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

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Endnotes15 The watermarks discussed in this paper are “robust” watermarks,which are designed to survive common operationssuch as data compression. Other types of watermarks are“fragile,” meaning that they are deliberately designed sothat they do not survive such operations. Fragile watermarksare useful only in conjunction with robust watermarks,and fragile watermarks are by definition easilyremoved from content, so their use cannot increase a system’sresistance to hostile attack. The idea is that if amachine detector finds the presence of a robust watermarkin the absence of a fragile watermark, it follows that thecontent has been inappropriately manipulated. But sincethe theory relies on the proposition that there is such athing as a robust watermark, we need to focus only onwhether such robust watermarks are possible.16 “Fingerprint” is a term of art that unfortunately has differentmeanings in different subareas of computer science (as wellas other areas of science, of course). Here we use the meaningcommon in discussions of digital copy protection.17 One possible use of watermarks that has been discussed is theuse of “serial watermarks” as a form of what might becalled “externally imposed fingerprinting.” For example,when a user buys a recording from a website, the downloadedfile could be uniquely marked with a subtle markreflecting not the characteristics of the music but the identityof the buyer. This measure might enable content companiesto track the source of an infringing digital copy ofthe recording found on the Internet. No scheme currentlyproposed entails the use of “serial watermarks,” so I do notcritique such a scheme here, although I note in passing thatusers may be wary of a scheme aimed at branding the contentthey experience with identifying information.18 In practical terms, this means that all content is traded inunprotected, unmarked form on the Internet today may continueto be traded, absent the sort of regime described below.19 Nevertheless, such an approach has been suggested by someadvocates of copy protection in the context of the UnitedStates’ planned transition to digital broadcast television,which is seen, incorrectly, as posing a unique threat tocopyright holders.20 The consumer markets for movies and (especially) for musichave of course endured a number of format changes. Whatmade the transitions — e.g., from VHS movies to DVDmovies, and from music LPs and cassettes to CDS — tolerablefor consumers were that they were unforced; consumersgot to choose when they would move to a newformat, and could set up their home entertainment systemsto accommodate multiple formats. This will not be the caseduring the transition to digital television in the UnitedStates because the U.S. government plans to reclaim thespectrum loaned to broadcasters during the digital transitionso that broadcasters could transmit both digital andanalog television. Once the transition is complete, analogbroadcasts will be shut off, and consumers will have to payto upgrade their equipment in order to receive broadcasttelevision content.21 I distinguish here between media forms (such as musicrecordings and television) and media formats (such asmusic CD and cassette formats, or the analog and digitaltelevision formats). Media formats may change frequently,and at a faster rate as technological advance accelerates, butnew media forms arise less frequently.22 This threat model for digital broadcast television has beensignificantly criticized by a number of participants in theFederal Communications Commission’s proceedingsregarding broadcast-flag regulation. It has been noted, forexample, that data files of digital-television content are generallytoo large to be easily transmitted over the Internet,absent file compression that reduces the quality of suchcontent. This remains true even if we assume that broadbandInternet transmission capability will continue to growsignificantly over the next decade. As has been pointed outearlier in this paper, analog television content is more vulnerableto Internet redistribution because, once digitized,its data-file sizes are significant smaller than those forHDTV program, and thus easier to transmit and receive.23 There is one exception to this rule: the demodulating devicecan only pass on content without checking for the broadcastflag, provided that it does not erase any broadcast flagthat might be present, and provided that it passes the contentthrough robust channels on only to devices which willthemselves check the broadcast flag. Since ultimately thecontent is streamed or transmitted only to devices thatcheck for the flag, we will discuss only the flag-checkingcomponent of the broadcast-flag scheme here.24 “Table A” is the name of the appendix to the broadcast-flag proposalthat lists technologies acceptable for protecting flaggedcontent. The Federal Communications Commission hasadopted the “Table A” approach, but as of November 2003no technologies had been adopted or admitted to Table A.25 A “downstream” device is, essentially, any device that does notitself contain a television signal demodulator but that canconnect to a device that either demodulates broadcast signals,or to a device that itself has received demodulated content. Inshort, a downstream device is any device that receives demodulatedcontent as the result of a digital connection — the harddisk in a TiVo personal video recorder, for example.26 The fact that the scope of devices affected by a broadcast-flagscheme is indeterminate is a key reason that there has neverbeen an inter-industry consensus favoring the scheme.27 See Scott A. Craver, Min Wu, Bede Liu, Adam Stubblefield,Ben Swartzlander, Dan S. Wallach, Drew Dean, and EdwardW. Felten. “Reading Between the Lines: Lessons from theSDMI Challenge,” Proceedings of 10th Annual USENIXSecurity Symposium, Washington, DC, August 2001.28 The FCC’s broadcast-flag report and order in November2003 takes just this approach — a “narrowed” order thatleaves many devices untouched, and that also does notaddress alternative means by which digital TV content canbe captured, such as the “analog hole.”38
