When Wal-Mart announced in 2008 that it was pulling down the DRM servers behind its (nearly unused) online music store, the Internet suffered a collective aneurysm of outrage, eventually forcing the retail giant to run the servers for another year. Buying DRMed content, then having that content neutered a few months later, seemed to most consumers not to be fair.

But that's not quite how Big Content sees things—just ask Steven Metalitz, the Washington DC lawyer who represents the MPAA, RIAA, and other rightsholders before the Copyright Office. Because the Copyright Office is in the thick of its triennial DMCA review process, in which it will decide to allow certain exemptions to the rules against cracking DRM, Metalitz has been doing plenty of representation of late.

He has now responded to a host of questions from the Copyright Office following up on live hearings held earlier this year, and in those comments, Metalitz (again) strongly opposes any exemption that would allow users to legally strip DRM from content if a store goes dark and takes down its authentication servers.

"We reject the view," he writes in a letter to the top legal advisor at the Copyright Office, "that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards. No one expects computers or other electronics devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so."

This is, of course, true, but that doesn't make it any less weird. The only reason that such tracks are crippled after authentication servers go down is because of a system that was demanded by content owners and imposed on companies like Wal-Mart and Apple; buyers who grudgingly bought tracks online because it was easy accepted, but never desired the DRM. To simply say that they are "out of luck" because they used a system that the rightsholders demanded is the height of callousness to one's customers. While computers and electronics devices do break down over time, these music tracks were crippled by design.

Such an attitude looks even stranger when you consider that the music labels have in fact removed DRM as a requirement at stores like iTunes and Amazon, so all tracks purchased today are open and may work in perpetuity, however much the labels would prefer people to keep repurchasing the same song.

Keep this reality in mind when you read Metalitz's next comment, which continues, "To recognize the proposed exemption would surely discourage any content provider from entering the marketplace for online distribution... unless it was committed to do so... forever. This would not be good for consumers, who would find a marketplace with less innovation and fewer choices and options."

The mind boggles. This reads like copy from a Bizarro World manifesto on DRM, since the reality of the market for downloaded music (which was the issue behind the proposed exemption) has shown quite clearly that people don't want DRM on their tunes and providers are happy to comply once the labels allowed it. The current situation, with several major stores and little or no DRM on downloads, is manifestly better for buyers.

While the issue may seem almost irrelevant now for downloaded music, DRM is still alive and well on streaming music and most video streams and downloads. Metalitz doesn't want his clients to face a situation where decryption tools can be produced under the proposed exemption, then widely distributed. How could such decryption tools be limited to those who have actually suffered from authentication servers going dark, he wonders?

But the Copyright Office indicated that it may grant the exemption, asking Metalitz and other respondents to "assume that" the case has been made. Metalitz declined to assume this, writing that "we cannot accept this invitation to assume that the Register [of Copyright] will recommend that the Librarian [of Congress] violate his statutory duty by recognizing Exemption 10B."

Metalitz suggests that the market will take care of problems that arise, pointing out that Wal-Mart and others have all kept their DRM servers running after public outcries. But Harvard Fellow Chris Soghoian, who proposed the exemption, noted that Wal-Mart will be shutting down its DRM servers for good in October 2009.

"Wal-Mart's latest actions provide ample evidence that the issue of DRM abandonware is not a hypothetical concern and that the market cannot be counted on to provide consumers with an adequate remedy," he wrote.