Category Archives: Digital Rights Management

The timeless folly of DRM

There is a good deal of value in reading older works, even in a field that changes as rapidly as copyright. It is a fascinating exercise, for example, to read attempts in the late 1960’s and early 1970’s to influence the direction of the “new” copyright law being considered (which was passed in 1976). L. Ray Patterson’s “Copyright in Historical Perspective” (Vanderbilt University Press, 1968), for example, or now-Justice Stephen Breyer’s 1970 Harvard Law Review article on “The Uneasy Case for Copyright,” offer an all-too-contemporary sounding warning about the doleful consequences of writing a copyright law that does not pay enough attention to users’ rights or assumes that the concerns of industry as expressed at a particular moment should be enshrined in a statute meant to function for decades.

James Lardner’s 1987 book about the development of video recording devices and the subsequent copyright consequences, “Fast Forward: Hollywood, the Japanese and the Onslaught of the VCR” (Norton) is another example of an older work from which there is still a lot to learn (my principle embarrassment in discussing the book lies in revealing yet again how often my own reading follows suggestions made by Bill Patry). As I read the book this weekend, I was struck especially by a small remark that, to me, reflected on a mistake the content industry cannot seem to stop making.

During the district court trial over the issue of whether Sony’s Betamax device created liability for its maker due to copyright infringement, the trial judge, Warren Ferguson of the Central District of California, refused to allow the attorneys for Universal and Disney to put on a rebuttal witness who would argue that the court could reasonable force Sony to adopt a technological measure that would permit the non-infringing purposes Sony (with the help of Mr. Rogers, among others) had demonstrated for the VCR while preventing unauthorized recordings of broadcast TV. A “jamming device” was suggested that could, the witness would have asserted, be incorporated into all VCRs at a (relatively) minimal cost and would block recording of programs unless the broadcast chose to permit those recordings. Sounds a lot like the “broadcast flag” argument and the recent flap over Microsoft Vista preventing the download of some NBC TV programs, doesn’t it?

We are still wedded to the idea of technological solutions to the problem of unauthorized uses, and we have now gone so far overboard as to give legal protection to such technological systems, even when the have the intent and /or the effect of prevent perfectly legal uses or of reducing access to works no longer protected by copyright. And we continue to pursue a DRM “arms race” in which each new system is seen as a challenge in the user community and few last more than a couple of weeks before keys and hacks are discovered. The wisdom of Judge Ferguson’s words in refusing to entertain this burdensome and unwise “solution” in Sony are, as yet, unheeded: “As sure as you or I are sitting in this courtroom today, some bright young entrepreneur, unconnected with Sony, is going to come up with a device to unjam the jam. And then we have a device to jam the unjamming of the jam, and we all end up like jelly.” Now that this headlong plunge into chaos has been enshrined in section 1201 of the Copyright Act, Judge Ferguson (whose original decision in the case was ultimately affirmed by the Supreme Court) seems more and more like a prophet to whom we should have listened.

Copyright Reform Suggestions, part 2

They are almost five months old but now, and I meant to point them out a long time ago, but the six-point proposal for copyright reform released by Public Knowledge is well worth reading, studying and mailing to your local Congressman.

As has been said before on this site, it is probably passed time that our copyright law be throughly revised and made flexible enough to address new technologies that have come into existence since 1978 as well as to anticipate and accommodate those that have yet to be invented or widely-used. But there is not a lot of political will to undertake a comprehensive copyright reform these days, and the overwhelming influence the biggest content companies seem to wield with major players in Congress suggests that comprehensive reform might do more harm to the interests of consumers and, especially, educators, then good. Until we can reasonable hope for through-going reform in a positive direction, the kind of incremental changes suggested by Public Knowledge seem like the best direction to focus our energies. Although it is fair to call these proposed reforms “more modest,” some of them would be quite radical in practice.

Two of the suggestions made by Public Knowledge will be quite familiar to those who follow copyright issues — fair use reform that would make the four factor test more usable and sensible in today’s digital environment and orphan works legislation to reduce the risk of making productive, socially beneficial works that are not currently subject to commercial availability and whose rights owners are AWOL. One proposal that I have not written about before in this space, but have discussed elsewhere, is that copyright holders should be required to give notice to consumers whenever they are imposing contractual or technological restrictions on a work that takes it outside of the uses reasonable expected under copyright law with its exceptions, including fair use. The principle that consumers should know what they are buying and whether they an use it for reasonably foreseeable purposes is actually quite basic in our commercial law, and neither contracts nor DRM systems should be allowed to defeat reasonable expectations of a purchaser without prior notice.

All of these suggestions — the remaining three are limits on secondary liability, protections against copyright abuse and simplified, fairer licensing rules — deserve our attention and support, at least until a more comprehensive and fair reform of copyright seems possible.

