DRM is another little pet interest of mine, and I really felt that this session gave a complete overview from very different sides of a very complicated topic. I mentioned before that this session was rudely interrupted, it is too bad, I think it's one of the best I attended. Fair warning, lots of notes from this one!
Panelists
Kristin Eschenfelder, University of Wisconsin-Madison
Kevin L. Smith, Duke University
Bill Burger, Copyright Clearance Center
John Sullivan, Free Software Foundation, Inc.
Kristin Eschenfelder - Can I Email This?
This presentation discussed restrictions found in licensed digital resources from a library or archive perspective. Libraries are very concerned with digital rights management, on one side they want to preserve items, make it accessible, and continue to serve their patrons effectively. The complicated side of the picture is that archives and special libraries are interested in using DRM themselves, they want to make things available, but they might not want it available for everyone in the world. Examples would be maps of archeological sites, and endangered species locations. She exclaimed that there has always been a "gatekeeper" function in libraries and archives. The ironic side of this issue is that libraries are interested in DRM to "expand access." Patrons can now use the information without having to travel to a remote location to do so. One example is that New York Public Library has a collection of dance and performance videos that are digitized, but because of copyright issues they are only available inside the library. They are interested in using DRM to make the collection available to other libraries in remote locations or for satellite viewing.
So what counts as DRM anyway? At first she started with a very limited mental model that extended from consumer media, these are what she calls "hard technology use restrictions." These technologies prevent you from saving, emailing, and printing and there's no obvious work around for them. There's many examples of these in library literature including audiobooks and some subscription databases. What she found was that there are a lot more "soft technology DRM uses". These types of DRM will discourage use, but they don't flat out restrict it. Some of this is accomplished by inconvenience, but some workarounds can be more obvious. These are more prevalent in electronic products right now, and some may not even count these restrictions as DRM. She also mentioned that if you don't limit DRM to the technology itself there are a lot of policy and law based use restrictions including license terms, our own expectations and understandings (which may vary in communities in practice), and cultural norms.
She gave examples of various soft restriction types:
- Publishers who use an "extent of use" protection measure, which is blocking extensive or suspicious extent of use, monitors batch sizes, and blocks IP addresses.
- Restriction by Frustration, or content chunked out. Users may only see a certain amount of information per page and there is no convenient way to print or email. NetLibrary is famous for this.
- Obfuscation, or when the interface does not adequately advertise or use functionality. They're not sure if this is just bad interface design or if it's intentional.
- Omission, or user functions are only possible through browser or operating system tools. This tends to be confusing for users.
- Decomposition, or the hybrid nature of html content makes saving, emailing, or transferring content difficult. A normal user isn't going to know how to manage the "html bundle" of files and it is difficult to know if publisher intention again.
- Threat, or declarations in the form of EULA or popups to discourage users.
Kevin L. Smith, Mitigating the Effects of DMCA Anti-Circumvention Rules
Kevin gave an excellent overview of the legal aspect of DRM. I did a huge research paper with DRM so a lot of these were not new to me, but with such a complicated topic it's always good to go through these again.
The Digital Millennium Copyright Act (DMCA) does define DRM as "technological measures that effectively controls access." This definition is not very helpful. The copyright law was set up as a sort of self-help. He gave an example of you putting up a fence to protect your flower bed from intruders. Copyright law is a form of "fence" or a way to enforce rights directly without having to rely on the law. But what he said about DRM is that we've turned back to the law to enforce the "fence."
There are instances where we're required to use DRM measures, the TEACH Act is one of them. The Act states that you "must use technological measures to reasonably prevent retention and downstream dissemination."
Kevin talked about the DMCA and its legal protections. It is illegal to circumvent technological measure, except under specific exceptions:
- Encryption for Research
- For Libraries (but limited)
- Law Enforcement
- Privacy
A lot of these are unclear and not very helpful though. There is an authorization for other exceptions called "rule making", which is determined by the Library of Congress, but this again has some limitations, one being the exceptions only last 3 years. Other provisions of the DMCA include forbidding "trafficking" in circumvention technology, or selling DRM circumvention technology is illegal, and other rights remedies, limitation, or defenses to copyright infringement are not affected, including fair use.
There are problems with DRM in Higher Education including use of databases of public domain material. It is ok for vendors to use DRM to protect their product, even if the content is in the public domain. If a professor would like to create a film clip compilation in a classroom situation, the use is fair, but they can't do it if it means circumventing DRM. Software available to convert DVDs to digital files may not inform users when circumvention occurs (an example is HandBrake). Use of foreign DVDs may be impossible due to region codes (although it's not clear if foreign codes fall under DMCA), and legally purchased music may not play on classroom equipment.
