I’m sure many of you have seen these comics. The first presents an economic incentives case for why DRM is bad for the consumer as well as being a reference to scenarios such as when Microsoft initiated the process of shutting down the license servers for iteration of a music service before it rolled out the Zune player. The second presents a nice caricature of some individuals on the techie end of the personality continuum. But there is a very important point in the DRM space that is completely missed. GAMES!

You may have heard of cute game called spore? It’s DRM was so problematic that people who purchased copies of it would also get  the pirated version! On the other hand, there are reports that piracy rates for a cute game called World of Goo, are 82-90%!

This is a very different situation than with music piracy in its implications. With music, there is the argument that piracy reduces the marginal cost of discovering new bands whose future work and concerts one may choose to attend. With computer games, there is already a standard convention of having a free demo version available which contains enough of the games actual content to determine if the entirety is worth purchasing. Moreover, there isn’t any way but through sales of that software by which the developer may recoup the cost of the software creation or make a profit! This gets somewhat more complicated and in some ways invalid as you move from games to productivity software like microsoft office or mathematica.

An interesting element of DRM with console games is that for many of the systems, the game can only be played if the media is in the device. This provides a simple way of ensuring that there isn’t casual piracy by way of circulating a single copy of a game. This of course naturally leads to a market for “carts”, which are devices both for storing backups of games you own or executing your own  homebrew software. These are the classical instances of multimedia fair use that fall under a grey or black area because the same technologies that make these reasonable actions possible also violate the system’s DRM mechanism (as well as making piracy much easier).

There is a long and storied history of technically inclined consumers either directly modifying a game (with the consquences ranging from team fortress to hot coffee) or alternatively making noncommercial remakes of games no longer playable on modern computers (which also occupy a funny place in the fair use) continua, despite typically not being of commercial nature.

Where does fair use etc come into play with software in those and other instances? Too much seems to rely on the EULA (a questionable contract) and on the fact that one party in any given dispute is either outnumbered or outlawyered.