Still waiting

It seems we have been waiting for years for the e-book to “arrive.” The promise of having a whole library in a hand-held device has been made for a long time, but the technology has seldom lived up to expectation. The early readers were awkward to use and difficult to read. The latest generation of e-book readers seems to have improved a great deal, but problems still remain.

I participated in a trial of the Sony reader last year, and was very pleased with the visual display and the ease of use. But I was disappointed by the range of books available, which is probably the fault of my quirky and eclectic reading habits, and with the awkward way the reader displayed PDF files. Now the Amazon Kindle is getting a lot of attention. Several people have noted the limited selection (and Kindle does not allow reading of PDF files at all), but the debate about e-books has now begun to recognize another issue that reduces the value of e-books, digital rights management. UPDATE — Comment by Kim Knoch (click on comments above) explains that there is a way to read PDF files on Kindle for a small fee.

DRM is used, of course, to protect the value of a proprietary e-book by preventing copying and display in other devices. But the e-book vendors seem to have missed the obvious fact the DRM reduces the value of the e-book for consumers. By definition, DRM limits the options for readers, and in a our world of constant innovation and a plethora of devices that compete for our dollars, options are value.

A blog from the Free Software Foundation dedicated to a campaign against DRM – Defective by Design – makes this point in a post called “Don’t let DRM get between you and a good book.” The defective by design campaign is primarily a consumer movement, focused on electronic freedom and privacy (the threat DRM may sometimes pose to privacy is another important issue). They make the point that, with DRM limited e-books, every time an updated device is released it could require that consumers buy a new version of their favorite books. They also argue that DRM is bad for authors and publishers as well, supporting a form of “digital censorship.”

The same concern about DRM in e-books is also raised on a recent post on the if:book blog from the folks at the Institute for the Future of the Book. “The future of the sustainable book” is part of a much larger discussion, all of which is worth attention. Regarding all sorts of electronic texts, this telling remark clearly places DRM protected proprietary e-books low on the scale of sustainability: “since I work in book publishing, job one is to figure out what it means to create a sustainable book. Lots of models come to mind. Good ones like Wikipedia (device-neutral and always in the latest, free, edition) and bad ones like the Kindle, (which tries to create a market for an ebook reader with designed obsolescence).”

Today a e-mail appeared in my inbox that proclaimed that the era of DRM is over. The author was referring to a recent announcement by Sony BMG that they were finally considering following the lead of much of the rest of the music industry and selling music in an open MP3 format. This is good news, but it is not the end of DRM by any means. Many other issues regarding electronic protection measures remain, and we are still waiting for a truly usable, portable e-book and reader.

P2P and New Business Models

Peer-to-peer file sharing is usually not a scholarly communications issue in itself. Most such activity involves the infringing reproduction and distribution of music and video files, and it is more of a problem for colleges and universities than a benefit. Nevertheless, there are legitimate forms of file-sharing that happen at universities (and between them), and the big danger that recreational file swapping poses to schools is that draconian measures to control the illegal activity will also inhibit legal and productive collaboration.

Each time Congress proposes to address file-sharing at universities, this is one of the concerns that unites the higher education community against the proposals. Another concern is that the cost of implementing new mandates will be very high, even though university networks account for only a small portion of the overall problem. The recent proposal in Congress (see article here from the Chronicle of Higher Education) is a case in point. The proposal to require that universities develop a plan to address file-sharing is a little bit insulting – most schools already have a plan – and the instructions to offer alternatives to illegal music downloading and to explore technological solutions to the problem are unfunded mandates that could cost hundreds of millions of dollars. And filters that stop music sharing may also inhibit legitimate collaboration; the history of Internet filters suggests that they are often more effective at preventing legal activity than illegal.

The problem posed by illicit file-sharing will not be solved by increased enforcement measures; the genie is already out of the bottle in that regard — P2P swapping has grown beyond the bounds of any attempt to stop it using either law or technology. What are needed to curb the growth of P2P are business models that make legal acquisition of digital music and movies more attractive than the illegal alternatives. Georgia Harper from the University of Texas (see her blog here) has been a vocal advocate of business model development as a solution to some of our current copyright problems, and a conversation between Georgia and some speakers at a recent conference caused me to start wondering what such business models would look like.

One possibility came to my attention (rather belatedly, I suppose) while watching a football game on Saturday. Verizon Wireless was heavily advertising its V-Cast Song ID service, which allows a user who hears music that they like to capture a sample of the audio, identify the song and purchase a copy directly from, and to, their cell phone (see news report here). This, it seems to me, is exactly the kind of value-added service that can move listeners back to legal music downloading services, and it represents a much more positive solution to the problem of file-sharing than any of the legal remedies yet proposed.

Fixing the DMCA?

