Legal Opinion: Copyright, DRM and innovation – have we forgotten the point?

Copyright Symbol

By 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?

34 comments (Leave your own)

I still don’t understand how an american law we’ve adopted can trump the basic right (I’m sure i read somewhere awhile ago that there’s actual laws covering this..?) to use a product you’ve paid for (re: simcity, diablo 3, etc failures on launch).

also, totally agreed: Kelly was hotter.

 

We are witnessing the slow mutation of software as a tangible product (e.g. a NES cart) to software as a very, very limited licence to use a copy of a piece of IP.

What hasn’t changed (surprise) is the associated pricing…

If the government actually gave a crap about ordinary consumers, it would legislate in relation to end-user IP rights to ensure that people can continue to deal in the metaphor they understand, which is that they are paying money for “a” game, not for a limited set of rights in relation to the IP embodied in a game.

 

This doesn’t actually fall within Common Law. If a piece of US legislation is being used as a knock on effect then, the question is how does it have jurisdiction in Australia as there has to be a means for it to be passed on. Which then begs the question why is Australia being considered a subsidiary of the US as far as legislation is concerned.

At the end of the day if the legislation is not within the law, then it is void ab initio. Same goes for any piece of unlawful legislation passed within Australia.

However I believe while that is the root of the solution it is not within the scope of the question posed by the article.

As for the question at the end, DRM has broken the line between what copyright was intended for and what greedy monopolistic corporations wanted. A bit like the discussion in the multiple Sim City threads/news articles the DRM is restrictive to the point that people who have paid for something and didn’t receive what they expect in the product, have no rights for a full refund. That is so far beyond the scope of the intention behind the legislation and well beyond the intention behind copyright law, that it needs to be challenged. Thing is unless it’s challenged it’s actually considered accepted.

 

I stand by every word I said.

Stubbornness is not a virtue and not a sign of strength, despite what a lot of people (particularly politicians) believe. If people react so negatively to your article it either means you’re so right that people can’t handle the truth… or that perhaps you’re siding a bit too much with the corporations and not enough with the “little guys” (i.e. us).

What I know, from the perspective as someone interested in software licenses and what they mean for the future of computing, is that DRM has no benefits for the user and shifts the power FAR too much in the hands of the vendor. Yes they made the product, they can dictate how it works. But when the laws increasingly side with companies and restrict the user’s rights (such as not being legally allowed to circumvent DRM even if it has resulted in your inability to play the fucking game), it gets tiring to hear how the “poor poor” companies have to do this to deal with piracy.

 

Steam is the perfect DRM imo,

Although in saying that. if steam died in the next 2-3 years, I wouldn’t really care TBH. I never really go back and play my old games.

I’m sure some people will cry etc, because I’m sure everyone goes back and plays their PS1. PS2, SNES for more than an hour once they undust it all.

 

RSOblivion:
A bit like the discussion in the multiple Sim City threads/news articles the DRM is restrictive to the point that people who have paid for something and didn’t receive what they expect in the product, have no rights for a full refund.

For starters… No amount of EULA’s or whatnot a company throws at you, can override your basic consumer rights! And one of those “rights” is the right to a refund if a product or service is faulty/not as described, which Simcity falls under.

With EA, if they refuse a refund, then you need to keep at them, take them to consumer affairs and *Eventually* you will get your refund, took me months to get my refund for Battlefield 3 on it’s unplayable launch, but I got it merely days after I took it to consumer affairs. (And hence, never/will never buy another EA game.)

 

ElectroTyrian:
What I know, from the perspective as someone interested in software licenses and what they mean for the future of computing, is that DRM has no benefits for the user and shifts the power FAR too much in the hands of the vendor.

Except… When you go to buy a game… It says “Buy this game!” Not… “Rent it” or “Buy a license to play”.
So wouldn’t it be reasonable to expect once you have got your copy you can do whatever you want with it, provided you’re not duplicating or doing other illegal acts?
And if not, then I say bring on the false advertising. :P

 

bol7z:
Steam is the perfect DRM imo,

Although in saying that. if steam died in the next 2-3 years, I wouldn’t really care TBH. I never really go back and play my old games.

