Archive for the 'DRM' Category

New Must Reads on DRM

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My wonderful Berkman colleague Tim Armstrong has just released his great – and, finally, optimistic – paper on DRM and fair use via SSRN. Here’s the abstract:

Producers of digital media works increasingly employ technological protection measures, commonly referred to as “digital rights management” (or “DRM”) technologies, that prevent the works from being accessed or used except upon conditions the producers themselves specify. These technologies have come under criticism for interfering with the rights users enjoy under copyright law, including the right to engage in fair uses of the DRM-protected works. Most DRM mechanisms are not engineered to include exceptions for fair use, and user circumvention of the DRM may violate the Digital Millennium Copyright Act even if the use for which the circumvention occurs is itself noninfringing.
The academic literature on fair use in digital media has suggested several possible ways to resolve the tension between fair use on the one hand and DRM on the other. Among the more provocative possibilities is that DRM technologies themselves may evolve to incorporate greater built-in protections for end-user rights. This article examines several such proposals and finds that they are not likely to provide users with the same measure of protections for fair use of copyrighted works that exists in the offline world. The failure of these proposals, however, does not suggest that the broader goal of protecting fair use rights in digital media is unattainable. It is possible to advance much more closely towards that goal by altering the design philosophy of DRM technologies to focus more on the processes by which fair uses occur and less on attempting to replicate the substantive law of fair use in machine-administrable form. The article concludes by outlining one possible system engineered to protect the process of fair use.

Different in design, scope, and tone, but equally interesting, Doug Lichtman‘s short piece on DRM, also on SSRN. Also check Jay Dratler’s piece on Sec. 1201, although only the abstract is available by now.

Professor Fisher Presents Conclusions on OECD Digital Content Conference

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Professor Terry Fisher has the difficult job, as the Day 1 Rapporteur, to present in 10 minutes the OECD conference conclusions. Here are the main points he made a few minutes ago:

A. Points of agreement (or at least substantial consensus)

(a) Descriptive level:
o We’re entering a participatory culture, active users, explosion of blogs; differences in web usage.

(b) Predictive level:
o Consensus that we’ll see a variety of applications that will florish; the shift to biz models that incl internet distribution will have long tail effects, increase diversity

(c) Level of aspiration:
o We should aim for a harmonized, global Internet – single, harmonized global approach (vs. competing legal/regulatory frameworks)
o Governments should stay out, but broad consensus of 6 areas where governmental intervention is desirable: (1) Stimulating broadband; (2) fostering universal access (bridging dig.div.); (3) educating consumers; (4) engage in consumer protection against fraud, spam; (5) fostering competition; (6) promoting IP to achieve an optimal balance
o We should attempt to achieve “biz model neutrality” (TF’s personal comment: appealing idea, but infeasible, there’s no way to achieve it.)

B. Points of disagreement

(a) Descriptive level
o Whether IP currently does strike optimal balance (yes, middle ground, no – spectrum of positions)

(b) Predictive level
o Which biz strategy will prevail: pay-per-view; subscription; free-advertisement based model?

(c) Level of aspiration:
o Network neutrality: required or not as a matter of policy
o TPM: Majority: yes, smaller group: no; intermediate group: only under certain conditions.
o Should governments be in the biz of interoperability?
o Using government power to move towards open doc format?
o Government intervention to achieve an Internet that is open vs. variations of a walled-gardened net?

Marybeth Peters’ Statement at OECD

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Here are the keywords I wrote down during Marybeth Peters’ (U.S. Register of Copyrights, United States Copyright Office) statement here in Rome, which she delivered in the context of the final policy roundtable aimed at identifying priority issues, tools, and policy challenges.

  • We must adjust our copyright laws to the digital environment. Copyright law has always responded to new technologies.
  • Must be an internationally coordinated response due to the global nature of the Net.
  • If copyright owner choose to use TPM, those TPM must be protected. Both copy & access controls.
  • Key questions to ask: Are there new rights that are required to protect creators? But also: Do we need new exceptions (e.g. for libraries). Third, what are appropriate remedies (e.g. criminal penalties).
  • Other important set of question: Who is the infringer (primary vs. secondary). This issue comes up in P2P context (Kazaa, Grokster, etc.) Secondary liability must be considered at the international level.
  • Licensing issues: To be saved for the marketplace, no government intervention required. Consumers know what they want. Strongly opposed to compulsory licensing (costly, ineffective). Instead: DRM, collective administration to solve the problem.

