Why digital locks are a bad idea

When I was a kid, I had a Commodore 64 computer, and a box full of disks with games.  I'd say about 3 of the 150 disks were purchased copies.  The rest of them had these little screens when starting up that said something like "Cracked by JoeX."  I didn't get it at the time, because I didn't understand anything about copyright, but it was my first introduction to digital locks.  These disks were proof that digital locks didn't work.  Almost thirty years later, the federal government of Canada apparently still hasn't gotten the memo.

People who made video games in the early 80s were the first to encounter the fact that selling digital files has a built-in risk: it's very easy for customers to make and distribute copies of your product, which eliminates the need for others to purchase it.  Never mind that this is illegal.  For any number of reasons, right and wrong, copyright has never been something that's really grabbed a hold of the public consciousness.  So since the law didn't stop this distribution, clever programmers decided to add code to the the video games that would make it impossible to copy the game or play the game without some kind of password.  This little bit of protective copy-protection code is today called DRM (Digital Rights Management) or TPM (a Technological Protection Measure).

It took a lot of forms in those early games.  One very common method was to have the player in put words from the game manual ("what's the third word in the second paragraph on page 28 of the manual?)--incorrect answers would boot you from the game.  Other games provided code wheels like the little gimmicky things from cereal boxes (also a relic from a bygone era).  Later on (and this is still typically the case today), installation of a game required a computer generated key (a long string of gibberish code)--an incorrect key meant you couldn't even install the game, let alone play it.  Some games bar online components of the game without a valid key code.  More recently, some games have DRM that only allow a limited number of installs, even with a legitimate key: Spore, for example, only allows you to uninstall and reinstall the game 3 times.

What's common to all of these methods (and many more beside) should be obvious from my opening story: none of them work.  There are frequently work-arounds--you can borrow a key from a friend, or get a list of all the pass codes.  And since it is computer code, it is always possible for skillful programmers to go into the code and fix it so that it works without any DRM: such programs are "cracked."  Oh sure, pre-Internet, it was a bit tougher to get the contraband around, but even then, SneakerNet was remarkably effective, as my exceptional collection of illegal C-64 games proved (I wasn't exactly hanging around in shady alleys at age 11).  Here's the point: digital locks--whether they're on video games or music or videos or whatever are always breakable.

Everyone knows this, so the proposed solution of major media producers for the last 10 or 12 years has been to make it illegal to break digital locks.  The U.S. tried this approach in their aptly-named Digital Millenium Copyright Act (the DMCA), passed in 2000.  Strangely (he say, tongue planted firmly in cheek), making it illegal to share digital files with locks has not much reduced the chance that people will share the files than when breaking locks was not illegal.  It's almost as if the digital locks didn't make any difference.

Well, that's not quite true.  Digital locks have been a real pain to people who want to toe the line and behave very legally.  When breaking digital locks is illegal, you can't take the movie you purchased on a DVD and transfer it to your iPod.  You can't back up the game you legally purchased.  You can't use the song you purchased as a ring-tone for your cell phone.  Unless, of course, you do what just about everyone else in the world does, and ignore the law.  But if you want to follow it, digital locks are a serious inconvenience.  (This, by the way, doesn't mention some of the other less common but potentially more serious issues with DRM/TPMs--the kind that shut down or otherwise ruin your computer, for example.)

So if you hadn't heard yet, Canada has just released the first reading of a Bill (called "C-32") to amend our current Copyright Act.  After an extensive public consultation last summer, the government surveyed a huge volume of feedback--many times the size of a typical public consultation--the vast, vast majority of which opposed the imposition of pro-DRM legislation.  Naturally, under pressure from the U.S., the new legislation proposes to make it illegal to break DRM/TPMs for practically any reason.  Go figure.

Actually, C-32 has granted a lot of really healthy provisions--more than I thought we were going to get.  It gives consumers the right to record broadcasts, it gives consumers the right to shift their legally purchased material from one device to another (e.g. from DVD to iPod), it makes it legal for schools to use the Internet in the classroom, and so on.  I'm really pleased with many of these provisions.  But in every case, you may not use these new rights if it means you have to break a TPM (the Canadian bill doesn't use the term "DRM").  In short, if a content producer adds a trivial bit of code to their product (which is equally trivial to break), they can essentially wipe away all of your rights as a consumer and as an educator.

The absolutely amazing thing about all this is that everyone knows it really won't make any difference!  The U.S. has been trying for a decade, and they're not stemming the tide of file-sharing of illegal material!  Would that tide be even greater if the DMCA wasn't so harsh on breaking TPMs?  I don't know how you'd answer that, really, but it seems to me that there's already so much file-sharing that it wouldn't make much of a difference.  All it does, perhaps, is delay the inevitable for another few years.

The inevitable is this: the development of new media industry business models.  Many industries are already recognizing this and shifting.  The music industry is in the forefront, since it's been dealing with the problem the longest.  Many artists use free distribution to gain notoriety and make up their money in other ways: touring, sale of merchandise, special collectors' boxed editions, etc.  Obviously, for some industries, this shift will be harder than others: blockbuster movies are super-expensive to produce, and distributing free DVDs/BluRays would be financially crippling.  In other words, we're still working it out.  But it's not the government's job to artificially prop up unworkable business models. [A related aside: this isn't actually the only alternative.  A much darker option that some actually advocate is moving our society more in the direction of a police state, so that agencies can use surveillance to control the distribution of files.  I'm not a conspiracy-theorist type, however, so until I hear more people advocating that, I'm going to pretend it's not an option.]

Copyright has always been the creation of a particular group of people in a particular socio-economic-technological configuration.  We've shifted.  It's time for our law to do the same.  We don't need free dealing in Canada, where copyright disappears.  Instead, we need fair dealing--one where there's a balance of rights between content creator and user.  As long as the proposed law allows digital locks to trump fair dealing, we won't have a balance of rights.

Last updated Mar. 21st, 2011 at 10:40am by Adam Ratcliffe