FTC Town Hall to Address Digital Rights Management Technologies - Event Takes Place Wednesday, March 25, 2009, in Seattle
The biggest issue with software DRM is that many issues can drastically limit the right of resale. Software publishers typically state that this is fine since they actually sold a non-transferrable license to the software, but in many cases, if the physical media is lost or destroyed, the publisher refuses to provide replacement. The only option then, to recover the use of your licenses, as it were, is piracy and, depending on the DRM scheme, a necessity to violate the DMCA. The best DRM efforts I have seen exploit the Internet to deliver the bytes of the software and manage a user's profile remotely. Still, these services suffer from the fact that they typically disallow license transfer (A right I personally believe all consumers should have) and that they are vulnerable if the company running the DRM service were to go out of business or decide that the service was no longer profitable (as has occurred with several media DRM services already). In that case, the consumer is still forced to resort to piracy and almost assuredly the violation of the DMCA. The worst DRM efforts are simply offensive and probably already illegal under current laws. Some DRM packages have installed software that provided the publisher with facilities to access and investigate the computer systems of the user. Presumably, this was done with the intent to stop unauthorized access, but it is no far stretch to imagine an unscrupulous employee using this access to steal information or capture control of the computer system. DRM, as it has largely been implemented, is an attempt to provide a blanket answer to a difficult question with several factors. Publishers have also attempted to leverage their position as supplier to change the balance of producer/consumer power by restricting previously assumed rights. Because software is not a commodity, consumers need protections against abuse. Here are the consumer rights that I feel need to be legally enumerated for any long lasting situation involving DRM to be successful: 1) The right of resale must be accounted for. 2) The consumer must always be allowed to access what they have purchased, even if the technological mechanism providing access has ceased functioning. 3) The software that a consumer purchases must be the software that the consumer intended to purchase, and not include software that is intended to allow the publisher or another 3rd party to access the consumer's system without explicit permission. At that, the DRM facilities must be limited to only providing or preventing access to the software. Stiff penalties for violation would be necessary. Publisher's should have a right to sell their wares in the manner that they want, with the attempts to prevent piracy that they want to use, but the consumer's rights should not be trampled on to protect the publisher. I do not think that those two goals are mutually exclusive, and I hope the FTC finds the same.