All DRM Under the DMCA is Bad DRM

Tim responds to me here.

The principal — practically the sole — reason to use DRM is to restrict lawful uses and get a veto over innovation by third parties.  Certainly, Hollywood and content intermediaries today only use DRM for this purpose, but I cannot imagine what other purposes they would seriously seek to use it for.  It doesn’t stop the only illegal use that matters — “Internet piracy”; all the other illegal uses it could stop are so marginal, and I don’t think DRM would fair much worse at stopping them in a non-DMCA world.

So when Tim poses this as a choice between “bad” and “good” DRM, I think that’s completely wrongheaded.  The reason to use DRM is to use “bad” DRM and exploit the DMCA. A DRM system that “permitted the full range of” lawful use wouldn’t be worth implementing — it would have few if any practical uses. 

The DMCA only (or at least almost exclusively) supports ill purposes — that’s why it’s objectionable. A law of that sort ought not be on the books. Calling it “technology agnostic” is beside the point.  (Again, you can try to defend the DMCA as price discrimination and platform monopoly enabler, but I don’t see those as purposes we should support insofar as they depend on depriving the public of its rights in copyright, and I think Tim agrees on this point.)

Apparently, Tim thinks it’s useful to “shift the focus” from this bad statute to bad media company choices.  But, again, there is no reason for them to use this hypothetical “good” DRM.  Using “bad” DRM may be a rational choice for them (at least, but for other forces e.g. P2P), even though they’re bad choices for society as a whole.  The problem is giving those bad choices the protection of the law.

Tim thinks that attacking the DMCA wrongly deflects the blame. To the contrary, I think discussing the merits of hypothetical “good” DRM wrongly deflects attacks on the DMCA. Many people seem to think that we can just throw enough geeks at this issue, then DRM and lawful use will co-exist in harmony, just like DRM will stop piracy some day.  Surely, there are better and worse implementations of DRM, but all DRM under the DMCA is bad DRM.  The focus should remain squarely on that point.

[note: edited on aug 1 to make the opening to third paragraph follow first paragraph’s qualifications).