I’m sure some people will cry etc, because I’m sure everyone goes back and plays their PS1. PS2, SNES for more than an hour once they undust it all.

So it doesn’t bother you that you’d have hundreds of dollars worth of games (taking a typical Steam account for example) that cannot be played anymore just because the vendor went bankrupt? If games are supposedly art and people are happy to let art die in such a way, then that’s truly horrifying and short sighted (short of using cracks of course, but technically that’s illegal and shouldn’t be required).

You WILL be nostalgic for the games of your youth. Trust me, I turned 30 day and I still on occasion play Quake 1 because of the pure FPS experience. If you think Quake’s too outdated to be fun, how about the first Deus Ex? That came out nearly 13 years ago and it’s still entertaining because of the intelligent way it treats the player, not to mention mods like The Nameless Mod which give it extra life.

Those games will live on due to the lack of DRM. For modern classics, are you really happy to just let that all go to waste because DRM might one day deny access to the stuff you paid for?

 

lordapophis: For starters… No amount of EULA’s or whatnot a company throws at you, can override your basic consumer rights! And one of those “rights” is the right to a refund if a product or service is faulty/not as described, which Simcity falls under.

With EA, if they refuse a refund, then you need to keep at them, take them to consumer affairs and *Eventually* you will get your refund, took me months to get my refund for Battlefield 3 on it’s unplayable launch, but I got it merely days after I took it to consumer affairs. (And hence, never/will never buy another EA game.)

That’s kinda what I was pointing out. EULA’s are not binding if they infringe the law, same goes for legislation that is unlawful (which there is a crap load of now).

The thing is that most people aren’t aware of what is lawful, what is not, and what they are able to do about it.

There is no lawful way EA can take peoples money and not refund it when the product or license they received is not of satisfactory standard or quality. However that hasn’t stopped them trying to stem the floodgates by threats, lies and breach of contract with their customers.

 

So in the first half of your opinion, DRM has a strong legal basis due to anti-circumvention laws, and in the second half the strongest argument against DRM is the stagnation it can cause due to being empowered by those laws?

That feels somewhat… circular.

And not being able to argue the point? Isn’t that what lawyers do? :p

To what we think, for my own part I may leave it to the Bard:

“Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man? Some say the bee stings: but I say, ’tis the bee’s wax; for I did but seal once to a thing, and I was never mine own man since.”

 
Patrick Vuleta

ElectroTyrian: Stubbornness is not a virtue and not a sign of strength, despite what a lot of people (particularly politicians) believe. If people react so negatively to your article it either means you’re so right that people can’t handle the truth… or that perhaps you’re siding a bit too much with the corporations and not enough with the “little guys” (i.e. us).

Or perhaps that was just me trying to be funny. :P I want to prompt discussion, mostly.

 

Surely it isnt hard for companies to deactivate your game licence if you want to get a refund for a product you feel isnt what you paid for. Giving your money back via Digital Distribution should also be a reasonable doable process. I guess businesses in the gaming industry doesnt feel they have to follow standard laws like if you bought a physical product.

 

simplist answer to DRM and Copyright… take it back to its original version… 7 years… after that it should be public domain…

 

One could point out that drm is actually causing the industry to innovate and create more.

a lot of these comments are floating around about how we won’t get to play our current games in a bunch of years cos of X or Y, and that is a good thing, because it means there will be something new to take its place.

how many new shooters have we seen because no one copies Call of Duty? imagine if that was free to all developers to base games off of. Instead we got Battlefield, we got planetside. DRM is actually a good thing, it’s driving our gaming industry forward, to new things.

