Beyond Copyright: The Brave New World of Digital Rights Management
Myles Losch
[ Top of Page ]
[ Introduction ]
[ Notes for the Tutorial Course, and Books Recommended during the Panel ]
[ Policy Events are Big Draw at SIGGRAPH 2001 ]
[ Beyond Copyright: The Brave New World of Digital Rights Management ]
[ Universal Usability in Practice: Principles and Strategies for Practitioners Designing Universally Usable Sites ]
Panels at past SIGGRAPH annual conferences have on occasion considered public policy
issues. But 2001 was the first year that our SIG's Public Policy Program organized such a
session, and it was a good one (to judge by the quality of its concluding Q. & A. exchanges with
the audience). This review will survey a group of significant themes dealt with by the panel; in a
future column, we hope to give readers a more detailed sampling of what took place.
On the panel were Dan Burk, law professor at the University of Minnesota and a former molecular
biologist; Robert Ellis, ACM SIGGRAPH Public Policy Program Chair and panel co-organizer; Dr.
Barbara Simons, immediate Past President of SIGGRAPH's parent ACM, USACM (ACM U.S.
Public Policy Committee) co-chair and founder, and a retired IBM computer science researcher;
Deborah Neville, a veteran intellectual property lawyer in the entertainment, software and
computer industries; and Sarah Stein, long a maker of award-winning documentary films, who
now teaches media studies at North Carolina State University.
Absent were representatives of such copyright-based industries as book publishing, music
recording and motion pictures. This may have denied the audience some rhetorical fireworks, but
more than compensated by leaving time to explore emerging and under-reported topics that
rarely surface in such forums. As a result the panel amply delivered on the promise of its title,
"Beyond Copyright."
(1) A key theme was that today's online copyright battles should be seen in context, as part of a
much wider war for control of information technology (IT) in general and especially the Internet.
Computers, particularly when networked, are a disruptive technology that challenges established
centers of power in society.
By empowering new groups of people, IT puts pressure on settled arrangements (commercial,
social, cultural, religious, governmental, familial, etc.) Evidence of this can be seen in policy
conflicts over (e.g.) online censorship and e-commerce taxation.
Other examples, cited by panelists in part for their relevance to copyright, include open-source
software and online peer-to-peer (P2P) file transfers.
Open-source code is resistant to some IT control methods ("security by obscurity"). As for P2P,
research indicates that online music sampling through services like Napster led in many cases to
increased sales of commercial recordings. That prompted panelists to observe that the music
recording industry's battles against P2P were driven at least as much by a technology control
agenda as by revenue concerns.
(2) This naturally brings us to a second key theme of the session, which was to place today's
issues into historical perspective by recounting copyright's centuries-long evolution. Early
copyright laws were narrow in scope (saying nothing about [e.g.] public performance rights), nor
was it clear that they covered once-new media technologies like player-piano rolls, movies, and
video cassette recorders.
Copyright-based industries have long sought to expand their monopoly control over content, thus
forcing legislators and judges to seek a balance with other social goals such as free expression.
"Fair use" is one such balancing principle, with a long history in the U.S. and elsewhere, but is
now challenged by the U.S.' Digital Millennium Copyright Act (DMCA) of 1998, and similar laws in
other countries.
The compatibility of fair use with IT-based controls on access to and use of content (aka Digital
Rights Management [DRM]) will be probed at ACM's annual public policy conference next April in
San Francisco, CFP2002 (http://www.cfp.org).
(3) Three major current campaigns for expanded intellectual property laws were discussed in
depth by the panel. One of these, already adopted in Europe, is known in the U.S. as the
(proposed) Collections of Information Anti-Piracy Act, or less formally as the database protection
bill. It is motivated in part by foreign publishers' displeasure with the U.S.' prohibition (unlike in the
UK, Canada and elsewhere) on copyrighting government reports, statistics, etc.
But this measure's scope is much broader, and has drawn sharp criticism for extending copyright-
like protection to facts and other material that, by existing standards, is not copyrightable.
Opponents argue in part that the bill would exceed Congress' limited constitutional power to grant
monopolies, enforced by government, over intellectual property.
(4) The second major ongoing campaign for copyright expansion, typified by the U.S.' DMCA,
aims to create a new proprietary right for content owners, the access-control right. The idea of
conditional access, while reasonable for extra-cost satellite and cable television services, is far
more problematic when applied to pre-recorded tangible media such as DVDs for which a
customer has already paid.
