Chipping away

Digital rights management, or DRM, is a delicate subject in higher education.  Also called technological protection measure, these systems to control access and prevent copying are sometimes used by academic units to protect our own resources or to fulfill obligations we have undertaken to obtain content for our communities.  Sometimes such use of DRM in higher ed. is actually mandated by law, especially in distance education settings.

But DRM systems also inhibit lots of legitimate academic uses, and they are protected by law much more strictly than copyrights are by themselves.  A section added to the copyright law by the Digital Millennium Copyright Act makes it illegal to circumvent technological protection measures or to “manufacture, import, offer to the public, provide or otherwise traffic in” any technology that is primarily designed to circumvent such measures.  The reason I say this is stronger protection than copyrights get, and the reason these measures can be such a problem for teaching and research, is that our courts have held that one cannot circumvent DRM even for uses that would be permissible under the copyright act, such as fair uses, or performances permitted in a face-to-face teaching setting.

It is frequently the case, for example, that professors want to show a class a set of film clips that have been compiled together to avoid wasting time, or wish to convert a portion of a DVD to a digital file to be streamed through a course management system, as is permitted by the Teach Act amendment.  These uses are almost certainly legal, but the anti-circumvention rules make it likely that the act of getting the files ready for such uses is not.

To avoid the harshest results of the anti-circumvention rules, Congress instructed the Library of Congress to make a set of exceptions every three years using the so-called “rule making” procedures for federal agencies.  There have been three rounds of such rule-making so far, in 2000, 2003 and 2006.  Only in the last round was there any significant exception for higher education and it was very narrow, allowing only “film and media studies professors” to circumvent DRM in order to create compilations of film clips for use in a live classroom.

Now the Library of Congress has announced the next round of rule-making which will culminate in new exceptions in 2009.  Higher ed. has another chance to chip away at the concrete-like strictures that hamper teaching, research and innovation.  We need to be sure that the exception for film clips is continued, and try hard to see it expanded; many other professors, for example, who teach subjects other than film could still benefit from such an exception without posing any significant risk to rights holders.  Ideally, an exception that allows circumvention in higher education institutions whenever the underlying use was authorized could be crafted.

There is a nice article describing the rule making process and its frustrations here, from Ars Technica.

One of the things we have learned in the previous processes is the importance of compelling stories.  The narrow exception discussed above was crafted largely in response to the limitations on his teaching described by one film professor who testified during the rule-making.  The exception seems crafted to solve his particular dilemma. As another round of exceptions is crafted over the coming year, it will be important for the higher ed. community to offer the Library of Congress convincing narratives of the other ways in which DRM inhibits our work and to lobby hard for broader exceptions that will address the full range of problems created by the anti-circumvention rules.