1. January 9, 2003DRM Workshop1 DRM {and, or, vs.} THE LAW Pamela Samuelson Berkeley Workshop on Proactive DRM Agenda, January 9, 2003

2. DRM Workshop2 OVERVIEW Different ways to perceive the relationship between DRM and the law Pre-DMCA rules pertaining to DRM DMCA rules and caselaw Hollings and mini-Hollings bills Public vs. private legislation through standards Consumer protection proposals

3. January 9, 2003DRM Workshop3 AND/OR/VS. DRM as copyright enforcement mechanism (and) DRM as an alternative mechanism to copyright law (or) –code as code –standard-setting processes as alternative to law DRM as a means to override the law (vs.) –way to override fair use, 1 st sale, public domain Law as a means to control DRM (e.g., require privacy protection) (a different species of vs.)

4. January 9, 2003DRM Workshop4 PRE-DMCA LEGAL FRAMEWORK Vault v. Quaid: not contributory infringement to make “Ramkey” to spoof “Prolok” copy- protection software because of substantial non- infringing uses to make back-up copies Some specialized anti-circumvention rules (e.g., black-box cable and satellite decoders, EU software directive) Computer Fraud and Abuse Act has some implications for legal protection of DRM

5. January 9, 2003DRM Workshop5 AHRA AS DRM MANDATE Digital audio tape machines perceived as threat to sound recording industry Consumer-grade DAT machines must have SCMS chips built in which enable personal use copying but copies of DAT copies degrade “Tax” on machines and tapes go to royalty pool for copyright owners Anti-circumvention provision: illegal to make or distribute technology, primary purpose or effect of which is to circumvent SCMS RIAA v. Diamond MM: AHRA doesn’t apply to MP3

6. January 9, 2003DRM Workshop6 STANDARDS AS MANDATES Consumer electronics and motion picture industry agreed on Content Scramble System (CSS) as standard DRM-like technology to be installed in DVD players and disks Need license from DVD CCA to make DVD player because of patents Installation of CSS and various security measures (including anti-RE clauses in end user licenses) are conditions of DVD CCA licenses

7. January 9, 2003DRM Workshop7 1995 WHITE PAPER & WIPO Widespread use of technical protection measures (TPMs) for distribution of digital content via the NII was anticipated WP advocated legislation to protect technical measures and copyright management information Similar proposals made to WIPO for copyright treaty WIPO treaty requires “adequate” protection and “effective” remedies vs. circumvention of TPMs

8. January 9, 2003DRM Workshop8 DMCA ANTI- CIRCUMVENTION RULES (a)(1)(A): Illegal to circumvent a technical measure copyright owners use to control access to their works (a)(2): Illegal to make/distribute tool to circumvent access controls (b)(1): Illegal to make/distribute tool to bypass other technical measures used by copyright owners to protect rights in works No counterpart to (a)(1)(A) for bypassing copy controls (compromise to enable fair uses?)

9. January 9, 2003DRM Workshop9 1201(a)(1)(A) EXCEPTIONS (Relatively) meaningful exceptions: –achieving program-to-program interoperability –encryption research & computer security testing –law enforcement/national security Other (unmeaningful) exceptions: –library/nonprofit “shopping” privilege –privacy protection –parental control 1201 (c)(1) ambiguous about fair use preservation LOC rulemaking to make new exceptions

10. January 9, 2003DRM Workshop10 OTHER DMCA RULES 1201(k): mandate Macrovision TPM in VCRs 1202 protects the integrity of “copyright management information” from alteration/removal 1203 gives broad remedies to successful plaintiffs (injunctions, statutory damages, etc.—even if no actual infringements!) 1204 makes willful violation of 1201 or 1202 for profit/financial gain a crime: –up to $500K fine for 1 st offense, up to 5 yrs in jail –up to $1M for 2 nd offense & up to 10 yrs in jail

