Why DRM Must Be Outright Banned: Because Legislation Isn't Coding

One of the points in the Swedish Pirate Party’s program is that Digital Restriction Mechanisms (DRM) must be outright banned – it is not enough to allow their circumvention. This has been a point of contention among coders.

The reason that this is a point of contention is the mindset of “code is law”. It would be enough to allow circumvention of DRM for it to not have any practical effect, coders would argue – if everybody can circumvent it freely, then tools will be widely distributed to do so, and it won’t matter what stupid pretend-locks come on the discs or packages. That is true in a strictly technical perspective, but it’s just not how lawmaking works.

Code may be law, but legislation isn’t coding.

Legislation is a matter of pointing at the bad guy in order to slap them in the face. In order to do that, you need to establish who the guy breaking the social contract is.

As the law stands right now, circumvention of DRM is illegal. In other words, it is the people running their own code on their own computers in order to manipulate bits on media they have legitimately bought that are the bad guys. That’s not acceptable and that’s what needs to change.

You don’t establish that by changing the law to say that these people may not be quite so bad after all, maybe we don’t need to be quite so harsh against them. Instead, you do that by establish that they are firmly within their rights, and that another party – the firms robbing citizens and consumers of their legal rights – are the guys breaking the social contract.

That’s why DRM must be banned. It is a matter of pointing at the corporations as the bad guys, the ones breaking the social contract. That’s how lawmaking works. If you just say that “the punishments for circumventing shouldn’t be so hard”, the bad laws will be back and harsher again in six months, because the people using their own computers to run their own code will still be the bad guys.

Well, they’re not. So that’s what needs to change. That’s why DRM needs to be outright illegal.

UPDATE: There’s been a bit of discussion in the comments field as to what DRM really is and how it could be banned, sometimes again from a coding perspective. Again, legislation isn’t coding, and outlawing DRM isn’t outlawing encryption or anything of the sort.

Outlawing DRM would mean outlawing products that have been made defective on purpose, products that rob the buyers of rights they would otherwise have to their own property. The concept is not tied to encryption or any specific technology like weird formats or formatting, but tied to the fraudulent and exploitative behavior of selling a product while maintaining control of it. The ban could be written into several places in legislation: fraud law, consumer protection law, or contract law, just to name three examples.

As to the argument that “we shouldn’t regulate what people want to sell and buy” — every single thing you buy complies with dozens of regulations. It is the job of lawmakers to protect you from fraud, deception, exploitation, and defective and/or unsafe products. That’s why there is a minimum wage, for example; there are building codes, there are workplace safety codes, there are electrical codes and standards that products must comply with, there are pharmaceutical safety tests. Outlawing products that are intentionally defective is what lawmakers do. You can’t buy a product that doesn’t comply with minimum electricity safety standards – there’s no “letting the market sort it out” if somebody can make a cheaper unsafe product.

Rick Falkvinge

Rick is the founder of the first Pirate Party and a low-altitude motorcycle pilot. He lives on Alexanderplatz in Berlin, Germany, roasts his own coffee, and as of right now (2019-2020) is taking a little break.


  1. John

    I’m not sure it is the DRM itself that is the offensive part to me and not sure it would be legally plausible to ban it as its just encryption. Its the hand cuffing in a monopolistic manner to devices specified by only an ‘authorised’ party that isn’t the consumer. In this extent it is like handcuffs that the buyer is prevented from removing. The trick works because non technically knowledgeable consumers are an easy target for this as they don’t understand the problem until much later when it is too late. Essentially they are forced into ‘renting’ when they think they are ‘buying’.

    I am not sure you can stop it without accidently affecting something else legitimate, however, I suggest that law could be made that any ‘renting’ and ‘lockin’ activity be legally required to be marked as such so the consumer knows. So amazon when selling a file that can only be rented for use on an amazon authorised device would have to pop up a box declaring exactly that they are only renting from amazon and not buying and the use on competitors products such as different ebook readers is being made difficult.

    That would then inform no technical users of the real situation and they could make an informed decision as to whether ‘renting’ with amazon defined ‘handcuffs’ is what they wanted.

    Its about choice and value. I think that will stop people offering so much DRM as consumer choice will play out better.

    What do you think?

