A random thought about DRM

DRM is Digital Rights Management. It is the technology implemented by content creators and distributors which technologically enforce the limits of rights granted to the licensee.

Sometimes you can get content without DRM. For example, if I buy a CD from JB Hi-Fi, the licence would mean I could play it at home, but not publicly. I would also be not permitted to copy this CD (the right to reproduce is 'reserved' by the artist or the recording studio etc). According to copyright law (sect 109A Copyright Act 1968), however, I CAN (no matter what the recording studio says) rip the CD to my computer (thus converting it from PCM to MP3), and transferring it to my iPod.

Furthermore, despite the restrictions described by the licence (for example, not being allowed to make 100 copies to give to my friends), there is nothing physically stopping me from doing it.

This is content without DRM. The licence and the law say you can and can't do certain things. Physically, though, (whether legally or illegally) I can do anything I want with it.

Enter DRM:

For example, say I buy a song from iTunes, and the licence to that song says that I (the licensee) can:
* play this song on 5 authorised computers, and
* play this on iPods registered to me
* burn this song to CD 3 times.

Once I burn the song onto CD 3 times, it will no longer burn to another CD. iTunes will recognise what's already happened to the song and prevent the burning. Furthermore, if I email the M4A song file to a friend, he won't be able to play the song (which MUST be iTunes) until he enters my username and password, thus authorising his computer in my name. Again, the file itself, in combination with the player (iTunes) actually physically control what I can do with the file. That is, the DRM technology physically limits which I can do in accordance with the licence.

In this sense, the licence and the law say what I can and can't do, and the DRM controls what I can and can't do in accordance with the licence (even if the law says I might be allowed to do something else beyond the licence permissions).

My question is, why bother with DRM? Isn't the law and licensing enough to protect the interests of copyright holders? Aren't all consumers law abiding citizens? Okay, maybe not. In acknowledging and conceding that THE LAW AND LICENCE IS NOT ENOUGH to guide the behaviour of some consumers (i.e. the 'pirates' argh), copyright holders implement measures (DRM) to physically (rather than legally) 'guide' the behaviour of those consumers.

DRM measures are now protected by law. Section 116AN will treat someone who circumvents a technological protection measure (TPM, the legal, generic reference to DRM) as if they had infringed the copyright holder's rights (e.g. copying etc).

But my question is, why bother protecting DRM with law? Law and licence doesn't guide the behaviour of pirates. That's why we have DRM in the first place. So it seems logical to assume that pirates aren't going to have regard to the law when it comes to circumventing a TPM. If an iTunes song holder wants to burn a 4th CD of the song, they'll just rip one of the CD's they burnt before. Burnt CD's are DRM free (just like the ones from JB Hi-Fi).

So why have a legal regime (s116AN/TPMs) designed to protect a technological regime (DRM) designed to protect another legal regime (copyright licenses and statutory exceptions), when pirates don't respect the copyright licencing regime in the first place?

This seems silly to me, and this is without even considering the fact that DRM has the potential to:
* stifle innovation
* restrict competition (iTunes and iPod are dominant for more reasons than the style of the iPod)
* prevent a consumer from exercising their extra-licence fair use/dealing statutory rights.

What are your thoughts? It seems to me that the marketplace is in need of another regime to protect the rights of copyright holders, without making life supremely difficult for everyone else (whilst at the same time undermining the respect people have for the law)**.

** According to the Australian Copyright Councils Information Sheet G25 TV and Radio: home taping ("time-shifting"):

Q: Can I record programs that I'm watching or listening to so that I can enjoy them again later?
A: NO, You can only record programs that you are NOT watching or listening to. This is because the new time-shift provision says that you can only make the recording in order to watch it or listen to it "at a time more convenient than the time when the broadcast is made" Section 111.

I wonder what happens if I decide to record NCIS tonight on tape, and instead of changing channels or going to bed, I decide to watch the first 5 minutes while it's recording and then go to bed. Uh oh....