Digital Rights Management and the secret war against your Fair Use rights

by Sasha Meinrath, Digital Communities

A massive secret war on consumers' rights to make legal use of audio, video, print, and other media is being waged. This battle, under the ironically titled rubrics of “Digital Rights Management” (DRM) is part of the ongoing battle to more fully commoditize previously free media use and exact additional control over copyrighted material and extract additional profits from media consumers. This article documents some of the changes surrounding copyright and focuses on the increasing use of Digital Rights Management and decreasing freedom all of us face.

A Brief History of US Copyright

Article I, Section 8, Clause 8 of the United States Constitution states that Congress shall have power, “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.” Thus enshrined, the goals of copyright were, first and foremost to “promote the progress of science and the useful arts” through the use of copyright. Copyright was originally 14 years with a 14-year extension possible upon petition – granting a total potential period of 28 years. This term was changed only once in the first hundred years of US history – expanding initial copyright from 14 to 28 years in 1831. It was not until 1909 that Congress once again extended Copyright – this time extending the renewal term from 14 to 28 years (for a total potential copyright period of 56 years).

However, the past 45 years have seen an unprecedented explosion of copyright extensions. As copyright critic and Creative Commons founder, Lawrence Lessig writes in Free Culture, since 1962, “Congress has extended the terms of existing copyrights; twice in those 40 years, Congress has extended the term of future copyrights. Initial the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by 19 years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the terms of existing and future copyrights by twenty years.” The 1976 extension also eliminated the need to file a renewal for copyright, and after 1978, all copyrighted materials received the maximum term possible. Since over 85% of copyright holders never filed for extensions, this meant that the average copyright period went from roughly 32 years before 1976 to a mandated period of 95 years today.

In a nod to the Constitution's original intent to “to promote the progress of science and useful arts,” the Copyright Act of 1976 also mandated important limitations for copyright: “The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The Audio Home Recording Act of 1992 (AHRA) further expanded fair use rights, declaring: “No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.” As the Senate report on AHRA further clarified, these exemptions are meant to cover any use “not for direct or indirect commercial advantage.”

Regardless of the massive copyright extensions we have witnessed in the past several decades, between the 1976 and 1992 Acts, it would seem then that many noncommercial and private use of copyrighted materials, and most educational and research uses of these materials are a part of the fair use doctrine. While many people question the elimination of the renewal requirement of copyright, the increase from a 14-year initial period to an automatic 95-year copyright coverage, and the difficulties in promoting “science and the useful arts” when the last year that works were fully in the public domain was 1923, an even more insidious undermining of fair use has been quietly infiltrating fair use for the past decade.

The Digital Millennium Copyright Act

In response to massive lobbying efforts from copyright holders (e.g., MPAA, RIAA, NAB, ASCAP, BMI, SESAC, Disney), Congress passed the Digital Millennium Copyright Act of 1998 (DMCA). Among the myriad protections afforded to copyright holders, the DMCA criminalized the production and dissemination of technologies, devices, or services that could be used to circumvent control access to copyrighted works (AKA digital rights management) and also criminalized the act of circumventing an access control – even when there is no infringement of copyright itself.

The DMCA states that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title”; “no person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.” In other words, DMCA created a legal loophole whereby copyright holders could infringe upon the general public's fair use rights, and anyone circumventing this diminution of fair use rights could be fined “not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; [and] fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.” To put this into perspective, a US Department of Justice report found that the average time served in jail for “violent offenders” (e.g., homicide, rape, kidnaping, robbery, sexual assault – and who typically do not pay fines) was 43 months.i

Combined with the systematic extension of copyright to time periods far exceeding average human life expectancy, the DMCA provides a dangerous precedent for undermining our ability to freely access constitutionally protected rights. Yet even this would not unto itself be enough to harmfully effect fair use. The major dangers only arise when Digital Rights Management is built into the media we access as well as the hardware we access it on. As we shall see, the initial attempt to do exactly this was a resounding victory for fair use rights.

Digital Rights or Digital Restrictions – The Sony DRM Fiasco

In 2005, Sony BMG introduced a DRM technology on over 20 million CDs and that automatically installed a software program on users computers that would limit their ability to make fair use of their music. According to the Electronic Frontier Foundation, “At issue are two software technologies which Sony BMG claims to have placed on the music CDs to restrict consumer use of the music on the CDs but which in truth do much more, including reporting customer listening of the CDs and installing undisclosed and in some cases hidden files on users' computers that can expose users to malicious attacks by third parties, all without appropriate notice and consent from purchasers.” In essence, Sony created a secret program that installed itself onto a users' operating system, monitored the system, and reported back to Sony on what users were doing. In addition, the program disabled certain functions that Sony determined and hid itself from easy detection and un-installation.