11. January 9, 2003DRM Workshop11 EU DIRECTIVE In most respects, it’s more restrictive than DMCA –Bans all acts of circumvention –Broad ban on circumvention technologies very similar to DMCA (but reaches possession as well) –No exceptions to anti-act or anti-tool rules –No LOC-type rule-making processes Arguably better in requiring member states to ensure that copyright owners enable users to exercise certain copyright exceptions

12. January 9, 2003DRM Workshop12 UNIVERSAL v. CORLEY 1 st major DMCA anti-circumvention case Movie studios persuaded courts to enjoin Corley, a journalist, from posting and linking to DeCSS in source or object code form on 2600 magazine website under 1201(a)(2) DeCSS was primarily designed to bypass CSS which the court ruled was an access control Statutory and constitutional defenses rejected

13. January 9, 2003DRM Workshop13 CONSTITUTIONAL CHALLENGES Second Circuit rejected several constitutional challenges to DMCA in Corley –Source & object code are 1 st A protected but functionality limits extent of protection –DMCA satisfies intermediate scrutiny 2d Cir. did not rule on the I/8/8 challenge What the Supreme Court does in Eldred will have considerable significance for future constitutional challenges to DMCA or to DRM mandates

14. January 9, 2003DRM Workshop14 OTHER DMCA CASES Sony v. Connectix & Bleem: emulation programs said to bypass PlayStation game TPMs Sony v. Gamemaster: game enhancer software violated DMCA because bypassed country code (gave Sony control over complementary products & stopped competition w/ Sony’s game enhancer) RealNetworks v. Streambox: enjoined “VCR” that bypassed RN authentication procedure & allowed personal use copies of streamed content

15. January 9, 2003DRM Workshop15 OTHER DMCA CLAIMS Felten v. RIAA and Edelman v. N2D2 challenged claims of DMCA violations by researchers US v. Elcom: jury acquitted maker of software to bypass Adobe e-book reader Blizzard v. bnetd: open source emulation program enabled users to form private game network; RE as circumvention; program as circumvention tool Lexmark v. Static Controls: maker of printers and toner cartridges installed software access controls to protect toner cartridges from competition

16. January 9, 2003DRM Workshop16 DVD CCA v. BUNNER Trade secret misappropriation case DVD CCA licensor of CSS as part of DVD player license; requires installation of anti-RE clauses Claim that Johansen misappropriated TS when reverse engineered CSS in violation of anti-RE clause of click-license, & developed DeCSS which embodies/is substantially derived from TS Bunner posted DeCSS on website when knew or should have known was based on stolen TS 20 other named defendants; 500 “John Does”

17. January 9, 2003DRM Workshop17 MORE ON BUNNER Superior Court issued preliminary injunction vs. posting DeCSS in source or object code form Only Bunner appealed; Court of Appeal reversed on 1 st A grounds (DeCSS in source code form = 1 st A speech; prelim injunction as prior restraint) Cal. Supreme Court took DVD CCA’s appeal; argument not yet scheduled Hopeful signs: 4-3 decision in Pavlovich as to no jurisdiction; acquittal of Johansen (if his RE was lawful in Norway, no TS misappropriation?)

18. January 9, 2003DRM Workshop18 LOC RULEMAKING Purpose: to consider whether 1201(a)(1)(A) is having adverse effects on noninfringing uses of certain classes of works LOC given power to issue rules, in effect, creating new exceptions to 1201(a)(1)(A) Results of 1 st rulemaking: OK to circumvent broken access control, OK to circumvent to analyze filtering software 2 nd rulemaking underway: submissions by 50 individuals or organizations

19. January 9, 2003DRM Workshop19 LEGISLATIVE INITIATIVES Hollings bill (Consumer Broadband & Digital Television Promotion Act) Mini-Hollings bills (e.g., Tauzin broadcast flag mandate bill; FCC rulemaking) Biden anti-counterfeiting bill Boucher/Doolittle bill Lofgren/Honda bill Digitalconsumer.org joint resolution