    1. LibreMan

      I too worry that separating bad kind of encryption (DRM) and the useful kind is far from an easy task – as much as I’d like for DRM to just be gone and done with, I myself would have a hard time defining what exactly falls under this definition of “bad DRM”.

      Maybe it could be accomplished by inserting a clause that putting technical measures in that prevent users from exercising their fair-use rights is illegal but I’m not sure whether EU law even recognizes “fair use” or it’s just a US-centric concept – also, I’m not sure it wouldn’t prevent “legitimate” encryption schemes that users want, I generally oppose measures that prevent people from doing what they themselves want to do as their own choice – so if they specifically want to do it, they should be able to and it shouldn’t be illegal for them to do so.

      Does Pirate Party have any specific proposal of how such a legislation might look like? Because without that there is no point in discussing it much further – there is a lot of subtleties that need to be considered and only become clear after a draft is available.

      In the meantime I’d prefer information campaign explaining why DRM is bad for users for them to make an informed choice when coming across a product employing it – which would also build the pressure and necessary support for the forthcoming legislation.

    2. Mårten

      “not sure it would be legally plausible to ban [DRM] as its just encryption.”
      That is not a problem because it is possible to outlaw, for example, anything that is designed to prevent the consumer from making a copy, then the court can decide if that is the purpose of the encryption in each specific case…

      “Essentially they are forced into ‘renting’ when they think they are ‘buying’”
      Saying it is like renting is a bad analogy. You are thinking of information as a physical object which it is not. If you rent an object you fetch it at the store, use it exclusively for a period and then return it. While using it you would normally be free to make copies of the item and use it in any way you see fit as long as you return it in the same condition as you got it. DRM is technology that tries to prevent you from making copies and access the material without special hardware (etc). Whether you bought the object or rented it doesn’t matter. You could say DRM is like forcing certain usage restrictions on the consumer he or she didn’t agree on. That wouldn’t be fair of course, but it’s not fair to sell items with draconian licences either.

      It is not about choice and value if the large majority of media companies or rather a majority of digital media is only sold with DRM. There is a serious imbalance in power between the consumer and the mega corporations in this case.

      I agree with Rick that prohibiting DRM is no different than other consumer law that prevents companies from selling poisonous food, unsafe cars or broken gadgets.

  2. Aelius Blythe

    As a, um, non-code-oriented person, I have trouble with the “code is law” concept. What about harmful code? What about contradictions like DRM & DRM-breaking tools? Surely ONE of these is in the wrong. . . ? Maybe this will be clarified by the debate I am sure will follow this article. I’ll pay attention. . .

    From a non-technical POV, DRM seems like a blatant violation of consumers’ property rights or at the very least a massive false advertising scheme perpetrated by the content companies. No product with DRM is being *sold* to the consumer, it’s being *rented*, and until you circumvent the restrictions, you don’t really own it. Not that there’s anything wrong with renting, if it’s presented accurately. And it’s not.

    And as long as we have laws for consumer protection – such as false advertising and product standard laws – isn’t it reasonable that DRM too should be controlled (i.e. done away with) under law?

    1. steelneck

      Code is law. Simple, for a computer code _is_ law, pure logic. A computer is a device that computes, that is all it actually does. It is a universal turing machine. The turing machine was originally a mathematical theory presented by Alan Turing in 1936, a mathematical model that could be used to compute anything computable. Some years later it was implemented as a machine in Bletchley park during war and used to break the german communication codes.

      The turing machine model can compute anything computable and a Universal turing machine is a fysical implementation of a Turing machine (a computer) that can read the description of any other Turing machine model, and to carry out what that Turing machine would have computed. Intuitively people might think that tasks of greater complexity would need more complex machines. But no, its sufficient to have a specific, limited degree of complexity, to be turing complete, and just have more of storage capacity for more complex tasks. Now if this makes your head spin.. that a Universal Turing Machine is in itself only a particular kind of Turing machine, remember that a computer allways can be emulated as a program on another computer (like that would help if this is the first time you think of the concept 😉

      Code is law, is like a test of logic. Code are instructions for the machine and it will obey them, as long as the computer is a computer and thus a turing machine. If you have code that instructs the machine to add 4 to value you put in, then it will anwser 6 if your input was 2. In this case, a code something like “$YOUR_INPUT+4” is a law that the computer follows.