Then he went through mitigation in the three branches of government:
- Executive Branch
- Library of Congress' "rule-making" every three year, which he said actually gets done.
- Six exceptions were created in 2006 including one for film where media studies professors can create film clips compilations for classroom use.
- But what this does not include is:
- K-12 Education
- All Subject Libraries
- All Legally Obtained Copies
- The reason why this is so narrow is because the decision was made based on one compelling story by one individual.
- We need to tell better stories.
- Legislative Branch
- FAIR USE Act of 2007, introduced in February 2007 and died in committee.
- This would have added more exceptions
- Right for Compilations
- Right to Circumvent for Fair Use
- Right to Circumvent for Preservation in Libraries
- Access to work of Public Interest for Criticism, Scholarship, reporting or search.
- Essentially this would have put fair use back into anti-circumvention rules.
- Judicial Branch
- Paper "Fair Circumvention" Timothy K. Armstrong
- Courts should not only read fair use back into DMCA but use same factors to analyze any circumvention situation.
- Paper "A Reverse Notice and Takedown Regime To Enable Fair Uses of Technically Protected Copyrighted Works" by Graeme B. Dinwoodie
- The user would inform the rights holder of intent to circumvent for a specified purpose.
- The rights holder could object, or not, if there is an objection the user could ask the courts to decide.
Bill Burger - DRM: Digital Rights Management or Digital Restrictions Management?
Bill is from the Copyright Clearance Center so he gave some background about this organization. They were created in response to the rewrite of the copyright act in 1976 and as a suggestion of Congress to have an organization handle permission and licensing between rights holders and users. Academic licensing only accounts for 10% of their revenue. Their mission is to work as an intermediary, to make it easy for content users to "do the right thing", and they are not the "copyright cops". They try to meet the needs of their constituents. They can be found at Copyright.com.
Copyright allows rights holders to control a number of things. He defined DRM briefly, but that was already done so he talked about the CCC's views on DRM. The CCC makes no use of DRM. They feel it typically stands in the way of both repertory and spontaneous pay-per-use licensing. Many of their customers are frustrated by it and therefore they are not advocates, but they do understand what it is being used.
We live with DRM everyday, he gave examples of Apple FairPlay, ebooks, Amazon Kindle, DVDs with Content Scrambling System, Blu-Ray with Advanced Access Content System. He said we "swim in an ocean of DRM."
Content users want convenient access to information, the ability to use and share information. They do not want to be bound by formats and devices, and they want a reasonable, understandable pricing system with few of no hassles.
Copyright holders want to protect their intellectual property, keep control over distribution, and to be compensated for the use of their content. They want to produce materials for catering to their customers' needs to to understand how their content is being used.
Pro DRM people want to limit piracy, allow for digital distributions of high-value content, and protect the integrity of the content. DRM is necessary to encourage the transition of publishing from print to electronic. Without DRM, publishers will be less likely to make that transition.
Those against DRM see it as a huge hassle, and a technology that is easily hacked. DRM punishes your best customers and can be a crutch to avoiding more progressive business models. DRM can be anti-competitive (take iTunes for example) and it slows technological innovation. DRM also undermines Fair Use rights.
John Sullivan - DRM: Digital Rights Management or Digital Restrictions Management?
John was last to speak from the Free Software Foundation, he gave some background on the foundation. FSF is an advocacy group, they believe that users should have the following freedoms with software:
- Run the program
- Study the program
- Look at the source code
- Improve the program
- Make and share copies
- Share modified versions with others
Their license will tell you what you can do with the program, not what you can't do. It is part of a community and a movement and open source is a branch of this. We encounter and use a lot of free software including Apache, Firefox, OpenOffice, and HandBrake.
The FSF treats DRM as an ethical and social problem rather than a bad business model. They created the group DefectiveByDesign which has targeted companies like Apple, Microsoft, Amazon, Sony, Netflix, Warner Music, BBC, EMI, and the Boston Public Library.
DRM makes us insecure which is why they treat it as a social problem, rights holders make us install software on our computers to access content. This software is proprietary and most of the time "phones home" to the company that controls the rights. The software is essentially spyware, and users are often not aware of what it is doing. He also discussed non-traditional computers like the iPhone, which he mentioned that at least with a windows computer you can install what you want, with an iPhone the applications are approved by Apple. It is a walled garden with restrictions and we lose the freedom to develop.
DRM also destroys copyright terms. Media formats are enforced independently outside of copyright, an example of this is the US Constitution on the Kindle or the 9/11 Report in a PDF where you can't copy and paste out of it. It also restricts free speech, like the DeCSS code on a t-shirt.
So this is basically where his presentation was forced to end due to a rude interruption from one of the conference organizers. It's too bad, this was an excellent presentation and I enjoyed the many different angles of it. It's such an important topic too.
