Sometimes a Google search can yield unexpected results. For example, a paper entitled “Autonomy and Morality in DRM and Anti-Circumvention Law” (PDF version, Google’s HTML version) came up as I was trying to find guidance on a question I will probably write about later today.
This paper is written in the rarefied language common to legal and scholarly briefs, full of such words as “utilitarian” and “deontological” that may have you reaching for your dictionary. It boils down to an examination of the morality of legally-enforced digital rights management, rather than the cost-versus-benefits talk that has dominated most DRM discussion. As closely as I can translate it out of stilted-legal-speak, they have three main moral objections to the pairing of DRM with laws that make it illegal to break.
1. It prevents civil disobedience. By keeping consumers from being able to break the copyright laws at all, it prevents them from being able to break the laws intentionally to prove a point. If I were to feel that copyright laws were unjust, and wanted to break them publicly so that I could argue their unjustness at my trial, DRM would prevent me from doing so. (Of course, the article does point out that this merely shifts civil disobedience down a level; the civilly disobedient do still have the option of publicly breaking the DMCA and then the copyright law.)
2. It undermines individual autonomy. Instead of the criminal paradigm, in which an individual is assumed responsible to make his own decisions and thus held accountable for his actions, DRM assumes a medical paradigm, in which an individual is considered to be incompetent to choose for himself and so an external agency is appointed his guardian in those matters. “DRM places information producers in the role of the parent, treating users as children, locking away the cookie jar because users are incapable of independently determining the responsible use of information products.”
3. It undermines the legitimacy of law. The authors note that traditional systems of law are held to have legitimacy for two reasons: first, they are in line with a set of widely-held moral beliefs; and second, they have been written the way that the majority of the people governed by them wanted them written. But they add that there is a third element that we do not often consider: laws are given legitimacy by citizens consciously choosing to obey them. DRM takes that choice away: we are prevented from disobeying the copyright law by technological means, so we do not have the ability to choose not to break it.
Although the authors do not mention this, I would point out that the converse is also true: by being annoying and by restricting consumers’ otherwise lawful uses of their content, DRM actively promotes the urge to break the DMCA, and thus undermines its own legal legitimacy. If the law is given legitimacy by citizens choosing to obey it, then it must surely be given illegitimacy by the widespread practice of breaking it.
I’m not a big fan of DRM because I believe it slows rather than enhances development of our business (and because I believe it has monetary costs too large for small publishers to justify). That said, I think these so-called moral arguments are nonsense.
You could say the same thing about a jewelry shop that puts its more expensive items in locked cabinets. Why not let people steal them easily in order to demonstrate their civil disobedience? Why undermine their autonomy. Why not determine if anti-jewelry theft, or anti-bank robbery laws are really popular or should be overturned by allowing easier jewelry shoplifting or easier bank robbery.
Nope–let’s keep the arguments about DRM on a reasonable basis. Do they help or hinder the development of our industry? Do they impose undue costs on consumers, or are those costs necessary considering the alternatives? Are lower cost alternatives (social DRM) workable or pipe dreams. Is aggressive pricing (the http://www.BooksForABuck.com approach) sufficient to undermine the economic justification for theft, or will large numbers of people continue to pirate eBooks just because they can.
Rob Preece
Publisher, http://www.BooksForABuck.com
If you read the actual paper, they do address that argument in section 8, “Qualifying the Argument.” “Locks are commonly used to preempt access to physical property, and the state may prohibit the circumvention of such locks and the provision of lock-picking tools. Do our concerns about the preemptive character of DRM suggest that the very notion of locks and walls should be discarded?” They then go on to explain why DRM is different.
As I read it, the article was written not to de-legitimize the practical arguments against DRM, but to point out why legally-protected DRM morally conflicts with the values our legal system is based on. Granted, the moral reasons may be greatly overshadowed by the practical, utilitarian concerns, and you’re not likely to see a protest march by people bearing signs that say “DRM is immoral,” but from the standpoint of understanding the philosophical theory of our legal system, I think such discussions are valuable.