I'd be in favor of the law having a clause like the "No Surrender of Others' Freedom" clause of the GPL. Basically saying "If you provide movies like this, then you must make them available without DRM. If you have other legal or contractual requirements that forbid you from making them available without DRM, then you can't make them available at all."
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Moreover, DRM prevents copyright content from entering the public domain. In my personal opinion, anything that's not available without DRM shouldn't get copyright - otherwise it subverts the deal at the centre of copyright.
The way around this would be to have a way to lodge a DRM free copy, which would be released to the public domain when the copyright expires, or on abandonment (so people wouldn't be denied access if the company didn't keep their servers running).
Copyright is not a natural right, the balance is totally out of whack. Copyright terms have become abusively long; the deal is not fair anymore.
Absolutely agreed. I'm of the opinion that anything under DRM, and any closed-source software, should not be eligible for copyright. When a work enters the public domain, society is allowed to build upon that work. If extant copies of the work are not in a form that allows others to build upon, then that right is infringed.
any closed-source software, should not be eligible for copyright
This is how you get software companies running almost everything on their own servers, subscription-only, updates-mandatory, so no-one ever gets a copy of the work themselves and copyright is irrelevant. I think it is abundantly clear by now that this is not necessarily a beneficial direction for the industry to be moving, at least not from the point of view of purchaser/user rights and future-proofing.
So make that illegal too. Basically write the AGPL into the law.
OK, so now only foreign software companies are providing these services and you aren't even getting the tax revenues or employment. That doesn't seem like an improvement.
As long as we're pretending things that will never happen anyway, let's also pretend there's a Berne Convention 2.0 to cut out basically every suitable host country.
Alternatively, how about a law that no government-owned systems may directly or indirectly use any services where the source isn't available? That would be a big enough seed that the viral/transitive nature of the first law would probably spread to everything.
The thing is, everything I first described already happens. Software companies have been moving towards SAAS and online game servers and other ways of running key parts of the code only on their own systems for some time, and the initial motivation for that was often copy protection even if today there are other advantages from the developer's perspective.
Copyright is not a natural right, the balance is totally out of whack. Copyright terms have become abusively long; the deal is not fair anymore.
On the other hand, the inability of small copyright holders to effectively enforce their theoretical rights is also unfair and totally out of whack, but in the other direction.
I am sympathetic to the idea that DRM shouldn't be able to lock people out of accessing works they have a legitimate right to access, and I agree that such abuse needs to be dealt with through updating the legal frameworks for copyright and consumer rights.
However, I think to credibly change the law as you suggest (so, essentially, a publisher can choose DRM or copyright but not both) you'd also have to introduce meaningful criminal penalties for possibly willful and certainly commercial copyright infringement and treat it akin to fraud or theft. Otherwise, why wouldn't the little guy who has a genuine concern about copying reducing the value of the work they are publishing forego copyright entirely and rely only on the DRM, with no rights even theoretically for society as a whole to ever benefit from that work?
>>Moreover, DRM prevents copyright content from entering the public domain. In my personal opinion, anything that's not available without DRM shouldn't get copyright - otherwise it subverts the deal at the centre of copyright.
Inasmuch as I am sympathetic to the argument, how would a government force DRMless software without attacking encryption itself or violating a company's 1st amendment rights to sell whatever digital products as it sees fit? DRM is protected speech so long as encryption or encryption schemes are protected speech (malware a la Sony's rootkit notwithstanding).
>>Copyright is not a natural right, the balance is totally out of whack. Copyright terms have become abusively long; the deal is not fair anymore.
Copyright isn't a natural right but neither is someone else's content or products. Without copyright, every smart person would keep their inventions as trade secrets with limited disclosures/demonstrations that, like Greek fire, will eventually be lost to the ages. While copyright terms can be abusive and long, that alone does not make the concept invalid.
The government doesn't necessarily have to take an offense stance at all. Just removing the legislative protection for DRM schemes would go as long way. You could make it a condition that companies that want to gain legal defense for their DRM'd content must register a DRM-free version with, for example, the Library of Congress.
I agree with removing DMCA protections for circumventing DRM instead of outlawing or creating legislative disincentives for DRM outright (that would be a can of worms). However, it still doesn't sound like a full solution. Registration of the sort you propose, if done correctly, could work for e-books or movies. But what does that kind of registration look like for server- or cloud-based content (e.g. MMOs, subscription-only software) or video games that constantly get constant updates and DLCs?
I can think of a number of possible solutions (update the DRM-free copy the LoC has as you push patches out, for example).
I think more interesting is the broader principle of withholding legal protection unless the company proactively provides a solution. Trying to mandate behavior by companies seems difficult to achieve politically, and leaves the government with the responsibility of enforcement. The enforcement/compliance work then scales based on the amount of creative material released with DRM. It seems unlikely that a government agency will keep up.
On the other hand, it costs the government nothing to withhold legal protection. Making it the company's responsibility to provide a DRM-free copy (or eventual activation keys, etc., details will vary) to a trusted government entity in order to opt-in to legal protection of their copyright scales 1-to-1. It also aligns the incentives of both sides of the copyright problem. Companies have the full protection of law during the period in which the copyright exists and the public benefits from works entering the public domain automatically. As an added bonus, the government has a central place to invest resources in archival and preservation of the huge swaths of our culture that we're currently in danger of losing. I'm very grateful for the Internet Archive but it is a shame that they have to operate based on volunteer donations. It would be great to have a means to take a means for the companies who created the content to fund is archival (via nominal fees for artifact registration).
The moment legal protection is withheld on disagreeable terms is the moment that copyrights become a less popular vehicle for defending a holder's rights. Despite what you might you might think, that's not a good thing. Copyrights are positive incentives for disclosure (but not necessarily for continued availability) of information. It is in the interest of a government for one to publicly disclose information on the sciences and the useful arts. Preemptively neutering a holder's defense to his copyright doesn't disincentives DRM. On the contrary, it encourages stronger, broader trade secret protections as well as non-disclosure and exclusion agreements with regards to both the content and DRM. That would be a blow to libraries just as much as it would archival sites.
I don't think DRM changes anything for the legal aspect of going public domain.
I imagine that copies that were illegal with copyright (with DRM stripped) become legal once it gets to public domain.
The problem comes in when unbreakable DRM is introduced, including DRM that depends on an external server to provide access to licensed content. If the copy protection remains uncrackable after the copyright term expires, or if the server it depends on is no longer available, it amounts to theft from the public domain, pure and simple.
Content producers should be forced to choose between legal protection for their copyrights and technical protection. They should never have been permitted to claim both.
One doesn't need DRM to shut down a server and keep the assets/ net code from seeing the light of day. Plenty of MMOs have shut down with years of people's lives down the drain. Even if you were right about how companies with DRM shouldn't obtain copyrights, I don't see how uncrackability of DRM would be a significant limiting factor when an off switch and forgotten source code is just as capable in doing the same. It wouldn't solve the fundamental issue of, to quote you, theft from the public domain.
That's a separate question (but equally worth addressing). The point here, though, is that copyright is an explicit bargain with the public domain, and DRM makes it a one-sided one.