Law Articles

Return to Law Dictionary Index

Digital Rights Management

"Digital Rights Management" or "digital restrictions management" (abbreviated "DRM") is an umbrella term for any of several technical arrangements which empower a vendor of content in electronic form to control how the material can be used on any electronic device with such measures installed.

The name "rights management" implies that vendors can only use this technology to exercise their actual legal rights. However, nothing in DRM itself guarantees that its use will be restricted in this way. For example, DRM allows vendors to abridge the buyer's fair use rights if they choose, without providing buyers with any corresponding means of asserting them. Thus opponents have come to call the technology by the name "restrictions management."

The actual arrangements are called technical protection measures, although the distinction between the two terms is not particularly clear.
Introduction

When data is in analog form, digital management does not apply. Analog copy protection technologies are less useful to copyright holders for several reasons. It is usually easier to buy a new copy of an analog copyrighted work than to produce an equivalent copy independently. Producing an analog copy, instead of buying it, is often time-consuming, relatively expensive, and produces an inferior quality product; making the analog copy process unattractive and marginal.

Copyright holders have persistently objected to new techniques of copying and reproduction. Examples include controversies surrounding introduction of audio tape, VCR, and radio broadcast. The DRM controversy is a continuation of a long standing conflict between copyright holders and the use of any new technology for copying.

The situation changed with the introduction of digital technologies. It became possible to produce an essentially perfect copy of any digital recording with minimal effort. With the advent of the personal computer, software piracy became an issue in the 1970s. Development of the Internet in the 1990s virtually eliminated the need for a physical medium to perform perfect transfers of data (such as MP3 formatted songs).

Although technical control measures for software have been common since the 1980s, DRM is increasingly being used for 'artistic' works too. Some would like to use DRM mechanisms to control other "proprietary information", particularly trade secrets and uncopyrightable facts in databases (''see also'' database protection laws).

In contrast to the existing legal restrictions which copyright imposes on the owner of a copy, most DRM schemes would enforce additional restrictions to be imposed solely at the discretion of the copyright holder.

DRM vendors and publishers originally coined the term "digital rights management" to refer to these types of technical measures. In contrast, because the "rights" that the content owner chooses to grant are not necessarily the same as the actual legal rights of the content consumer, DRM opponents maintain the phrase "digital rights management" is a misnomer, and that "digital ''restrictions'' management" is a more accurate characterization of the functionality of DRM systems.
They often cite a famous example of DRM overreach. Adobe Systems released in 2000 a public domain work, Lewis Carroll's "Alice in Wonderland", with DRM controls asserting that "this book cannot be read aloud" and so disabling use of the text-to-speech feature normally available in Adobe eBook Reader.

In the extreme, such control is proposed to be enforced through so-called trusted computing. Opponents maintain that this creates the prospect of a computer system which cannot be trusted by its owner, because its behavior can be remotely manipulated at any time, regardless of the legal merits of such manipulation. Most opponents have little faith that the courts or legislatures will be able to limit such manipulation to only that which is legally permitted.

Several laws relating to DRM have been proposed or already enacted in various jurisdictions (State, Federal, non-US). Some of them will require "all" computer systems to have mechanisms controlling the use of digital media. (See Professor Edward Felten's freedom-to-tinker Web site for information and pointers to the current debate on these matters).

An early example of a DRM system is the Content Scrambling System (CSS) employed by the DVD Forum on movie DVD disks. It was originally developed by Matsushita in Japan. The data on the DVD is encrypted so that it can only be decoded and viewed using an encryption key, which the DVD Consortium kept secret. In order to gain access to the key, a DVD player manufacturer was required to sign a license agreement with the DVD Consortium which restricted them from including certain desirable features in their players, such as a digital output which could be used to extract a high-quality digital copy of the movie. Since the only market hardware capable of decoding the movie was controlled by the DVD Consortium, they hoped to be able to impose whatever restrictions they chose on the playback of such movies. See also DIVX for a more restrictive and less commercially successful variant of this scheme which is no longer marketed. That name is also used (DivX), in ironic tribute to the defunct disk "protection" scheme, for an implementation of the MPEG-4 video compression protocol.

To date, all DRM systems have failed to meet the challenge of protecting the rights of the copyright owner while also respecting the rights of the purchaser of a copy. None have succeeded in preventing criminal copyright infringement by organized, unlicensed, commercial pirates. Flaws of some well known systems include:

* Physical protection: Utilizes separate hardware to ensure protection. Examples include hardware dongles that had to be attached to the computer prior to using the content, and USB and smart card devices working in a similar fashion. Physical protection methods consistently failed in consumer markets due to compatibility problems and extra level of complexity in content use; however, they did enjoy limited success with enterprise software.

