January 9, 2003DRM Workshop1 DRM {and, or, vs.} THE LAW Pamela Samuelson Berkeley Workshop on...

January 9, 2003 DRM Workshop 1

DRM {and, or, vs.} THE LAW

Pamela Samuelson

Berkeley Workshop on Proactive DRM Agenda,

January 9, 2003


OVERVIEW

• Different ways to perceive the relationship between DRM and the law

• Pre-DMCA rules pertaining to DRM• DMCA rules and caselaw• Hollings and mini-Hollings bills• Public vs. private legislation through

standards• Consumer protection proposals


AND/OR/VS.

• DRM as copyright enforcement mechanism (and)• DRM as an alternative mechanism to copyright

law (or)– code as code– standard-setting processes as alternative to law

• DRM as a means to override the law (vs.)– way to override fair use, 1st sale, public domain

• Law as a means to control DRM (e.g., require privacy protection) (a different species of vs.)


PRE-DMCA LEGAL FRAMEWORK

• Vault v. Quaid: not contributory infringement to make “Ramkey” to spoof “Prolok” copy-protection software because of substantial non-infringing uses to make back-up copies

• Some specialized anti-circumvention rules (e.g., black-box cable and satellite decoders, EU software directive)

• Computer Fraud and Abuse Act has some implications for legal protection of DRM


AHRA AS DRM MANDATE

• Digital audio tape machines perceived as threat to sound recording industry

• Consumer-grade DAT machines must have SCMS chips built in which enable personal use copying but copies of DAT copies degrade

• “Tax” on machines and tapes go to royalty pool for copyright owners

• Anti-circumvention provision: illegal to make or distribute technology, primary purpose or effect of which is to circumvent SCMS

• RIAA v. Diamond MM: AHRA doesn’t apply to MP3


STANDARDS AS MANDATES

• Consumer electronics and motion picture industry agreed on Content Scramble System (CSS) as standard DRM-like technology to be installed in DVD players and disks

• Need license from DVD CCA to make DVD player because of patents

• Installation of CSS and various security measures (including anti-RE clauses in end user licenses) are conditions of DVD CCA licenses


1995 WHITE PAPER & WIPO

• Widespread use of technical protection measures (TPMs) for distribution of digital content via the NII was anticipated

• WP advocated legislation to protect technical measures and copyright management information

• Similar proposals made to WIPO for copyright treaty

• WIPO treaty requires “adequate” protection and “effective” remedies vs. circumvention of TPMs


DMCA ANTI-CIRCUMVENTION RULES

• (a)(1)(A): Illegal to circumvent a technical measure copyright owners use to control access to their works

• (a)(2): Illegal to make/distribute tool to circumvent access controls

• (b)(1): Illegal to make/distribute tool to bypass other technical measures used by copyright owners to protect rights in works

• No counterpart to (a)(1)(A) for bypassing copy controls (compromise to enable fair uses?)


1201(a)(1)(A) EXCEPTIONS

• (Relatively) meaningful exceptions:– achieving program-to-program interoperability– encryption research & computer security testing– law enforcement/national security

• Other (unmeaningful) exceptions: – library/nonprofit “shopping” privilege– privacy protection– parental control

• 1201 (c)(1) ambiguous about fair use preservation• LOC rulemaking to make new exceptions


OTHER DMCA RULES

• 1201(k): mandate Macrovision TPM in VCRs• 1202 protects the integrity of “copyright

management information” from alteration/removal• 1203 gives broad remedies to successful plaintiffs

(injunctions, statutory damages, etc.—even if no actual infringements!)

• 1204 makes willful violation of 1201 or 1202 for profit/financial gain a crime: – up to $500K fine for 1st offense, up to 5 yrs in jail– up to $1M for 2nd offense & up to 10 yrs in jail


EU DIRECTIVE

• In most respects, it’s more restrictive than DMCA– Bans all acts of circumvention

– Broad ban on circumvention technologies very similar to DMCA (but reaches possession as well)

– No exceptions to anti-act or anti-tool rules

– No LOC-type rule-making processes

• Arguably better in requiring member states to ensure that copyright owners enable users to exercise certain copyright exceptions


UNIVERSAL v. CORLEY

• 1st major DMCA anti-circumvention case• Movie studios persuaded courts to enjoin Corley,

a journalist, from posting and linking to DeCSS in source or object code form on 2600 magazine website under 1201(a)(2)

• DeCSS was primarily designed to bypass CSS which the court ruled was an access control

• Statutory and constitutional defenses rejected


CONSTITUTIONAL CHALLENGES

• Second Circuit rejected several constitutional challenges to DMCA in Corley– Source & object code are 1st A protected but

functionality limits extent of protection

– DMCA satisfies intermediate scrutiny

• 2d Cir. did not rule on the I/8/8 challenge• What the Supreme Court does in Eldred will have

considerable significance for future constitutional challenges to DMCA or to DRM mandates


OTHER DMCA CASES

• Sony v. Connectix & Bleem: emulation programs said to bypass PlayStation game TPMs

• Sony v. Gamemaster: game enhancer software violated DMCA because bypassed country code (gave Sony control over complementary products & stopped competition w/ Sony’s game enhancer)

• RealNetworks v. Streambox: enjoined “VCR” that bypassed RN authentication procedure & allowed personal use copies of streamed content


OTHER DMCA CLAIMS

• Felten v. RIAA and Edelman v. N2D2 challenged claims of DMCA violations by researchers

• US v. Elcom: jury acquitted maker of software to bypass Adobe e-book reader

• Blizzard v. bnetd: open source emulation program enabled users to form private game network; RE as circumvention; program as circumvention tool

