Last fall's Sony rootkit case, in which Sony placed hundreds of thousands of personal computers at risk for viruses and other security breaches by surreptitiously placing DRM on dozens of its music CDs, is a model illustration of the havoc that DRM misuse can generate. While the Sony case is not an abuse of dominant position case, there are good policy reasons to create disincentives to ensure that overzealous companies will not misuse DRM.
Several potential disincentives come to mind.
In addition to the threat of a loss of copyright protection, tougher damage penalties for DRM misuse may be in order. LACA calls for the inclusion of DRM misuse within the UK's Computer Misuse Act. An equivalent in Canada would be an expansion of the hacker provisions under Section 342.1 of Canada's Criminal Code, which already covers unauthorized use of a computer service. Since prosecutions for DRM misuse are unlikely, a more effective approach might be to expand the statutory provisions within the Copyright Act to cover copyright misuse. Section 38.1 currently allows copyright owners to elect to receive tens of thousands of dollars in statutory damages without the need to prove any actual damages. Expanding the provision to enable victims of copyright misuse to make a similar choice would provide some much-needed balance to this abusive provision and establish a strong discentive to DRM misuse.