  3. John

    @Aelius Yes, exactly, I think the only thing that could be legally defined in this situation and practical (without unintended consequences), is that it is a technical trickery scam based on fooling the user into believing entirely the wrong situation. Same as any fraudulent claim really.

    You could even make it a consumer feature, i.e. cheaper price for renting, more for buying outright. Some people may want to rent as some material is ephemeral and not likely to want to keep anyway. Other items you do really want to keep.

  4. Morten

    Now, this is just getting stupid. You can’t seriously use the argument that people must be able to do as they want with their stuff, and at the same time deny that to other people by denying them the ability to do as they want with their stuff.

    This is the whole reason why the world is such a mess right now. Nobody want’s to protect other people from infringement on their rights, so therefore no one will protect you when you are under attack. If you rather defended the legal right to use DRM(not necessarily liking it), and also other instances where people just do with their stuff what they want to do, you might have a chance of getting somewhere. With this rethoric you just make it a war.

    1. AeliusBlythe

      “…..people must be able to do as they want with their stuff, and at the same time deny that to other people by denying them the ability to do as they want with their stuff……”

      I do not think this is the argument. There is a difference between legislating what a person can do with their own stuff and what you can do with stuff that you are selling to other people. Sorry, “selling.” Again, most countries have comprehensive (and sometimes even rational!) legislation on doing business with your stuff, including selling or renting it. See: Building codes. Health & safety regulations. Laws against false advertising.

      You are right that if someone was arguing against ANY regulation of the sort, then the suggestion to ban DRM would be contradictory. But I have never seen the PIrate Party & co. argue for total deregulation.

      1. Morten

        That is plain and clearly the “reasoning”. Something is not reasonable simply because you want it to be. Lots of rules have the opposite effect of the intended one, and still people support them for nothing but that it “feels” good. This whole article stinks of such thinking by labeling some as “the bad guys” for simply encrypting something and then offering it for voluntary trade.

        Even though I disagree with most of those regulations you mention and think they do more harm than good, at least they are in theory there to prevent people from endangering others and that is the reason they are suggested as rules.

        There is absolutely no reason to ban DRM other than you just wanting more than the seller is willing to give you for the price you have agreed to. You feel you have a right to benefit from someone elses work on your own premises and not the ones you agreed on.

        If you don’t like the terms, then don’t pay for it. It’s as easy as that.

        1. Aelius Blythe

          “……….Something is not reasonable simply because you want it to be……….”
          No, it is reasonable because:
          1.Deliberately distributing a substandard product to unsuspecting customers is bordering on fraud (unless you specify that it is substandard as with, for instance, used items on Amazon.)
          2. DRM abuses those who don’t have sufficient outside knowledge to simply use a thing that they supposedly bought.
          3. Calling something a sale which is really a rental is simply false.

          The “if you don’t like something don’t buy it” argument does not legitimize these dishonest and manipulative business practices.

          “…… Lots of rules have the opposite effect of the intended one, ……..”

          Frequently true. Not always. Maybe you could specify some examples of how *this* legislation is likely to be counter productive.

          “. . .and still people support them for nothing but that it “feels” good. . .”

          Not sure where this comes from. Again, the reason (as I see it) is simply to promote honest business practices and respecting consumer & property rights. Is that really an unreasonable goal?

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    2. Don Kongo

      Wrong: it’s all my stuff. As soon as the vendor has sold it to me, it’s mine, and not the vendor’s. Which is the gist of the whole argument.

      1. Olle Kullberg (@ollekullberg)

        Call me stupid, but I’ve never understood the difference between printed books and digital media. If you buy a book, then the entire content is yours, right? Then are you allowed to print this book yourself and sell it, since you own the content of the book. Or how does this work?

  5. Christoffer Willenfort

    I would say no we should not Ban DRM. we should only ban DRM that is not compliant with the law. And when i say compliant i meen that it man NOT hinder you from performing any lawfull action (including future possible lawful actions.) If someone can then create a DRM that fulfills these requirements then go ahead (it is my belief that doing so is impossible in practice)

    That way we dont legislate tecnology but legislate effects. and that is better.

