The Evolving Treatment of Digital Locks

Forget superheroes and cartoon plumbers; the gaming public can now play Charles Darwin. In Spore, the long-awaited new game from the creator of The Sims, players can help a race of beings evolve from single-celled organisms in the primordial ooze to space-faring explorers. The game was epically hyped, and it garnered stellar pre-release reviews. But something happened on the way to the Videogame Hall of Fame. As of this writing, 85% of the game’s customer reviews award it only 1 star out of 5.

It turns out that many people who bought Spore couldn’t actually play it. The game was secured with an error-prone digital lock and thousands of customers were left with a useless lump of code. As a result, Spore soon clinched a dubious record: most pirated game of the year.

This is just one example of digital rights management (DRM) gone awry, and it raises familiar questions about how and why we use the law to protect digital locks. Until recently, the global policy consensus was that DRM, when applied to copyrighted content, ought to enjoy a presumption of validity. In this model, picking a digital lock for any reason–even on content you’ve paid for–is a violation of copyright law. The most famous articulation of this position is in Section 1201 of the Digital Millennium Copyright Act (DMCA), the American ratification of two international agreements called the WIPO Internet Treaties. This approach to DRM has sparked furious controversy because it gives copyright holders the unilateral ability to expand the scope of their rights: even if the legislature has been silent on a use of copyrighted material, the copyright holder gains effective legal control if she can protect it with a digital lock.

Some evidence suggests that this approach to DRM is falling out of favour. France considered rejecting legal protection for DRM in 2006. Steve Jobs, the Apple Computers CEO whose popular iTunes Music Store sells songs wrapped in DRM, has publicly called on entertainment companies to abandon the technology. Even the American official who architected the worldwide spread of DRM in the WIPO treaties now says that those “policies didn’t work out very well” and “have not been successful.”

Canada has thus far declined to grant legal protection to DRM, and it has even pioneered novel approaches to the legal treatment of digital locks. In Bill C-60, a 2005 Liberal proposal to ratify the WIPO Internet Treaties, circumventing a digital lock would have been unlawful only if it was linked to an underlying infringement. Unfortunately, that link was severed in Bill C-61, the Conservative government’s failed successor to C-60.

With no live copyright legislation and an election on the horizon, we should think hard about whether Canada should follow America in the blanket protection of digital locks. If the Spore debacle tells us anything, it’s that our legal treatment of digital locks needs to evolve with our understanding of how they work, how they fail, and whose interests they serve.