30 Days of DRM – Day 04: DRM Misuse Sanctions (Markets)

Yesterday's posting focused on the role that the Competition Bureau should play in addressing DRM misuse.  While that role is an important one, it is by no means sufficient to address the misuse problem.  The Bureau will undoubtedly be hampered by inadequate resources, institutional bias against taking "risky" cases, and statutory limitations that constrict its role to abuse of dominance cases.  Therefore, in addition to Bureau oversight, the law should contain provisions that establish strong disincentives to overreaching or abusive use of DRMs.

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.

The toughest would be forfeiture of the copyright protection associated with the underlying work.  This solution has been raised by several people, including Judge Richard Posner (who discussed copyright overreaching as a form of misuse that could lead to forfeiture), Howard Knopf, and the Foundation for Information Policy Research.  While unquestionably a strong penal measure, it would provide a counter to the incentive to use DRM created by anti-circumvention legislation. Alternatively, a somewhat less penal approach, advocated by the Library and Archives Copyright Alliance (LACA) in the UK, would be to suspend the copyrights for as long as the abusive conduct remains in effect. 

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.


  1. John Lawford
    Michael – while I like your copyright deodand idea for overzealous DRMers, I fear outright forfeiture is too harsh to stick. Why not have a penalty of 2 years of the copyright being held by a public interest trustee with full rights to manage the copyright in the public interest and to dump any profits into artists’ collectives to promote new talent? After two years of such administration, it could revert to the “owner”.

  2. Matt
    I want to ask why should “they” be allowed to place restrictions in the first place?

    When i buy a chair, anybody can sit his ass on it, not only me. Is the chair industry complaining that my friend should have bought his own chair instead of sitting on mine? No.

    Same when i buy a car, i can carry people in it. It can be used by MORE than 1 person.

    As a general rule, i can do whatever the **** i want to do with the things i bought. It MINE! Period! It should be the first amendment in our constitution.

    So why is that different in the case of copyrighted material?

    I’m not talking about piracy and people downloading free mp3 songs instead of buying it. It’s a separate issue, and btw DRM are not even really effective against piracy.

    What i’m talking about is, why my DVD bought in China don’t play in Canada? Why can’t i rip my DVD into my hard drive? Why do i have to rebuy all my LEGALLY purchassed iTunes songs if i want to switch for a Creative mp3 player? Why do i need to run a windows program to read a CSS protected DVD? Why do “they” want to pass a law that will make me a CRIMINAL to use the stuff i bought the way i want to use it?

    There are just no valid reasons. The only reason is that “they” want more money by price discriminating, and “they” are powerful enought to shove this law down our troat, and they are using “piracy” as a front cover. And you can bet your ass the conservative won’t do shit to protect their citizens. Our only hope is that we are in a minority government now. God bless the Bloc Québécois!

  3. Copyrights??
    I can remember reading a story in the new where it was mentioned that Sony “borrowed” code from an open-source program to create their rootkit. Hence, they effectively broke copyright to protect copyright. Why should I respect copyright from a company that doesn’t respect copyrights in the first place?? Sounds like a double standard to me!! I’m not saying that breaking copyright is alright, but I am trying to make the point that respect has to work both ways and not just one.