Digital rights management and the Digital Millennium Copyright Act

Abstract:

What is copyright law in relation to digital content? How do content provider rights holders safeguard their property through technological protection measures. The DMCA is primarily concerned with legally prohibiting circumvention and stopping the trafficking of circumvention-enabling technologies. The ways that this effects libraries in loaning material are discussed. The means of access control relating to different platforms are explained and the impetus for the Digital Millennium Copyright Act of 1998 is discussed. The major influences behind this act are addressed and the rulemaking process is elaborated on.

Key words

DMCA (Digital Millenium Copyright Act)

digital rights management

technological protection measures

WIPO

EUCD

tethering

trusted system

encryption

Adobe Digital Editions

iBooks

rulemaking

access controls

Digital rights management (DRM) refers to the barriers copyright holders put in place within their content to prevent unauthorized use. DRM is alternately referred to as technological protection measures (TPMs). These measures are the means "by which rights holders prevent the use of the digital content they license in ways that could compromise the commercial value of their products" (Kasprowski, 2010, p. 49). This chapter will examine this and investigate the methods of TPM. Implications for academic librarians will be addressed and workarounds will be suggested where possible.

DRM comes in many forms, but to simplify the issue methods can be grouped into two categories, soft and hard restrictions.1 Hard restrictions will be classified as any means that are used as a gateway to access. Typically, these methods are employed through encryption and other coding controls. Any measure that seeks to influence or inhibit user behavior after access has been granted will be classified as a soft restriction.

Soft and hard restrictions are not mutually exclusive, and often they are employed in concert for various purposes related to rights. Soft restrictions are qualitatively different from hard measures because these methods do not prevent access. They serve to limit uses to those prescribed by the rights holder through the interface. Hard restrictions are designed to channel access, particularly through preferred interfaces and devices. Generally, they are found in two forms, encryption and a tethered or trusted use system. Encryption presents a barrier to access and affects the character of the file. Tethered DRM is another level of security built into a file with encryption. Its purpose is to limit the number of devices a digital file can be accessed on. When used jointly, these measures serve to enforce rights issues with a remarkable degree of security. This topic will be investigated in more detail later in this chapter.

With the advent of digital content, copyright holders (in particular, corporations or holding companies with large economic stakes invested in copyrighted materials) use DRM to secure copyright rather than seek protection through legal means. As Gillespie (2007) points out "a fundamental shift in strategy, from regulating the use of technology through law to regulating the design of technology so as to constrain use" (p. 6) is occurring in the digital milieu. There are no improprieties evident in the practice. It makes more economic sense to protect something at the point of use rather than retroactively through legal means. It is vital for librarians to understand these issues so that they may provide workarounds for patrons to engage with digital content according to all the rights users have been granted to copyrighted material in the 1976 U.S. Copyright Act.

Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) of 1998 and the 2001 European Union Copyright Directive (EUCD) were written with the intention of bringing sovereign laws regarding copyright into accordance with two 1996 provisions of a World Intellectual Property Organization (WIPO) treaty. Prior to this legislation, copyright law in the United States had directly addressed the developments enabled by digital information. The intention of the DMCA is to prevent circumvention of TPMs. A major point of contention centers on the lack of fair use provisions in the act. The DMCA is the major legislation pertinent to copyrights in the digital milieu, and understanding it is central to library practices concerning digital materials.

Perzanowski (2007) provides a clear summation of the DMCA in his article "Evolving standards & the future of the DMCA anticircumvention rulemaking" where he states that:

The DMCA regulates two classes of activity: (1) circumvention - the act of descrambling a scrambled work, decrypting an encrypted work, or otherwise disabling, removing, or avoiding a technological measure without the permission of the copyright owner; and (2) trafficking - the manufacture, distribution, sale, or offering to the public of devices, tools, or technologies that enable circumvention (p. 3).

In §1201 the DMCA specifies how copyright law in the United States will pertain to TPMs. The section outlines three key prohibitions that bar individuals from using technology to circumvent access controls, sell access control technology, or traffic in copy control technology (Baesler, 2003, p. 5). The use of material protected by TPMs is not possible provided the letter of the law is followed. This makes it easier to deal with the issue of fair use claims. The use may be fair, but the act of accessing the material protected by DRM is a direct violation of copyright law. There is no way to claim a fair use defense or guarantee use to content previously protected by the 1976 act.

According to the DMCA, users cannot use technology to circumvent access control. Functionally, this means that they cannot use programs so that access is granted to materials using different interfaces. For instance, the Rhode Island College (RIC) James P. Adams Library subscribes to several databases providing full text eBooks, among them eBrary. These collections of eBooks all function in the same way, with slight variations. An authorized user from RIC is able to access and download texts from this library. In order to borrow the content they must go to the institution's eBrary webpage and create an account. To use borrowed materials on personal devices, users must authorize the content with Adobe Digital Editions to satisfy DRM. The Adobe program is involved in the process because the Adobe Corporation provides publishers with DRM methods through the Adobe Content Server. After this process is complete, users are granted a loan period and can access the content via a browser or the eBrary app. They are not free to read and highlight the text using the program of their choosing. This is extremely frustrating to users for a number of reasons. Not only does this constrain scholarship, it also presents an intimidating barrier when the patron is making use of library content. Material is not portable and syncable through a cloud provider like Dropbox or Sugar Sync. This process places unwarranted obstacles in the path of scholarship for questionable economic benefit to content producers.2

DRM results in a convoluted and complicated process that presents a barrier to the adoption of eBook lending libraries in academia. The process of engaging with eContent containing DRM is cumbersome and restraining. It is not nearly as simple as picking a book off the shelf and reading the material. With digital content, a similar method may be selecting a file and reading it with the help of a digital device. The loaning of eContent is in its infancy when compared with print content and it does not function seamlessly or optimally. Hopefully, as time allows the process to mature, a standardized set of simple protocols will diffuse. As libraries seek to provide users with as wide a variety of content as possible they will increasingly become involved in the distribution of digital content. The danger to the scholarly community is that the laws put in place by the DMCA will stunt the diffusion of knowledge by preventing a development of best practices regarding the distribution of digital content. A disincentive to this is the reification of TPMs to solidify the primacy of the market in the distribution of scholarly literature.

Rather than discuss the qualities of various programs, it is more informative to address the issue in the abstract. Users are unable to interact with materials they have been granted access to as they choose, constraining intellectual freedom. The upcoming section on soft restrictions ("Soft-use measures" on p. 27) will elaborate more on this matter. Avid users may need to constantly access materials across several different platforms. Unfortunately, with eBrary material they are only able to access it via the provider's accepted options. Not only does this wrest control from the user, but it also diminishes the power of the lending institution to have agency over their collection. This is a particular problem for libraries with regard to digital texts, and certain institutions, in particular the Douglas County Library system in Colorado, have attempted to take novel approaches in order to remedy this situation....