The Digital Millennium Copyright Act added two important sections to the copyright act, one that has proved somewhat useful in fostering fair use and the balance between owner’s and user’s rights, and one that, in stark contrast, threatens to drastically overturn that carefully crafted balance. The “safe harbor” provided for online service providers has assisted the growth of web 2.0 applications that offer an unprecedented opportunity for user creativity that pushes the boundaries of fair use. The strict protection of electronic protection measures (anti-circumvention rules), on the other hand, has arguably given content producers the means to control each and every use of their content, forbidding any uses they wish to prevent, even if those uses would otherwise be privileged under the rest of the copyright law.

A new article by Professors Riechman, Dinwoodie and Samuelson, available here on the Social Science Research Network and forthcoming in the Berkeley Technology Law Journal, examines these two provisions carefully, in the context of their origins in the World Intellectual Property Organization Copyright Treaty and the US Congress, as well as the important interpretation of each in the courts. The professors find in the development of the safe harbor “notice and takedown” mechanism that has successfully protected OSPs a fascinating suggestion for how to fix the clearly dysfunctional anti-circumvention rules.

It is difficult to summarize an article this complex, although the clear writing and argumentation in this piece makes it far easier than many other law journal articles to comprehend. The authors examine the way the concern of the US courts, starting with the famous Sony Betamax case before the Supreme Court in 1984, to protect so-called “dual-use” technologies (those capable of both infringing and non-infringing uses) so that copyright law not be allowed to stifle technological innovation, laid the groundwork for the safe-harbor provision of the DMCA. Building an elaborate analogy between these cases and the situations in which the anti-circumvention rules would come into play, the three professors suggest that, in the US (the article also deals with the European Community), courts could begin fashioning a similar solution to the over-protection of copyrighted works fostered by technological protection measures. In short, they propose a “reverse notice and takedown” procedure which would obligate content producers to “unlock” technological protection when necessary to foster uses privileged by the law as in the public interest. They discuss in detail how such a procedure make be established in both the US and the EC, and what the details of such a solution might look like.

Although long and complicated, with its treatment of both the US and the EC, this article richly rewards the time spent reading it. It provides a clear summary of where we are vis-à-vis the uneasy relationship between copyright and the digital environment, how we got to this point and how we might move forward in a responsible way. Scholarly work seems to get more attention from European courts and legislators than it does in the US, but this is one article that we must hope catches the attention of some well-placed American jurists who could consider implementing its creative solution to a problem that has rapidly become intolerable.

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.

More about the FAIR USE Act

Several weeks ago I promised more comment (read previous post here) after I had read up on the proposed law, so here goes.

Perhaps the biggest confusion about the FAIR USE Act is caused by its name; since it is really aimed at reforming the anti-circumvention rules of the DMCA, it does not directly deal with the fair use provision of the Copyright Act.  In fact, in his remarks while introducing the bill, Rep. Boucher explicitly stated that “the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention.”  Boucher’s co-sponsor, Rep. John Doolittle acknowledged in a recent interview that it was necessary to narrow the scope of the bill somewhat by eliminating such a provision because the content industry would oppose a full fair use defense so vigorously.

But the FAIR USE Act does not entirely ignore fair use either.  Rather inconsistently, Rep Doolittle, in the same interview mentioned above, also referred to the proposed bill as an attempt to “preserve fair use for the consumer.”  What the FAIR USE Act actually would do is to introduce an exception to the anti-circumvention rules that is not as broad as fair use, but that would establish a defense to charges of circumvention that looks a lot like fair use.  Specifically, section 3(b)(v) of the new bill would allow circumvention to gain access to “works of substantial public interest… for purposes of criticism, comment, news reporting, scholarship, or research.”  This sure sounds like fair use, especially in its focus on activities strongly protected by the First Amendment.  One major difference is that, by providing an exclusive list of the allowable purposes for circumvention, this bill would not permit circumvention for most commercial purposes, even if the use would otherwise fit within fair use.  Also, “works of substantial public interest” is presumably a narrower category than all the works that might be subject to fair use, but defining this narrower category would certainly generate as much as litigation as fair use itself does.

The big question for the FAIR USE Act is whether it has any chance of passage.  Two previous versions (which did include a full fair use defense to circumvention) failed to advance very far in Congress.  Rep. Doolittle admits frankly that the change to a Democratic-controlled Congress has not significantly improved chances this year, since the new Chair of the relevant House committee is less sympathetic to the bill than his predecessor.  The hope is that the somewhat narrower scope of the bill, combined with increasing public awareness of the draconian impact of DMCA anti-circumvention rules, will improve the environment this time around.  Given the other valuable (and necessary) provisions found in the bill for libraries and for classroom teaching, even a version without the broad exception quoted above would be worthwhile.

Listen here to a podcast (optomistically called “The beginning of the end for the DMCA”) of the interview with Rep. Doolittle about H.R. 1201 , the FAIR USE Act. 

