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Abstract
The debate over the perceived threats posed to our traditional notions of copyright by the Internet has continued for several years now, and shows no sign of slowing down. A potential solution lies in the use of copy-protection mechanisms, technological answers to a so-called technological problem. The use of such technological solutions however, masks the potentially deleterious effects that they may have upon the delicate balance of the copyright bargain. Concern has been focused upon the rights of the copyright holders to protect their work from infringement. However, in this article we shall critically analyse the implications of the specific provisions that underpin the use of digital rights management systems (DRMS) in the US/UK. We shall question the validity of attempting to create and apply such legislation in light of the effect that it may have upon the concept of fair use and underline the importance of considering the nature of the copyright bargain and how the implementation of this family of technologies may have legal and technological repercussions that may irrevocably alter the status of the user in the copyright world without guaranteeing protection for the copyright holder.
Notes
1. In MGM v Grokster, Case No. 04-480, 27 June 2005, the US Supreme Court found Grokster liable in respect of use of software that it distributed by the end users to create infringing copies of a vast range of music and films. On the surface this seems to go against the flow of cases in which those responsible for decentralized p2p networks were generally excused liability on the grounds that the software can be used for legitimate purposes as well as for infringement, and that once it had been downloaded by the user, its use could not be controlled by the distributor. However, the Supreme Court's ruling of liability in Grokster rested largely upon the court finding that the defendants had ‘knowingly and intentionally’ distributed the software in order to encourage exchange of infringing copies: the software had been advertised as a Napster substitute. Also, the defendants had actual knowledge of specific infringements and did not act to prevent or discourage them in any way. It would seem unlikely that a p2p distributor who avoided such marketing and reported any specific instances of infringement it was aware of would still be able to escape liability.
2. For an example of the scale of the copyright infringement problem online, see the alt.binaries. warez.* newsgroup, where a reputed 90% of postings are, or contain, infringements.
3. See, for example, European Directive 2001/29/EC (The Copyright in the Information Society Directive), Article 5(1), which provides an exemption from copyright liability in respect of acts of copying which are ‘transient or incidental, which are an integral and essential part of a technological process whose sole purposes is to enable:
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(a) a transmission in a network between third parties by an intermediary or
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(b) a lawful use’
4. J P Barlow ‘The economy of ideas’ Wired, 2 March 1994 http://www.wired.com/wired/archive/2.03/economy.ideas_pr.html
5. Directive 2001/29/EC.
6. See WCT Article 11; WPPT Article 18.
7. Copyright, Designs & Patents Act 1988 Section 296ZA(2), as inserted by Copyright and Related Rights Regulations 2003 Regulation 24.
8. No 98-56727 (9th Cir. June 1999).
9. Working Group on Intellectual Property Rights Intellectual Property and the National Information Infrastructure, 1995 http://www.uspto.gov/web/offices/com/doc/ipnii/
10. Working Group on Intellectual Property Rights Intellectual Property and the National Information Infrastructure 1995 at p 164, n 567, http://www.uspto.gov/web/offices/com/doc/ipnii/
11. See Section 1201(a).
12. See Section 1201(b).
13. See, respectively, Regulations 19 and 8.
15. CR 01-201 38 RMW (US District Court for the Northern District of California, Jury Verdict, 17 December 2002).
16. Both the DMCA and the UK's Copyright Regulations provide criminal penalties for infringement of the anti-circumvention provisions. Section 1205 in the US provides fines of up to US$1 million and 10 years imprisonment for repeat offenders. The UK penalties, set out in Regulation 26, are less severe. These include imprisonment for up to a maximum of two years, as well as limited fines.
17. Electronic Freedom Foundation Unintended Consequences: Five Years under the DMCA, at p 8. Report available at http://www.eff.org/IP/DMCA/unintended_consequences.pdf#search = %225%20years%20under%20the%20dmca%22
18. WL 127311 (W.D. Wash. Jan. 18, 2000).
19. 111 F Supp 2d 294 (SDNY 2000).
20. The term ‘CD’ is here used for convenience; Philips, who control the CD standard and use of the CD logo do not consider these copy protected disks to be CDs.
21. Russinovich's blog detailing his discovery of the XCP files on his machine and his subsequent experiences can be found at http://www.sysinternals.com/blog/2005/10/sony-rootkits-and-digital-rights.html
22. XCP only affects Windows PCs—Mac and Linux users are able to use the disk as if there was no DRMS attached to it.
23. ‘iPods to support copy-protected CDs?’, CNET News.com November 17 2005 http://www.news.com.com/iPods + to + support + copy-protected + CDs/2100-1027_3‐5959341.html
25. See the NAVSHP document available online at http://www.dmpf.org/open/dmp0380.pdf
26. For work discussing this question, see for example S Breyer, ‘The uneasy case for copyright: a study of copyright in books, photocopies and computer programs’ Harvard Law Review Vol 84, p 281, 1970 and R Stallman ‘The GNU manifesto’ in Free Software, Free Society: Selected Essays of Richard M. Stallman GNU Press, Boston, 2002, pp 31–40.
27. For an excellent discussion on the theory of property rights, see T Palmer ‘Are patents and copyrights morally justified? The philosophy of property rights and ideals’ in A Thierer & C Crews (eds.), Copy Fights: The Future of Intellectual Property in the Information Age Cato Institute, Washington, 2002, pp 43–93.
28. J Litman Digital Copyright, Prometheus Books, New York, 2001, p 79.
29. The Economic arguments here are drawn from P Petrick ‘Why DRM should be a cause for concern: an economic and legal analysis of the effect of digital technology on the music industry’ which is part of the Berkman Centre Research Publication Series for Berkman Affiliates available via the Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/abstract_id = 618065
30. Ibid, p 29.
31. SonyBMG Litigation and Rootkit Info available online at: http://www.eff.org/IP/DRM/Sony-BMG/
32. See J R Reidenberg ‘Privacy in the information economy: a fortress or frontier for individual rights’ Federal Communications Law Journal Vol 44, p 195, 1992; J R Reidenberg & F Gamet-Pol ‘The fundamental role of privacy and confidence in the network’ Wake Forest Law Review Vol 30, p 105, 1995; J E Cohen ‘A right to read anonymously: a closer look at copyright management in cyberspace’ Connecticut Law Review Vol 28, p 981, 1996.
33. See D L Burk ‘Anti-circumvention misuse’. Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id = 320961
34. See for example, Andrew Hutkrans ‘U2 can sue a Sample Simon, Negativland Talks with U2’s The Edge' Mondo 2000 No 8, p 54, 1992; Steven Levy ‘Cryto rebels’ Wired May/June, p 54, 1993; John Perry Barlow ‘The economy of ideas: a framework for rethinking patents and copyrights in the digital age’ Wired, March, pp 84–89 and 126–129, 1994; Sinson L Garfinkel ‘Patently absurd’ Wired July, p 105, 1994.
35. Barlow, op cit, note 34.
36. We do not have the leisure within the rubric of this paper to discuss these alternatives in detail. This aspect of this paper is more fully explored in M Gillen & G Sutter ‘Legal protection of copy-protection mechanisms’ Journal of the Copyright Society of the USA Vol 51, pp 729–762, 2004.