Copyright as Antidote to DRM

By Kristopher A. Nelson in

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A man protests Digital Rights Management in Bo...Image via Wikipedia

Consider this idea: without copyright protection for digital media, we would have even more Digital Rights Management. Why? Because without it, recouping up-front investment without restricting distribution would be difficult or impossible. Since I often see a confluence of beliefs around those who hate DRM and those who hate copyright laws (I myself fall into this belief system in certain circumstances), I think this is an important point to remember.

I do think that a reasonable argument can be made that in many situations, especially in regards to mechanical devices that take time and resources to reverse engineer and reproduce, that “first-mover” returns (as just one example) are sufficient to recoup initial costs (especially if the business is handled in a savvy way) and that therefore patent protection is not necessary to encourage innovation.

But what about when reproduction costs approach zero, as with software or electronic books, but development costs are potentially high? (Despite open-source success stories, software development costs money, and authors of novels spend real time – and money – writing).

Alternative business models might help if we lacked copyright protection (subscriptions for the latest software patches, selling software support services, or other creative business approaches), but I suspect at least some businesses would decide that DRM would be a good model.

After all, without legal protections, the only way to limit copying would be through private measures. DRM is one such private method. This would lead, I suspect, lead to an “arms race” between hackers/crackers and publishers, but the pay off for publishers in gaining additional monopoly time through technical measures would be large enough for be worthwhile. The user market might push against too much restriction, but again, without any legal prohibitions against copying, publishers would be incentivized to use at least some DRM-based restrictions. The pay off in protection would simply be too large, and business might well decide that customer unhappiness could be managed through various other mechanisms (like reduced prices or marketing), rather than “give in” to those who would copy without paying.

Of course, in reality it is not necessarily a black vs. white kind of proposition. We do not need to elect either full copyright or no copyright. We could choose a more limited form of copyright than we have today.

In truth, I believe limiting current copyright is the right approach to the situation. Unfortunately, it requires complex thinking and analysis, and all the factors are hard to quantify. (I suppose this is another example of why lawyers almost always say “it depends” when asked their opinion.)

This kind of analysis also gives us “fair use,” a doctrine sadly neglected (in my opinion), and one that could use some more clarity and strength.

But for now, just remember you need to consider all the ramifications if you rail against copyright, just as those who favor stronger copyright need to consider the negative impacts of that approach. Remember that a likely outcome of eliminating legal protections would be an increase in private enforcement alternatives like DRM, and pontificate accordingly.

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