This comment is not confidential; I grant unconditional permission to republish it in full.
DRM is a disaster for everyone involved with it, because it cannot do what it claims but imposes large costs in the process of failing. The people who have sold DRM technologies to Big Media are frauds playing on the ignorance of media executives, and both the media companies and the consumer have suffered greatly and unnecessarily as a result.
DRM cannot do what it claims for at least three reasons. First, pirates readily bypass it by duplicating physical media. Second, DRM algorithms cannot “see” any data that the host device does not present to them; thus, they can always be spoofed by a computer emulating an environment in which the DRM algorithm thinks release is authorized. Third, for humans to view or hear the content it must at some point exit the digital realm of DRM to a screen and speakers; re-capturing the data stream at that point bypasses any possible protections.
DRM can make casual copying difficult, but cannot thwart any determined attack. Piracy operations operating on a scale sufficient to affect the revenue streams of media companies laugh at DRM. They know it is sucker bait, injuring ordinary consumers but impeding piracy not one bit.
In the process of failing, the DRM fraud imposes large costs. DRM makes consumer electronics substantially more expensive, failure-prone, and subject to interoperability failures than it would otherwise be. It makes media content less valuable to honest consumers by making that content difficult to back up, time-shift, or play on “unauthorized” devices. All too commonly, technical failures somewhere in a chain of DRM-equipped hardware lock consumers out of access to content they have paid for even in the manner the vendor originally intended to support.
But the worst effect of the DRM fraud is that it generates pressure to cripple general-purpose computers in an attempt to foil emulation attacks. As a society, we can live with silly restrictions on device-shifting the latest blockbuster movie, but we cannot tolerate (for example) attempts to prevent PCs from running software not certified in advance by a consortium of Big Media companies. Yet that – and even more draconian restrictions – is where the logic of the DRM fraud inexorably leads. Such measures have already been advocated under the misleading banner “trusted computing”, and half-attempts at them routinely injure today’s computer users.
I would not ask the FCC to ban DRM, even if that were within its remit. Markets will teach the media companies that DRM is folly, just as markets taught software companies that “copy protection” was a losing game back in the 1980s. What the federal government can and should do is decline to prop up the DRM fraud with laws or mandates.
Specifically, if the “broadcast flag” or any other similar measure is again proposed, the FCC should reject it. To the extent that FCC regulatory or administrative action can mitigate the damage and chilling effects caused by the DMCA’s so-called “anti-circumvention” provisions, that should be attempted. Most generally, the FCC should make policy with the understanding that when media companies claim that DRM is useful and effective, they are not only misleading the FCC but deluding themselves.