Digital Rights Management: Why DRM Fails Consumers

Introduction

A major battle is under way over the issue of digital rights management (DRM), a technological measure imposed by major corporations to protect their software and media content. The development of the Internet and computer technology has altered the normal relationship between producers and creators of music, films, and software on one side, and consumers on the other, to such a degree that the corporations controlling these products have sought ways of restoring the balance in their favor. DRM is one such method of protecting copyrighted material from digital copying and transmission. Some have accepted the system that has developed, while more and more people are questioning whether this is the right approach.

The issue was brought into sharp focus when Steve Jobs of Apple Computer publicly called for an end to DRM in order to benefit consumers by giving them more choice and more control. This move is related to the open source movement for computer software, which similarly seeks to loosen the grip of corporations and increase consumer choice. Most companies at the time opposed an end to DRM, seeing it as tantamount to giving their products away for free. However, some companies have agreed to alter certain DRM practices when those practices were seen as damaging to business.

In the long term, DRM is likely doomed as a corporate control mechanism. Most DRM can be overcome or circumvented by a dedicated hacker, while for the average consumer, DRM often creates problems in using products that consumers have lawfully purchased and believe are theirs to use as they wish. As a result, the digital rights management used in conjunction with today's media is not in the best interest of the consumer.

The announcement by Jobs represented a major shift: a representative of one of the larger companies involved in the dissemination of music with DRM requirements attached was now calling for an end to the practice. He called on the four major music-producing companies to license their music to Apple without requiring DRM protection, and stated that Apple would then offer only DRM-free music through its iTunes store. While some producers supported the idea, or at least saw it as inevitable in time, they also noted that the Recording Industry Association of America (RIAA) instead called for finding ways to make existing technologies work together more effectively (Dalrymple paras. 1–6).

Digital Rights Management refers to codes and similar technologies embedded in CDs and films to prevent consumers from copying music or films and from distributing these products over the Internet. It also refers to the way music sold online is coded so that it cannot be transferred to a different computer and may not be playable more than a certain number of times before it degrades. DRM might be a reasonable form of protection when it is disclosed openly so that the consumer knows what they are purchasing and understands the limitations placed on their purchase. It is quite another matter when DRM is embedded secretly so that the consumer has no knowledge of these limitations. The latter was part of the problem with certain CDs sold by Sony several years ago, and the DRM interfered even with normal playback on some computers.

Digital Rights Management Defined

DRM is defined by the Electronic Frontier Foundation as follows:

Major entertainment companies are using "digital rights management," or DRM (also known as content or copy protection), to lock up your digital media. These DRM technologies do nothing to stop copyright pirates, but instead end up interfering with fans' lawful use of music, movies, and other copyrighted works. DRM can prevent you from making back-ups of your DVDs and music downloaded from online stores, recording your favorite TV programs, using the portable media player of your choice, remixing clips of movies into your own home movies, and much more. ("Digital Rights Management and Copy Protection Schemes" para. 1)

DRM has been backed up by the Digital Millennium Copyright Act (DMCA), so that circumventing DRM locks — or creating the tools to do so, even for non-infringing fair uses — may be actionable. Congress has also considered legislation going even further, including "mandating DRM in a wide array of digital media devices and personal computers, giving entertainment industry lawyers and federal bureaucrats veto power over new gadgets" ("Digital Rights Management and Copy Protection Schemes" para. 3). Pushing for such expansion are Hollywood and the music industry, which have for some time attacked certain new technologies as if they were little more than instruments for stealing music and films. In doing so, these industries have most often been seen as fighting their own customers.

Computers digitize information into a series of ones and zeros so that data appears as lines of numbers. Software can convert input into this form, and other software can then read and translate it back into its original form — whether written, auditory, or visual. Traditional analog systems translate sound into another form and then back again, and there is loss in that process. Sound files may experience various distortions so that what emerges is an approximation rather than an exact copy. Even before the widespread use of computers, sound was transformed by the creation of the compact disc, which stores sound in digital form and plays it back with virtually no distortion. When the computer became a consumer product, users discovered that they could copy digital files with no loss in quality and pass them around as they wished. The Internet made it possible to do this across distances — and to share with millions of people at once, not merely with a neighbor. Sites were created to allow such file sharing among strangers.

Record companies may not have liked consumers copying recordings to tape, but such copying fell under the heading of "fair use" unless done for commercial purposes. Sharing tapes was inherently limited, whereas sharing files on the Internet is essentially unlimited. Perfect copies indistinguishable from the originals could be widely distributed using specialized sites, creating a new problem for the recording industry and for the legal system.

Copyright is an intangible property right granted by federal statute and certainly applies to recorded music. Even song lyrics are separately protected by copyright (The Legal Environment of Business 284–285). Infringement occurs whenever a protected form of expression is copied without authorization. Fair use is an exception, referring to the fact that under certain circumstances, a person or organization can reproduce copyrighted material without paying royalties. Such an exception applies when the purpose is educational and nonprofit, and courts make these determinations on a case-by-case basis (The Legal Environment of Business 286–287).

Copyright Law and Fair Use

Copyright is based on the view that "creators and owners of artistic works must be able to control their distribution and sale. Otherwise, they will have no incentive to produce them" (Kirtley 66). One reason for this is financial: fair use is violated if the copier profits from the work or if the use causes economic harm to the originator. When someone photocopies an article at a library, there is no economic incentive and no harm to the copyright holder. If that article is sold to others, however, there is economic harm to the copyright holder and thus a violation of fair use. As one analyst wrote with specific reference to the Napster case:

Fair use is an exception to that rule, but the court here found that what most of Napster's subscribers were doing wasn't fair use. Instead, the court said, "Napster users get for free something they would ordinarily have to buy." Napster "materially contributed" to this practice by providing the site and software to permit that infringement. As Circuit Judge Robert R. Beezer wrote, "Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability." (Kirtley 66)

Thus, while the individual who copies a CD might claim fair use for personal use, placing that copy on the Internet for millions to access changes the situation entirely. Gardner identifies the key factors for meeting the fair use standard under the law:

Four factors determine what's fair: the purpose and character of the use (teaching generally passes); the nature of the copyrighted work (fiction enjoys stronger protection than nonfiction); the amount used (copying an entire work is never a good idea); and the effect of the use on the work's potential market value (if you're taking money out of a creator's pocket, it's probably not fair use). (Gardner 19)

The first major attempt to address digital copying was the passage in 1998 of the Digital Millennium Copyright Act, which extended copyright protections into cyberspace and made it "a felony to circumvent technical measures that protected copyrighted material, or to distribute programs whose primary purpose was to crack those measures" (Menn 64). This did not end the matter, and the law appeared to be addressed more at the individual copier than at sites facilitating large-scale sharing — which would become the next legal target.

Conclusion

The digital age is providing consumers with many more choices and many more opportunities, and the use of DRM restricts both in a way that does not serve the public interest and may not serve business interests either. New technologies are creating new business opportunities as well, but by clinging to the old business model, many companies are failing to exploit these possibilities. File sharing cannot be prevented entirely and should not be treated as an absolute evil. Individual users can share files with friends under the heading of fair use. The issue has been complicated by file-sharing services like Napster that enable file sharing on a wholesale basis, with users deliberately placing material on the Internet to circumvent normal commercial channels.