More generally, the DMCA's criminal penalties for bypassing access controls can, critics say,
create new (and arguably unconstitutional) monopolies that are of unlimited duration, and/or
cover subject matter that is neither patentable nor copyrightable. Citing the work of Stanford law
professor Lawrence Lessig, members of the panel suggested that such provisions illegitimately
delegate law-making power to software designers.
Panelists added that the DMCA's similar penalties for authorship and distribution of
"circumvention" software are neither enforceable nor compatible with the free-expression rights of
computer programmers and software publishers. (And as for the Russian programmer Sklyarov,
it was suggested that given existing rules on cross-border criminal jurisdiction, he should have
stayed home.)
Related concerns about researchers' freedom to investigate, publish and openly discuss their
findings led ACM (http://www.acm.org), a few days earlier, to file a declaration
(http://www.acm.org/usacm/copyright/felten_declaration.html) with the court handling the anti-DMCA
lawsuit of Princeton computer science professor Edward Felten.
(5) The third current effort to expand the legal rights of content owners (vs. users of copyrighted
works), relies on proposed extensions to contract law, which in the U.S. is mainly a state-level
(rather than federal) matter. Regular readers of this column will have noted Bob Ellis' extensive
coverage of UCITA, the proposed state statute drafted to achieve this goal.
To avoid duplicating Ellis' material here, it suffices to say that this initiative, too, has elicited fierce
opposition from many quarters. For example, since copyright is a federal matter, legal scholars
have questioned the extent to which state laws can validly curtail what users may do with
copyrighted works they have purchased.
(6) Lest it seem that the panel session focused wholly on legal issues, one should note that time
was also devoted to economic, social, educational and other implications of the policy questions
discussed. One example arose in considering the economic impacts of DRM, such as the
prospect of a pay-per-use model for content access (sought by many copyright holders). This, it
was pointed out, would effect a transfer of 'consumer surplus' from the public to content owners:
the used book and phonorecord markets (for example) would shrink, since people could no
longer freely lend, give, sell, or bequeath unwanted works.
An interesting, related mini-debate among panelists concerned the pragmatic pros and cons (for
individual consumers) of owning vs. 'renting' books, movies, etc. One policy question this raises,
is whether publishers should be obliged to offer a choice of methods (including conventional
ownership) by which customers may obtain a work. Similar issues are of course familiar from
other contexts, as when IBM, nearly half a century ago, had (for antitrust reasons) to begin
offering its computing equipment for sale in the U.S., as well as under lease or rental agreements.
(7) A final economic theme worthy of mention, arose from the panelists' consensus view that the
DMCA and related measures, insofar as they aim to protect media companies' traditional revenue
sources against erosion by disruptive technologies, will ultimately fail (whether for marketing,
legal, technical, and/or other reasons). Such scenarios unavoidably present the question of how
performing artists, authors, composers, et al. will be compensated in the future.
On this issue the panel was (like others which this writer has heard) notably optimistic that
innovative business models will be proven by the time they become necessary. But such views
are not yet widely accepted in the entertainment and allied industries, so at future SIGGRAPH
conferences it might be worthwhile to examine more closely a broader range of policy options.
One such (partial) answer to the compensation question, today more widely accepted in Europe
than in the U.S., entails special taxes on recordable information storage media and/or on
equipment used in conjunction with those media (e.g. drives, optical scanners, etc.).
Revenue from such taxes is then parceled out by some formula among copyright holders et al., to
offset royalties that presumably are "lost" due to personal in-home copying of such holders'
works. There are many valid objections to systems of this sort, including that they unfairly
penalize both home video and audio recording enthusiasts (who hold the copyrights on their
recordings), and also fair users, whose copies of commercial works are by definition non-
infringing.
Still, this reviewer would welcome a follow-on event that might include (say) first-hand
experiences with such alternatives; with the EFF's (http://www.eff.org) Open Audio License (OAL),
and/or other innovations.
(8) Another feature of the panel (noted with some regret at the outset by organizer Ellis) was its
U.S.-centric makeup. As the session unfolded, though, this was largely offset by evidence of the
U.S.' frequent policy leadership in the subjects under discussion (no doubt due largely to the U.S.
media industries' huge revenues from overseas markets). Further helping to internationalize the
session was the diversity of its audience, including multiple non-U.S. questioners during the
generous Q. & A. time period set aside for interaction with the panelists.