• Lexmark v. Static Controls: maker of printers and toner cartridges installed software access controls to protect toner cartridges from competition


DVD CCA v. BUNNER

• Trade secret misappropriation case• DVD CCA licensor of CSS as part of DVD player

license; requires installation of anti-RE clauses• Claim that Johansen misappropriated TS when

reverse engineered CSS in violation of anti-RE clause of click-license, & developed DeCSS which embodies/is substantially derived from TS

• Bunner posted DeCSS on website when knew or should have known was based on stolen TS

• 20 other named defendants; 500 “John Does”


MORE ON BUNNER

• Superior Court issued preliminary injunction vs. posting DeCSS in source or object code form

• Only Bunner appealed; Court of Appeal reversed on 1st A grounds (DeCSS in source code form = 1st A speech; prelim injunction as prior restraint)

• Cal. Supreme Court took DVD CCA’s appeal; argument not yet scheduled

• Hopeful signs: 4-3 decision in Pavlovich as to no jurisdiction; acquittal of Johansen (if his RE was lawful in Norway, no TS misappropriation?)


LOC RULEMAKING

• Purpose: to consider whether 1201(a)(1)(A) is having adverse effects on noninfringing uses of certain classes of works

• LOC given power to issue rules, in effect, creating new exceptions to 1201(a)(1)(A)

• Results of 1st rulemaking: OK to circumvent broken access control, OK to circumvent to analyze filtering software

• 2nd rulemaking underway: submissions by 50 individuals or organizations


LEGISLATIVE INITIATIVES

• Hollings bill (Consumer Broadband & Digital Television Promotion Act)

• Mini-Hollings bills (e.g., Tauzin broadcast flag mandate bill; FCC rulemaking)

• Biden anti-counterfeiting bill• Boucher/Doolittle bill• Lofgren/Honda bill• Digitalconsumer.org joint resolution


HOLLINGS BILL (S. 2048)

• Consumer Broadband & Digital Television Promotion Act• Makers of digital media devices, copyright owners, &

consumer groups would have 12 mo. to reach agreement on standard security measures to be installed in devices

• FCC to issue rule to require installation in all devices• If no agreement, FCC will choose security standard

anyway & mandate it in digital media devices• Illegal to make or provide digital media device w/o SSM• Also illegal to remove/alter SSM• Criminal as well as civil penalties (same as DMCA)


ARGUMENTS FOR MANDATED DRM

• Digital content (e.g., music, movies) won’t really be secure until DRMs in all digital media systems (including general purpose computers)

• Computer/software industry has resisted “voluntary” standards on DRMs

• Mandating DRMs is the only way to ensure they won’t be competed away

• Broadband deployment arguably hindered by threat of “piracy,” so stronger legal protection is necessary


REASONS TO OPPOSE

• Would prevent many beneficial uses of IT • Would add expense to IT systems• Would undermine system performance• Would retard innovation & investment in IT• May make systems more vulnerable to hacking (one virus

might take down all systems)• Likely to mean no Linux-based enterprise systems (if

DRM can’t be implemented royalty-free)• The government & content industry shouldn’t dictate how

the IT industry builds its products


“MINI-HOLLINGS” BILLS?

• Hollings bill has no immediate chance of passage– But it is what entertainment industry really wants

• Likely to be a series of “mini-Hollings” bills– Broadcast flag likely to be the first of many– 2 “precedents”: AHRA for DAT; DMCA for VCRs– Death by 1000 cuts: once tech mandates for several

devices, Congress might as well mandate generally

• Will rearchitecture of the Internet be next (so content cannot be transmitted unless copyright clearance assured)?


OTHER DRM-RELATED DEVELOPMENTS

• Hollings bill aims, in part, to induce “voluntary” standards

• Various other standard-settings processes ongoing, such as those to standardize on DRM languages (e.g., OASIS Rights Language Technical Committee on which EFF and Boalt clinic have been working)

• Palladium and the Trusted Computing Alliance (TCPA) are important DRM-enabling developments


PRIVATE v. PUBLIC ORDER

• DRM enables “private ordering” – Virtues may include flexibility, new business models, better

protection of digital content– But public order values, such as fair use and privacy, may

be casualties of private ordering– Is a struggle to articulate user rights worthwhile if licensors

won’t use the RL to express them?

• “Public choice” problems can exist in standard-setting organizations as well as legislatures

• But it is possible for standard-setting organizations to take public order values into account


HR 107 (Boucher/Doolittle bill)

• Require adequate labeling of copy-protected CDs (warning: may not play on device of your choice or allow space-shifting onto your hard drive)

• Reforms to DMCA:– OK to circumvent if no infringement occurs

– OK to make tool to enable fair and other significant non-infringing uses

– OK to circumvent and make tools for scientific research (not just for encryption research)


HR 5522 (Lofgren-Honda bill)

• Fair use applies to analog or digital transmissions• Right to make backup copies, display copies• Mass-market licenses for digital content can’t

override user rights• Allow first sale rights for digital copies• Reforms of DMCA:

– OK to circumvent DRM to make fair uses– OK to make tools necessary to enable lawful

circumventions


CONSUMER BILL OF RIGHTS

• Digitalconsumer.org has articulated “bill of rights”– Right to “time-shift”

– Right to “space-shift”

– Right to make backup/archival copies

– Right to use on platform of your choice

– Right to transform format

– Right to use technology to accomplish these rights

• HJR 16 would affirm these as “sense of Congress”


CONCLUSION

• DRM has a complex and ambiguous role vis-à-vis the law (and vice versa)

• Trend of past few years has been to rely upon law to protect DRM

• Public interests at stake in DRM not well-represented in legislature & policy arenas

• Proactive DRM agenda by public interest community may be worth considering

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