DRM and Fair-Use

 

 

Digital Rights Management systems are powered by cryptographic software protocols. The systems operate by cryptographically locking media content so that only authorized personal may access, modify, or distribute it. DRM serves to protect the copyrights of content creators/owners/distributors; however, DRM actually aims beyond the scope of control covered by copyright law. It gives the content owners an unrestricted ability to control what consumers can do with their media. For example, Apple’s iTunes, one of most popular DRM systems, allows one to play a song on only five computers and to burn a playlist to a CD only seven times. In movies, DRM is implemented via the Content Scrambling System (CSS) for DVDs. Several restrictions imposed by CSS on DVDs were region coding and user operation prohibition. Neither restriction was considered traditional copyright protection. In documents, a noteworthy example is Adobe eBooks. Even though Alice in Wonderland is a book in the public domain and is assumed free to be used in any way whatsoever, Adobe’s DRM prevented users from using a copy of its digital work without paying for it, distributing it to other people, and strictly prohibited users form using the eBook Reader’s “Read Aloud” function to read Alice in Wonderland. As we can see, these measures to control content overall were at best inept and at worst irritating consumers.

 

Despite all these restrictions, these DRM systems failed to work due to piracy and circumvention technologies. A non-technical solution to the problem was the Digital Millennium Copyright Act. DMCA Section 1201 contained a ban on acts of circumvention, and a ban on the distribution of tools and technologies used for circumvention (DMCA Article). Essentially, the DMA makes it illegal “pick a lock, make a lock pick, teach someone how to make a lock pick, or tell someone where they can go to learn how to make a lock pick.” The DMCA goes beyond the boundary of defined copyright law by protecting many products and practices that should not be copyrighted at all. In fact, the anti-circumvention provisions of the DMCA have not been used as Congress intended.

 

The DMCA has hindered scientific research on cryptographic systems. The lawsuit threats against Princeton Professor Edward Felten’s team of researchers to prevent them to present their work at an academic conference and the detainment and prosecution of Russian programmer Dmitry Skylarov have scared the activities of journalists, publishers, scientists, students, programmers, and members of the public. As well, the DMCA has stifled freedom of speech and freedom of press. In October 2003, furious SunnComm executives threatened a DMCA lawsuit against J. Alex Halderman, a Princeton Computer Science graduate student, seemed imminent. Halderman published an article highlighting weaknesses in a CD copy-protection technology developed by SunnComm and showed that simply pressing down the shift key on a PC would make SunnComm’s copy protection technology useless. After facing much public outcry and receiving negative press attention, the company quickly withdrew from its legal threats. As well, in 2003, publisher John Wiley & Sons stopped plans to publish security researcher Andrew Huang’s book describing the security flaws in the Xbox console. After the music industry’s DMCA threats against Professor Felten’s research team, Wiley decided not to publish the book for fear that the book might be perceived as a “circumvention device” under the DMCA. Huang then attempted to self-publish his book but his plains were foiled after his online shopping cart provider as well withdrew, citing the same DMCA concerns. After months of painstaking negotiations, Huang finally self-published his book in 2003. The publisher was No Starch Press.

 

The DMCA as well has undermined the most crucial element in American copyright law – the Fair Use Doctrine. With DRM, people now live in an era where all digital media content – music, movies, e-books – is “copy-protect” and essentially restricted by technological protection measures. In order to make legitimate fair uses of this content, scholars, researchers, journalists, and the general public need the availability of “circumvention tools” to bypass these digital locks. However, the DMCA forbids the creations or distribution of “circumvention tools” regardless of the fact that are crucial to fair use. Consequently, fair users will be held liable for bypassing the digital lock under the DMCA, despite the merits of their fair use defense. Thus, by banning the tools that enable fair-use, scholars, researchers, journalists, and the public will be punished along with copyright infringers. For example in the area of streaming media, the DMCA has been cited to threaten the developer of Streamripper, which is an open-source, noncommercial software that records MP3 audio streams for later personal use. As well, in November 2006, movie studies invoked the DMCA against Load-‘N-Go, a small company that loaded movies from DVDs purchased by a customer onto a customer’s iPod. They claimed the service violated the DMCA because the creation of a duplicate copy of a movie circumvented the DVD’s CSS encryption. Consequently, under this logic, any person attempting copy movies from DVD to iPod or to any other digital media device is liable under the DMCA.

 

For more information on how the “anti-circumvention” provisions of the DMCA have hindered a wide variety of legitimate activities, please read the references below:

 

1. http://www-cs-faculty.stanford.edu/~eroberts/courses/soco/projects/2004-05/cryptography/drm.html

2. https://www.eff.org/files/eff-unintended-consequences-12-years.pdf