As the Library of Congress considers new exceptions to the anti-circumvention rules that legally protect the DRM systems that are used by many companies to lock up digital content of all kinds, it is helpful to consider if those protections really accomplish what they were intended to.
Digital Rights Management, or electronic protection measures, are technological locks that “physically” prevent uses that are infringing, as well as many uses that would not be infringing if they were possible. The justification for using DRM is that it is necessary to prevent the widespread infringement that the digital environment enables, and thus to protect the revenues of content creators. Those revenues, it is argued, provide the incentive that keeps Americans creating more movies, music, books, etc. This purpose seemed so important in 1998 that the Digital Milleniuum Copyright Act included rather draconian legal protection for DRM systems, making it illegal to circumvent them even when the underlying purpose of the use would itself be legal. But the juxtaposition of two recent blog posts raises an interesting question about whether DRM really does what is claimed, and whether what is claimed is really its purpose in any case.
First is this report from Canadian copyright professor Michael Geist noting that for the third straight year sales of digital music (a prime type of content “protected” with DRM) have grown faster in Canada than they have in the United States. This growth comes in spite (?) of the fact that Canada does not have the same legal protections for DRM systems that the US does. Apparently the incentives for creativity are just as strong, or stronger, in Canada, where circumvention is not punishable, as they are in the US, where we are told that those who circumvent and those who market the technology to circumvent must be stopped lest creativity grind to a halt. The reality, as Geist points out, is that “copyright is simply not the issue,” and government intervention to drastically strengthen the copyright monopoly has not provided the promised benefit.
So why is DRM really so important to big content companies? On the Electronic Frontier Foundation’s blog, Richard Esguerra gives us a more convincing answer when he notes that Apple is finally dropping DRM from the music files it sells through its iTunes store. The timing, he suggests, shows that the big content companies really use DRM to eliminate competition and enforce a captive market; as soon as that purpose becomes moot, the companies drop the DRM. It is no surprise that DRM is a marketing problem, especially for music, where it often prevents users from moving files from one device to another. As long as the expected benefits in reduced competition outweighs the loss of sales, DRM is defended as a vital part of the copyright system. But it is abandoned without a qualm once it no longer serves that anti-competitive purpose and threatens instead to hamper profits.
If DRM systems really are being used primarily to suppress competition and prevent innovation, they are working directly in opposition to the fundamental purpose of copyright law they were sold to us to support. Read together, these two reports suggest that tinkering with exceptions, as the Library of Congress is charged to do every three years, is not enough; instead, the value of the whole idea of providing legal protection to DRM should be reexamined.