What Every Citizen Should Know About DRM,a.k.a. “Digital Rights Management”29 It may be argued that consumers already know that they areroutinely surrendering private information in other contexts,such as credit-card purchases, video-on-demand orders, andso forth, so that their surrender of private information in thecontent-purchase context is at most incremental and unlikelyto trouble consumers. Nevertheless, it seems likely that atleast some consumers will be troubled by the transition from(a) a world in which content such as books, music albums, andDVDs can be purchased anonymously with cash, enjoyed,(and then resold) into (b) a world in which the content a consumerpurchases is “tethered” to that individual, known to beassociated with that individual, and can’t be resold.30 The federal Digital Millennium Copyright Act has beeninterpreted in at least one case to forbid even the disseminationof information that can be used to defeat a DRMscheme. See Universal City Studios, Inc. v. Reimerdes, 111 F.Supp. 2d 294 (S.D.N.Y. 2000). In theory, then, this verydiscussion of using felt-tip markers to defeat CD copy protectionmight be deemed illegal. A discussion of theDMCA follows below.31 See 17 U.S.C., Sec. 1201(c)(3).32 “Ripping” is the reduction of music from its native digitalformat on CD to reduced-in-size formats such as MP3.The term may also be applied to the reduction to MP3 ofmusic in analog formats, such as the tracks on LP records.33 “Burning” is the reproduction of music in compressed formats,such as MP3, to a writable CD or some otherwritable optical medium. “Burning” of music files may ormay not include re-expansion of the files into a non-compressedformat.34 Ironically enough, the unauthorized copying of current televisionshows most commonly originates as digitized copies ofanalog transmissions. Actual HDTV content, which is digital,cannot be significantly compressed without loss of thevery video quality that makes it special, which makes digitalTV content safer from this kind of infringement than isordinary analog television. Nevertheless, it is a widelyaccepted myth that digital television, merely by virtue ofbeing digital, is more subject to peer-to-peer infringementthan is analog TV content. At some level, however, contentcompanies see past this myth; hence their efforts to developmarking schemes that survive digital-to-analog/analog-todigitalconversions, or, in the alternative, to pressure devicemakers to “retire” analog technologies altogether.35 The DMCA’s notice-and-takedown provisions create a liability“safe harbor” for Internet service providers and otherswho, when given notice by a copyright holder that theirservice or site contains infringing copies of copyrightedworks, immediately take down the content in question. Thestatute also includes an appeals process for those whobelieve the works on their service or site are not instancesof copyright infringement.36 Of course, it is well documented that the recording industryhas started to bring infringement actions against parties itconsiders to be the most egregious file-trading infringers ofmusic copyrights. Whether this campaign has successfullydeterred illegal file trading is unclear. A recent PewResearch Center poll concluded that such deterrence mayhave occurred, but critics of the poll’s methodology haveargued that the data are ambiguous at best, since accuratedata would depend on respondents’ admitting to illegalactivity. See, e.g., Schwartz, John, “In Survey, Fewer AreSharing Files (Or Admitting It),” The New York Times, Jan.5, 2004. Section C, Page 1.37 Increasingly, there are efforts to design what is called “fair use”into DRM schemes — here the term “fair use” does notcarry the same meaning it carries in the Copyright Act.Instead, it signifies some degree of individual copying, in linewith what is currently considered to be fair use under Americancopyright law. Legally speaking, such design efforts cannotbe said to add up to “fair use,” since in effect they allowinstances of authorized copying — authorized, in this case, bythe copyright holder and the designers of the DRM scheme— rather than the kind of unauthorized copying that is dealtwith in Section 107 of the Copyright Act.38 Nevertheless, at least one router company has offered to buildDRM in at the router level. Outside experts remain skepticalthat such a scheme can be implemented credibly, however,and they also note that, in order to work, such a schemewould require the replacement of most or all Internet routerscurrently being used. This of course would be a boon forrouter manufacturers, albeit a cost to nearly everyone else.39 Some readers may ask at this point whether it is appropriate toallow DRM to exist at all, given the remedies that copyrightowners already possess under our copyright law. I understandand sympathize with their point. I also note, however, thatour legal system allows us to take steps in other areas to preventharm from coming to ourselves and to our interests. Forexample, we have the right to physically defend ourselvesfrom assault, even when such defenses might themselves beconsidered criminal if unprovoked, and we have the right tolock up our tangible goods in our houses, even though wealso have legal redress should we be stolen from or burglarized.Neither of these examples should be taken as analogousto the copyright bargain, whose built-in balances are unique,implicate free-speech considerations, and do not easily mapto other areas of law. Copyright, as the Supreme Court hassaid, is “no ordinary chattel.” But I think most citizens’ intuitionsabout what the copyright-law balance should includeat least some measure of self-help. Assuming those intuitionsare correct, I infer that at least some degree of DRM may beconsidered acceptable, so long as it is implemented in a mannerconsistent with longstanding copyright policy and withthe First Amendment.40 Creative Commons licenses allow artists and authors tomake their works available on terms more favorable toreaders and viewers of the work than copyright law provides.At the same time, these licenses enable artists andauthors to maintain some degree of control over the use oftheir works. For more information about these licenses,and about the Creative Commons Project generally, see39
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Page 3 and 4: AcknowledgementsThis “DRM primer
Page 5 and 6: I. A Brief Introduction To DRMand i
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Page 11 and 12: II. What Does DRM Look Like?system
Page 13 and 14: II. What Does DRM Look Like?The “
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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 and 24: III. Should DRM Be ImposedBy the Go
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Page 27 and 28: IV. The “Threat Model” of Unive
Page 33 and 34: V. Conclusion: Can ThereBe a “Hum
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