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By Chris Meadows

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.

 
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