Blocking Access with Digital Locks

In the midst of the on-going campaign by civil society, law professors, IT experts and consumers to resist and reverse the increasing restrictions on fair useⁱ of copyrighted material, a new means of eradicating the unauthorised copying of Internet content is taking shape. Fearful that the rapid growth of the web and the proliferation of file-sharing softwareⁱ will lead to widespread copying, the entertainment and publishing industries have combined hard-hitting technological barriers to the current legal protection they enjoy through copyright laws.

Technological Protection Measures (TPMⁱ) is defined as the use of technological tools to restrict the use and/or access to digital work. TPM is also sometimes referred to as Copy Protection, which is any technological measure designed to prevent the duplication of information. Copy Protection does not allow consumers to make a back-up copy of a music CD they have purchased, to install a programme on more than one personal computer or to simply upload music on to a portable player for easier access and listening. Because of this, consumer advocates have criticised the term Copy Protection as misleading and prefer the terms Copy Restriction or Copy Control.

Digital Rights Management (DRMⁱ) is the umbrella term referring to “any or several technologies used to enforce pre-defined policies for controlling access to software, music, movies, or other digital data and hardware.” More specifically, DRM covers the description, layering, analysis, valuation, trading, monitoring and enforcement of the usage restrictions that accompany any particular digital work. DRM critics often say that this practise is best described as Digital Restriction Management rather than its current form as it is technical restrictions that are actually being managed.

DRM is often imbedded in videotapes, digital videodiscs (DVDs), computer software discs, video game discs and cartridges and more recently, some audio compact discs (CDs). This is in the belief among publishers that DRM will secure and improve their revenue as consumers will not be able to make copies of media such as the above. However, the claim that reducing the ability of consumers to indulge in ‘casual copying’ prevents loss of sales is countered by the argument that such consumers who usually use free copies are less likely to bother paying for such copyrighted work even if it was not freely available.

It has been proven that it is almost technically impossible to completely prevent consumers from making copies of copyrighted material that they have purchased. For instance, it is necessary for a consumer to have equipment that can “read” media such as CD and DVD players to enjoy their CDs and DVDs. Such equipment can be modified and used to also copy this media and “write” or record these copyrighted work onto other similar media such as blank re-write-able CDs.

The entertainment and publishing industries understand that DRM will not restrict the determined individual who plans to illegally mass-copy works for re-sale. However, TPM is still practised to prevent the ordinary consumer from practising “casual copying” even if it is for personal, non-profit purposes.

DRM has emerged as a means to enforce restrictions that are above and beyond existing legal restrictions as set down under copyright law. The form and degree of these additional restrictions are at the sole discretion of the media publisher/distributor. These restrictions may remove or nullify rights specifically assigned to the purchasers of copyrighted material by statute or precedent.

As most digital works can be distributed via the Internet, DRM is not restricted to being embedded in media such as CDs, DVDs, software CDs. DRM is present in proprietary equipment such as media players that will only play music or video files that have been written in a particular format. To avoid the risk of reverse engineering by users who want to make copies of these files, publishers have often embedded DRM deep in the fundamental operating software of certain media players as well as the use of tamper-resistant hardware.

DRM has found its way into a number of media such as Apple’s iTunes Store, eBooks and Sony CDs, among others. Some of its restrictions include limiting the number of devices a media file may be played on and even how many times a media file may be viewed. Some consumers may find that they cannot play a music CD on the CR-ROM drive on their computer as publishers fear it can be copied. Consumers may also find that a video that they have just paid to download from a legitimate online subscription service will vanish from their personal computer’s hard drive after 24 hours.

Media publishers believe that DRM will help prevent piracy and preserve the revenues of producers and distributors. Opponents to DRM however argue that the use of technology should not be more restrictive than current copyright laws. Shifting control of a digital file to the producer even after it has been sold will hurt creative expression and damage consumer rights.

Digital Millennium Copyright Act

Despite these attempts to restrict copying, tools to get around DRM have emerged and proliferated. In response to this, the US passed on May 14, 1998, the Digital Millennium Copyright Act (DMCA) to make the production and dissemination of technology that can circumvent copyright protection measures a criminal offence. The DMCA also makes penalties for infringement of copyright on the Internet more severe. On May 22, 2001 the European Union passed the EU Copyright Directive, which is largely similar to the DCMA.

It was reported that the DMCA was passed without debate or opposition in the US Congress as US lawmakers were under the impression that this was a “technical” enactment that would not result in any significant public policy implications.