  6. Hephaestus42

    One thing people seem to overlook is the fact that DRM is an end run around copyright length. If the law says it is illegal to copy a given digital file because it has protection, and that law has no time limit. Then that digital file is protected forever.

  7. Tritonio

    I dissagree. If A chooses to buy something that has DRM from B then it’s none of our bussiness to interfere and outlaw that transaction. All A needs is honesty on the part of B. B should not “hide” the DRM.

    And of course there is no need to create laws to protect DRM, DRM should be respected by A if he agrees to buy under such terms. The key is to convince people not to buy DRM, but if they want to do so, I am no fascist to prohibit them from waiving their right to copy what they buy.

    In the end without laws that prohibit DRM, DRM will be irrelevant. It will be broken, and after the first copy starts getting shared, it will be impossible to find out who broke the buy terms (when you bought something agreeing to respect the DRM in it). It will fall out.

    DRM is not evil per se. It is useless. It is practically unenforceable without laws to protect it. But if two people are fine transacting under such terms who am to demand that they should stop?

    1. Rick Falkvinge

      I dissagree. If A chooses to buy something that has DRM from B then it’s none of our bussiness to interfere and outlaw that transaction.

      We have a fuckton of laws that make certain types of transactions illegal – all intended to protect the weaker party. Just look at employment regulation, if you like. How many different types of transactions are illegal there, even in light of a signed contract?

      It’s certainly our business to interfere, and there are tons of examples of how we already do that.

      1. Anonymous

        I woudn’t say I agree with those either. Of course I won’t suggest to remove those regulations outright. But I don’t think that we should add more regulations of that kind.

        1. Rick Falkvinge

          I think you underestimate just how much such regulations exist. Everything you buy complies with dozens of regulations – it is the job of lawmakers to protect you and your rights in this scenario.

          I added an update to the article to illustrate this.


    2. Olle Kullberg (@ollekullberg)

      Well written.

      Though I want to remind you that there are many laws that you might find tooth-less, like walking across the street. Most of the time there is no police at hand to fine you, but still some people refuse to cross the street until green lights are on, just because it is illegal.

  8. John

    The problem with DRM is it is used for all sorts of purpose but mostly dodgy and one sided because its not really about balancing rights of the seller and user at all as it is imposed by the seller without the user really understanding the consequences so easily becomes a way to enforce dodgy practices.

    However, considering we have such a mess of laws that make no sense already, I don’t think banning a crypto technique, which is what it is, will help. The real moral issue is who holds the key and for what purpose is it being held and does everyone clearly understand the relationship and had an informed choice of future implications.

    The hallmark of a sensible law is one that doesn’t have unintended side effects. That is the exact problem we have with copyright right now – too many crazy side effects that affect legitimate uses but the only people who’s ‘rights’ get considered are those with lots of monopoly cash for lawyers and lobbyists.

    Banning a crypto technique will affect many legitimate uses of crypto so am not convinced it is the right solution. Banning abusive intentional uses of DRM might help but those abuses need to be defined.

    The only legitimate use I can think of with DRM is a ‘rental’ situation where the real owner still has the key and the user is clear it is a rental situation. Using DRM while pretending you ‘own’ something is nonsense. Like the 1984 fiasco with amazon. If they can remotely delete your books, or prevent you from moving to a different product, then they can’t claim you ‘own’ anything, you are renting it. Copyright also does this nonsense by reducing much of what we think we own to ‘rental’, so doesn’t make sense to call it ‘property’.

    I think if we made the law clear and had to define anything we are restricted from using fully to a situation where everyone is aware it is ‘rent’ not ownership, then many people would become acutely aware of the real situation, probably very angry and copyright and DRM would be squashed quickly. I don’t think many people would be OK with as much stuff being ‘rent’. There are of course legitimate situations for rent. I rent my house currently, so I can go work in another city and rent a room there instead. Neither me nor my tenants are under any illusion of the situation of who owns what and why we are making that arrangement. We are not pretending we own the houses we are in.

  9. Svante Jørgensen

    Hi Rick,
    I almost always agree with your blog posts, so I don’t have much to write in response. But I think outlawing DRM is very tricky to do without unintended consequences. I would have to first ask you, how do you define DRM?