In addition to doing the functional equivalent of hacking into end-users computers to monitor their activities, unlike traditional CDs which, once bought, are owned by the purchaser, Sony BMG attached a 3000-word End User Licensing Agreement (EULA) that severely limited consumer's rights to make fair use of their purchased music.ii According to EFF, Sony's EULA states that “You can't keep your music on any computers at work. The EULA only gives you the right to put copies on a 'personal home computer system owned by you'”; “You have no right to transfer the music on your computer, even along with the original CD”; “Forget about using the music as a soundtrack for your latest family photo slideshow, or mash-ups, or sampling. The EULA forbids changing, altering, or make derivative works from the music on your computer.” In other words, Sony's EULA attempts to eliminate legally protected fair use rights.

After initially denying that any problem existed, Sony bowed to the massive public outrage, lawsuits, and numerous warnings about the security risks that Sony's DRM software introduced (including the issuance of a removal tool from Symantec and warnings from the Federal government) and began to address the issues caused by their DRM regime. Music CDs from numerous artists, from Britney Spears to Foo Fighters and Santana to the Strokes, was affectediii – and remediation continues to this day to repair the damage. However, if Sony's DRM fiasco was a shot across the bow, it was only a tiny taste of what was to come.

Introducing Windows Vista: Unprecedented Digital Restrictions for an Unsuspecting Populace

Windows Vista integrates many of the restrictions Sony's DRM rootkit directly into the operating system. One of the best analyses on the impacts of Vista's built-in DRM is by security expert and self-proclaimed professional paranoid, Peter Gutmann,iv who writes, “Windows Vista includes an extensive reworking of core OS elements in order to provide content protection for so-called 'premium content.' This incurs significant costs in terms of system performance, system stability, technical support overhead, and hardware and software cost. These issues affect not only users of Vista, but the entire PC industry.”

Among the other “features” of Windows Vista that Gutmann explores are:

* disabling of hardware that is not approved by Microsoft – the idea being that you could use unapproved hardware to copy copyrighted material (even if this copying is legally protected by fair use laws);
* degrading the quality of audio/video to prevent capture through other devices – Gutmann mentions the incredible problem this poses for telemedicine practitioners hoping to share high-resolution scans/videos of, for example, your brain;
* making decisions for you (the end user) as to what media you can and cannot copy (regardless of your legal right to do so) – in essence, an operating system that, though extra-legal means, eliminated your rights as the purchaser of media.

The question many readers might be asking is whether these fears are hypothetical or whether these actions are actually being taken. As it turns out, not only are these problems being experienced, they are well known to the major companies and media providers. Windows Vista has already been found to refuse to play legally bought media and has had problems with “disabling hardware” like iPods to the point where they permanently cease to function – as the Apple website itself states, “Ejecting iPod from Windows Explorer or by using the 'Safely Remove Hardware' feature in Windows Vista may corrupt your iPod. Microsoft is working on a software update for Windows Vista which addresses this compatibility issue.”v A non-exhaustive list of known problems between Windows Vista's DRM and iPod/iTunes include:
iTunes Store purchases may not play when upgrading to Windows Vista from Windows 2000 or XP;
iPod models with the “Enable Disk Use” option turned off may be unable to update or restore iPod software, and make changes to iPod settings;
iPod models configured to Auto Sync and have the “Enable Disk Use” option turned off may require being ejected and reconnected to resync;
Ejecting an iPod from the Windows System Tray using the "Safely Remove Hardware" feature may corrupt your iPod;
Cover Flow animation may be slower than expected;
Contacts and calendars will not sync with iPod.

Not only does the Vista operating system infringe upon your legal rights, it detrimentally impacts other hardware you may wish to attach to your computer. Since a vast majority of new computer buyers have no choice except the Windows operating system, these issues will affect potentially millions of unsuspecting consumers in the months and years to come. Taken together, copyright law, DRM, and Windows Vista represent an insidious trifecta for expanding the commodification of personal activities and an unprecedented assault on fair use, privacy, and legally protected activities.

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