The DMCA, among others stipulates a broad ban on the circumvention of copy protection systems and requires that all analogue video recorders have copy prevention built in. It does allow people who repair computers to make temporary and limited copies of software while working on the machine. Internet service providers are exempt from the DMCA if they adhere to the Act’s guidelines and if it acts to promptly block access to (duplicate) copyrighted work should they receive a notification from a copyright holder. The DMCA also clarifies the duties of the Copyright Office, and makes provisions for distance learning, sound recording libraries, collective bargaining and the transfer of movie rights.

There are efforts in the US Congress to modify the DMCA. One of these efforts is led by Democrat Rick Boucher, who is introducing the Digital Media Consumers’ Rights Act (DMCRA). However, there are also attempts to legislate laws that would further enhance protection for copyright holders at the expense of the consumer. One such law is the Consumer Broadband and Digital Television Promotion Act (CBDTPA), which deals with devices used to access digital content and would be more restrictive than the DMCA.

Resisting DRM

Opponents to DRM say that laws to prevent circumvention have gone overboard and have extended their reach way beyond the boundaries of copyright law.

“It is an offence to circumvent a TPM even if the underlying use of the protected work would not be copyright infringement,” says the Electronic Frontier Foundation (EFF) in a briefing paper for the WIPOⁱ Inter-sessional Inter-governmental Meeting on the Development Agenda.

The EFF argues that DRM has proven ineffective at protecting rightholders’ copyrighted content while at the same time causing substantial harm to consumers, scientific research, freedom of expression, competition and technological innovation.

Unfortunately lawmakers have been giving the entertainment and publishing industries too much attention. Much discussion revolves around the copyright holder and the need to combat copyright infringement.

“Strong copyright laws in the US and EU give copyright holders monopoly rights, not just on content, but also on the means to protect it,” says the Trans Atlantic Consumer Dialogue (TACDⁱ), a coalition of consumer organisations in Europe and North America. “Consumers are faced with a triple lock between them and the exercise of their rights: copyright protection, technological restriction (by using DRMs) and legal protection of the technological restriction (anti-circumvention provisions).”

Excessive protection measures are also a danger to developing countries. In this context, the EFF says anti circumvention measures are likely to:

• Override national copyright exceptions and limitations, and hamper a country’s effort to introduce new exceptions;

• Impair access to knowledge and increase the cost of accessing information for educational uses, expanding the knowledge gap between industrialised and developing economies;

• Chill scientific research and publication;

• Restrict legitimate competition and entrench monopoly-priced consumer goods;

• Inhibit the transfer of technology and stifle domestic technological innovation; and

• Preclude free and open software.

Countries that are net importers of copyrighted information goods stand to lose out the most. As it is DRM laws will result in a transfer of wealth from the developing country’s domestic to foreign rights holders. This would be without any guarantee of some form of reciprocal investment in the net-importing economy. The EFF adds that should these importing countries not have its own existing industrial capacity, DRM laws are likely to impede technology transfer.

In this light, the EFF calls for WIPO assistance to preserve public interest flexibilities and existing national copyright law exceptions and ensure that legal protection for DRM is appropriately set within the boundaries of copyright law.

The TACD highlights the costs of DRM to consumers. Besides restricting the consumers’ ability to make private copies, DRM has arbitrarily set unpractical parameters on its definition of “households” and “families” in deciding when, where and who may access digital information. There is also the question of privacy as DRM works to collect and transmit data about personal use of digital work and profile consumers.

The lack of inter-operability between different devices and lack of transparency in the operation of DRM also frustrates consumers and only serves to delay and stymie the acceptance of DRM among consumers. DRM systems may impair other security systems in personal computers as the protection measure requires internet connection to register itself.

DRMs are already in the market not only in developed countries but also in developing countries. It is in the interest of all countries to ensure that DRMs are “appropriately cabined to the boundaries of copyright law”.

Sources:

Wikipedia – Copy Protection http://en.wikipedia.org/wiki/Copy_protection,

Wikipedia – Digital Rights Management http://en.wikipedia.org/wiki/Digital_rights_management,

Wikipedia – Digital Millennium Copyright Act http://en.wikipedia.org/wiki/DMCA,

Resolution on Digital Rights Management, Trans Atlantic Consumer Dialogue http://www.tacd.org/docs/?id=275

Electronic Frontier Foundation Briefing Paper on Technological Protection Measures for the WIPO Inter Sessional Inter Governmental Meeting on the Development Agenda Proposal & Fourth Session of the Permanent Committee on Cooperation Related to Intellectual Property Development, April 11-15, 2005 http://www.eff.org/IP/WIPO/dev_agenda/EFF_WIPO_briefing_041205.pdf