What Every Citizen Should Know About DRM, aka - Public Knowledge

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What Every Citizen Should Know About DRM,a.k.a. “Digital Rights Management”all, just as the “open platform” of the general-purposecomputer was designed to make the copyingof digital information easy and reliable, the “openplatform” of the Internet was designed to make thecopying of bits over long distances reliable. Inaddition, the Internet makes it possible for individualcomputer users to copy works to a multiplicityof recipients—to effectively “broadcast” unlicensedcopies of copyrighted works.Secondly, greater computer capacity, advances incompression technology, and greater bandwidthhave made it possible to copy significant numbersof copyrighted works (most notably, songs in theform of MP3 files) and copyrighted works of significantsize (e.g., television shows and featurefilms). Third, digital copyrighted content, unlikecopyrighted software, does not typically requiredocumentation or support to be used.How The Content ProducersHave RespondedAs we have seen, in the computer era one approachof content owners has been to enclose or protectdigital copyrighted works with what we once called“copy-protection technologies” but which we arenow commonly referred to as Digital Rights Managementtechnologies or “DRM.” These technologiesare commonly (but not always) based onencryption. The use of encryption-based copy-protectiontechnologies has been the foremost of thetwo major approaches to preventing the unauthorizedcopying of copyrighted works in the digitalworld. The other approach — the reliance on governmentregulations (often called “technologymandates”) to constrain the capabilities of consumertechnologies — has been much less widespread,although this may be changing.The Digital Millennium Copyright Act(DMCA), enacted in 1998, reflects the Contentcompanies’ assumption at the time that it wouldrely primarily on DRM technologies to protect itscopyrighted works in the digital age. Most of thebroad prohibitions of the DMCA are aimed at preventingcircumvention of these technologies,which, once again, are usually based on encryption.At the same time, the DMCA expressly codified atechnological mandate concerning videocassetterecorders, but also expressly sidestepped the issueof technology mandates generally. 31The DMCA’s provisions in 1998 were aimed atmaking DRM approaches more secure by broadlyprohibiting circumvention (thus preventing thekind of “arms race” between copy-protectiondevelopers and copy-protection circumventers thatoccurred in the 1980s in the software industry). Atthe time, content-company advocates, as well asadvocates from the information-technology sectors,believed that the DMCA was in itself a long-termsolution to the copyright-infringement problemsthey feared. The DMCA, which did not providesignificant exceptions for circumvention or circumventiontools — even when the underlying goal ofthe circumventer or the toolmaker was a legal one— was enough, they believed to forestall the kindof widespread infringement and unlicensed copyingto which the Internet might give rise.Only a year later, however, peer-to-peer file-sharingbecame a visible and well-publicized phenomenon(most famously, through the use of Napster).While particular peer-to-peer applications and servicesmay be hindered or neutralized through litigation,the essentially decentralized nature of theInternet, together with the ubiquity and increasingcheapness of computers, has made it possible forfile-sharing, particularly of music, to continue.Music companies have been particularly vulnerableto file-sharing, for a number of reasons. Firstand foremost, MP3 compression makes most songfilesremarkably compact, which makes them fareasier to transmit and receive, even over today’srelatively limited consumer broadband networks.Moreover, most music companies’ catalogs areavailable on CD in unprotected formats. This isbecause music companies, when adopting the CDformat for distribution of music, did not anticipatethe ubiquity and ease of use of “ripping” 32 and“burning” 33 applications and technologies, nor didthey anticipate the quickness with which musichobbyists would begin to share “ripped” music fileson the Internet via peer-to-peer mechanisms.Movie and television studios and networks fearthat increasing adoption of broadband Internet services,together with the migration of video content todigital formats (such as HDTV) will result in the21