* DIVX: Required a phone line, inhibiting mobile use. To take a work for which unlimited plays had been purchased (called DIVX Silver) to a friend's home, it was necessary to carry a 30 lb DVD player as well as the light and compact disc; or to telephone the DIVX service and have the player of the friend transferred to the account of the purchaser of the work, and then call again to have it switched back. The system prevented certain legal uses such as the creation of compilations, by the purchaser. The system also prevented the sale or lending of purchased works, by recording the account information of the original purchaser on the DIVX Silver disk. Under copyright law, the owner of a legally-obtained copy of a work may create compilations, or re-sell the copy in the secondary (used goods) market. By using these technical measures, the DIVX system was able to thwart the buyer's right of first sale and other fair use rights. DIVX is a form of physical protection of the content (see above).

* CSS: Restricts the ability to buy DVDs in one country and play them in another, because CSS is also used to enforce Region Coding. It restricts fair use and first purchaser rights, such as the creation of compilations or full quality reproductions for the use of children or in cars. It also prevents the user from playing CSS-encrypted DVDs on any computer platform (notably Linux computers). Recently, with the advent of DeCSS and cryptographic analysis of the CSS algorithm have demonstrated flaws in this system which can be exploited to allow users to recover some of their fair-use rights. Full quality digital copies can now be easily made, making fair use by normal consumers easier. Although it has been argued that programs like DeCSS make copyright infringement easier, this system has never been effective in preventing illegal mass copying of DVDs by criminal gangs, even before the system was found to be flawed. CSS is an example of certificate-based encryption.

* Product activation: Invalidates or severely restricts a product's functionality until the product is registered with a publisher by means of a special identification (activation) code. The process often uses information about the specific configuration of the hardware on which the software runs, hashing it with the identification number specific to the product's license. Microsoft was the first company to utilize this method in its Microsoft Reader product. Activation was later used with Windows XP and then with Office XP. Ultimately, workarounds which bypassed the product activation system have been developed.

* Digital watermarking: Allows hidden data, such as a unique disc ID, to the media. The name and address of the purchaser would be taken at the location of sale, and entered into a database along with the unique media ID. This does not prevent copying, but it ensures that any copies made of the media will bear the same hidden information - So if the content appeared on (for example) P2P networks, the ID number could be easily extracted and the purchaser prosecuted.

This is not technically DRM, as it does not allow direct control over the use of the media.
Digital Millennium Copyright Act

The controversial Digital Millennium Copyright Act was passed in the United States in an effort to make the circumvention of such systems illegal. . It was passed without debate, and without even token opposition, Congress being apparently under the impression that it was a "technical" enactment, without significant public policy implication. It has been widely imitated elsewhere by other governments.

Despite the passing of this law, which has since received substantial opposition on Constitutional grounds, it is still relatively easy to find DVD players which bypass the limitations the DVD Consortium sought to impose. John Hoy, president of the DVD Copy Control Association, in testimony to the Library of Congress in 2003 stated "furthermore, if a consumer in the United States desires to view a DVD disc that has been region coded only for Europe, then that consumer is free to purchase a DVD player (either hardware or software) that is coded to play European DVDs. No legal restrictions apply – either through the CSS license or otherwise – to the importation and use of non-U.S. region players in the United States". ([http://www.copyright.gov/1201/2003/reply/028.pdf reply comments, comment 28, page 4, PDF document]).

There has been a widely publicized arrest and arraignment of a Russian programmer, Dmitry Sklyarov, for violation of the DMCA. He did the work cited for his employer, Elcomsoft, while in Russia, where it was and remains entirely legal. The product allowed those who were in possession of a password, presumably lawfully obtained along with the encrypted copy of the work, to make copies without encryption locking them to use on a single computer. Sklyarov was arrested on a criminal warrant during a lecture visit to the US, and spent several months in jail until a compromise was reached.

The ensuing criminal case against Elcomsoft (for whom Sklyarov did the work) resulted in acquittal. See Professor Edward Felten's freedom-to-tinker Web site
[http://www.freedom-to-tinker.com/archives/cat_dmca.html] for some observations on the DMCA, its proposed successors, and their consequences, intended and unintended.

