DRM

The possibility that Spore could use DRM to protect games has been inspiring some pretty heated debates lately in the gaming Blogosphere. For those of you not familiar with the topic, DRM stands for Digital Rights Management and refers to using some technological measure to restrict usage of digital media, devices and intellectual property.

The central issue at the heart of DRM is ownership. When you purchase copyrighted material, you only purchase the media in which the material is stored – not the actual “thing” itself. When you buy music on a CD, you don’t own the music – you own the CD. However, as long as you have the CD, then you also own the right to play the CD and listen to the music stored on it. Similarly, when you purchase a book, you don’t own the words – just the paper on which those words were printed.

Purchasing a book or CD provides you the right of USE, but it doesn’t provide ownership of the music or literary work itself. These “creations of the mind” are called intellectual property and the creators of this content hold the same rights to that intellectual property as they would a piece of land. When you purchase a game, music or other piece of intellectual property, you are not buying the thing itself – only the right to use the thing.

From the moment the first man bartered with another man in trade, we have always held the right to make our own terms of agreement. I’ll give you three fish for your bear fur. What? Only three fish? My bear fur is worth at least ten fish.

You and I could also make an agreement for you to use my pool. Pay me $10 per week and you can come use my pool anytime you want as long as you follow all our pool rules: No running. No diving. Put the pool cover back on when you leave.

In fact, as long as I don’t fraudulently lead you or coerce you into the agreement then I can put almost any terms on the condition of your use of my pool that I want. I can’t ask you to do anything illegal, but there is nothing preventing me from putting in really ludicrous conditions. Sticking with our pool example, let’s say that one of my other rules was that “my pool” was a “no clothes” pool and you could only swim naked.

At that point, I think most people’s reaction would be to say, “Screw you, I don’t need your pool.” AND THEY HAVE THE RIGHT TO DO SO. They can choose NOT to enter an agreement with me that asks them to swim naked in my pool. If I held you at gunpoint (coerced) or promised that it had medicinal properties that would cure your cancer (fraud), then the agreement wouldn’t be binding. But as long as you can exercise choice, then it’s my right to put whatever rules I want on that agreement.

That’s why DRM doesn’t violate any civil liberties. It’s not a privacy violation as long as there is transparency into the agreement that you are entering because you exercise choice while making the purchasing decision. The central issue is OWNERSHIP and by that measure, protecting what they own by using DRM is a perfectly acceptable LEGAL option that violates none of your LEGAL rights as a consumer.

The DMCA or Digital Millennium Copyright Act was enacted to criminalize the circumvention of DRM technology to access protected media and devices. Contrary to what some appear to believe, the DMCA did not legalize DRM, it simply made it enforceable.

Prior to the DMCA, a company could have used DRM to prevent music on a CD from being converted into an MP3. However, a third party agency that sold software which removed the DRM would also have been allowed as the music copyright holder would have had no legal recourse against the third party. The only legal recourse they would have is against illegal use or distribution of the copyright material itself. The DMCA changed all of that by criminalizing the circumvention with similar penalties as those seen in distribution.

The point here is that government has endorsed DRM as a method of protecting copyright – as they should do. Companies and individuals have the right to protect their properties. The creator still owns the thing and you are conditionally being allowed it’s USE by the creator. If, as one of the terms of USE, the creator decides that he needs you to verify that you are a legal user, then that should be their legal right. Anything less than that would be inconsistent with the rest of our laws that protect copyright holders.

Now – to this point, I have limited the scope of the discussion to the legal circumstances revolving around DRM. As I clearly pointed out earlier, individuals can and should be allowed to CHOOSE not to purchase DRM protected software.

Which begs the question – is DRM is good for business or bad for business? And that discussion is really more on the level of “how many people can I get to swim naked in my pool?” It’s not a question of legalities, it’s a question of economics. Is the burden that DRM is going to put on my customers going to cause me to lose more customers than I will gain from not having my product stolen by piracy?