Disclosure is certainly warranted when DRM will cause a product’s function to deviate significantly from mainstream consumer expectations for the particular type of media in question. But expectations also evolve, and consumers likely will become increasingly accustomed to the flexibility with which they use digital files on their general purpose, Internet-connected computers and other devices. In evaluating what should be disclosed, product reviewers should think carefully about the full range of technical tradeoffs DRM entails.
Disclosure is particularly important where DRM-equipped products will not work with certain devices or in certain configurations. There is no shortage of examples: DVDs purchased on a trip abroad may not work in the purchaser’s home DVD player due to region coding; songs downloaded from iTunes cannot easily be transferred to non-Apple portable music players; copy-protected CDs, unlike CDs without such protection, will not easily transfer onto the purchaser’s iPod. Incompatibilities like these should be conspicuously labeled. Consumers should not learn about them only upon taking the products home, plugging them in, and receiving an error message.
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Where some form of disclosure is provided, product reviewers should consider whether it is sufficiently prominent and understandable. What constitutes an appropriate manner of disclosure will depend in part on the likely importance of the information to consumers. It will also depend significantly on the nature of the product. Some come in physical packaging that can feature labels; others come as downloadable files and may have to find other means of providing notice. In some cases, it may be appropriate to disclose less significant details of DRM in licensing agreements. Because consumers rarely read through long license agreements, however, disclosure in the license accompanying a product will not always be sufficient. Reviewers should read license agreements carefully to determine if they contain key information that should be disclosed in a more prominent fashion.
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An additional factor in evaluating disclosures is timing. Certainly information that is reasonably likely to affect a consumer’s purchasing decision should be disclosed prior to purchase. But in general, notices should not be provided only once, when a possibly hurried user is signing up for a service or picking out a product in a store. Depending on the nature of the DRM, disclosure at other times may be warranted as well, as part of a user’s ongoing interaction with a product or service.
For example, for songs purchased online that are limited in the number of times they can be burned to a CD, users should be notified appropriately as they approach the limit. If the first reminder of the limit is a message denying a user’s effort to burn a CD after the limit has been reached, the user may well feel unfairly surprised. Likewise, a CD that installs special DRM software when inserted into a computer should alert users of that fact immediately prior to installation. One of the complaints raised against Sony BMG was that some of its CDs installed software automatically, before providing any notice, or even when the user declined to consent to the installation.
Post-purchase disclosure also can be relevant in the case of upgrades. DRM systems inevitably get cracked, which can prompt their distributors to try to plug holes. Software upgrades, distributed online or otherwise, may update and fix vulnerabilities in DRM, but also could cause compatibility problems with older products now deemed insecure by the DRM devices. In addition, updates could change usage rules governing a user’s already-purchased content; the major online music services reserve the right to do this in their terms of service. When upgrades have negative side effects, distributors may be tempted not to disclose them, because they do not want to discourage users from upgrading. Reviewers and consumer advocates should be watchful for such omissions.