The DMCA is also causing a chill in the activities of fully legitimate computer scientists. Professor Felten, of Princeton, has had difficulty publishing papers he and his students have written; they were related to a contest sponsored by a security software company inviting investigation of a product design. (See Internet postings in ''Felten v. RIAA''). Alan Cox, the Englishman who was Linus Torvalds' chief deputy throughout almost the entire first decade of the development of Linux, has resigned his position due to his concern that a criminal charge might be laid against him as a result of some code in the Linux kernel. He has even declined to post explanations of some changes made in the kernel (the changelog is fundamental to the project) because of his concern about his exposure to prosecution and penalty under the DMCA; such explanations might be seen as a DMCA "disclosure". He has also declined to attend US software conferences for similar reasons. Niels Ferguson, a Dutch cryptography expert and security consultant, discovered a flaw in an Intel security protocol, told Intel about it and was told that Intel had no objection to his publishing a paper about the problem. He has nevertheless decided not to publish due to concern about being arrested under the DMCA.

New and even more controversial DRM initiatives have been proposed in recent years which could prove more difficult to circumvent, including copy-prevention codes embedded in broadcast HDTV signals and the Palladium operating system. A wide variety of DRM systems have also been employed to restrict access to eBooks. See the TCPA/Palladium FAQ [http://www.cl.cam.ac.uk/users/rja14/tcpa-faq.html] maintained by Cambridge Professor Ross J. Anderson for a clear discussion of two prominent proposals.

Opponents of DRM, as envisioned and as currently implemented, note that by delegating control of computer access (or control of the ability to execute some programs, or to execute programs only with certain data) to anyone except the user and the machine's administrator(s), there is a very considerable risk of problems caused by such third party interference which go well beyond the enforcement of copyright.

For instance, due to a bug (or misdesign, or misadministration of an otherwise "reasonable" design) the control software (eg, in a trusted computing system) implementing the local part of a DRM scheme may prevent a computer user from using his computer at all, or from using programs (or using data as an input to a program) when such use is actually completely legitimate and not a violation of any copyright holders' rights. Or, for another example, a legally obtained copy of a DVD might be blocked because it is being used on equipment which doesn't include the DRM function permitting access to it, or which if included, doesn't interoperate correctly. Currently, DVDs legally purchased in some places are not playable in other places for exactly these reasons, although in this case it is marketing considerations, and not "security", which is the reason for the restriction. DRM provisions have already appeared in released versions of some Microsoft Windows operating system subsystems (e.g., Windows Media Player) and are scheduled in more as Palladium is implemented in currently planned, not yet released, versions of Windows.

Security protocols, software implementing security protocols, and cryptography have historically proven extremely difficult to design without vulnerabilities due to bugs or design mistakes. This has been true of designs from experienced and well respected professionals; the record is abysmally poor for those inexperienced in cryptography and security protocols.
Other copyright implications

While DRM systems are ostensibly designed to protect an author's right to control copying, this protection is only half of the bargain between the copyright holder and the state. The other half of the bargain is that after a statutorily-defined period of time the copyright work becomes part of the public domain for anyone to use freely. DRM systems currently employed are not time limited in this way, and although it would be possible to create such a system (under compulsory escrow agreements, for example), there is currently no mechanism to remove the copy control systems embedded into works once they enter the public domain, after the term of copyright expires.

Furthermore, copyright law does not restrict the resale of copyrighted works (provided those copies were made by or with the permission of the copyright holder), so it is perfectly legal to resell a copyrighted work provided a copy is not retained by the seller—a doctrine known as the first-sale doctrine in the US, which applies equally in most other countries under various names. Similarly, some forms of copying are permitted under copyright law, under the doctrine of fair use (US) or fair dealing (many other countries). DRM technology restricts or prevents the purchaser of copyrighted material from exercising their legal rights in these respects.

DRM has been used by organizations such as the British Library in its secure electronic delivery service to permit worldwide access to substantial numbers of rare (and in many cases unique) documents which, for legal reasons, were previously only available to authorized individuals actually visiting the Library's document centre at Boston Spa in England. This is an interesting case where DRM has actually increased public access to restricted material rather than diminished it.
DRM advocates

Some DRM advocates have taken the position, in essence, that DRM / security / cryptography design goals and operational contexts are sufficiently well understood, and software engineering is also sufficiently well understood and will be so practiced, that it is already possible to achieve the desired ends without causing unrelated problems for users, their computers, or those who depend on either. In essence, they claim that there is no technical, nor engineering competence problem foreseeable with such software.

Others have taken the position that creators of digital works should have the power to control the distribution or replication of copies of their works, and to assign limited control over such copies (e.g. creative commons license). Without the power to do these things, they argue, there will be a chilling effect on creative efforts in the digital space. DRM is one means by which they may gain such power.

The source of this article is from Wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.

Return to Intellectual Property

Return to Law Dictionary Index