Possible Solutions

GenerallyUnlocked Book

1.  Educate users

People encounter DRM everyday, but are often unaware of it. DRM providers rely on users having a passive attitude towards the restrictions placed on their digital content. By informing people about the issues surrounding DRM, users are able to make conscious choices about what content they use and how they use it.

2.  Negotiate for better licensing agreements

When negotiating licensing agreements, users need to voice their discontent with DRM and support vendors who offer DRM-free content.

3.  Purchase and use DRM-free content whenever possible

Some publishers and vendors have responded to users’ protests and have removed DRM from their systems. Apple began offering DRM-free songs on from their iTunes store and many smaller publishers offer DRM-free ebooks to libraries through Overdrive.

4.  Lobby for new legislation and copyright exemptions

We need to encourage users to write to their local representatives and lobby for a change in the law. Perhaps Congress could enact a Digital First Sale that would allow a user the same rights with legally-acquired digital content as they would have under Section 109 of the Copyright Act. Another option, at least for libraries, would be broader protection under Section 108 or through copyright exemptions.

5.  Enact a statutory licensing scheme

Publishers might also lend digital content to institutional users through a compulsory license, as is currently the case with music. There is already a company in a good position to handle the payments and royalty disbursements–the Copyright Clearance Center.

Specifically in the Context of Games:

In the consumer space, the following “equation” tends to apply to piracy rates, profitability, and DRM:

Low piracy = (ease of legitimate access/use + cost of legitimate access/use) <  inconvenience of privacy (+0, i.e. the monetary cost of free content)

Under this formulation, users will generally deal with DRM when it is easy and relatively inexpensive to acquire content legally. In these instances, the DRM is not overly restrictive or obtrusive, and may be coupled with several benefits not afforded those who access content illegally. The examples that follow largely play out along these lines:

1.  Combined Digital Storefronts and DRM: Steam

Billed by creator Valve Software as “the ultimate online game platform,” this digital storefront couples nearly invisible DRM with a veritable bounty of user benefits. Through the Steam program, users can  purchase and download games from any computer, chat with friends, trade games, or join multiplayer matches through a built-in client. Games are updated automatically to the latest version, and a user’s library can be managed through apps on the Apple and Android marketplaces. Finally, the games themselves are platform agnostic – if a game is programmed for both Mac or PC, users can buy a single copy of the game and install it to either platform. DRM exists only in the form of one-time authentication; Steam users can install their games to as many computers as they like without limitation.

SteamPirates, however, get access to none of these features. In an article titled Why I would rather have Steam DRM than no DRM, one game journalist stated that “I am against DRM as an entity, but I am more than willing to live with it in certain cases. More than that, Steam is a case where I will embrace that DRM with open arms and deal with the occasional beatings it might give me.”

Steam is also more profitable for content creators than more traditional distribution methods: game producers enjoy gross margins of 70% of purchase price through Steam, compared to 30% at retail.

With all of these positives, there are also some large negatives. For example, if a service like Steam is abandoned, users will lose all access to content purchased through the system. Thus, entrepreneurs seeking to start a digital distribution platform  may suffer from lower user numbers in the short term out of fear that the service may go out of business. Digital distribution platforms are also subject to EULAs, which, if violated, may result in the user being locked out of content they purchased. Finally, owners of digital content have no ability to exercise the First-Sale doctrine, and can’t sell their games used as with physical copies.

2.  DRM Free Products, Piracy Tracking, and External Pressures

Some companies have found success combating piracy through embedding unique watermarks in digital content. For example, German music company Akuma sells MP3s that are DRM free, but contain a tone outside the audible range of the human ear unique to each song sold. Therefore, if a song is shared without authorization, Akuma and law-enforcement can identify which user was responsible for sharing the file.

Video game developer CD Projekt RED  took a similar approach to Akuma in abandoning DRM for their game The Witcher 2 while also including tracking software in the release. This software allowed CD Projekt RED to identify infringers, who were then sent cease and desist letters demanding payment of up to $1180.

Clearly, there are some problems with this solution, but they are not insurmountable. First, there is the possibility of inaccuracies, leading copyright owners to incorrectly label a lawful consumer a pirate. Second, demands for damages as high as $1180 may be excessive, as evidenced by the fact the CD Projekt RED abandoned their tracking method after facing public backlash.  That said, these concerns may be obviated by perfecting tracking techniques and demanding reasonable damages (such as the cost of the game) from infringers.

Content creators have also avoided the above problems by resorting to external pressures unrelated to the legal system. One group of developers have begun a distribution strategy called the “Humble Bundle.” Users purchase games in packs, and are then offered the chance to pay whatever price they see fit. To entice users to pay more for the games, a percentage of the purchase price (set by the buyer) goes to the charity, as well as to anti-DRM advocacy group Electronic Frontier Foundation. By leveraging consumers’ good will and dislike of DRM, these developers are able to maintain profitability without the controversy.

