by Jeremiah Clifton
As technology continues to offer new ways to distribute, view and store digital media, DRM will undoubtedly be there. And even though blogs and news sites alike are celebrating the death of DRM because some record companies and even Apple are offering music without DRM,1 the reality is that until the provisions put in place by the DMCA are overhauled or until copyright holders find a better way than prevention to stop copyright infringement, DRM is tied to digital media. Everyday companies are finding new ways to control access to or use of digital media and this is the world of DRM.2
But what is at stake here is much larger. The idea that copyright is a method to secure revenue has no base in the law. A similar opinion was stated by the Federal Circuit: “The Copyright Act encourages authors to share their creative works with society. The Constitution sets forth the purpose of copyright protection as the promotion of ‘the Progress of Science’, not the rewarding of authors.”3 However, DRM offers and encourages a pay-per-use business model that doesn’t seem to be going anywhere – even Congress recognized this at the outset.4 And the issues with DRM and the DMCA have changed our society and our accepted ways in unintended fashion beyond belief.5
A point intentionally left out of the history and lead up to the DMCA is the role the entertainment industry played in the legislation. It is easier to follow the legislative proceedings and what the government did in this period than to find information on the backroom talks and deals. DVD was a fairly new technology at the time when the DMCA was being discussed, and the film industry wanted a secure method to deliver digital media and a guarantee that their method would stand the test of the prying public. In the DMCA and amendments to Title 17, they got their wish. This backstory is very common and very similar to the arc from DAT to the AHRA.6 So while the copyright clause in the Constitution is clear that it is a clause to promote progress, it seems we’ve found the impasse where as technology increases, protection of copyright increases and access is more and more limited. At each step, industry finds a way to either exclude access or charge for different levels of access by way of DRM. Only time will tell if access and copyright will share the same bed of Benjamin Franklin’s liberty and security.7
  1. see for information on record labels and on Apple and iTunes.
  2. see for an innovative use of DRM
  3. Atari v. Nintendo, 975 F. 2d 832 (Fed. Cir. 1992)
  4. Cong. Rec. 144. H7093-94 (August 4, 1998)
  5. The Electronic Frontier Foundation (EFF). Unintended Consequences: Ten Years under the DMCA (October 2008). Text in PDF: EFF Website Available: Accessed: November 30, 2008.
  6. see “50 Years of the Video Cassette Recorder.” WIPO Magazine. November 2006. Available: Accessed: November 20, 2008. for a brief history of the movie industry and home video.
  7. "Those Who Sacrifice Liberty For Security Deserve Neither" – attributed to Benjamin Franklin