In the current issue of IP Law & Business, I wrote a column on DRM—that is, a column on the many “digital rights management” technologies that today allow copyright holders to in various ways restrict access to their work. DRM has earned itself a bad reputation in recent months. The DRM on some recent music CDs, for instance, turned out to inadvertently expose purchasers to substantial computer virus and malware risks. Nevertheless, my column is somewhat upbeat. I make two basic points.
First, while DRM might represent a powerful restriction on the use of protected work, the constraint will never be Orwellian. Consumers, after all, will use their dollars to vote against encryption techniques that are too limiting; and, as history teaches, consumers will also find ways to defeat most DRM systems anyway. Moreover, copyright holders themselves might not favor strong DRM even if it were feasible; and, besides, DRM suffers and always will suffer an Achilles heel: in every system designed to control content, at some point consumers must be able to read, hear, or otherwise experience the purchased information. Whenever that happens, the information is necessarily exposed.
Second, if all this is true, then DRM simply makes copyright law look a lot like every other area of legal endeavor: there is a formal set of rules enforced by judges, administrative officials, and the like, and there is in addition a weak but effective overlapping capacity through which private actors can take matters into their own hands. Put differently, as I show in the piece, criminal law, trade secret protection, First Amendment jurisprudence, and indeed every other legal regime is today implemented through a combination of powerful public mechanisms and less costly but weaker private ones. DRM, I argue, simply brings copyright law into the fold.
The published version in IP Law & Business is not online; but the magazine authorized me to write an expanded version, which the Progress & Freedom Foundation is hosting. You can download the 10-pager here, and then later in the week we hopefully will be talking about the topic further at the PFF’s IP Blog here.