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

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V. Conclusion: Can ThereBe a “Humane” DRM?Another part of the value of this proposal is that,even though it would be possible for a reader toget the e-book for free from some downstreamsource, there will always be readers who prefer togo to “the source” to obtain a copy they know tobe pristine, uncorrupted, and unaltered, and whowill pay a modest fee to do so. So there will be arevenue stream associated with making even copyablepublic-domain books available. The lesson thesoftware companies learned in the 1980s — theHigh Volume/Low Cost philosophy in which companiesmanage to “compete with free” in part bymaking it very affordable to buy a reliable productfrom the reliable source — is a lesson that canapply here as well.Finally, to the extent making public-domain contentavailable in DRM platforms with all the protectionsset to “off” educates the market about whois making the choices when it comes protectingthat content (the publisher, not the platformmaker), it rationalizes that market. The choice forvendors will be not between (a) doing a communityservice and promoting the platform and (b) makingmoney. The choice will be whether they are willingto hazard a business model, based on online distributionfor a modest fee of copyable copies of public-domainworks, that does both.One can even imagine that, in the long term,even those authors and publishers who want toimpose some DRM-based restrictions mightchoose different models for imposing those restrictions.We know, for example, that Microsoft andother technology vendors are developing and seekingstandard-setting for a “rights language” thatmay be applied to any digital content. If the baselinefor DRM platforms is that there are no restrictions,isn’t it more likely that such “rightslanguage” will evolve to accommodate an author orpublisher who wished to choose a different modelof rights allocation — e.g., the Creative Commonslicensing scheme. 40 (Perhaps the platform developermight actually meet with the directors of theCreative Commons project, hold a joint press conference,urge that Creative Commons licensesbecome more common — and thus more trustedin the marketplace.)Most of us believe that artists and authorsdeserve to be compensated, and even that publishersdeserve compensation for bringing them to us.At the same time, it is a natural human impulse toshare the creative works we love. (There are fewgreater testaments to this impulse than the NickHornby novel High Fidelity or the John Cusackmovie made from Hornby’s book. One of theironies of Hornby’s story is that his music-sharing,“mix tape”-making hero is also the owner of arecord store.) In the absence of a more humanevariety of DRM, these interests may be at odds withone another. It seems to me, however, that the onlypath to a more humane DRM, one in which marketforces lead to accommodations of both set of interests,is to regulate only minimally, if at all, to mandatecopy-protection technologies. And thatminimal-regulation framework has to be accompaniedby an investment by DRM designers and makersin promoting and preserving the public domain.The question before us, then, is how to harnessboth the technical ingenuity behind DRM and thehuman drive to share the works that we enjoy in away that leverages the best from both. Because it isonly by taking advantage both of human ingenuityand human nature that we will solve the problemsof maintaining the value of copyright — therewarding of creative artistic endeavor and thesharing of the fruits of that endeavor — as wemove further into a digital world.34
What Every Citizen Should Know About DRM,a.k.a. “Digital Rights Management”Selected ReadingsBooks, Articles, and TestimonyReaders who are interested in the topics of copyright,digital media, digital-rights management, and the relationshipsamong these topics as discussed in this DRMprimer may find the following selection of books, articles,and testimony to be useful starting points for readingand research.Biddle, Peter, Paul England, Marcus Peinado, andBryan Willman. “The Darknet and the Future of ContentDistribution,” 2002 ACM Workshop on DigitalRights Management, November 18, 2002Brinkley, Joel. Defining Vision: How BroadcastersLured the Government into Inciting a Revolutionin Television (Revised), Harvest Books, 1998.Craver, Scott A., Min Wu, Bede Liu, Adam Stubblefield,Ben Swartzlander, Dan S. Wallach, Drew Dean,and Edward W. Felten. “Reading Between the Lines:Lessons from the SDMI Challenge,” Proceedings of10th Annual USENIX Security Symposium, Washington,DC, August 2001.Davidson, Alan. Statement of Alan Davidson, AssociateDirector, the Center for Democracy and Technology,“Peer to Peer File Sharing and Security.” Testimonybefore the House Committee on Government Reform,May 15, 2003. Available at .Godwin, Mike. Cyber Rights: Defending FreeSpeech in the Digital Age, Chapter 7, “The BattleOver Copyright on the Net (and other IntellectualProperty Encounters).” Pp. 185-245. MIT Press, 2003.Kirovski, D., and F.A.P. Petitcolas. “ReplacementAttack on Arbitrary Watermarking Systems.” ACMWorkshop on Digital Rights Management, 2002Lemley, Mark. “Romantic Authorship and the Rhetoricof Property.” 75 Tex. L. Rev. 873 (1997)Litman, Jessica. Digital Copyright: Protecting IntellectualProperty on the Internet. Prometheus Books,2001.Sohn, Gigi B. Statement of Gigi B. Sohn, President,Public Knowledge, “Piracy of Intellectual Property onPeer-to-Peer Networks.” Testimony before the HouseJudiciary Committee, Subcommittee on Courts, theInternet and Intellectual Property. September 26, 2002.Available at.Vaidhyanathan, Siva, Copyrights and Copywrongs:The Rise of Intellectual Property and How ItThreatens Creativity, New York University Press,2001Statutes and TreatiesThe legal framework for the protection of copyrightedworks is grounded both in national and in internationallaw.The statutory scheme for the protection of copyrightedworks under United States law is the Copyright Act,Title 17 of the United States Code — specifically chapters1 through 8 and 10 through 12 of Title 17. TheCopyright Act of 1976, which provides the basicscheme for the current copyright law, was enacted onOctober 19, 1976, as Pub. L. No. 94-553, 90 Stat.2541. In the digital era, the U.S. copyright law hasbeen more frequently subject to major or minoramendment by Congress; nevertheless, a reasonablycurrent version of the Copyright Law of the UnitedStates of America and related laws contained inTitle 17 of the United States Code can be foundat the U.S. Copyright Office website at.The treaty-based international framework forprotection of copyrighted works is established bythe Berne Convention for the Protection of Literaryand Artistic Works, available at.Lessig, Lawrence. The Future of Ideas: The Fate ofthe Commons in a Connected World, Vintage, 200235
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