Ineffective Technological Protection Measures? June 6, 2007
Posted by Kevin Smith in : Digital Rights Management, Technologies , add a commentRecently we have seen some music companies move away from using technological protection measures to prevent copying songs onto multiple devices or those sold by different companies in favor of a market solution that charges consumers slightly more for music that can be freely copied. Now another brick, albeit a tiny one, has fallen from the wall of electronic protection measures.
The problem, according to the Helsinki District Court, is that the code for circumventing CSS is all over the Internet. Some consumers that download software for copying DVDs may not even know that they are circumventing a technological protection measure when the do so. In these conditions, the court said, CSS is simply not effective under the EU definition. It is also important that the argument was made that CSS is not intended so much to protect copyrighted content as it is to enforce a monopoly on playback equipment manufacturing; the fact that this is not a legitimate “protection objective” under the EU directive supported the finding that it was not an effective measure. There is a short English-language article about the case here.
More about the FAIR USE Act March 25, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Fair Use , 1 comment so farSeveral weeks ago I promised more comment (read previous post here) after I had read up on the proposed law, so here goes.
Perhaps the biggest confusion about the FAIR USE Act is caused by its name; since it is really aimed at reforming the anti-circumvention rules of the DMCA, it does not directly deal with the fair use provision of the Copyright Act. In fact, in his remarks while introducing the bill, Rep. Boucher explicitly stated that “the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention.” Boucher’s co-sponsor, Rep. John Doolittle acknowledged in a recent interview that it was necessary to narrow the scope of the bill somewhat by eliminating such a provision because the content industry would oppose a full fair use defense so vigorously.
But the FAIR USE Act does not entirely ignore fair use either. Rather inconsistently, Rep Doolittle, in the same interview mentioned above, also referred to the proposed bill as an attempt to “preserve fair use for the consumer.” What the FAIR USE Act actually would do is to introduce an exception to the anti-circumvention rules that is not as broad as fair use, but that would establish a defense to charges of circumvention that looks a lot like fair use. Specifically, section 3(b)(v) of the new bill would allow circumvention to gain access to “works of substantial public interest… for purposes of criticism, comment, news reporting, scholarship, or research.” This sure sounds like fair use, especially in its focus on activities strongly protected by the First Amendment. One major difference is that, by providing an exclusive list of the allowable purposes for circumvention, this bill would not permit circumvention for most commercial purposes, even if the use would otherwise fit within fair use. Also, “works of substantial public interest” is presumably a narrower category than all the works that might be subject to fair use, but defining this narrower category would certainly generate as much as litigation as fair use itself does.
The big question for the FAIR USE Act is whether it has any chance of passage. Two previous versions (which did include a full fair use defense to circumvention) failed to advance very far in Congress. Rep. Doolittle admits frankly that the change to a Democratic-controlled Congress has not significantly improved chances this year, since the new Chair of the relevant House committee is less sympathetic to the bill than his predecessor. The hope is that the somewhat narrower scope of the bill, combined with increasing public awareness of the draconian impact of DMCA anti-circumvention rules, will improve the environment this time around. Given the other valuable (and necessary) provisions found in the bill for libraries and for classroom teaching, even a version without the broad exception quoted above would be worthwhile.
Fair Use Act introduced to rein in the DMCA February 28, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Fair Use , 1 comment so farYesterday an important piece of legislation was introduced into the House of Representatives by Congressman Rick Boucher (D-VA) and two co-sponsors (one Democrat and one Republican, for those who keep score).
The Freedom and Innovation Revitalizing US Entrepreneurship Act, in spite of its awkward title intended to create the acronym FAIR USE Act, is an attempt to mitigate the negative impact of DMCA anti-circumvention rules on education, among other activities. Note that it is not a full-scale incorporation of fair use as a DMCA exception, which would create furious opposition, but a more limited attempt to improve the situation for education and for libraries.
Last fall, the Library of Congress approved an educational exception to anti-circumvention for the first time — a narrow rule permitting film and media professors to circumvent security measures in order to make compilations of film clips for classroom use. The new exception lasts for three years, after which it would either “sunset” or have to be renewed. The legislation proposed by Rep. Boucher would make all of the current six exception to the DMCA permanent.
