The Losing Battle of DRM

The core protection of copyright law is the right for a copyright owner to stop others from copying his work. Enforcing the rights of copyright owners in the digital era has proved to be difficult due to the ease at which content can be copied.

The market solution to this problem has been the creation of certain technological measures, such as digital rights management (DRM), that copyright owners use to make it technically difficult to copy a copyright work. DRM such as the protection methods used on DVD and Blu-ray disks make it extremely difficult for the average user to copy the video from the disk and save it on a computer. DRM, like all technologies, is not perfect as people have succeeded in circumventing the majority of DRM and consequently managed to copy the underlying work.

The response by the authorities to the failure of DRM in stopping the public from illegally copying copyright works was to pass additional provisions to the copyright law that grant separate protection against the circumvention of the technological protection measures applied to the copyright work.

This DRM protection is complimentary to the copyright protection of the original work and at the same time completely independent. This means that a person who breaks a DRM technology will be held liable for the infringement of the DRM provisions of the copyright law even if he does not consequently copy any protected copyright work.

While the protection of DRM sounds like a reasonable thing to do, the reality is that DRM protection trumps a number of legally permitted uses of copyright works, such as the creation of backup copy, the translation of the work into a format readable by a blind person, or the extraction of certain segments of the work for purposes of criticism or review. Circumventing DRM protection will technically constitute an offence regardless of the purpose for the circumvention.

The issue of DRM is complicated further by the fact that more and more manufacturers use DRM to restrict the users of their devices from installing unauthorised programs on the device regardless of whether or not these third party programs that the users wish to install infringe any copyright. That is why users of Apple’s iPhone must circumvent the protection measures, or ‘jailbreak the device’, in order to install third party apps that Apple does not approve of.

This action is not exclusively done by Apple, Amazon’s new Kindle Fire also has a closed app environment even though it is built on top of the more open Android OS.
These manufacturers use DRM for this purpose to ensure that all applications that run on the device are of a certain quality and that they conform to design guidelines that ensure a consistent user experience. Other obvious reasons for having such control are to ensure that the device manufacturer gets a share of the profits of any application sold on the application instead of allowing the sale through other independent application stores.

There is a great debate on whether or not manufacturers should have the right to control what the users choose to install on a device they legitimately bought and own, but it is extremely clear to me that this whole discussion should not be part of the copyright debate as the point of copyright law is to provide an incentive for authors to create more original works, and it is not meant to deal with issues such as manufacturer control and consumer rights.

The fact that DRM provisions under copyright law allow manufacturers to impose such control is clearly an unintended consequence of copyright law, and it should not be used to further restrict the legitimate users from carrying out acts they are entitled to by law.

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