of course I will be disappointed that I can’t play some of the current games in many years time ( how many of you raced through the omega relay to save kelly? I did, one of the main things I remember about mass effect 2) but I look forward to new games, new sci fi games, set in new worlds, like Kelly is cool and all, but let’s see what else people can come up with! instead of them building off other’s

DRM didn’t stop you from playing Sim City, or Diablo – you did. You watched the advertising, joined in the hype, you bought it on release day with many thousands of other people. It wasn’t the DRM that restricted you, it was yourselves – you flooded the servers and caused lock outs, you shouldn’t be demanding refunds, you should be asking for apologies from every other player who tried to play at the same time as you (you should also apologise to them!)

the solution to DRM is simple – let it flow, let it continue to grow and develop with the industry. Everytime that someone shuts one door, another will open – who knows what kind of DRM we will see next? perhaps one that will let us play the game in 30 years time

 

revengous,

Sorry but you are wrong on multiple accounts.

First, is it unreasonable to expect a game (especially a fully online one such as SimCity or Diablo 3) to work properly out of the box with no major gamebreaking issues like server crashes or instability? We can’t blame ourselves for SimCity’s bad launch as we’re only trying to play the game we paid for. If EA can’t hold up their end of the bargain (making sure it’s playable day 1 without any major issues like server problems) then people have a right to bitch, whine and even ask for a refund.

Second, how does locking away games behind walls of DRM lead to innovation or creativity? The vast number of COD wannabes on the market right now would very much disagree with you. This means that, even with DRM, developers and publishers are still trying to copy what makes COD sell well.

Third, if we let DRM flow and move forward, we’ll see “always online” schemes everywhere – you won’t be able to escape it. Now how is that good for the consumer? In a similar vein, what happens when a company decides that it’s no longer economically viable to maintain DRM servers? They’ll shut the servers off which means people won’t get to use what they paid for (the cost of patching products to no longer need an Internet connection to work would be too great).

 

PalZer0,

EA and Blizzard prepare for what they expect, they don’t have an infinite supply of money – they have a budget for their servers, you caused it to crash – so in reality, it’s your fault. Perhaps you should expect that day 1 is going to cause problems? Perhaps the companies could prepare better. People who bitch and whine and demand refunds are simply spoilt first world brats. No one wants to blame themselves, that’s why you are blaming DRM (he’s actually the good guy here)

Locking away games moves our industry forward – sure there are Call of Duty clones, but how many are running on billion dollar profits and topping steam sales for weeks on end? none. Those clones fade and die, but the ones that look beyond, realise that the DRM stops them from their cloning, and build something unique are the ones that rise above the flames of the industry, they are the ones that we remember – Battlefield, Mass Effect, Assassins Creed.

How is always online a bad thing? It allows us to communicate with each other, brings the world closer. DRM is bringing us closer to a completely integrated society – One day I expect to see an operating system based off an internet powered GUI. Being online allows users to access data and patches easier (cool fact: you can play Diablo 3 while you download it – cos it’s always online) Offline is old, its outdated – you need to accept that and let DRM take us there.

The day that a company decides to shut down its servers (and DRM) will be disappointing, but there will new, unique IP’s there ready to replace it, I already mentioned this, but I know how much you hate DRM and just had to ignore what I wrote.

 

revengous,

Then why have release dates at all?

Also, DRM will not move the industry forward as you’d still have the games you mentioned even without DRM. The countless COD wannabes fail because people don’t buy them – not because of the lack of DRM on COD games.

Expecting people to have an always on Internet connection – especially in a place like Australia – is always going to be fraught with danger. People being locked out of products because of a lack of a consistently working Internet connection is just a way of pissing off potential customers.

As mentioned before, you’ll still get new unique IPs even without DRM. Shutting down the DRM servers for a game without a failsafe in place is also going to piss off people who paid for the games. If there’s one thing that’s hard to make and easy to break, its your customers’ trust.

 

PalZer0,

people don’t buy them because they weren’t able to produce a ‘true’ clone – DRM stopped this.

