A battle has long been underway in the virtual world; rights holders such as video game producer Electronic Arts (EA) want to protect their proprietary software to the greatest extent possible while end-users playing the games often find the means of protection, commonly known as Digital Rights Management (DRM) to be overly restrictive. DRM allows the producer to “control in detail what can and cannot be done” with a particular copy of a work, such as the encryption devices that make it difficult to copy DVDs or the number of copies a user can make when purchasing a song from the iTunes store.

For EA, the most recent battle involves the release of its landmark game Spore. The game allows users to begin as a single-celled organism, evolve into animals, and eventually establish a civilization. It sounded like an exciting game and had the gaming world abuzz leading up to its 2008 release. Unfortunately for EA, Spore soon faced a backlash over its DRM software, SecuROM, which many users claimed caused conflicts with their computers’ hardware and software.

EA soon relaxed Spore‘s DRM, but its troubles did not end there. On September 22, 2008, Maryland resident Melissa Thomas brought a class action lawsuit in the Northern District of California on behalf of Spore Purchasers, complaining about problems caused by the SecuROM software. The claim alleges that EA does not adequately inform consumers that SecuROM, an independent program, will be “automatically and secretly installed” along with the game. Further claims refer to SecuROM as spyware and “a virus.” The full complaint can be viewed in PDF form here.

Despite EA’s best efforts to control the distribution of Spore, which launched in October, it has become the most pirated game of the year. As with many forms of DRM, end-users complain that they’d rather download a copy that works without restriction than purchase a copy that impairs their use. Some even go so far as to purchase a legitimate copy, while downloading another copy to avoid Spore‘s DRM. Under the Digital Millennium Copyright Act, however, even an attempt to circumvent DRM constitutes infringement. Further, the distributors of online copies may be liable for harsher penalties for contributory infringement or inducing users to infringe.

That so many users would go to such lengths to avoid DRM protections indicates a serious problem with EA’s model as it currently stands. On the other hand, it could be that DRM complaints come from a small, but vocal Internet minority. Nevertheless, with over 2 million illegal downloads, one wonders what balance producers can strike to protect their content without infuriating their customers.

Others have speculated that EA has more sinister motives; they claim EA is attempting to kill the video game resale market, conducted by such retailers as GameStop, by limiting how many times and on how many computers the product can be installed. Hampered by the first-sale doctrine, video game producers such as EA generally cannot restrict legitimate owners from reselling copies of the game they have purchased. However, if strong DRM software such as SecuROM is in place, a used copy is worthless because the game cannot be installed on new computers.

Has DRM made the first-sale doctrine a relic? Practitioner Mitchell D. Kamarck argues that the doctrine is a “dinosaur” entitled to a “quick and dignified death.” If the doctrine is eliminated, what will replace it? Others, such as Professor R. Anthony Reese have suggested possible statutory changes to accommodate the doctrine in light of digital media. It seems that rights holders might be happy to have stronger protections and eliminate the pesky first-sale doctrine, but doing so may bring about a consumer backlash and even congressional action. If content producers alienate their customers and fans, they may hurt themselves in the long run.

Brian Van Wyk

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