III. Should DRM Be ImposedBy the Government?same “Napsterization” of their offerings that themusic companies have endured. There is less justificationfor their fears, at least in the short term. Partlythis is because the most common form of commercialvideo distribution, other than television, is DVDsales, and DVD content is scrambled to prevent easycopying. Another factor that has slowed or even preventedtrue “Napsterization” of television contenthas been the sheer size of video files; in general, adigital file created from an hour of standard televisionis two or more orders of magnitude larger thanan MP3 file. (When the digital file is HDTV television,the disparity in file sizes is even larger.)Nevertheless, TV and movie offerings that aredistributed via broadcast and cable channels areeither unprotected (“in the clear”) or, if protectedby DRM, they are descrambled at theplayer/receiver end (which they must be in orderto be viewed), whereupon they can be captured byusers through a variety of means. These users canthen digitize, alter, or disseminate the works to theInternet and elsewhere. The fact that some usersdo this (albeit after reducing significantly the resolutionand quality of the captured video content) isadduced by movie and TV companies as evidencethat the threat to their business models posed bypeer-to-peer file sharing is either just around thecorner, or is already here. 34Neither the issue of peer-to-peer file sharing northe increasing capability of computers to copy andtransmit content was fully foreseen by the draftersof the DMCA. Specifically, these issues are notaddressed by the anti-circumvention provisions ofthe DMCA (since they rarely if ever involve actualcircumvention of copy-protection technology) andonly tangentially addressed by the Notice-and-Takedown provisions of the DMCA 35 (since peerto-peerfile sharing does not typically require theuse of an Internet Service Provider as a site formaking illicit content available). Of course, to theextent that file sharing constitutes copyrightinfringement, it is squarely addressed by the substantiveprovisions of the Copyright Act, Title 17 ofthe U.S. Code, but the prospect of having to filethousands or even millions of infringement actionsagainst American citizens is a daunting one for eventhe most assiduously protective content company. 36As a result of the onset of peer-to-peer file sharing,a number of content companies have increasinglyasserted that the solution to peer-to-peerinfringement lies in constraining what those toolsand mechanisms can do, through technologicalmeasures in tandem with government mandates(either regulatory or legislative or both). This perceptionhas been at the root of recent legislativeand regulatory initiatives that are designed to limitor prevent peer-to-peer file sharing, but that may,if enacted, have unintended consequences, includinga significant chilling effect on innovation.That such measures may be worse than ineffective— that they may even be counterproductive —becomes apparent when we dig deeper into ouranalysis of what the real “threat” to contentcompanies is.But before we discuss this threat model, we needto consider one final aspect of the issue of governmentmandates of DRM — that a governmentimposedtechnology mandate may actuallyexacerbate rather than diminish infringementproblems. Consider that when it comes to “solving”infringement problems DRM is aimed at amoving target. As circumvention tools evolve, andas new technologies pose new infringement problems,the locking of industrial sectors into a particular“standard” scheme, mediated and supervisedby government, actually slows the ability of thecontent sector to respond to new problems. Thereare fewer incentives to develop solutions that lieoutside the standard. And solutions that are developedwithin the framework of an “open” yet government-administeredstandard will take longer tobe approved and longer to find their way into marketofferings. While it is unclear that truly effectivelong-term DRM solutions can be developed in thedigital environment, certainly they are less likely tobe developed if development is constrained both byan increasingly outdated standard and by a government-approvalprocess.22
Page 1 and 2: What Every CitizenShould Know About
Page 3 and 4: AcknowledgementsThis “DRM primer
Page 5 and 6: I. A Brief Introduction To DRMand i
Page 7 and 8: What Every Citizen Should Know Abou
Page 11 and 12: II. What Does DRM Look Like?system
Page 13 and 14: II. What Does DRM Look Like?The “
Page 15 and 16: II. What Does DRM Look Like?The “
Page 17 and 18: II. What Does DRM Look Like?support
Page 19 and 20: II. What Does DRM Look Like?sion br
Page 21 and 22: II. What Does DRM Look Like?ing tel
Page 23: III. Should DRM Be ImposedBy the Go
Page 27 and 28: IV. The “Threat Model” of Unive
Page 33 and 34: V. Conclusion: Can ThereBe a “Hum

What Every Citizen Should Know About DRM, aka - Public Knowledge

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