Should Companies Include DRM in Their Products?

This is the third and final major paper I wrote for my NHV class last semester. It was inspired by the mess I'm having with EA to get Spore to work correctly. I think the root of the problem is that EA, like lots of game manufacturers, is supposedly scared of piracy so they have all these silly things in place to stop it. In the process, I couldn't really buy used and had all kinds of problems. As of today, I think it will work out, but in the mean time the damage was done and I wrote the researched argument on the evils of copy protection - DRM. Remember, all text automatically copyrighted 2009 by Oliver Chase, and will be caught by turnitin.com if anyone tries to plagiarize it.

Should Companies Include DRM in Their Products?

With all new technologies come new advantages and new pitfalls. Electronics has revolutionized modern lifestyles, including spending habits and expectations about goods. Consumers find it easier than ever before to make perfect copies of copyrighted material without paying the artists or producers. Digital technology allows the producers to fight back, however, with various technologies generally referred to as Digital Rights Management, or DRM. DRM enables companies to control who has access to their material and how it is used. On the surface this would seem to be in the best interests of everybody. The honest customer has nothing to fear and the producers still get paid for their work. But is DRM really in the best interests of society? The producers will say that anything that increases profits is a good thing. However, DRM’s adverse effects on fair use, first sale, security, and the future outweigh its benefits and make it wrong to include on media.

For the purposes of this paper, DRM will be defined as any technology ingrained into a digital product that restricts either access to the material or its usage. The terms “art” and “work” are used generally for any form of digital content, from software to ebooks to DVDs. Let’s start off with three examples of DRM that will be referenced throughout the paper. First, Cory Doctorow recalls a parent who buys a DVD for her children, who can’t be trusted with such a delicate item. She connects her DVD player and VCR together in order to record a hardier videotape from the disc. The only problem is that there is a DRM system called Macrovision in VHS tapes that will make the recording unsuccessful (Doctorow). Second, Samuelson and Schultz recall that Sony once manufactured CDs that included DRM when inserted into a computer. The discs installed a “rootkit” in the computer’s registry which was designed to be hard to detect. The system was poorly designed and inadvertently allowed malware to use the same method to hide from antivirus scanners (52). Third, Dan Miller, a university instructor, owns a DVD and feels a portion would be useful for in-class instruction. Although his computer is easily able to show a portion of the film or to split off only the piece he wants, he finds the DRM involved prevents him from copying the useful portion onto another disc (D. Miller). His only legal options are to lose valuable class time fast-forwarding or forego playing the disc entirely.

Pro DRM advocates reason that DRM is necessary to ensure artists are compensated for their works. Sharing copyrighted material over the internet has become a very easy and increasingly common occurrence (Doctorow). Common sense indicates that rampant piracy will cut into author’s profits. Authors feel that DRM helps them get paid, and so it should be included in mainstream products (Gates). In other words, DRM is an important step to ensure that authors’ needs are met so they will continue creating content for society.

Advocates also claim that DRM creates new possible market structures. Grant Gross suggests that consumers may not always need all the usage rights of a given purchase. DRM offers the capability of purchasing only some aspects for a cheaper price than the whole work. This gives copyright holders more control over the use of their content, while also giving customers more options and price control. As Gross says, “instead of paying $30 for a new book, consumers may soon be able to pay $3 for a digital copy that lets them read it once” (Gross).

The consumer point of view is usually against DRM. Cory Doctorow claims that DRM really doesn’t even work against piracy, and therefore shouldn’t be included to get in the way of the honest customer. Those who really want to steal electronically will always figure out how to do so, and it only takes one crack before it spreads across the internet to anyone who wants the free content. On a more technical level, DRM is trying to lock content up in most cases, but not all. If the content could never be accessed, nobody would ever buy the product; they still expect to be able to watch, listen, or otherwise use their purchase. Reasonable DRM is ultimately doomed to fail because it can’t distinguish between unlocking its material for valid reasons versus illegal ones (Doctorow).

An alternative is to make DRM work even better. It can lock content up so tightly that it’s inaccessible in all but the narrowest cases. (Only allow the video to be watched if it’s on our player, with the internet connection disabled, the DVD burner disabled, the license agreement is accepted, etc.) The DRM opposition feels that in so doing the copyright owner is potentially overstepping his bounds in multiple areas. Such tight controls are said to restrict “fair use” (Mitchell 28), expand the copyright holder’s rights beyond their legal scope (Mitchell 38), and otherwise interfere with the customers’ lives (Samuelson and Schultz 42). Especially when taken together, many view this as a good argument against many, if not most, forms of DRM.