20. January 9, 2003DRM Workshop20 HOLLINGS BILL (S. 2048) Consumer Broadband & Digital Television Promotion Act Makers of digital media devices, copyright owners, & consumer groups would have 12 mo. to reach agreement on standard security measures to be installed in devices FCC to issue rule to require installation in all devices If no agreement, FCC will choose security standard anyway & mandate it in digital media devices Illegal to make or provide digital media device w/o SSM Also illegal to remove/alter SSM Criminal as well as civil penalties (same as DMCA)

21. January 9, 2003DRM Workshop21 ARGUMENTS FOR MANDATED DRM Digital content (e.g., music, movies) won’t really be secure until DRMs in all digital media systems (including general purpose computers) Computer/software industry has resisted “voluntary” standards on DRMs Mandating DRMs is the only way to ensure they won’t be competed away Broadband deployment arguably hindered by threat of “piracy,” so stronger legal protection is necessary

22. January 9, 2003DRM Workshop22 REASONS TO OPPOSE Would prevent many beneficial uses of IT Would add expense to IT systems Would undermine system performance Would retard innovation & investment in IT May make systems more vulnerable to hacking (one virus might take down all systems) Likely to mean no Linux-based enterprise systems (if DRM can’t be implemented royalty-free) The government & content industry shouldn’t dictate how the IT industry builds its products

23. January 9, 2003DRM Workshop23 “MINI-HOLLINGS” BILLS? Hollings bill has no immediate chance of passage –But it is what entertainment industry really wants Likely to be a series of “mini-Hollings” bills –Broadcast flag likely to be the first of many –2 “precedents”: AHRA for DAT; DMCA for VCRs –Death by 1000 cuts: once tech mandates for several devices, Congress might as well mandate generally Will rearchitecture of the Internet be next (so content cannot be transmitted unless copyright clearance assured)?

24. January 9, 2003DRM Workshop24 OTHER DRM-RELATED DEVELOPMENTS Hollings bill aims, in part, to induce “voluntary” standards Various other standard-settings processes ongoing, such as those to standardize on DRM languages (e.g., OASIS Rights Language Technical Committee on which EFF and Boalt clinic have been working) Palladium and the Trusted Computing Alliance (TCPA) are important DRM-enabling developments

25. January 9, 2003DRM Workshop25 PRIVATE v. PUBLIC ORDER DRM enables “private ordering” –Virtues may include flexibility, new business models, better protection of digital content –But public order values, such as fair use and privacy, may be casualties of private ordering –Is a struggle to articulate user rights worthwhile if licensors won’t use the RL to express them? “Public choice” problems can exist in standard- setting organizations as well as legislatures But it is possible for standard-setting organizations to take public order values into account

26. January 9, 2003DRM Workshop26 HR 107 (Boucher/Doolittle bill) Require adequate labeling of copy-protected CDs (warning: may not play on device of your choice or allow space-shifting onto your hard drive) Reforms to DMCA: –OK to circumvent if no infringement occurs –OK to make tool to enable fair and other significant non-infringing uses –OK to circumvent and make tools for scientific research (not just for encryption research)

27. January 9, 2003DRM Workshop27 HR 5522 (Lofgren-Honda bill) Fair use applies to analog or digital transmissions Right to make backup copies, display copies Mass-market licenses for digital content can’t override user rights Allow first sale rights for digital copies Reforms of DMCA: –OK to circumvent DRM to make fair uses –OK to make tools necessary to enable lawful circumventions

28. January 9, 2003DRM Workshop28 CONSUMER BILL OF RIGHTS Digitalconsumer.org has articulated “bill of rights” –Right to “time-shift” –Right to “space-shift” –Right to make backup/archival copies –Right to use on platform of your choice –Right to transform format –Right to use technology to accomplish these rights HJR 16 would affirm these as “sense of Congress”

29. January 9, 2003DRM Workshop29 CONCLUSION DRM has a complex and ambiguous role vis-à-vis the law (and vice versa) Trend of past few years has been to rely upon law to protect DRM Public interests at stake in DRM not well- represented in legislature & policy arenas Proactive DRM agenda by public interest community may be worth considering