The FTC Town Hall: What We Can Accomplish
The Federal Trade Commission recently announced that on March 25th, 2008, they will be hosting a conference in Seattle Washington. This conference – or “Town Hall” as the FTC has been calling it – is being created to discuss the use of digital rights management. It will be the first conference of its kind, and it marks the potential for a turning point in United States government policy concerning digital rights management. So far, the government response to digital rights management has been one that has solely promoted the rights of the content producer. There has been no legislation of note that has been drafted with the express purpose of protecting the right of the consumer purchasing the product, be it a game or a video or a song. This conference shows that the government may finally be prepared to reach out to consumers, and begin creating legislation based not on what corporations desire, but what represents a fair compromise between those creating copyrighted content and those purchasing it.
This is a golden opportunity for consumers of all forms of media. For those of us who play video games, it means that a place where consumers can speak out against restrictive DRM software which cause defects in legally purchased games, activation requirements that prevent installation on machines not connected to the internet, and activation limits that turn the purchase of a game into a long-term rental. But to capitalize on the opportunity, we must press for more than simple talk.
Gamers, as a community, first need to realize that simply demanding that companies give up on the use of DRM will be a fool-hardly endeavor. I personally believe that DRM only hurts the sales figures of those companies which use DRM programs as a series of hurdles and obstacles that the consumer must navigate before being able to use their product. That said, it must be remembered that the consumer does not have the right to demand that companies completely drop their use of DRM. Being consumers, we ultimately have the choice to simply not buy. Companies which produce copyrighted content have the right to protect that work, and asking that companies be stripped of that right if a pointless endeavor. Further, simply proposing that consumers should ignore the content product and skip straight to piracy, where the consumer can obtain an unprotected copy at no cost, will likely not strike a positive cord with anyone in the FTC. Piracy is a prevalent issue, but everyone on the anti-DRM side would be wise to keep themselves as far away from the piracy issue as possible. Companies like Electronics Arts or Rockstar, which use every trick in the book – activation limits, online activation, registration for special software, and so on, seem to take the stance that all consumers are potential pirates. It is tempting to bring up the fact that games like Spore and GTA IV have been downloaded millions of times, despite their extensive copyright protection. But bringing up those sorts of numbers, and condoning them as proof that anti-piracy efforts should be largely abandoned, simply won’t work. This isn’t about business sense. It’s about deciding where the rights of the copyright holder ends and the rights of the consumer beginners.
But while the company holding a copyright does have the right to protect their material, and the consumer has the right to retaliate by not buying that material, there is one important problem that gamers – and users of digital media everywhere – should seize upon. That is the problem of disinformation. Of concealment. Of false advertising. Producers of copyrighted digital content across the globe use all sorts of methods to protect their creations. Sometimes this means serial keys, CD-checks, or one-time activations, and at other times it means installing possibly damaging malware and communicating with an external server at regular intervals. Yet, despite the variety of different methods which are used to protect copyrighted material, there is currently nothing that says that companies must openly and clearly express what protections are placed on their products, and how they might effect the consumer’s use of the product.
This is a huge (lack of) oversight, and one that must be seized on. The fact is that a consumer who walks into a retail or online game store and begins browsing has absolutely no way of knowing what restrictions are attached to the products the might buy. There is nothing saying what a company must tell the consumer. How many times can I activate a copy of Crysis? If I sell a copy of Fallout 3, will it work for the buyer? Does The Witcher require the DVD in the drive? These already murky waters become even more unclear when you add in the fact that most forms of digital content have multiple versions distributed through multiple sources. How, for example, do the restrictions on use differ between a copy of a game bought on Steam and a copy of a game bought in a retail store? Do they differ at all? This information is not mandated to be on the box. It does not necessarily have to be made clear before I purchase an online copy of a game. In many cases, some information may be disclosed, but not all; for example, most games which require online activation list an Internet connection as a requirement, but don’t list the number of times the game can be activated.
If the FTC wishes to start protecting consumers, this would be an excellent place to start. It has everything a government agency could want. It protects the consumer, but doesn’t strip companies of their right to add extremely restrictive DRM. It allows the consumer to have clear, simple knowledge about what they are buying, and it gives the FTC a chance to create a clear set of guidelines which indicate what must DRM information but be disclosed to the consumer and where that information must be located. In practice, the FTC could easily create a system like the ESRB. A small box of information could convey the basic information. Does the game require a disk in the drive? Does the game require a serial code? Does the game require online activation? Is there a limit on how many times the software may be activated? Does the game require an Internet connection to play? These are simple guidelines, and I’m sure the FTC could condense them into something consumers could easily decode before purchasing a digital, copyrighted work.
Hopefully, the FTC conference will be a place for a constructive dialogue. But if consumers are to receive protections, the FTC will need to be given a clear idea what those protections might be. We cannot expect copyright holders to think of them for us, and make no mistake – the companies which hold copyrights, and will use every potential tool to see them protected, will be at this conference. The consumer, of not only games but also of video, music, and other digital works, must make clear to the FTC that the consumer is not simply a potential pirate who must be fought and hindered, but a collection of citizens whose rights are just as important as those of copyright holders.