Ineffective Technological Protection Measures?

Recently we have seen some music companies move away from using technological protection measures to prevent copying songs onto multiple devices or those sold by different companies in favor of a market solution that charges consumers slightly more for music that can be freely copied. Now another brick, albeit a tiny one, has fallen from the wall of electronic protection measures.

Both the DMCA in the United States and the European Union’s Copyright Directive are designed to implement an international treaty that calls for legal enforcement of “effective technological protection measures.” Both laws use that phrase, but the way they define it differs a bit. The European definition, which says that, to be effective, a technological protection measure “must achieve its protection objective,” was recently used by a court in Finland to declare that CSS (Content Scrambling System), the protection code used on most DVDs, was ineffective and therefore no longer protected from circumvention by law. See Electronic Frontier Foundation posting on the case here.

The problem, according to the Helsinki District Court, is that the code for circumventing CSS is all over the Internet. Some consumers that download software for copying DVDs may not even know that they are circumventing a technological protection measure when the do so. In these conditions, the court said, CSS is simply not effective under the EU definition. It is also important that the argument was made that CSS is not intended so much to protect copyrighted content as it is to enforce a monopoly on playback equipment manufacturing; the fact that this is not a legitimate “protection objective” under the EU directive supported the finding that it was not an effective measure. There is a short English-language article about the case here.

This case may have some symbolic significance, especially by pointing out the real monopolistic purpose behind much DRM, but it is not likely to have much impact in the United States. The definition of “effective” in the DMCA seems to rest more on the intent of the copyright owner than on the observable operation of the DRM system. And two US cases have already rejected the argument that the ubiquitous availability of “keys” renders the “lock” unenforceable. But this Finnish decision may help pressure the movie industry to move away from DRM and, like the music companies, consider market solutions to their copying problem.