Although the publishers’ points are important to consider, the support for DRM breaks down under closer analysis. In fact, it is downright wrong under the concept of utilitarian ethics. Utilitarian ethics basically says that the right action is the one that results in “the greatest good for the greatest number” of people (Edgar 54-57). Murder is clearly wrong as it leads to a very unhappy person (dead) and generally unhappy, scared citizens. The only one who really gains is the vengeful murderer. Additionally, the quality of the happiness matters (Edgar 54-57). It’s far more immoral to keep someone from writing a novel than to interfere with a catnap, because the quality of happiness gained from the writing is far greater than the temporal urge to snooze.

DRM can be similarly evaluated. Does its presence benefit society as a whole? If so, it is right to include in media. If not, as claimed here and in many other documents, then it is wrong and should not be used, or only with careful regulation by the law. Indeed, DRM finds legal shelter within the recent Digital Millennium Copyright Act (Mitchell 14-20), but is otherwise on legally shaky ground (Mitchell 8-13). DRM may indeed benefit society by encouraging producers to create new works. In the process, however, it creates far greater problems when restricting the use of purchased material. Therefore DRM should be considered wrong.

To begin analyzing in more depth why DRM is bad for society, it is necessary to begin by understanding copyright. Copyright is by nature a utilitarian concept (Doctorow). There’s arguably nothing inherently “wrong” with arranging bits on a CD in a certain order or printing a certain arrangement of ink. The law makes such actions wrong because total happiness is increased by restricting copies. Without copyright to protect their works, authors are less likely to create (Doctorow), and this is undesirable. It’s better for all of society to lose a little bit of freedom so that the arts will flourish and society will be better off. Copyright is the mechanism in place to achieve this utilitarian goal. It’s also worth noting that the goal is more content, not necessarily wealthier corporations or authors.

With that said, complete and total copyright without exceptions would be a disaster for society. Academic scholarship would be devastated if every quote had to be obtained with permission of the author. All but the most honest authors would refuse to give permission for their works to be used in ways they don’t like but aren’t necessarily wrong, such as a negative review or endorsing the wrong political candidate. Since unrestricted copyright is so bad for society, government has also codified exceptions, the two most notable being fair use and first sale. Fair use allows the public to use portions of a copyrighted work without permission provided it reasonably passes four criteria, as set down in Section 107 of the Copyright Act: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work” (qtd. in Bonner 10). Under fair use, posting twenty minutes of the climax to a box office hit to YouTube is infringement, but the instructor from above is clearly able to show a short video clip in class. The parent may be copying the entire film for her children, but the purpose is unobjectionable and doesn’t interfere with the market, since you can hardly even buy VHS tapes any more. Whether it is technically infringement or not is probably a matter for the courts to decide.

DRM complicates the whole matter. Under the Digital Millennium Copyright Act (DMCA), consumers are essentially prohibited from circumventing any DRM included in a copyrighted work, selling circumvention devices, or even telling others how to circumvent DRM (Doctorow). In other words, if a company uses DRM, the customer is stuck with it. Period. The Librarian of Congress is enabled to make specific exemptions for specific groups of people to circumvent DRM (Siy, Rangnath, and McCartney), but this is an inadequate solution to the problem. Without an advance exception, any citizen who finds DRM blocking fair use is made a criminal by circumventing it.

The anti-circumvention detail wouldn’t seem to be important if DRM was consistent with fair use. Here’s the problem: DRM is unable to tell the difference between infringement and fair use (Doctorow). Computers are good at following absolute rules, not determining when they’re OK to break. It’s logically more appealing for a company to simply block any copying than to trust its customers to limit their copying to cases protected by fair use.

Contrary to the claims of the media and popular understanding, copyright does not give the holder the right to control everything about the work (Mitchell 5). It is limited to five rights held explained at Bitlaw: reproduction, creation of derivative works, distribution, public performance, and public display. The “distribution” right doesn’t mean the author can control where his work goes, however. It is subject to the clarification of first sale. First sale essentially means that once a work has been lawfully obtained the copyright holder can no longer control its distribution. Otherwise you wouldn’t be able to sell an old video in a yard sale. Some restrictions apply; for example, music CDs can not be rented (“Rights Granted”). The point here is that copyright gives very specific rights to authors. As long as the consumer is not copying, publicly showing, distributing (beyond his legal copy), or creating sequels to a work, there is no copyright infringement.

The biggest problem with much DRM is that it not only restricts access to material but also what is done with it after purchase. In the drive to prevent illegal copying and distribution, DRM frequently claims the right to control much more than the five basic rights. Ernest Miller mentions that a DVD purchased in the US will probably not work on a relative’s player in Europe, because most DVDs are encoded to only function in certain regions of the world. However, there is nothing in US copyright law that gives the owner any right to control where the DVD is going (after he initially sells it) (E. Miller). Companies would much rather be able to sell their content in multiple markets than for it to spread of its own accord, but this is not a right they actually possess.