Fair Use Act introduced to rein in the DMCA

Yesterday an important piece of legislation was introduced into the House of Representatives by Congressman Rick Boucher (D-VA) and two co-sponsors (one Democrat and one Republican, for those who keep score).

The Freedom and Innovation Revitalizing US Entrepreneurship Act, in spite of its awkward title intended to create the acronym FAIR USE Act, is an attempt to mitigate the negative impact of DMCA anti-circumvention rules on education, among other activities. Note that it is not a full-scale incorporation of fair use as a DMCA exception, which would create furious opposition, but a more limited attempt to improve the situation for education and for libraries.

Last fall, the Library of Congress approved an educational exception to anti-circumvention for the first time — a narrow rule permitting film and media professors to circumvent security measures in order to make compilations of film clips for classroom use. The new exception lasts for three years, after which it would either “sunset” or have to be renewed. The legislation proposed by Rep. Boucher would make all of the current six exception to the DMCA permanent.

More importantly, this bill would expand the scope of exceptions to the DMCA in ways that would really improve the climate for educational use of technology. The film clip exemption would be expanded to embrace all classroom compilations, not just those in film and media studies classes. Circumvention would also be allowed in order to gain access to public domain works, thus preventing commercial interests from “locking up” content that ought to be available for all to use. Finally, it would allow libraries to circumvent technological protections for purposes of preservation, helping to ensure that digital content will not be lost as technology changes.

This bill has been referred to the House Judiciary Committee, and its full text is not yet available on THOMAS, the Library of Congress database for tracking legislation. So stay tuned for further information and updates. But even at this early stage it is safe to say that passage of this bill would be an important step for instructional technology and library preservation of digital works, and it deserves our strong support.

Digital Rights Management (DRM)

How can I deal with DRM protected material?

Q – First things first; what is DRM?

DRM, which stands for Digital Rights Management, refers to any of a number of systems that are used by producers of digital content to prevent or inhibit copying and distribution by consumers of the content they sell.

One of the most common DRM systems is the Content Scrambling System, or CSS, that prevents many DVDs from playing clearly on equipment that is not equipped with a proprietary decryption key. Another common product is Macrovision, which will cause a recording made from an encrypted VHS tape or DVD to be scrambled or faded. Also, many music CDs are sold with technological protections that prevent them from being easily copied, or “ripped,” onto a computer.

Although DRM systems are intended to prevent copying technologically, most of the systems are easy to defeat with decryption programs. The real force behind DRM systems is not technological but legal.

Q – Are DRM systems really protected by law?

Yes! The Digital Millennium Copyright Act of 1998 added provisions to the copyright law (chapter 12 of Title 17 of the U.S. Code) that make it illegal to circumvent DRM systems and to manufacture or sell technology designed to circumvent such systems. Both civil and criminal penalties are provided for by this “anti-circumvention” law.

Q – Do all digital products have DRM protection?

No. Some DVDs, CDs or VHS tapes are sold without any kind of electronic copy protection, although most such products probably do have some kind of DRM. Sometimes the packaging of the product will indicate the presence of a DRM system, such as when the name Macrovision is printed on a VHS cassette sleeve. Most of the time, however, one can be sure that a digital product is protected only by trying, and failing, to make a copy.

Q – I want to make a copy of a film that is not DRM protected. May I?

If the film is not protected by an electronic copy prevention system, it will not be a violation of the DMCA to copy it. But copying can often be an infringement of copyright, so you should only proceed with the copy if it falls into one of the exceptions to copyright like the TEACH Act or Fair Use.

Q – I want to make a copy of a film that has DRM protection. May I?

Probably not. Even if you have the software or device available to successfully circumvent the DRM make the copy, doing so is likely to violate the DMCA and could subject you to civil (money) damages and even criminal charges, if the circumvention is willful and for commercial gain.

There are several exceptions to the anti-circumvention provisions of the DMCA, and you should only proceed with the copying if you are certain that what you are doing fits within one of these exceptions, which are very narrow.

Q – What are the exceptions to the anti-circumvention rules that enforce DRM?

There are several exceptions to these rules, but only two that really are useful for educational copying.

The first is for film and media studies professors who want to make compilations of portions of video for use in the classroom. This exception applies only to film clips and only to professors who are teaching film or media studies; note that it does not allow circumvention in order to copy whole films into a course management or distribution system. The films used to make these allowable compilations must be owned by the University library system.

The second exception to the anti-circumvention rules really only benefits technology staff and researchers; it allows one to avoid copy protection systems when one is trying to make a protected piece of digital content interoperable with another, independently created software product, as long as the purpose of the interoperability is not itself an infringement of copyright.

For help deciding if either of these exceptions to the anti-circumvention rules applies to your situation, please contact the Scholarly Communications Office.