A couple of weeks ago, in comments, I got a tongue-lashing from Solveig Singleton for my suggestion that DRM was a legal, rather than a purely private, enforcement mechanism:
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.
But it appears that her colleague, James DeLong, disagrees with her:
The determination of fair use is central to the question whether content providers will be allowed to continue their experiments with DRM. H.R. 1201 would, in my view, use a broad definition of the concept of fair use to destroy DRM by legalizing the distribution of all cracking tools.
If DRM is primarily a private mechanism whose “basic operation is physical,” then repealing the legal prohibition on distributing “cracking tools” ought not to prevent content providers from “continuing their experiements with DRM.” Legalizing crowbars doesn’t make doors useless–trespass would still be legal, and anyone who used a crowbar to break into a home can be prosecuted for trespass. Likewise, under HR 1201, piracy would still be illegal. Anyone who circumvented DRM for purposes of distributing the content on the Internet would be guilty of piracy and could be prosecuted accordingly.
These positions can’t both be right. If DRM is primarily a private mechanism, as Singleton asserts, then DeLong’s contention that repealing the DMCA would be the end of DRM has to be wrong.
Update: Tom Giovanetti of IPI is also seems to think that permitting any circumvention of DRM is akin to abolishing it:
The free culture folks have moved from arguing against using TPMs (of which DRM is simply one) to protect works still under protection, to arguing that TPMs would be used to restrict access to items within the public domain as well. This is akin to saying that since TPMs could potentially be used to do bad things, TPMs should be outlawed.
I don’t know of anyone who thinks DRM should be outlawed, unless you consider repealing the DMCA to be outlawing DRM. Giovanetti seems to consider the DMCA and DRM to be two sides of the same coin. Which seems like evidence that he, at least, considers DRM to be as much a legal mechanism as a self-help one.
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