James DeLong makes a rather silly analogy between DRM and shopping carts:
Shopping carts [at my local grocery store] can be wheeled out to the trunk of your car in the parking lot. Much more convenient. The cart bears a notice: “Take this beyond the parking lot and the wheels will lock.”
Clearly, this is some kind of wireless ditigal technology–DRM, in fact.
So I began thinking. Don’t shopping carts want to be free? Shouldn’t it be fair use to wheel the cart to my home? After all, there are lots of them, so I would not really be depriving another shopper of the use of a cart.
This is, rather obviously, not true. If you wheeled your cart to your home, there’s a pretty good chance you wouldn’t wheel it back. Over time, stores would run out of carts and need to buy more of them. The marginal cost of a shopping cart is not (as he bizarrely asserts later in the post) zero, or anything close to it. So it’s economically inefficient for someone to take a cart home and lose it. Good public policy requires that taking a cart off the premises be treated as theft.
But how that relates to DRM, or the debate over the DMCA, is a mystery to me. Here’s a better analogy: a law that flatly prohibited anyone from disabling such anti-theft technology, regardless of the reason. So if, for example, I happened to park my car at the very corner of the parking lot, and the people who set up the technology goofed and made the wheels lock up before I reached my car, it would be a federal crime to drag my cart the last few feet to my car in order to unload my groceries. Or, as another example, if the grocery store sold me one of their surplus carts, should it be a federal crime for me to remove the wheel lock after the sale?
The argument against DRM isn’t that consumers have a right to infringe copyright. (well, some fringe critics make that argument, but not me) The argument is that it needlessly prevents people from doing things that are otherwise completely legal. Like transferring a DVD to your iPod to watch on the road. Or playing a DRMed song on a high-end stereo system that doesn’t support that particular DRM format. Or including a short clip from a DRMed song in a presentation.
“Stealing” music by uploading it to or downloading it from a P2P service always has been illegal, and it would continue to be so if the DMCA were repealed, just as stealing a shopping cart has always been illegal. The analogous Issue is whether we need blanket federal legislation outlawing all circumvention of wheel locks, regardless of the purpose. I don’t think that’s good policy, and I suspect DeLong wouldn’t either.