Why we should allow DRM on open source platforms

The problems with DRM are many, but that does not mean we should prevent people from using it. There are good reasons to let them suffer the consequences of their own bad choices.

In the article Shouldn't Linux embrace DRM?, Jack Wallen opened a can of worms. He questioned whether the larger Linux community -- so dominated by voices in opposition to digital rights management software (DRM) that an outsider could be forgiven for thinking there is a single open source community voice deploring DRM as evil -- should rethink its opposition to DRM.

In fact, Jack Wallen's article essentially adopts the position that this single voice exists as a sort of semi-official precept of the open source software philosophy. He himself, meanwhile, takes the position that DRM is a reasonable, and even important, protection of the rights of creators. I believe the situation is quite different from what his article suggests, however; that the majority of people in that community is made up of people who do not care about DRM, who consider it a necessary evil, or even who feel the same about it as Jack (and perhaps even more strongly) that DRM is important and, in some respects, good. The most raucously noisy, obnoxious, cohesive subcommunity within the larger open source community is the Free Software community, which orbits the Free Software Foundation and its founder, the man who coined the term Free Software as this community knows it: Richard Stallman. The fact is that the cohesive community voice Jack identifies as that of the Linux and open source community is actually that of the Free Software community.

Richard Stallman and the FSF guide the definition of that term of propaganda, "Free Software". They have decided to lead the Linux community merrily down the garden path of "DRM is evil and should be disallowed by law". The definition of open source software in general, on the other hand, does not require any such legal battle against DRM per se. The term "open source", in contrast to Free Software, is not at its heart a term of propaganda for a particular philosophy of sharing. Rather, it is a term of engineering, a term used to describe a manner of developing and distributing software, where this manner of distribution supports a given development model, creating a virtuous circle where the process of sharing with others encourages others to share as well, feeding back into the continued development and improvement of the software -- in theory, even if the software under development is DRM.

This does not mean that DRM is not, in some ways, antithetical to the mechanisms of open source development. This mechanism of a virtuous circle is not limited to software development. It applies, in varying ways, to any creative endeavor whose product is subject to sharing. DRM, by contrast, is a technological mechanism for breaking the exchange inherent in that virtuous circle. It is meant to insulate something against sharing, limiting (or even eliminating) the ability to distribute. It should be easy to see why many open source software developers and users in general might chafe at the idea of DRM. Many other open source software developers and users are invested in the idea of controlling distribution, of strictly enforcing copyright via technological means to maintain the monopoly that copyright law is intended to create. The result of the friction between the desire to control distribution on one hand and the necessities of an open source development model on the other tends to polarize many of the most vocal commentators on the subject at extreme opposite positions in a rhetorical battle.

Ironically, the most natural place for DRM is in the enforcement of copyleft licenses -- those which attempt to enforce certain "requirements" of Stallman's Free Software ideal. Consider that more permissive licenses, especially copyfree licenses, essentially require no enforcement at all. By contrast, copyleft licenses such as the GPL require diligence and, at times, even lawsuits. As commercial distributors of digital content who most assiduously defend their legal monopoly privileges have shown us, the next logical step after suing customers for copyright infringement is escalating the war of enforcement to the use of technical measures to prohibit redistribution under terms of which the original distributors disapprove. Those technical measures are what we call DRM technology, and just as the Record Industry Association of America (RIAA) sued a bunch of its member corporations' customers for copyright infringement, then its members went on to start installing rootkits on their machines in a futile attempt to stem the tide of sharing, so too has the Software Freedom Law Center (SFLC) sued (or legally threatened) some copyleft software developers' "customers" including TiVo, MEPIS Linux, Linksys, and Kororaa Linux. Is the next step a Free Software brand of DRM? Logically, yes, it might be -- but in practice Richard Stallman, the FSF, and their faithful supporters are all virulently opposed to the idea of DRM.

The Open Source fight over DRM

The polar opposite combatants in the fight over DRM in the open source community at large are simple enough to identify. In one corner, we have those who believe in the righteous necessity of DRM, as Jack Wallen evidently does. In the other corner, we have those who believe that DRM is not just a bad idea, but effectively or even literally evil. Neither category of combatant on this field of ideological battle is prone to recognizing the opposing party as having a valid argument, and each often seeks to characterize the other's motivations as evil. Neither is prone to recognizing those who do not live at one extreme or the other as anything other than undecided or corrupt.