DRM has other downsides besides disrupting the delicate balance of power between copyright holders and consumers. There’s an added cost in terms of time, labor, and emotions, especially since DRM doesn’t really work on the pirates it’s designed to stop. For example, it took all of fifteen minutes while writing this paper to find links to Monsters vs. Aliens, a film not even out of theaters yet, and Wall-E, either to be watched online or downloaded. This was even with a parental control utility blocking Rapidshare and Megaupload! Other full videos were available on these sites as well. Perhaps if companies weren’t wasting money creating DRM to supposedly fix the problem, more resources could be spent on catching the actual pirates or better yet reducing the price of the goods in the first place. Lower priced games, at least, have been known to make far more money than the originals (Irwin), which is beneficial to all involved.

As previously mentioned, DRM can be excessive in the amount of control it takes. Not only does this potentially restrict fair use, but it can also have dangerous side effects. The second DRM example is a case in point. Users were not adequately warned that Sony’s CDs were tampering with their personalized computer settings, and this lack of awareness caused security vulnerabilities (Samuelson and Schultz 52). If DRM is ever to be considered acceptable, it certainly should not create such side effects, especially if the users aren’t warned about what the DRM is doing. This is certainly not maximizing the good of society.

Consumers also expect their purchased media to work together (Samuelson and Schultz 44-46). If a customer buys a CD from one vendor, he expects it to be able to be transferred to his iPod. DRM gets in the way here too. Vendors are capable of using DRM that is not compatible with other devices, in the process locking the consumer into one company’s device, and Sony actually did this with the ATRAC3 format (Mitchell 49). Although anti-trust laws should theoretically kick in here (Siy, Rangnath, and McCartney), enabling such a ripoff, even in the short term, is not good for consumers or society.

So restricting how a work is used is a bad idea, but what about restricting access to a work? Randy Picker points out that copyright law only deals with the use of a copyrighted work, not access to it. The copyright owner should be able to control access to his work in the same way that you can lock up a physical item. Even if the use is fair, breaking and entering is still illegal. Picker argues that DRM is perfectly acceptable for controlling access to a work (Picker 1-5).

Again, the question is to what extent. Some of the same previous issues still apply. Nobody wants his computer ruined because the DRM is making sure he has access. Even if DRM can be created that is completely unobtrusive and does nothing more than check to make sure the copy is legal before allowing all uses, there are still problems. What if the company goes out of business? This happened when Yahoo Music shut down and customers were stuck with music that could no longer be reactivated upon switching computers (Sandoval “Yahoo Music follows MSN”). Yahoo eventually had to offer refunds or replace the songs without DRM (Sandoval “Yahoo Music to offer refunds”).

Upon further reflection, it seems that access-control DRM also breaks down on the logical level. If a person has obtained the right to free use, it goes without saying that others should be able to see the result. A film clip put into a remix video on YouTube should be viewable by all, even those who do not have access to the full film. In other words, there should be no limits on access to creations of fair use, a ‘fair access’ right of sorts. Access-control DRM should restrict access to infringement, but not to fair uses. Since DRM should not restrict access to fair use, and cannot tell the difference between fair use and infringement, there is no point to access-control DRM in the first place.

The DRM advocates appear to have a valid point that it can be used for new market structures. True, a customer could potentially “buy” a video to watch once and then it will effectively no longer be his. But this is nothing new. A very similar practice already exists; it’s called renting. This argument really seems to be a way for the copyright holders to knock rental organizations out of the way, so that the copyright holder can “sell” (rent) whatever rights it thinks the customer wants itself. Former Disney CEO Michael Eisner actually stated, “The studio would like to offer downloads directly from their own websites” and “It's like a $2.50 video rental but we keep all the money” (qtd. in Mitchell 56). Does society really want new market structures that are actually removing players from the economy in favor of a stronger monopoly? Monopolies tend to cause higher prices, not work for the greater good.

In fact, DRM is actually hindering the creation of new markets. Technology develops from tinkering and new applications of existing inventions. If all the cool digital content is locked so it can’t legally be used, how can innovative new products be designed? For example, there’s a “DVD jukebox” out there that can hold and play multiple DVDs (Doctorow). One can think of multiple applications of such a device – libraries, families with young kids, or just the lazy majority who would prefer to start their DVDs without having to get up and change discs. This new technology was threatened in court because it went around the DRM used on DVDs in order to store the films (Borland). Here DRM has hindered a new market from even being developed.

