Words by c.z.robertson

DRM and copyright law

2003-05-03 15:07:45 UTC

The following was written in response to a friend asking for my opinion on the DRM in Apple's new iTunes system. There was more than this (though I couldn't say much about the specifics of Apple's system because I simply don't know very much about it at this stage) but this is the interesting bit about the relationship between DRM and copyright law.

In theory, DRM systems are a way to delegate law enforcement to machines. That sounds undesirable to me in general. But furthermore, all such attempts have been unsuccessful -- not just because they've inadvertently allowed copying, but also where they've prevented copying.

Copyright law is not a total injunction against copying. It's a set of restrictions on copying in certain situations. Those situations being, in brief, within a limited period following the creation of the work (originally around 28 years at most, now around 95 years) and when not for a purpose that falls within the hazy definition of "fair use".

There are also some other interesting limits on the strength of copyright law. For example, it's traditionally been the case that you couldn't automatically be thrown in prison by the state for a copyright violation. The copyright owner himself had to bring a case against you. This means that you can often get away with copying where the owner no longer has a commercial interest in the work. This is a good thing. It allows works to be preserved and distributed even when the owner has no interest in doing it.

All existing DRM systems do a very bad job of modelling existing law. They have no way of telling when a copy might be allowed by fair use. They have no way of telling when the owner of the copyright might have lost interest in their work. They don't vary their rules depending on which country they're in. They don't even take into account the limited duration of copyright and expire when the time limit is up. And they have no way of tracking changes to copyright law.

So DRM systems are enforcing something other than copyright law. The "rights" in "digital rights management" do not correspond to the rights granted by our legal system.