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Law of the Game on Joystiq: Rare footage of the DRM in its natural habitat

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Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:


Digital Rights Management (or "DRM" for short) is back in the news in a big way with the recent Spore fiasco. DRM, much like a Spore creature, is a quirky animal, with legs of technology, a torso of law, and arms of business, but it doesn't always have a head on its shoulders. But like so many other things that potentially put consumers and producers at odds, the viewpoints on DRM are extremely polarized with almost no middle ground. So this week I wanted to take a look at DRM, why it exists from a legal and economic viewpoint, and most importantly, try to get hold of that slippery middle ground.

Thinking back to the days of the floppy disk, piracy wasn't yet an overwhelming concern. Yes, it was easy to bypass the write protection on a floppy, but without an internet, you had to find someone who had an existing copy in real life. For the majority of the population, this wasn't an option. Then we entered the initial CD-ROM phase, and at the time, the CD-ROM was a pretty secure media. The idea of a low cost home CD burner and blank CDs were years off, and the Internet was still in its infancy, so CDs were pretty safe from piracy well into the 1990s. It was the proliferation of CD burners, high speed internet connections, and peer to peer file sharing (Hi Napster!) that made software license security a big issue for all software companies in the late 1990s, and things haven't slowed down since.



It's those factors which gave rise to DRM, in addition to the simple fact that, unlike analog media, digital copies don't lose quality over time. For example, if you re-record an audio CD to a cassette tape, the quality degrades. But when you copy a digital file, the secondary file has no quality loss from the first. So, not only were game developers looking for an easier way to protect their products, but other media developers were as well. And by "protect," we've hit the legal element: DRM is essentially about an easy way for developers to protect their intellectual properties.

DRM is a simple alternative to traditional protection of intellectual property. If your only concern is to protect your intellectual property, you can go the traditional route and have an attorney write cease and desist letters and file lawsuits (assuming you can even track down the culprits), or you can create some mechanism by which to either discourage piracy, like a DRM system. Not that use of a DRM system precludes the use of the traditional legal avenues, but the idea is that it can substantially reduce the need for them because fewer people will either be able to or be willing to go through the trouble to pirate the product.

Of course, companies who opt for DRM can be walking a very fine line. I'm sure many people remember debacles like Sony Rootkit, where damages caused by the DRM could leave the publisher liable. Overly burdensome DRM can lead to bad press and lost sales. And, of course, there are a number of shortcomings to DRM technologies.

"The less piracy, the less need for over-the-top DRM."



It's worth mentioning here that piracy can affect both copyright and trademark. Copyright is a pretty clear cut issue: those who own the copyright for a given product have the right to license and distribute as they see fit. What's not as obvious is the potential trademark impact in this kind of scenario. It can actually be damaging to a trademark if a pirated version of a software gets out that includes a major virus or bug as a result of the cracking. When those kind of things make the news or are spread on message boards, it can actually hurt the brand.

The history of DRM and piracy has led to a fairly polarized stance on the matter, with one end demanding a completely DRM-free world and the other looking to lock down media in every conceivable way. Either of those options is a win-lose, with consumers on one end and content creators and publishers on the other. More importantly, to be realistic, neither option is really feasible, as a completely secure DRM system has never been created and a DRM-free world would put an enormous burden on the publisher, one that would likely increase cost to the consumer.

So, is there a middle ground solution? If there were a simple one, it would likely already be in place. Besides hoping for DRM that manages licenses effectively without burdening the consumer, it's possible a completely revised business model may emerge. Digital distribution is already hinting at one kind of model, whereby your licenses are linked to your account and/or system, but it's still not yet a flawless system.

In the meantime, both consumers and producers can try to make the system we have work to the best of its ability. I know it's tiresome to hear, but consumers shouldn't pirate content. The less piracy there is, the less need for over-the-top DRM solutions there is. And producers can combine a reasonable DRM solution with efforts to curb those who actively distribute large volumes of pirated media. After all, if the biggest sources aren't there, then the rate of piracy will go down. Hopefully there will be a time in the future where producers and consumers can coexist in some sort of middle ground where everyone is satisfied, but it may take some innovation in order to get to that point.


Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state

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