First a synopsis of DRM. DRM is a method used to control how digital content is used. It uses different types of encryption technologies to prevent users of digital media (DVDs, CDs, HD-DVDs, video games, downloaded music, etc) from accessing the content without a “key” that is approved by an issuing authority. To put it in real terms, the encryption prevents you from making a copy for your friend (pirating). In no way am I in favor of violating intellectual property laws or advocating piracy. Copyright laws are important in a libertarian society I think. I’m looking at this in terms of “legal” usage of the content. In addition to preventing me from pirating the content, DRM also prevents me from watching the movie on a Linux based computer where no “licensed” DVD playback software exists, making a backup of the disc in case my original gets destroyed, or even copying a DVD movie onto my video iPod so I can watch it there. All of these things in my opinion are 100% valid, and in my mind, legal uses of the original DVD, however according to the DMCA they are illegal because they require the circumvention of DRM.

If I don’t like DRM then don’t buy content that is protected with DRM, right? The problem with that argument is that it isn’t possible. The standards body that created the DVD format and the HD-DVD format was the MPAA. The MPAA is controlled by movie studios and so a core component of the format is the DeCSS DRM encryption (Or AACS in HD-DVD movies). Put simply, no movie can play on any player without the encryption being in place. Thus, even small independent movie distributors are forced to include the encryption on their disks or else they will not play in the vast majority of players that are installed in the homes of their consumers. Also, there is a specific clause in the DMCA under title 1 that requires all analog video recorders to have support for a specific form of copy prevention commonly known as Macrovision built in. Macrovision is used in combination with the DeCSS encryption sponsored by the MPAA. The organizations behind it (MPAA/RIAA) and the DMCA have effectively made it impossible to get DRM free content, so voting with my dollar is out of the question, short of not consuming digital media at all.

The DMCA is also the primary tool used to combat violators of DRM technology. In practice it is fairly trivial to circumvent the encryptions put in place. There are tools readily available that will decrypt a DVD and copy it onto my iPod, or allow me to make a copy of the DVD disk for archival backup purposes, and yes tools that would allow someone to pirate the content. These tools are all technically illegal under the DMCA, but easily obtained. The MPAA/RIAA will send cease and desist letters to anyone making them available, but the internet is an international anarchy, so no matter how hard they try they can’t control what gets posted online.

A quote from Timothy B. Lee, in a paper he wrote for the Cato institute

“The DMCA is anti-competitive. It gives copyright holders — and the technology companies that distribute their content — the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates.”

So I think I’ve built a sufficient case to say that the DMCA is anti-libertarian, and borderline unconstitutional. The DMCA uses a government sponsored monopoly to force encryption on the digital media we consume, and makes it illegal for us to use tools that would free us of their constraints. The core of my question however is about DRM, not the DMCA. Assuming for a minute we lived in a society where there was no oppressive DMCA, what then would be the position on DRM?

I have a number of arguments in my head both in favor of DRM and against DRM from a libertarian perspective. At the 30,000 foot level the question is simple. If I buy something that contains DRM, a DVD for example, and take it home, does the manufacturer of that DVD have the right to dictate to me how I use it? Post purchase, do they maintain any rights beyond copyright?

I’ve been looking at this from a couple of different angles. The first way that has made it easier for me to conceptualize is not thinking about “digital” media, but instead thinking of analog media, like a book. We are still talking about copyrighted, intellectual property. Instead of coming in a digital world where controls are possible, it comes in a physical world. If I take my book and decide that I don’t like a certain chapter because I don’t think it is appropriate material for my child to read, is it illegal for me to remove these pages from the book? This is analogous to me removing DRM off of digital media in order to modify it. Now in actuality the likelihood of me stripping DRM off of a movie and editing a scene that I didn’t like is very slim, should I not be allowed to do so if I wanted? Another good example of this thinking is sheet music, again intellectual property without DRM. What if I wanted to perform only a certain section of the composition. I am allowed to copy the sections that are relevant to create a derivative work, only for personal use. Because in the physical world the “protection” that DRM allows was not possible in intellectual property, nobody ever bothered to think of their implications. Intellectual property was treated just as any other physical property, with the expectation of attributing copyright to it.

Now, here is the crux of my dilemma. Clearly DRM (outside the DMCA) is something that private enterprise has decided that they think is important, and therefore have implemented. Assuming no draconian laws like the DMCA, the government has no place in controlling how content is licensed and consumed. If the MPAA/RIAA have enough power to force standards on the industry, then it is not the governments place to interfere. As much as I hate DRM, I think I’m leaning towards the side of the MPAA/RIAA on this one. However, if I violate their terms, and circumvent the DRM there is no criminal punishment to me by the government. I’m only violating the agreement between myself and the content publisher. For DRM to ever be successful it will require the MPAA/RIAA to come up with DRM methods that are “unbreakable”, which I don’t see happening anytime soon.

The industry should be allowed to do whatever it wants. They just can’t use the guns of the government to enforce their choices on us.

What are your thoughts? Am I wrong? Tell me about it in the comments.

For further reading: The full policy analysis from the Cato Institute [PDF]