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After reading Brian Guthrie’s article about Apple’s new iTunes non-DRM offering and the half-baked editorial from The Economist decrying this move as naive, I had to write something. First, I agree with what Brian said:

… I would go one step further and claim that, for those who are [avid downloaders], digital music has always been chiefly about convenience. I predict that the existence of a legal DRM-free method for obtaining the same, weighed against the threat of arbitrary and capricious lawsuits, will be enough to tip the scales.

I have been an enthusiastic patron of the iTunes Music Store since its inception—even despite the DRM issues—and I wholeheartedly side with Brian in his opinion that non-DRM offerings will simply sweeten the deal for those of us with absolutely no patience for buying stuff. My preference is to click some sort of a “button” and have my chosen merchandise handed to me by someone in a snappy uniform (snappy uniform optional) or, in the case of non-tangibles, download it instantly.

Furthermore, anyone who thinks that Digital Rights Management is effective or (even more frighteningly) anything less than a perversion of our legal system should read more Lawrence Lessig. For the sake of piling yet another anti-DMCA rant onto the mounting heap already gathered throughout the Internet, I will now recount a metaphor I made up while explaining DRM and the DMCA to my parents.

The biggest problem with DRM is that it stifles fair use; even though copyright law, as interpreted by Congress, should give anyone the right to manipulate copyrighted material to create what we call “derivative work,” DRM attempts to prevent that. Andy Warhol famously duplicated the ubiquitous Campbell’s Soup can as a statement about mass production and American consumerism. According to copyright law, it was (and is) completely legal for Andy Warhol to make huge silkscreen prints of the Campbell’s Soup can design because they were different enough, altered enough, to be considered “derivative.”

Now, let’s say there is some fantastical technology that could prevent people from making reproductions, photographs, copies, or otherwise duplicating the Campbell’s Soup can label. Some sort of a forcefield, perhaps. It is still within your rights to duplicate the label under the Constitutional rules of fair use (if you are duplicating it in a derivative work as described in the Constitution and in copyright law), but under the DMCA it becomes illegal to circumvent that fantastical copy protection technology.

The DMCA doesn’t protect copyrighted works. At least, not directly. The DMCA protects the technology that protects copyrighted works (chiefly Digital Rights Management), even in cases where the scope of protection created by the technology exceeds that of the copyright laws themselves. The DMCA is a clever and nefarious way to extend the reach of copyright law without actually changing a word of it.

The Economist is all wrong; DRM is worthless, music downloaders are sure to be largely made up of lazy and otherwise law-abiding people, and the new iTunes non-DRM offerings are already making my mouth water. I think being able to freely back up, restore, and play the music I buy in the way I prefer is worth a paltry $0.30.