Bill Rosenblatt comments on the "bizarre" lawsuit that Media Rights Technologies has brought against Apple and other big players for not using their technology.

I note an aspect of this analysis with which I do not entirely agree. Bill argues that the DMCA allows content companies to avoid bearing the costs and consequences of lousy DRM--because they can sue for defeating even very low technological barriers to access. I've pondered this before. First, the DMCA does require that the barrier be "effective." That is part of the answer.

Second, it seemed to me that bringing suit after multiple holes have been poked in a weak DRM would not be an ideal business strategy to me. That is, having weak DRM turns what would be a (relatively) low-cost way to protect the mass market for your stuff--before-the-fact operational technology-- into a relatively expensive way to protect your stuff--an after-the-fact lawsuit.

But one must take this line of thought a little further. From a content standpoint, the useful function of the DMCA isn't stopping amateur cracks. It is keeping the cracks from being commercially exploited--keeping the crack from becoming an item on a Windows menu somewhere backed by the full force of capital markets and teams of marketers able to transform a black market a la carte item of limited appeal into a more potent type of free-riding. To be used for this purpose, bringing suit after the crack has been developed would not be too late at all.

Bearing that in mind, it may indeed matter somewhat less to content producers to use "strong" as opposed to "weak" DRM. It did not seem to matter much to Apple; the iTunes DRM is not especially strong. But then, Apple is not the content producer, they are a distributor of content second and first a purveyor of hardware.

In many respects, though, market forces are reshaping DRM--stripping it off entirely, finding new uses for it, making it cheaper, forcing some models into failure, and so on. It may be in the end that for content for which DRM-free models do not work, the strength of the DRM will not matter as much to the integrity of the system as timing, transparency, cost, and its compatibility with micropayments mechanisms. The barbed wire may get a little rusty, so long as it is there, and there are gates where there need to be.

Bottom line: the DMCA is problematic--but those who want another approach need to come to the table to bring other solutions to solving the public problem of failing enforcement. Otherwise a war of tech against tech is likely to chill more growth than it spurs.