COPYCENSE

The scientific, technical, and consumer backlash against digital rights management (DRM) software has been harsh since computer programmer Mark Russinovich discovered that Sony BMG used DRM software on its music compact discs that implemented a “rootkit,” a tool that virus writers may use to hide their work. Much of the furor about DRM has been about the security problems many DRM schemes pose, or the sneaky way in which content owners implement DRM without notice to consumers.

Few of the criticisms, however, talk about how DRM (and consumers’ inability to deactivate it) actually is a threat to the competitive business landscape. Now the Cato Institute has weighed in on the subject, even going so far as to suggest a repeal of the Digital Millennium Copyright Act, the law that makes it illegal for consumers to deactivate DRM. Writes report author Timothy Lee

Copyright holders have used the DMCA as a contract enforcement tool, promoted criminal actions against programmers who expose flaws in DRM software, and worked to suppress academic research that affects copyright protection.

Not only is that bad for innovation and entrepreneurship, it is bad for consumers as well. Ordinarily, new technologies allow us to consume media in new ways. The VCR introduced the idea of taping shows for later viewing. The invention of MP3 players like the iPod allowed consumers to put their entire music libraries in their pockets. Software emulators allowed consumers to play games designed for popular consoles like the PlayStation on their computers. In each of those cases, industry incumbents sought to use the legal process to block the technologies, arguing that they violated copyright law. And in each case, the courts rebuffed the industry’s efforts, holding that copyright law is designed to promote, not impede, technological progress.

The DMCA puts its thumb on the scales of justice on the side of copyright holders. Digital rights management technologies give copyright holders complete control over every aspect of how their products are used. And the DMCA gives DRM technologies the force of law. As a result, when the next VCR or iPod is invented, the content industry may use its powers under the DMCA to refuse to allow its content to be used on the new device. If new inventions are prevented from even entering the marketplace, there will never be an opportunity for a public debate about their benefits. Most consumers will not even know what they are missing.

Of course, many individuals and groups (including the library associations and the Electronic Frontier Foundation) have been saying similar things about the DMCA even before President Clinton signed it into law in October 1998. But it is a bit surprising to have a free-market promoting group like the Cato Institute sponsor a paper that criticizes pro-business legislation in so sharp and direct a manner.

Timothy B. Lee. Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act. Cato Institute. March 21, 2006.

See also:

CopyCense. CopyCense’s Sony-BMG DRM Bibliography (v. 1.1). Feb. 2, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.