    The way I see it, there is very little difference between a program/format that only works with specific hardware and other software because it has DRM, or because it is poorly designed. Many things that limit users of software could be interpreted as “DRM” but maybe just prevent users from cheating in a game, or get the best possible sound from an audio file.

    What are your thoughts on this?


    1. Rick Falkvinge

      I added an update to the article to clarify this. The article was intended as a followup to previous discussions, and I forgot to include newcomers to this article to the previous discussions, which was a writing mistake on my part.


      1. Svante Jørgensen

        Thankyou for the update. From what I understand you want to take it from the consumer protection angle. I think that is wise. But I am still not convinced that the ban can be formulated with out unintended consequences. Other consumer protection laws like trademark and anti-trust has (in my opinion) been twisted into bully friendly laws instead of consumer friendly laws.

        How do you see DRM being different? Or how could we make sure not to make the same mistakes this time? As pirates should know, there are often a vast difference between banning something, and making it go away (or even decrease it).

  10. John

    I do appreciate you posting this article, even though I don’t believe that banning DRM is pragmatic. It has certainly made me think a lot today about exactly what it is about DRM that disturbs me most and what the least.

    In your copyright reform book, you say copyright moral rights are worth keeping. I have realised that the only time DRM doesn’t annoy me, is when those moral rights is the only use for DRM, to remind about credit and where to go, not to restrict use of functionality.

    A personal example would be when I switched my audio production software from Digital Performer where the DRM prevents functionality actually working, to reaper where the DRM only pops up a reminder about who made it and where you can find them if you wish to give them something. Basically after two months, an upgrade came out for my previous software but I realised that I preferred the new one having used it with full functionality for a while and so then gave my upgrade money instead to reaper not digital performer.

    So, I guess I don’t mind DRM when it is used to appeal to my better nature and give credit, rather than when it is used to restrict use. Basically, DRM that does a take away after (the reminder box), not before (the functionality).

    I think that a general purpose music file format that credited the musician and where to find them wouldn’t actually offend me either if it didn’t stop me listening in advance.

  11. Byte

    Indeed, DRM should be outlawed.

    What if me and the wife spent $2,000 on DRM-encumbered digital downloads and created a nice collection of songs, movies, etc. and (1) we divorce? (2) we both die in a freak accident?

    How about cases where DRM takes the form of watermarking, e.g. Cinavia?

    We all remember the damage early versions of StarForce did to our systems. What does that say about future “PC emulators” and the chances of getting these games to work?

    How about when DRM requires activation servers that at one point are shut down?

    DRM = bad and should be illegal.

    1. John

      Those are all examples of where DRM is used to reduce or prevent functionality. Those are moral issues that could be legislated against quite sensibly. I am very suspicious of legislating against particular technology as we see many examples of that going badly wrong already. We don’t want judges and politicians making technical choices as they mostly don’t understand it.

  12. Crosbie Fitch

    One cannot ethically ban encryption per se, but one can prohibit fraudulent sales.

    Either one sells a copy, a book or a music CD, say which the purchaser owns as a copy and is at liberty to share, remix, copy, perform, etc.
    one sells a ticket or code number that one can enter into a device* that then enables the listening of music, viewing of a movie, or playing of a game.

    It is fraud to sell a code number (DRM file) as a copy if it prevents or impedes the purchaser from receiving the copy they were led to believe they were purchasing.

    * If the device is owned by the purchaser (as opposed to rented) then ethically they have a right to break it open, reverse engineer it, and extract whatever they can from it.

  13. Derek

    DRM has legitimate uses, and shouldn’t be banned. For example, banning DRM would make it impossible to develop a digital media rental market. However, DRM should make a work ineligible for copyright protection unless a DRM-free version is also available.

    My logic is simple. Copyright is a monopoly granted by governments to publishers. Normally, monopolies are bad for the economy, but copyright is tolerated as an exception because it is intended to encourage the publishing of more creative works, and humanity should benefit as a whole. But if a work is already encrypted in a DRM scheme, or otherwise obfuscated in a way that makes it impossible for others to build upon, then it’s not really published, is it? Granting copyright to DRMed works is like granting patents to trade secrets: it lets publishers have it both ways, when in fairness they should be forced to choose one or the other. Bans on DRM circumvention are particularly evil, as they make a mockery of the idea that copyrights are time-limited (even though the ridiculously long copyright terms are already a farce).