Australia’s internet is crap, but that doesn’t mean that the entire world should be gimped because of it – Australia needs to move forward (it’s your power that determines our government – raise your concerns next election!)

also, you cannot blame DRM for your own internet connection – Either move to a more stable area or pay more for better internet access

new IP’s and ideas come without DRM, but DRM will force more unique IP’s, which is what the industry needs

I think customer trust is easy to get, easy to lose – look at modern warfare 2 boycott, then look at how black ops played out – the right marketing will win any audience, a prime example of this is professional wrestling – watch the crowds, one day they boo a person, only to be worshiping him weeks later, nothing in this world is concrete, and people can always be manipulated.

 

revengous,

So it’s come to that, has it? You have to move or pay more for a better internet connection just because some guys in suits believe DRM will alleviate piracy? Come on…

What’s even worse (and I hope is an eye-opener to the pro-DRM people out there) is that in the case of SimCity and Diablo 3, the always-online requirement can mean that even if YOUR internet connection is perfect, you can’t do shit if the servers you’re connecting to aren’t working themselves. This crap about “well I’m always online so I don’t worry about such DRM” is bullshit because you cannot control what happens to the servers your game is connecting to!

We seem to be headed towards a future where everyone requests access to some foreign server to be able to use the software they paid for. And so many people are ignorant of this, don’t give a shit/are too apathetic to care, or don’t believe there’s any point in resisting. Well fuck that for a joke.

I will agree with you on one point though – people are VERY easily manipulated. I honestly doubt many people will learn from the SimCity mess, despite what they say. I didn’t buy Diablo 3 or SimCity because I don’t’ want to support this future for gaming but in my experience, gamers are addicts and can’t say no when they really should.

 

Revengous, DRM has nothing to do with IP protection or copying. Doesn’t matter how you try to spin it, so far all your claims/arguments are fallacious.

revengous:
people don’t buy them because they weren’t able to produce a ‘true’ clone – DRM stopped this.

That claim is total BS. Anyone who has access to the ID Tech 3 or ID Tech 4 technology could produce a pretty much direct clone of CoD. The movement and weapon stats are openly copyable and the look of the game depends entirely on the Artists employed. What prevents direct ripping/copying is the Copyright laws. NOT DRM.

I avoid buying clones not because of any DRM (which incidentally will never prevent people playing single player games) but due to blatant plagiarism. Recent example is Dust 2 from CS being directly copied into Arctic Combat. Most people don’t bring out direct clones for fear of legal action rather than the inability to do so.

revengous:
Australia’s internet is crap, but that doesn’t mean that the entire world should be gimped because of it – Australia needs to move forward (it’s your power that determines our government – raise your concerns next election!)

also, you cannot blame DRM for your own internet connection – Either move to a more stable area or pay more for better internet access

This however really does come off as someone from the rich quarter. What you are basically saying here is screw anyone who can’t afford to have a good internet connection, or doesn’t have a good internet connection due to geographical location. No-one cares about them, only the gits like yourself who have the money to pay for it.

If you think the people have any control over the current government you are sorely mistaken, plus the concerns should be possible to be raised without the need for an election. Then there’s the NBN bringing crap internet to only certain parts of Australia. You know the bits they can be bothered to lay expensive fibre lines to. You know the technology that by the time its active in most areas planned will be out of date technology and speed wise.

Then there’s your conclusion. “Don’t blame DRM for your own internet connection” are you really serious? The majority of people have problems not with their own connection but things like the name servers (the gateways into the online games which are often underequipped for the task resulting in queue’s or crashes) or the main server shards/clouds which in some cases can be underequipped for the job, like Sim City’s or Diablo III’s were on launch and still were for a significant time after, despite claims from the companies to the contrary.

The second part of your conclusion states to move to a new location or throw money at a problem that may not be solved with money alone. GG mate. If you think that throwing money around is the answer to all problems got eat some damn notes and see how long you survive without real food.

Your logic and thought process are worrying to the point of scary.

 
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