More importantly, this bill would expand the scope of exceptions to the DMCA in ways that would really improve the climate for educational use of technology. The film clip exemption would be expanded to embrace all classroom compilations, not just those in film and media studies classes. Circumvention would also be allowed in order to gain access to public domain works, thus preventing commercial interests from “locking up” content that ought to be available for all to use. Finally, it would allow libraries to circumvent technological protections for purposes of preservation, helping to ensure that digital content will not be lost as technology changes.
This bill has been referred to the House Judiciary Committee, and its full text is not yet available on THOMAS, the Library of Congress database for tracking legislation. So stay tuned for further information and updates. But even at this early stage it is safe to say that passage of this bill would be an important step for instructional technology and library preservation of digital works, and it deserves our strong support.
Digital Rights Management (DRM) December 26, 2006
Posted by Kevin Smith in : Digital Rights Management , add a commentHow can I deal with DRM protected material?
Q – First things first; what is DRM?
DRM, which stands for Digital Rights Management, refers to any of a number of systems that are used by producers of digital content to prevent or inhibit copying and distribution by consumers of the content they sell.
One of the most common DRM systems is the Content Scrambling System, or CSS, that prevents many DVDs from playing clearly on equipment that is not equipped with a proprietary decryption key. Another common product is Macrovision, which will cause a recording made from an encrypted VHS tape or DVD to be scrambled or faded. Also, many music CDs are sold with technological protections that prevent them from being easily copied, or “ripped,” onto a computer.
Although DRM systems are intended to prevent copying technologically, most of the systems are easy to defeat with decryption programs. The real force behind DRM systems is not technological but legal.
Q – Are DRM systems really protected by law?
Yes! The Digital Millennium Copyright Act of 1998 added provisions to the copyright law (chapter 12 of Title 17 of the U.S. Code) that make it illegal to circumvent DRM systems and to manufacture or sell technology designed to circumvent such systems. Both civil and criminal penalties are provided for by this “anti-circumvention” law.
Q – Do all digital products have DRM protection?
No. Some DVDs, CDs or VHS tapes are sold without any kind of electronic copy protection, although most such products probably do have some kind of DRM. Sometimes the packaging of the product will indicate the presence of a DRM system, such as when the name Macrovision is printed on a VHS cassette sleeve. Most of the time, however, one can be sure that a digital product is protected only by trying, and failing, to make a copy.
Q – I want to make a copy of a film that is not DRM protected. May I?
If the film is not protected by an electronic copy prevention system, it will not be a violation of the DMCA to copy it. But copying can often be an infringement of copyright, so you should only proceed with the copy if it falls into one of the exceptions to copyright like the TEACH Act or Fair Use.
Q – I want to make a copy of a film that has DRM protection. May I?
Probably not. Even if you have the software or device available to successfully circumvent the DRM make the copy, doing so is likely to violate the DMCA and could subject you to civil (money) damages and even criminal charges, if the circumvention is willful and for commercial gain.
There are several exceptions to the anti-circumvention provisions of the DMCA, and you should only proceed with the copying if you are certain that what you are doing fits within one of these exceptions, which are very narrow.
Q – What are the exceptions to the anti-circumvention rules that enforce DRM?
There are several exceptions to these rules, but only two that really are useful for educational copying.
The first is for film and media studies professors who want to make compilations of portions of video for use in the classroom. This exception applies only to film clips and only to professors who are teaching film or media studies; note that it does not allow circumvention in order to copy whole films into a course management or distribution system. The films used to make these allowable compilations must be owned by the University library system.
The second exception to the anti-circumvention rules really only benefits technology staff and researchers; it allows one to avoid copy protection systems when one is trying to make a protected piece of digital content interoperable with another, independently created software product, as long as the purpose of the interoperability is not itself an infringement of copyright.
For help deciding if either of these exceptions to the anti-circumvention rules applies to your situation, please contact the Scholarly Communications Office.