    I would propose that DRM-protected works be ineligible for copyright; if the DRM-protected file’s metadata included a URL pointing to a site where a DRM-free version of the work could be obtained, that would be grounds for re-substantiating a copyright claim. I realize that there are some practical objections to this requirement. For example, publishers don’t have control over third-party distributors who might slap on a DRM layer. Also, the DRM-free version might be made available at an unreasonable price, effectively making it unobtainable. Still, I feel that the principle is sound — that publishers should have to choose between protecting their works through technological means (DRM) or legal means (copyright), but should not be allowed to have it both ways. I’ll leave it to smarter minds to work out the details of how to design such a copyright regime.

    1. sfletch

      banning DRM would make it impossible to develop a digital media rental market

      No, it wouldn’t.

      The video rental industry developed in a time when media was easy to copy. Throughout the 1980s my family would rent a movie pretty much every week, and we’d always keep a copy. (It helped to have an older VCR—one that didn’t have an Automated Gain Control circuit for Macrovision to fuck with. It’s illegal in the USA to manufacture or import a VCR without AGC, but only since 2002.)

      CDs are easy to copy, perfectly, and lots of libraries “rent” them out too. People who want non-DRMed digital media can already get it easily, without paying. The fact that some “rental” service has DRM isn’t going people *more* likely to pay.

      Besides that, why should we perpetuate the idea of digital “rental” as a legitimate concept? It’s sending someone data and later asking them to destroy it. Not much better than book burning.

  14. John

    So can we organise a clear definition of the wrongs inflicted by abusive DRM use that non technical persons such as politicians would understand?

    I’ll throw in a couple that have offended or actually harmed me in the past..

    1. Misrepresenting what is actually a rental situation as a sale of ‘property’
    2. Means to prevent legitimate backups and restoration without connection to a network (This has ruined work and personal situations when a device fails).

    Something in me really likes the enforcing the clear representation of ‘rental’ as it is easy to implement as there are already laws like trade descriptions acts. I think it would help massively with public awareness of how silly many other situations are also. I think huge numbers of the non technical public that would get a massive shock to discover they do not ‘own’ something when think they do. That could gather a lot more public support for dialing back excessive copyright etc too.

  15. […] Why DRM Must Be Outright Banned: Because Legislation Isn’t Coding One of the points in the Swedish Pirate Party’s program is that Digital Restriction Mechanisms (DRM) must be outright banned – it is not enough to allow their circumvention. This has been a point of contention among coders. […]

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  17. passstab

    why don’t we mandate all software being distributed with source also?

    1. Slacker

      “Mandate” seems a bit overboard, but making it a condition of granting copyright would make sense. After all, the justification for copyright laws (at least in the US) was to foster the creation of more works for public use, right?

      1. jsebean

        I don’t think it’s necessarily bad for one to not release their source if they don’t wish to, as this gives a bit of incentive for works to be created (since the creator has the source). Rather, it should remain as a selling point. This software offers source code, but this one doesn’t. Weigh the pros and cons between each.

        To do this would be a bit hard to enforce because one could distribute source code of a program written for a VM (such as java) but there is no way possible for anyone to recompile it since the VM itself is proprietary. Since the guy who made the VM didn’t want a copyright but the guy who made the program that works with the VM did, the code for the program is still useless to us. Or there could be an example of “Tivoization”, which the GPLv3 tries to prevent from happening again. Instead these things should just be left alone and allow a free market to dual it out and limit commercial sharing only.

        If someone wants to implement DRM in a program, fine. Someone else don’t want to implement it, fine as well. It’s hard to differentiate the difference of DRM and a just a distribution method as well.

        Perhaps you make a game that is built to work with your servers only for a multiplayer feature, after some time you shut the servers down once you’ve made your money so now the multiplayer feature in your game no longer works. Should something like this be banned? Is this DRM?

        Instead, breaking DRM should be legal for citizens to do, if you can’t, you can’t, if you can, you can. Instead regulation should be implemented that requires labeling of products with DRM, and requirement that a product distributed with DRM to function for a minimum period of time if paid for (I’d suggest 10 years unless clearly labeled for less than that, since it’s more like a service rather than a product.)

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