COPYCENSE

This question has been batted around in the press for the past week. In a way, the fact that the question is being posed at all is remarkable, because it signals that the digital rights management debate has begun moving into wide public discourse after a long period in which only geeks and lawyers even knew the proper meaning of the acronym DRM. This article outlines the rise in DRM’s Q Score among regular media consumers over the past five months, and discusses Sun Microsystems’ Open Media Commons.

Among people who follow copyright issues, DRM (or “copy protection”) has been controversial since Congress changed U.S. copyright law in 1998 to illegalize any attempt to circumvent, crack, or hack past “a technological measure that effectively controls access to a [protected] work” (See Section 1201 of the Copyright Act.) Various parties have complained about the anticircumvention provisions of the Digital Millennium Copyright Act since they were enacted into law in 1998; the complaints continue now, as the Copyright Office as it holds its third rulemaking proceeding on the practical effects of Section 1201’s anticircumvention provisions.

Much of the DRM debate, however, has found a limited audience. Copyright lawyers discussed the issues surrounding DRM and anticircumvention because of the Digital Millennium Copyright Act. Companies with extensive copyrighted holdings, seeking to protect their digital assets, discussed DRM as a business and security issue. Finally, scientists and computer technologists whose work was affected by DRM or the DMCA (such as Princeton’s Edward Felten) discussed such issues. But this limited audience was not nearly broad enough for DRM to become a consumer rights issue.

The evolution of DRM from geekdom to a legitimate business issue began last November, when programmer Mark Russinovich discovered that Sony BMG had implemented a DRM scheme that included a rootkit, a piece of software that virus writers exploit to spread malware. After Russinovich posted his findings on his blog, Sony BMG received widespread criticism from the technology and mainstream press. (CopyCense has followed this issue in depth from the beginning, and has compiled a bibliography of the Sony BMG rootkit scandal.) For the first time, DRM, its problems, and its shoddy and potentially harmful implementation by various sectors of Big Content became widespread news.

For the most part, the average consumer still doesn’t ask questions about DRM. I believe that has more to do with the inability of interest groups to create a message about DRM that easily and quickly resonates with the average Joe or Jane. Let’s analyze this by comparing what you know about copyright “theft” and “stealing.” It’s likely that you’re aware of these characterizations even if you disagree with them. You’re aware of the characterizations because the content industry has artfully crafted a public relations campaign that identifies any unlicensed, uncompensated use of a copyrighted work as “theft.” In contrast, no organization or group has simply characterized the consumer issues in the DRM debate in a way that resonates with the average entertainment buyer.

(For more on how Big Content uses language to massage its copyright message, see “Doublespeak, Debate Framing, and the Copyright Battles.”)

But the Sony BMG debacle made people aware that content owners not only are looking to protect their content, they increasingly are seeking to control how people use the hardware upon which the content is played. To an extent, Sony BMG awakened a public that previously had been unaware of DRM and its unintended effects.

That background is a prelude to the new discussion about open source DRM. “Open source DRM” almost seems oxymoronic: how can DRM — all of which is proprietary, most of which is flawed, and whose fundamental purpose is to control distribution — be created in a way consistent with the ideals of the open source movement? Sun Microsystems claims to be championing the right solution, with its DReaM Initiative. Says Sun in an overview

Today’s perception of DRM technology is that DRM is a way to keep people from swapping music files and copying DVDs illegally – getting something for nothing. But DRM technology can also support the introduction of new services for everyone, not just for Hollywood and the music industry. The DReaM initiative goes far beyond protection of content in just the Infotainment arena by addressing needs of other market categories, including business and individuals in everyday life, and providing improved levels of content protection that directly protect the content during its entire lifetime rather than simply managing file level access.

The DReaM Architecture is independent of the content type, file and transport formats — whether the content is a time-based media (video, audio, music, games), or a document/data type. The DReaM initiative will leverage the methodology of Service Oriented Architectures (SOA) and introduce rights management services that leverage open standards and support cross-service capabilities. DReaM is based upon technical foundations that have been tested and deployed for over 25 years.

What I find interesting about the DReaM project is its claim that it can protect content while offering ways to deliver services. “There is a widely held false perception that DRM technology focuses solely on preventing the unprincipled from getting something for nothing — a way to keep people from swapping music files and copying DVDs illegally” says Sun in a DReaM white paper (.pdf). “What’s lost in this view is that DRM technology also provides the means to introduce services — not just for Hollywood but also for businesses and even for individuals. DRM provides improved levels of content protection that directly protects the content during its entire lifetime rather than simply managing file level access (such as portals).” That Sun would allow for a services platform seems to give some credence to the belief (long mine) that the future money in digital content game is more for services than for the content itself.

I also find interesting the prospect of having the ability to play digital content on any player I choose, regardless of the source from which I bought it, something Sun promises with DReaM.

Certainly, any form of DRM — even one called “open source” — has its critics. Wired News notes that Sun has not specifically championed fair use as part of the DReaM initiative, and the lack of fair use provisions in DRM generally is a big hurdle. Still, while many have identified the lack of fair use as a problem, I’ve yet to see a credible DRM scheme that realistically deals with that issue. I think it is worth considering that there is no way to adequately and reliably allow for fair use within a software program.

Also, Sun’s effort to broaden DRM via open source comes as private companies continue to seek their own DRM proprietary solutions. Just this week, news outlets reported last week that technology consulting firm Accenture is trying to develop a DRM solution that would allow consumers to access the content through an unlimited number of devices after paying for license rights once. Accenture’s software would identify the consumer rather than the device. Telecommunication companies, cable operators and wireless companies would sort out the billing behind the scenes.

Interestingly, the talk of open source DRM seems to lessen the outlandishness of France’s legislative effort to open DRM schemes — including FairPlay, the DRM scheme Apple uses to protect songs consumers buy from its iTunes store. Late last month, France’s lower house of parliament passed a law that would require digital content providers to share details of their rights management technologies with rivals. The bill is designed to prevent any single music-playing technology from dominating the online market. It is pending in France’s senate.

if:book. Open Source DRM? April 4, 2006.

Eliot Van Buskirk. Reasons to Love Open-Source DRM. Wired News. April 3, 2006.

Laurie Sullivan. Digital Hollywood Mulls Changing Content Rights. TechWeb. March 29, 2006.

Jeremy Kirk. Researcher: DRM Has Deep Flaws. PCWorld. March 27, 2006.

Andrew Orlowski. Lessig Blesses DRM. The Register. March 24, 2006.

Elinor Mills. Apple Calls French Law ‘”State-Sponsored Piracy.” News.com. March 22, 2006.

Sun MicroSystems. Project DReaM White Paper from Sun Labs: An Architectural Overview. September 28, 2005.

Electronic Frontier Foundation. Sun’s “Open Media Commons” Is More Like a Gated Community. Aug. 24, 2005.

Updates:

Boing Boing. How Sun’s “Open DRM” Dooms Them and All They Touch. April 14, 2006.

Between the Lines. Sun: Chasing After (and May Catch) the Open Source DReaM. April 14, 2006.

Between the Lines. Sun’s Schwartz Has Right DRM Idea, But Maybe Not the Power. Oct. 6, 2005.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC. CopyCense™ and CommuniK.™ are trademarks of Seso Digital LLC.