Why the ease of circumventing locks doesn't matter.

Andrew Currie posted an article to his Open Attitude blog titled The gate at the top of the stairs where he talks about a scenario with a real world lock, and made the connection to "software locks and restrictions on our digital media". The overall message can be seen when he said, "the sole point I’m trying to make here is that all locks — physical or otherwise — can be broken; many of them much easier than you’d think".

While I agree with this statement, I don't think this brings us very far in the "DRM" analogy. I think most people recognise that locks are generally advisory in nature, and that no matter how strong the lock on your door is that a burglar can quite easily go through a window.

There will always be people not in that mindset at the time (like Andrew and that gate at the top of his stairs) who may not realise just how easy it is to circumvent most locks. I think it is useful to remind people that locks are advisory in nature, and that they are not a solution to the problem of unauthorised people bypassing the restrictions the locks are intended to enforce.

In the case of "digital locks" discussed in the context of copyright, this is understood by the most prominent proponents. They state that they need legal protection for these digital locks precisely because they recognise how easy it is for them to be circumvented.

I believe that these digital locks are more controversial than analog locks because some people, not understanding digital technology, want to treat digital locks entirely different than they would treat physical locks they can see and understand.

Take that lock on your home. Politicians aren't saying it should be illegal for you to unlock your own home, or illegal to change the locks on your own home. Whether it is illegal to circumvent the lock is directly tied to who owns the thing that is locked. We don't have laws that protect the lock separate from the reason for circumventing the lock: we have laws against trespass, against property damage, and against theft.

With laws protecting technical measures, no such connections are being made. Most proponents of legal protection for DRM are unaware that there are generally two locks, not one. Some that are aware simply don't care, and think it is justified to circumvent someone elses tangible property rights in order to protect their interests. They recognise that while it is legitimate for them to claim they are the owner of the copyrighted work, they are clearly not the owner of your information technology, and yet they want the law to prohibit you from unlocking your own information technology.

With technical measures, far too many people don't examine who owns the thing that is locked. They don't realise that laws need to clarify that the owner of something unlocking what they own should clearly not be against the law.

In the case of TPMs in the context of copyright, there is also the problem that the types of activities that TPMs lock you out of and the activities that copyright regulates are separate. The activities that Copyright regulates are all activities done once you have access to something, and TPMs try to restrict access. (See: a talk I gave on this topic)

That isn't to say that access control technical measures aren't useful. They are quite useful in the context of contract, e-commerce and property law. They just aren't useful in the context of copyright law.

Proponents of digital locks on content in a copyright context also ignores the fact that, in order for a copyrighted work to be valuable, it needs to be accessible to audiences. Trying to rely on digital locks on content as a way to stop copyright infringement is like believing you can rely entirely on the locks on the doors of a store to protect against theft. This ignores the fact that the door must be unlocked during store hours, and in order to make any money at all you must let customers into the store. Locks aren't helpful in stopping people you have specifically allowed into your store from walking in and out of that unlocked door without paying for something.

This is true of copyrighted works where digital locks denying access to works are useless in stopping people who are authorised to access the content from doing any of the activities which Copyright regulates.