfectly tailor video programming to your tastes and simultaneously ensure a solid revenue stream.

But the content industry claims that all this new DRM/TC copy protection technology will only work if they receive special legal protections from efforts by some out there to crack and circumvent these DRM/TC tools or systems. Industry claims that an escalating technological arms race is a costly and ultimately losing proposition from their perspective since they just can’t keep up with all the creative rascals out there today who want to get around this stuff. This is how we got the anti-circumvention provisions of the DMCA, and it’s also the logic behind regulatory efforts such as the old Hollings bill mandatory DRM scheme and the FCC’s broadcast flag proposal.

And Now For Something Completely Different
Now what’s so ironic about all this apocalyptic talk of the technological end times coming is that while these pro-DRM forces lament the potential for circumvention or a technological arms race of one sort or another, there is another group of people who are claiming the exact opposite is the case; that DRM is dangerous because it could erode fair use by bottling up copyrighted works to the point that almost no uses–outside of the few the copyright holder permits–are possible. Critics like Cory Doctrow, Fred Von Lohman, Mike Godwin and Ross Anderson have argued that, in many ways, the industry is winning–or has already won–the technological arms race and that DRM and TC may need to be limited by force of law.

I have a lot of respect for these guys and generally find myself in agreement with them on much of what they have to say about the importance of fair use, but I really believe they are going a bit overboard regarding their concern about DRM eroding fair use entirely and the potential need for legal limits on DRM. After all, many in this crowd go around boasting about how every technology that the industry throws out there will eventually be circumvented and defeated and that there’s just no way to bottle up information entirely. (And, at least so far, they’ve generally been correct.)

Moreover, I sometimes wonder if this crowd ignores the reasonable usage expectations that most consumers will continue to have about their digital electronics and computing systems that will help counter excessive control by industry. That is, if these new DRM/TC systems and technologies really do become incredibly restrictive or overly cumbersome, can they achieve enough consumer acceptance to be successful? Early cases studies don’t bode well for industry in this regard for a simple reason: nobody likes the hassle associated with overly restrictive schemes or tools that make it harder to carry out simple tasks. I currently rip and copy some of the DVDs I own just to eliminate the incredibly annoying opening menus and previews that some firms force you to watch before you get to the movie. (Yes, yes… I know I’m a DMCA violator for doing that, so go run to Johnny Ashcroft and report me! I’ll be happy to litigate a fair use case on this right up to the Supreme Court!)

Is Anyone in Favor of an Arms Race?
To summarize, it appears that what both sides in the debate over DRM really lament is the prospect of a technological arms race. The producers claim they just can’t keep up with unrestricted P2P and file sharing since they “can’t compete with free.” At the same time, the consumer groups argue they cannot exercise their fair use rights if the producers can use DRM or other tools to “bottle up” and secure their IP.

Both sides can’t be right, can they? Actually, in a sense they are both correct; there is a technological arms race of sorts taking place in today’s digital copyright environment. At times, it seems as if one party gets ahead of the other only to have the other quickly respond with something that gives them the advantage. But what few on either side seem to celebrate is the technological innovation taking place on all sides of this race and how it might make society better off as a result.

While both sides will bemoan the time and hassle associated with playing this game, could it not be the case that the net result of this race is a constantly expanding universe of technological innovation? It certainly seems plausible, although the social and economic calculus here is extraordinarily difficult to compute. But why not let the technological arms race continue unabated and see what comes of it? Again, such an approach would counsel only a limited role for Congress; policy makers shouldn’t jump in this fight and preemptively tilt the balance one direction or the other.

My first rule for all copyright law and analysis is this: Congress should not ban or mandate specific technologies or technological outcomes in the name of protecting IP or fair use. To the maximum extent possible, I would prefer the selective, targeted enforcement route via the courts, applying previous precedents and letting the chips fall where they may. I have applauded the RIAA’s efforts to enforce against specific mass infringers and openly encouraged the MPAA to do the same. But I think there are some real dangers associated with the sort of sledgehammer approaches envisioned by the DMCA and the proposed Induce Act.

In summary, therefore, I guess my argument can be stated as follows: Let the Technological Arms Race Continue! Don’t tie the hands of firms who want to develop innovative methods of self-policing or self-protecting their IP. An unrestricted market in DRM technologies and business methods is a good thing. At the same time, let’s not call in government every time some one out there cracks one of these systems or does an end-run around a given technology or business model. I don’t really have any idea if DRM and TC will work or not, but I’m very interested in sitting back and watching this battle unfold. Again, I just don’t want government to tilt the balance one direction or the other.

So, is there anyone else out there who favors and unrestricted technological arms race? Please let me know what you think about the great debate over DRM and the future of copyright.

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