Going Beyond Copyright – DRM and Tech Mandates
Digital technology has been a great boon for artists allowing them to break free from the stranglehold of traditional models of distribution. But many content owners are concerned that this technology may be used as a tool for infringement. To counter this perceived threat, copyright owners have turned to technological means to prevent the recording and transfer of digital content. However, these means operate outside the confines of traditional copyright law, thereby bypassing doctrines such as fair use which are central to copyright law.
DRM
The DMCA's ban on Circumvention
In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) which prohibits the circumvention of Technological Protection Measures (TPMs). These anti-circumvention provisions are codified in section 1201 of the copyright statute. TPMs are digital locks encoded in content in an attempt to control access to copyrighted works. For example, the code on an iTunes file or a DVD that keeps you from copying it is a digital lock. While there are programs available that can strip these files of their TPM code, it would be a violation of section 1201 to circumvent the encryption placed on a DVD or an iTunes track. This ban on circumvention applies even when the copy made is completely legal. What’s more, the law reinforces this by prohibiting the marketing or distribution of devices and software that allow for circumvention of access controls and digital locks. Because of this prohibition, movie critics will never be able to legally post a clip or excerpt of a protected movie online. Likewise, anyone who watches a protected movie or time-shifts using a Linux-based machine will be in violation of section 1201.
As more and more technologies move to digital platforms, uses that are fair in the analog world will no longer be possible if copyright owners continue to use TPMs. For example, devices that allow streaming media to be time-shifted may never emerge. A company called Streambox introduced a product that would do just that and was promptly sued by RealNetworks. RealNetworks successfully obtained an injunction against the marketing of this technology.
Exceptions to the Circumvention Ban
There are a few narrow exceptions to this circumvention ban, including circumvention by law enforcement authorities, circumvention to achieve interoperability, and circumvention for the purposes of encryption research. In response to concerns that the blanket ban on circumvention would prevent circumvention for fair uses and lawful uses, Congress included a provision in section 1201 that requires the Librarian of Congress to conduct a rulemaking once every three years and to exempt certain classes of copyrighted works from the prohibition with respect to specific users who are adversely affected by it.
However, the triennial rule making proceedings have thus far failed to provide digital consumers the necessary relief from section 1201’s restrictions on fair use. The first flaw in the rulemaking proceeding is that it applies only to the prohibition on circumvention and not the prohibition on marketing tools that allow circumvention. As a result, an individual user who gets the right to circumvent – if he lacks the technical ability to do so himself, will not be able to legally buy the tools that would allow him to circumvent. Second, the rulemaking proceedings themselves are conducted in a manner that makes it very difficult, if not impossible, for consumers to obtain any relief. The process for requesting an exemption is extremely complicated.
Section 1201 in Action
The restrictions against circumvention contained in section 1201 of the DMCA are made even worse by the fact that they have been used in ways not intended by the statute, in order to repress free speech and scientific research. For example, in 2000, a multi-industry group developed what it called the SDMI (Secure Digital Music Initiative) to protect digital music. In order to demonstrate the robustness of SDMI's technology, the group invited the public to discover flaws in the SDMI watermarking system. Edward Felten, a Princeton University computer science professor, did just that but when he and his team attempted to present their findings at a conference, they were threatened with a DMCA lawsuit. This threat was withdrawn only after the researchers filed a countersuit.
The DMCA has also been used to threaten competition and innovation. For example, Apple has used threats of DMCA lawsuits against RealNetworks, which developed a technology that would allow DRM restricted music to be downloaded on Apple’s iPod from RealNetworks' download store. DMCA threats have also been used to prevent the unlocking of cell phones that are tied to a particular carrier’s network.