3.  Software Tampering and Deliberate Sabotage

Users who pirate copies of  developer Croteam’s Serious Sam 3 are in for a surprising new kind of DRM. The game installs, runs, and plays just as a legally purchased copy of the game would, with one minor exception. Instead of locking the pirate out, the game spawns an invincible, unnaturally fast enemy in the form of a giant pink scorpion with guns. Someone with a pirated copy of the game can advance in the game for as long as they can stay alive against the unstoppable enemy, which generally isn’t long. If, somehow, an infringer manages to bypass the giant scorpion, the game immobilizes them while exploding enemies slowly kill them.

[youtube]http://www.youtube.com/watch?v=WyBF3yL19u4&feature=related[/youtube]

While it is arguably difficult to conceive of ways to apply this kind of DRM to products outside the games space, it may be possible for copyright holders to implement similar schemes in other software sectors. For example, a developer of a spreadsheet program may could cause pirated copies to produce inaccurate calculations. While this is not a foolproof solution, as there are undoubtedly ways to circumvent these methods, creative and inventive forms of deliberate sabotage allow pirates to see and understand a program, and may be enticed to purchase the product as a result.

 

Sources:

Jason Puckett, Digital Rights Management as Information Access Barrier, Georgia State University Digital Archive @ GSU (Jan. 1, 2010), http://digitalarchive.gsu.edu/cgi/viewcontent.cgi?article=1049&context=univ_lib_facpub.

Bill Rosenblatt, Public Library E-book Lending Must Change to Survive, Copyright and Technology (Dec. 4, 2011), http://copyrightandtechnology.com/2011/12/04/a-bleak-future-for-public-libraries-and-e-books/.

Day Against DRM Today! Librarian In Black (May 4, 2011), http://librarianinblack.net/librarianinblack/2011/05/nodrm.html.

Changes Coming to the iTunes Store, Apple Press Info (Jan. 6, 2009), http://www.apple.com/pr/library/2009/01/06Changes-Coming-to-the-iTunes-Store.html.

David Rapp, OverDrive Lineup of New DRM-Free Library Ebooks Now Available, Library Journal (Jul. 8, 2011), http://www.libraryjournal.com/lj/mobilemhome/891260-422/overdrive_lineup_of_new_drm-free.html.csp.

17 U.S.C. § 109 (2010), available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/pdf/USCODE-2010-title17-chap1-sec109.pdf.

17 U.S.C. § 108 (2010), available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/pdf/USCODE-2010-title17-chap1-sec108.pdf.

17 U.S.C. § 115 (2010), available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/pdf/USCODE-2010-title17-chap1-sec115.pdf.

Steam, Valve Software, http://store.steampowered.com/ (last visited Mar. 27, 2012).

Alec Kubas-Meyer, Why I would rather have Steam DRM than no DRM, Destructoid (Dec. 29, 2011, 4:00 PM), http://www.destructoid.com/why-i-would-rather-have-steam-drm-than-no-drm-218410.phtml.

Oliver Chiang, The Master of Online Mayhem, Forbes (Feb. 9, 2011, 6:00 PM), http://www.forbes.com/forbes/2011/0228/technology-gabe-newell-videogames-valve-online-mayhem.html.

Ryan Carter, The DRM problem solved?, Huffington Post Tech (Sept. 18, 2006), http://downloadsquad.switched.com/2006/09/18/the-drm-problem-solved/.

Graham Smith, The Witcher 2 devs claim 100% accuracy from identifying pirates, demand money from thousands, PC Gamer (Dec. 15, 2011, 3:55 PM), http://www.pcgamer.com/2011/12/15/the-witcher-2-devs-claim-100-accuracy-in-identifying-pirates-demand-money-from-thousands/.

John Walker, Splendid: CD Projekt To Stop Legal Threats, Rock Paper Shotgun (Jan 12, 2012, 3:43 PM), http://www.rockpapershotgun.com/2012/01/12/splendid-cd-projekt-to-stop-legal-threats/.

The Humble Bundle, http://www.humblebundle.com/ (last visited Mar. 27, 2012).

HOTFFC, Serious Sam 3 enemy bug crack, YouTube (Dec. 4, 2011), http://www.youtube.com/watch?v=WyBF3yL19u4&feature=related.

Serious Sam 3 Non-Traditional DRM Solutions Part 2, VE3D (Dec. 8, 2011, 9:07 PM), http://ve3d.ign.com/articles/news/63236/Serious-Sam-3-Non-Traditional-DRM-Solutions-Part-2.

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