Friday, May 16, 2008


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?


Terroxian said...

Very nice summary and well organized.

It seems to me that this discussion is mostly based on the perspective of the individual (as is most discussions of course). As a people, we tend to abhor change. That said, a vast majority of us gamers grew up in a virtual DRM-free world. I can remember the first time I was required to leave the CD in the CRRom and I can remember the first time I was required to start entering CD keys. Before that...nothing. It is something that has slowly come upon us over the years and what started out being an 'inconvenience' is now starting to seem like an 'intrusion'.

Let us first examine who is to blame for the more recent 'intrusiveness' of DRM. While I hear most frustrations vented at the IP (intellectual property) owner, I most often will spew a few curses at pirates in general. After all, in a perfect world, we would have no cheaters and no pirates trying to steal what is not theirs (and bottom line IS stealing anyway you cut it) and therefore, would have no need of any type of DRM.

Second, your point of this decision coming from free will is a very important point. No company is forcing you and I to play their DRM-game. But, if you want to play, you will have to play by the rules (the IP rules both inside and outside the game). And I love your points about your purchase being the 'right to use' and not the IP itself...very important distinction.

Third, a company must really try to make DRM as palatable as possible while retaining the strongest security/anti-piracy features available. But the fact remains that DRM will continue to become more and more strict and 'intrusive' until piracy is reduced to a palatable level for the company...thus, every company will most likely choose the DRM that retains palatable losses for the company OVER what is considered palatable for the user (you and me).

I don't like DRM any more than the next guy but I see it as inevitable as long as other keep trying to steal their IP. Thus, I see DRM as something we will all have to live with on some level for the rest of our gaming lives. I won't speculate on how DRM will be in the future as it will change as technology changes but I will speculate that as more and more time passes, DRM intrusiveness will be less and less of an issue. Why? Two reasons:
1. The generations that grew up without DRM will get older and play fewer games and/or will just get accustomed to the way things are ("It's inevitable, Mr. Anderson").
2. Younger generations of gamers will grow up with DRM here already and won't know any different (thus becoming more and more of a non-issue). Can you imagine the new gamer that installs and loads up Spore as his very first PC game ever (this is not a theory...I can virtually guarentee this has/will happen wherever Spore is sold as every gamer must start with his first game somewhere)?

Anonymous said...

One of the things that is most annoying of DRM is the way it changed the copyright rules. It's a subtle but significant thing - as you say, so far legal, but I suspect it's got a reduction coming. I think a little (loose) history will be educational here.

Back before cassettes, copyright largely applied to print material. While still complex, some simple rules applied. Once I bought a book, it was mine. I could lend it to anyone - or several anyones, one at a time. I could make multiple copies in different formats (transparency, braille, and even more mimeograph or other print copies) SO LONG AS I did not give or sell these other copies to other people. I could rebind the book. I could cut out pages and mix them with other pages from other books for a personal anthology.

The author, the publisher and the distributor had zero control of my rights of what to do with the book save only if I made and attempted to distribute more than one copy.

Now, things got messier when it became possible to record movies. It's worth knowing that the various movie houses objected strenuously to videotape (as one example) because more than one person - said person NOT HAVING PAID - could watch the movie at one time. Ponder that a moment. And realize that many of the music industry folk felt the same way about records. Except the record industry managed to get a little loophole in there, and the movie industry grabbed that loophole as well. It's the reason restaurants aren't supposed to sing "Happy Birthday" to customers - they have to make some other song for the same wish. To put it simplistically, they are allegedly ensuring that the creators get value for the product they created. The fact that the creator only gets a pittance - that the publisher and distributor get the lion's share - is relevant but does not change the fact.

The whole issue of DRM is an outgrowth of these impulses. In the eyes of the publishers and distributors - and many of the creators of the works (the performers and composers and such) - EVERY person who did not pay THEM for the right to see/hear the product is stealing from them. If I buy a song and my wife listens along with me, she should (in their eyes) also pay. And if I decide to sell my CD at a garage sale, they should get a share of the sale -- the heck with "right of first sale". (That was print, anyway, and so is immaterial. That is, by the way, the actual argument, so far untested in court.)

I'll refrain from discussing - save only mentioning - the fact that copyright has stretched from the original 14 years (Statute of Anne, England, 1710) to the present near-perpetuity (life of the author plus 70 years after death OR 120 years after the work was created), all in light of the balance between creator's need to profit so as to continue producing vs stifled creativity of public domain. That's heading into headache territory, with lots of good will argument (along with selfishness disguised as good will) on both sides of the position.


sid67 said...

That’s a really good point about younger gamers. I certainly think the younger generation will be more accepting of these types of things as it becomes more commonplace. Oddly, I also think they will be more likely to circumvent it.

Your comment illustrates that the driving force in copyright change really appears to be technology. The law really does need to evolve as new technology changes all the rules. In the 1700s, the only way to reproduce a work was by use of a flat-bed printing press. The more modern and productive rotary printing press wasn’t invented until the 1800s. It’s not surprising that as it becomes easier to reproduce a work, our laws need to be adjusted to reflect those technological changes.

I shouldn’t be surprised that media companies also take the opportunity to make copyright law more favorable in other ways as well, but I am. Any insight into how they may have done that with the DMCA?

Anonymous said...

Sid, the simplest explanation is that the DCMA allowed DRM to exist as it does. That is, with the assumption that the purchaser is leasing the material (vice owning a book), even if they purchase the CD or DVD.

For what it's worth, the severity of the DCMA/DRM seems to be the largest driver of attempts to evade the law and other restrictions. It's not the money, it's the "I bought this for player X, I now have player Y, and you're telling me I have to buy the same song(s) and movie(s) AGAIN? F. U."

Note that the strict interpretation of the law is that the owner has the right to move said item between players, but note also that most of the DRM folk have a clause in their purchase notes that says (paraphrased), "I give up the right to transfer on purchase of this item." That's your naked swimming pool analogy, again.

Personal suspicion is that the thing will reduce - a LOT. It's basically what the computer game industry fought 20 years ago. I don't know if you remember dongles and mandatory disk presence and serial passwords (you have completed stage 3. Enter code word from manual to begin stage 4.), but I do. And... they died a lingering but unlamented death. The DVD regions and DRM and other DCMA-allowed outgrowths will undoubtedly go the same way - eventually.

My opinion, of course.

sid67 said...

Ahh.. I see what you mean about the players. That IS a very subtle change in how copyright gets applied.

I do recall dongles and that "word" protection very well. The dongle method still exists (although rarely and only with very expensive software). That "word" protection was also insanely easy to circumvent by photocopying the manual.

These both went away due to innovation and better technology rather than changes to copyright law.

I don't know if I see the same lingering death for DRM. I don't doubt that the current incarnation will evolve to something superior, but I don't see it going away.