[ EEPI-Discuss ] Re: Article surveys legislation related to DRM

[Dan Krimm <djkrimbo@earthlink.net>]

>Date: Tue, 14 Jun 2005 12:25:18 -0700
>From: Lauren Weinstein <lauren@vortex.com>
>Subject: [ EEPI-Discuss ]  Article surveys legislation related to DRM
...
>Begin forwarded message:
>
>From: Declan McCullagh <declan@well.com>
>Date: June 13, 2005 10:50:41 PM EDT
>To: politech@politechbot.com
>Subject: [Politech] New article on digital rights management: Survey
>of laws and their problems [ip]
...
>Probably only libertarian-inclined readers will be quick to agree
>with it -- there's something in there sure to vex both the
>unrelentingly pro-DRM and anti-DRM camps.


The best thing about this article is the suggestion that anti-circumvention
laws need not be maximalized (using Japan as an example of moderation, and
referring to the version in the DMCA which I consider Draconian).  [Note:
There is a small glitch in the paper at that point where they refer to
"anti-circumvention devices" in a context that clearly indicates they mean
"circumvention devices" but on a quick skim I didn't find anything else.]

I think that anti-circumvention should not be prohibited as a matter of
public law at all.  Technological protection is systematically flawed --
most protocols have been hacked fairly quickly, and almost all in eventual
time.  The only way to give them real teeth is to impose anti-circumvention
penalties, but designing such penalities to be appropriately drawn is
nearly impossible.  If we err (as we inevitably must, and as I believe the
DMCA already has), it should be on the side of the user, not the content
system vendor.

I'm also a little dubious that the market can make an informed decision
about DRM'd technology, as argued in the paper.  For most common consumers
these functions are essentially a time-bomb, so they do not impact the
purchase properly as expected in a competitive market, where one expects to
have "perfect information" (otherwise the market fails to be perfectly
competitive).

DRM as a "speed bump" is a minor annoyance as long as it is not enforced
with the full weight of criminal penalties.  Break DRM?  Lose your service
contract, maybe get kicked off a system -- that's between the customer and
the vendor as a private contractual matter -- but pay punitive fees and go
to jail?  No, it should not be tort law.

Dan
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