Don’t Miss INDICARE’s November Edition

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Lot’s of good stuff in the INDICARE Monitor’s November edition. Among the interesting articles a timely piece on intrusive DRM by Philipp Bohn, a report on the European Commission’s recommendation on cross border licensing by Margreet Groenenboom, and Bill Rosenblatt’s article on rights management and the revolution in e-publishing. Also check out the INDICARE blog, esp. Margreet’s recent post. She draws our attention to a speech by Commissioner McCreevy, who is quoted with the following words:

“On-line content is increasingly sold by using digital rights management devices (DRMs) that protect the work being sold and often ensure direct payment by the consumer. Consumers download music on to portable devices in a protected format and, while doing so, pay for it. The 2001 Copyright Directive states that fair compensation must take account of the use of DRM. In practical terms, this should mean that as the use of DRMs increases, the use of levies should decrease. This does, however, not appear to be the case. This effectively means that consumers who use legitimate on-line services to download music against payment, pay twice.”

Special 301 on Switzerland

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Read this – no comments from my side… (find an inofficial English translation of the draft implementation here.) As my friend Mike puts it: Good luck, Switzerland, on the negotiations of the bilateral trade agreement with the U.S.

INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE 2005 SPECIAL 301 SPECIAL MENTION SWITZERLAND

The Federal Copyright Act of 9 October 1992 as amended is currently undergoing further revision in order to implement the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) into Swiss law. IIPA is concerned with the way in which the two treaties are being implemented in the country. The Swiss Federal Institute for Intellectual Property continues to delay the implementation of the WIPO Copyright Treaties. In September 2004 a draft implementation was released, but is problematic in several respects: it has an overly broad private copying exception (indeed the current exception is problematic and certain groups argue that downloading infringing copies of copyright works from peer-to-peer (P2P) networks is legal in Switzerland); inadequate protection of technological measures (including over-broad personal use exemptions); and burdens on rightholders employing technological measures (including labeling obligations).

Furthermore, the Swiss government should seek to make the use of P2P networks for copyright infringement more difficult. SAFE (the Swiss Anti-Piracy Federation) continues to investigate portal sites, which are generally hosted by foreign providers. In March 2004, police (cooperating with SAFE and the German Anti-Piracy organization [GVU]) raided the home of the Swiss creator of an eDonkey portal offering an extensive number of links to movies, cartoons, PC and console games, software, books and pornography (averaging 220,000 visitors per day). This individual will be prosecuted for copyright offenses, the first such prosecution against the creator of a portal for a P2P network in Switzerland.

Derek Slater on P2P summit

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For the fifth time within two months I’m finding myself back in Cambridge, Mass. You can’t imagine how much I love this place. There are many reasons why I think Cambridge is among the most exciting and inspiring places to be. One reason, of course, are the many wonderful friends and colleagues that have been working and living here. Take as one prominent example my brilliant colleague Derek Slater, Fellow at the Berkman Cente and EFF affiliate with whom I had the pleasure to work on a couple of projects. He has just posted two interesting podcasts on his blog. In the first piece, Derek reports about the P2P litigation summit he participated in, arguing that we have to learn more about – and from! – the stories of the people that got sued by the recording industry. In the second podcast, Derek provides a big-picture analysis of possible (technological, business, and policy) approaches to the file-sharing problem. In essence, he makes a strong case why policy-makers should not take drastic measures (such as, e.g., compulsory licensing systems or, as the worst-case scenario, mandatory DRM schemes) to address the current digital media crises. Rather, policy-makers may be well advised to trust in the evolutionary power of market mechanisms on the one hand (emerging business models, in fact, might address the problem) and to focus on the reform of the DMCA and certain procedural protection measures on the other hand.

Consumer’s Perspective on DRM

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Natali Helberger, Institute for Information Law, University of Amsterdam, has written yet another good piece on Digital Rights Management from a Consumer’s Perspective.

Update on Revision of Swiss Copyright Act

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An update in English on the current revision of the Swiss Copyright Act is available here. It does not come as a surprise that the anti-circumvention provisions as well as the proposed levy on CD and DVD burners are contested. Note that iTunes – recently launched in Switzerland (see here and here) – is now used to call for thougher legal protection of DRM. I translated the draft anti-circumvention provisions here.

EUCD Update (June 2005)

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I’ve updated our EUCD collection of materials website. The following countries recently implemented the EUCD: Belgium, Cyprus, Portugal, and Sweden. Unfortunately, English translations are not in all cases available. Please let me know if you know about resources and/or other implementations. (Thanks to Marcella for pointers.)

More on the Controversial OECD Music Report

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Check out the Berkman Center’s website for reactions. It turns out that the entertainment industry still does not like the study. We’ve also made public our comments on the draft OECD report on digital music.

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