DRM {and, or, vs.} THE LAW

January 9, 2003 Pamela Samuelson Berkeley Workshop on Proactive DRM Agenda, January 9, 2003 DRM Workshop 1

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 January 9, 2003 DRM Workshop 2

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, 1 st sale, public domain • Law as a means to control DRM (e.g., require privacy protection) (a different species of vs.) January 9, 2003 DRM Workshop 3

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 January 9, 2003 DRM Workshop 4

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 January 9, 2003 DRM Workshop 5

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 January 9, 2003 DRM Workshop 6

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 January 9, 2003 DRM Workshop 7

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?) January 9, 2003 DRM Workshop 8

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 January 9, 2003 DRM Workshop 9

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 1 st – up to $1M for 2 nd offense, up to 5 yrs in jail offense & up to 10 yrs in jail January 9, 2003 DRM Workshop 10

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 January 9, 2003 DRM Workshop 11

UNIVERSAL v. CORLEY

• 1 st 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 January 9, 2003 DRM Workshop 12

CONSTITUTIONAL CHALLENGES

• Second Circuit rejected several constitutional challenges to DMCA in

Corley

– Source & object code are 1 st 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 January 9, 2003 DRM Workshop 13

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 January 9, 2003 DRM Workshop 14

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 January 9, 2003 DRM Workshop 15

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” January 9, 2003 DRM Workshop 16

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 1 st A grounds (DeCSS in source code form = 1 st 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?) January 9, 2003 DRM Workshop 17

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 1 st rulemaking: OK to circumvent broken access control, OK to circumvent to analyze filtering software • 2 nd rulemaking underway: submissions by 50 individuals or organizations January 9, 2003 DRM Workshop 18

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 January 9, 2003 DRM Workshop 19

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) January 9, 2003 DRM Workshop 20

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 January 9, 2003 DRM Workshop 21

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 January 9, 2003 DRM Workshop 22

“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)?

January 9, 2003 DRM Workshop 23

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 January 9, 2003 DRM Workshop 24

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 January 9, 2003 DRM Workshop 25

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) January 9, 2003 DRM Workshop 26

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 January 9, 2003 DRM Workshop 27

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” January 9, 2003 DRM Workshop 28

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 January 9, 2003 DRM Workshop 29