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

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