The pro-DRM contingent's assertion that DRM is a righteous tool for the protection of a creator's right to profit by his or her efforts seems reasonable, if you accept its underlying assumptions of ownership of ideas. Even taking a somewhat techno-anarchistic bent, it makes a certain amount of sense; to some extent following the philosophy articulated by Lawrence Lessig's suggestion that "code is law", DRM is then the embodiment in code-as-law of the idea that creators own their creations even when those creations leave their immediate possession.

Anti-DRM partisans, particularly in the Free Software movement, attempt to use licensing (such as GPLv3) to legally prohibit the effective use of DRM under any circumstances where they can, in some cases by imposing restrictions on what parts of a DRM system must be distributed in what forms. They attempt to influence policy (as in some Linux distributions' software support policies) to inhibit the use of DRM on any operating system platforms they can affect.

While the majority probably land somewhere in the middle, flanked by these two extreme positions, and are not willing to take a purist's principled stand, there is another position of principle that is all too often ignored. This is the approach I take:

DRM is a bad idea. It is a bad idea mostly because of the way DRM is counterproductive to the aims of creators who want to be able to make a living at their vocations as creators. Jack Wallen talks about the supposed need for DRM to protect the livelihoods of artists, but the truth of the matter is that DRM is prone to hurting the creator's bottom line in the long run. Despite this, even leaving aside the notion that strict copyright enforcement is itself obsolete, that does not mean DRM should be actively disallowed. Doing so is actually antithetical of the ideal that many people equate with open source software -- the ideal of protecting the freedom of software and content developers and users. What use is freedom if we are not free to make our own mistakes?

How is our freedom protected by telling us that we cannot create and deploy DRM software as effectively as the technology allows if we really want to? True, it is not actually very effective, and comes with a heap of unintended consequences. It is also true, however, that trying to protect us from ourselves by preventing us from using it will not solve the underlying problem of people who want to use DRM, or whatever measure these people will develop to replace it if DRM is somehow effectively prohibited. The same questions arise for end user availability of DRMed content as for developer freedom to create DRM systems in the first place, and Jack Wallen's article pointed out this problem of prohibiting DRM. An arms race is not the way to reach peaceful agreement between opposing factions, but it is the inevitable result of each of these extreme factions simultaneously backing the other into a corner.

We do not live in a world where the people trying to prevent deployment and use of DRM are in a position to come anywhere near universal prohibition. As a result, such efforts often have as counterproductive an effect as content creators' use of DRM has, because this prohibition pushes away the very people who might make their DRM-free platforms more popular, encouraging them to use more restrictive platforms and restrictively licensed software for the sole purpose of accessing restricted content. In the end, the best way to get people to choose unrestricted software and content is to give people unrestricted access to all their options in one convenient place. Only in an environment where they can use both restricted and unrestricted software and content, side-by-side with equal convenience, will they face the question that necessarily arises: Why the heck am I subjecting myself to the restrictions of DRM-encumbered software and content?

This is where open source platforms could serve as the ideal environment for undermining the goals of the pro-DRM crowd, by catering to the ability of end users to make their own decisions. To the extent DRM is disallowed by legal or counter-DRM technological means, that environment is prevented from developing, and the relative merits of legal DRM-free content channels may never be realized by users who choose restrictive platforms simply because they believe that is the only way they can get the software and content they crave. As a result, these users end up increasingly being limited to only getting access to DRM-encumbered software and content, and never realize that another option could -- and should -- be the norm.

Letting the enemy fight itself

The counterproductive effects of DRM are the best weapon against those who try to push DRM on their customers. In both the short and long term, however, there is a much more important reason that we should think twice before using what influence we have to actively prohibit people from using DRM -- whether through licensing, operating system development project policy, or even DRM-like software that serves an anti-DRM purpose. The reason is simply that, if you take the Jack Wallen approach of assuming a singular philosophy of the open source community as a whole, one of the core ethics of the open source software is choice. If you want to fight DRM because of its choice-restricting effects, do not do so by taking choice away from people.

Let DRM fight itself by undermining the business models of those who use it most, by letting people choose what content they want to use, whether it is DRM-encumbered or not. The way to win a war of popularity, after all, is to give people what they want.