This assignment is meant to give you a broad overview of what Digital Rights Management (DRM) is, how it is enforced in the legal system through the Digital Millenium Copyright Act (DMCA), and what effect it has on the usage of copyrighted digital works. Throughout the assignment there will be questions highlighted in yellow. Be prepared to discuss your thoughts about these questions during the seminar. Throughout the assignment, also keep in mind the Constitutional basis of copyright law from Article I, Section 8, Clause 8:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Background
Digital Rights Management is the term used to describe measures taken to limit access to digitally stored copyrighted material through software, hardware, and other means.
- Read the "Introduction" and "Technologies" sections of the Wikipedia Article about DRM for a quick overview of the topic.
- Read 17 U.S.C. § 1201 (Circumvention of copyright protection systems, part of the DMCA) as well as 17 U.S.C. § 107 (Fair Use)
- Read Congressman Zoe Lofgen's keynote about DRM from the Berkeley DRM symposium in 2003.
- The DMCA carries criminal and civil penalties. Read about the first conviction on DMCA criminal charges. Do you think that copyright circumvention should be a criminal offense? In what circumstances?
A Brief Tour of DRM Implementations
- Physical Discs: Read the Wikipedia Article on the Content Scramble System as well as the Advanced Access Content System used for Blu-Ray discs.
- iTunes/FairPlay: Read the Authorization and Deauthorization Info and the iTunes Plus FAQ from Apple support. Should people be forced to pay to upgrade music from DRM-protected to DRM-free? Are the two really separate products?
- Streaming Video: Hulu is a year-old joint venture between NewsCorp (FOX) and NBC/Universal that allows people to watch TV shows and movies (both clips and full episodes) online for free with unskippable commercial interludes. Despite much early skepticism, the site has become very popular and won over many critics.
- Electronic Books: Read the future posited in 1997's Right to Read (and the 2007 Author's Note) and think about the similarities and differences between it and the DRM measures actually placed on electronic textbooks.
- Broadcast: DRM applies not only to content purchased online, but any kind of digitally transmitted or stored content. The Broadcast Flag allows broadcasters to mark certain programs as 'unrecordable' by digital recording devices such as TiVo. Read the statements of the FCC commissioners (starting at page 65) of the ruling implementing the broadcast flag and the court decision overturning it in ALA v. FCC. The broadcast flag is still being supported in many devices and is also being lobbied to become legislation. Optional: Learn more about the Broadcast Flag by exploring the EFF Issue Page.
Opposition to DRM/DMCA
Many individuals and groups are opposed to DRM for a variety of reasons. Below are links to groups, papers, and other resources opposing the use of DRM and the DMCA.
- Read the overview of the EFF's position on DRM as well as this 2002 EFF article about Fair Use and the DMCA. Think about the sections of the U.S. Code you read earlier. Do you think that the DMCA inherently undermines the concept of fair use?
- Visit Defective by Design, an organization attempting to spread awareness of the downsides of DRM (and the source of this page's background image). Optional: Explore more of the DRM opposition organizations by visiting some of the 'Anti-DRM Resources' in the right sidebar of Defective by Design.
Scandals and Litigation
Digital Rights Management has spawned a number of court cases and public scandals with copyright holders both as plaintiffs and defendants.
- RealNetworks v. DVD-CCA: RealNetworks released software intended to allow consumers to back up their DVD collection to their computer digitally while still preserving the Content Scramble System. The studios filed suit claiming 17 U.S.C. § 1201 violation and RealNetworks countersued asking for the software to be declared legal. Read the complaint of the studio and the complaint of RealNetworks.
- Thomas v. Electronic Arts: The video game publisher Electronic Arts is now subject to a lawsuit over the SecuROM DRM software that is installed with the new game "Spore." Read the claims of the lawsuit here. Sony recently settled similar litigation out of court. What kind of information and consent should be provided with DRM schemes? Should such disclosures be regulated?
- The "processing key" protecting Blu-Ray discs was discovered and posted to the internet. Many sites tried to censor this information from being posted only to spark a user revolt. Read this InformationWeek article about the Digg Rebellion.
- Read this amicus brief questioning the constitutionality of the DMCA filed by 46 law professors working with the Electronic Frontier Foundation.
Future
DRM has been under heavy fire since its inception. With more DRM-free content distribution points such as Amazon MP3 and even Wal-Mart opening each day, it seems that some content providers may be backing down in the face of criticism. Others, however, are still trying to find new ways to protect content without enraging consumers. Read this Reuters article about a planned new DRM standard. Does DRM have a future, from a business or legal perspective?