Our gaming lawyer discusses why DRM is, unfortunately, legal -- but there may be a weak spot.
By Patrick Vuleta on March 15, 2013 at 3:12 pm
Last fortnight I presented an argument that DRM leads to less abandonware. It was not well received. Yet just as I’ll always argue that Kelly is more attractive than Liara, I stand by every word I said.
Some commentators, though, made the point that DRM was actually taking away gamers’ rights under copyright. It was an interesting argument, so one I thought we’d discuss this week. As it turns out, the best argument against DRM is nothing to do with gamers’ rights — but that publishers themselves have enjoyed huge benefits from breaking DRM in the past.
DRM removes rights under copyright
Quite clearly, DRM goes far beyond what passes for normal copyright. Copyright on a book, for example, lets you sell the book, lets it fall into the public domain after a set number of years, and allows for fair use like copying specific abstracts for research purposes.
DRM, however, removes all of these rights from the end user of a game. You can’t resell most digital games. Instead, DRM permanently binds the game to your account.
In theory, DRM could stay active on a game past the time copyright expires (about a century after its creation) to prevent the game from falling into the public domain. If by some miracle of technology the games of today keep working a hundred years from now, the DRM will probably have locked up the original games, unless it’s removed.
DRM can also stop many fair uses by strictly defining exactly what you can and cannot do with the game. In the case of SimCity, you sometimes cannot, for example, play the game at all.
Yet this IS legal
While DRM does go well beyond copyright, it also has a firm legal foundation for doing so. DRM is legalised by the American Digital Millennium Copyright Act. This U.S. law specifically states that DRM measures are authorised and cannot be circumvented, except in a few specific, niche cases (like when you have personal security concerns). This law is then given form in Australia by our own Copyright Act which has been amended to conform to the American law.
In simple terms, we follow America.
This means that even though DRM may well jeopardise fair use, and may lock games up for centuries, the actual copyright laws permit this pretty clearly. So to all those who wanted to argue the point—sorry. You’ll have to look for some other way to criticise DRM. Fortunately, there is one.
DRM will inhibit technology
A little known fact is that cross-platform porting of games was created by a publisher’s breaking a competitor’s DRM. Back in the eighties, the big console manufacturers all wanted exclusive titles. This was the era of classics like Mario and Sonic. You couldn’t play Mario on a Megadrive, because Sega’s DRM strategy was to restrict development tools. If you wanted to make a game for the Megadrive, then you had to use the tools supplied by Sega. The DRM inside the Megadrive instantly disabled any pirated games that didn’t give the right activation code.
This was blown open, however, when Accolade, a now-defunct publisher, reverse engineered this DRM to create games without using Sega’s development tools. Sega sued, but Accolade won (read up on it here). The court found that this was fair use, especially as copyright was never meant to create monopolies.
Strongly in favour of Accolade was the point that Accolade’s breaking of the DRM opened new markets — now third party developers could create games across multiple consoles. What publishers enjoy now — the ability to publish games cross-platform for profit, was created by one of their own infringing on Sega’s claims to copyright (and ironically, Accolade was created by the founders of Activision).
DRM, however, makes this a thing of the past. End user license agreements mean software can no longer be reverse engineered, and it is now illegal to circumvent DRM. Unfortunately, this also means that technology — and creativity — may stagnate. With software engineers no longer able to disassemble and build on existing software, those who want to do so will need to reinvent the wheel. Systematic DRM — like we see in Windows, can give companies a monopolistic hold over the market, with no way for competitors to easily pursue innovation.
Arguably, this does defeat the original purpose of copyright, by removing the entire point of fair use—technological and creative progress—in favour of short sighted economic concerns about piracy. For my point of view, this is the strongest legal argument against DRM, far more so than personal concerns about being able to play SimCity offline. What do you all think?