Reform Proposals
Because of its numerous flaws, several proposals have been made to alter section 1201. Some, including Public Knowledge have proposed that section 1201 be amended to allow circumvention of TPMs and the manufacturing and distribution of circumvention tools where these would facilitate lawful uses. In addition, these proponents have suggested that copyright owners should be required to provide a notice to users about any technological or contractual limitations on their ability to make fair and lawful uses of their products. This would allow a consumer to decide whether or not to purchase the product with full knowledge of its limitations. Failure to notify should be considered a defective or unfair trade practice and should serve as a defense against a claim under section 1201. Also, failure to notify should invalidate any licensing restriction.
Tech Mandates – Broadcast Flag and Audio Flag
Section 1201 of the copyright statute does not require copyright owners to use TPMs to protect their content. It also does not require devices to support the TPMs used by content owners. In the case of most DRM, such as Apple’s “Fairplay” or the DVD Copy Control Association’s CSS, copyright owners and device makers negotiated privately to create devices that responded to DRM. Despite this fact, content industries, represented by groups like the RIAA and the MPAA, have pushed for administrative rules and legislation that would mandate that devices respond to TPMs.
The Broadcast Flag
The FCC's Broadcast Flag Rule
The so-called “Broadcast Flag” is a technology mandate supported by the motion picture industry that would embed an imperceptible flag in all digital television transmissions. In other words a code would be embedded in a TV broadcast. Devices would have to respond to this signal by limiting redistribution of the flagged content. The FCC promulgated a broadcast flag rule in 2003, at the behest of the MPAA. Public Knowledge challenged this order in federal court and on May 6, 2005, the D.C. Circuit Court of Appeals held that the FCC had no jurisdiction to issue the broadcast flag rules.
Attempts to Pass Broadcast Flag Legislation
Although the court overturned the broadcast flag rules, the underlying issue is far from dead. The content industry has continued its efforts to impose the broadcast flag, among other technology mandates. In 2006, Senator Gordon Smith of Oregon introduced the Digital Content Protection Act, which would not only ratify the FCC’s broadcast flag rules but would also extend similar restrictions to digital radio broadcasts i.e. mandate an audio flag. A similar bill was introduced in the House in 2005. Although neither of these bills have passed into law, attempts to introduce similar legislation are likely to continue.
Problems with the Broadcast Flag
The broadcast flag would have injected the government into technological design – a role the government is not well-suited for. The FCC would have been granted the ability to approve or deny the sale of television sets, computer software, DVRs, mobile phones, game consoles and other similar devices in the US, based on whether or not the product in question was broadcast flag compliant.
What’s more, the broadcast flag would have increased the cost paid by the consumer by making a number of consumer electronics devices obsolete. And since flag-compliant devices would not be compatible with non-flag-compliant devices, lawful uses would be prevented. For example, a consumer would not be able to record an over-the-air local news broadcast on a broadcast-flag compliant DVR in her living room and play it back on a non-compliant player in her bedroom. A university would not have been able to use digital TV video clips for educational purposes. A student would not be able to email herself a copy of a project with video content because no secure system exists for email transmissions.
Audio Flag
The audio flag is the broadcast flag’s radio equivalent. In March 2006, Rep. Mike Ferguson introduced the “Audio Broadcast Flag Licensing Act of 2006”. This bill went a step further than the FCC’s broadcast flag rules. The bill would have prevented not only the digital distribution of content but also “unauthorized recording”. If this bill had passed, consumers would not be able to hit the record button while listening to broadcast music and would not be able to listen to recorded songs in the order of their choice. In many ways, an audio flag regime would have posed the same dangers to consumers that a broadcast flag regime would have.
Conclusion
Copyright owners may have a right to take self-help measures such as applying TPMs to their content. However, when the law backs these measures with sanctions for circumvention (as section 1201 of the copyright law does) or requires third parties like broadcasters to embed flags in their signals to protect content, it makes legal uses and activities – like home recording - illegal. Section 1201 and rules like the broadcast flag impose prohibitions on any kind of borrowing despite the fact that culture develops through dialogue. This happens when people criticize existing works, use them in new works, or use them to educate future artists. As such section 1201 and technology mandates like the broadcast flag do a great disservice not only to users but also to artists.