The last of the many issues considered here is archiving old material. Traditionally collectors and librarians have taken it upon themselves to collect art and save it for the future, and to do this it is sometimes necessary to copy the original (Bricklin). The original copy of the Old Testament is no longer around, although very old scrolls do exist. Instead, it was meticulously copied by the Jews (McDowell 74). Then there’s a long chain of translations, copies, and reformatting to get to the online copies freely available today. If DRM had been entered anywhere along the way, the chain could easily have been broken. The same argument applies to your favorite local artist or author. If you lock up the work, and the author, for whatever reason, isn’t actively maintaining the work and protecting it for the future (for example, upgrading from cassette to CD), the work is essentially lost as it’s illegal to bypass the controls (Bricklin). Regardless of whether there’s some loophole that allows circumvention upon death or being unable to find the author, DRM certainly hinders the important task of archiving information for the future.

To summarize the issues with DRM, technical protection of copyrighted works is not in the public’s best interest largely because it extends the scope of copyright too much. Copyright has been carefully defined and regulated, but the DMCA and DRM modify too much too quickly. Fair use is particularly hurt during the transition since DRM cannot be circumvented legally. Barriers cannot be bypassed even by those who have legal access. Looking back to the initial examples, the honest parent has to circumvent Macrovision for her (probably) fair use to work, even though she should have full access to the product. The owner of a Sony CD with DRM has to remove the DRM installed on his computer to negate the security threat. The instructor has to bypass the DVD DRM in order to burn a copy for fair educational use. DRM is making criminals out of innocent people. Why? So the copyright owners can take more rights than they actually possess, ultimately for more money. DRM poses a serious threat to the balance between the interests of the consumer and the publisher.

So is DRM right or wrong? From the utilitarian standpoint, it’s easy to see that it’s wrong. Assuming the DRM is actually working, the companies are made a little bit better off, and society gets more content in the process. However, DRM is hindering the enjoyment of millions who can’t use their purchased products, and it limits the future from developing as normal. The greater good is not being served by DRM. Companies then have an ethical obligation to stick with copyright and avoid harming society further through DRM.

In closing, it is worth suggesting two possible solutions to the DRM problem. We can, as always, encourage our elected representatives and court system to modify the DMCA to reflect the needs of the consumer. The simpler solution is for customers to simply refuse to buy products with too much DRM. Indeed, increasing numbers of online retailers have bowed to public pressure and started selling music without DRM (Ulanoff). Let’s vote with our dollars to promote DRM-free content in other formats.

Works Cited

Bonner, Kimberly M., ed. The Center for Intellectual Property Handbook. New York: Neal-Schuman, 2006.

Borland, John. "Hollywood allies sue DVD jukebox maker." Cnet News 07 Dec. 2004. 30 Apr. 2009 .

Bricklin, Dan. "Copy Protection Robs The Future." Bricklin. 30 Apr. 2009 .

Doctorow, Cory. "Microsoft Research DRM talk." Redmond, WA. 17 June 2004. Cory Doctorow's Craphound.com. 30 Apr. 2009 .

Edgar, Stacey L. Morality and Machines: Perspectives on Computer Ethics. Sudbury, MA: Jones and Bartlett, 1997.

Gates, Bill. "Gates Interview Part Four: Communists and DRM." Interview. Gizmodo. 13 Jan. 2005. 30 Apr. 2009 .

Gross, Grant. "Experts debate: Is DRM good or bad for consumers?" Computerworld 08 Nov. 2006. 30 Apr. 2009 .

Irwin, Mary J. "Valve: Are Games Too Expensive?" Edge 18 Feb. 2009. 30 Apr. 2009 .

McDowell, Josh. The New Evidence that Demands a Verdict. Nashville, TN: Thomas Nelson, 1999.

Miller, Dan. Personal interview. 22 Apr. 2009.

Miller, Ernest. "Why Use DRM If It Doesn't Work?" Weblog post. Copyfight. 07 Mar. 2004. 30 Apr. 2009 .

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Picker, Randal C. Ts. 392. "Fair Use v. Fair Access." The University of Chicago Law School. Mar. 2008. The University of Chicago Law School. 30 Apr. 2009 .

"Rights Granted Under Copyright Law." BitLaw. 30 Apr. 2009 .

Samuelson, Pamela, and Jason Schultz. "Should Copyright Owners Have to Give Notice of Their Use of Technical Protection Measures?" Journal on Telecommunications and High Technology 6 (2007): 41-75.

Sandoval, Greg. "Yahoo Music follows MSN into DRM controversy." Cnet News 24 July 2008. 30 Apr. 2009 .

Sandoval, Greg. "Yahoo Music to offer refunds, what about MSN?" Cnet News 28 July 2008. 30 Apr. 2009 .

Siy, Sherwin, Rashmi Rangnath, and Daniel McCartney. "Public Knowledge Federal Trade Commission DRM Townhall Comments." Public Knowledge. 30 Apr. 2009 .

Ulanoff, Lance. "DRM is Dead, Long Live Content." PC Magazine 07 Apr. 2009. 30 Apr. 2009 .