[A2k] DRMs & Copyright/DRMs & Consumers

[Manon Ress]

FROM:
Natali Helberger
Senior project researcher
Institute for Information Law
Rokin 84
1012 KX  Amsterdam
The Netherlands
Tel. + 31 20 525 36 46
Fax. + 31 20 525 30 33
http://www.ivir.nl
Please notice the project http://www.indicare.org - The Informed
Dialogue about Consumer Acceptability of Digital Rights Management
solutions in Europe

RE: a2k and DRMs

Here is a collection of some ideas of how copyright law could be
reconciled with consumer interests. The suggestions are divided into two
parts. The first concerns the relationship between DRMs and copyright
law. The second one concerns, more generally, the relationship between
DRMs and consumer interests:


1. DRMs and the boundaries of copyright law

Define narrow scope technological measures:
Only such technological solutions would fall under the
anti-circumvention rules, which have been specifically developed to
protect existing intellectual property rights, notably the right to
control the making of copies and communication of works to the public.

Comment: controlling access to works is not a right that is protected
under copyright law. Re-enforcing territorial borders (region codes) is
also not a right that is protected under copyright law, etc.

And: if one would take the requirement of effective technological
measures seriously, for the time being there were probably no DRMs that
deserve protection under the anti-circumvention rules.

Hold DRM users responsible for respecting the limitations and exceptions
in copyright law

Comment: the underlying concept is to make clear that in those
situations in which copyright exceptions apply, the protection period
has expired, copyright law does not apply etc, the use of DRMs is not
protected by anti-circumvention rules. Motto: it is the property order
that dictates how to place the fence, and not the fence that dictates
the property order.

Foresee sanctions in case that DRM users fail to make DRMs compatible
with copyright law

Comment: self-explanatory

Foresee a right to appeal for a) consumers and b) consumer organisations
if DRM =09users fail to make DRMs compatible with copyright law

Comment: self-explanatory


Note: Taking into account that, as DRM developers often argue, it is not
possible to make DRMs compatible with copyright law, the above
suggestion would have the side effect that there are probably almost no
DRMs which would qualify for protection. Furthermore, it would stimulate
R & D to design more consumer friendly DRMs, provided such DRMs were
possible. The anti-circumvention rules, as they are now, do not
stimulate this at all.

Note: Cory, your suggestion that "a DRM that is capable of being used in
excess of the bounds of copyright can be lawfully circumvented and that
the tools to accomplish this circumvention are lawful to manufacture and
sell" is another interesting alternative. The problem is: a) how
effective would this solution be in practice, and how many users would
make use of it? b) why should consumers be forced to circumvent when it
should be, first of all, the responsibility of DRM users not to impede
legitimate uses?, c) the practical problems with realising this plan
could weaken the strength of this argument considerably when it comes to
negotiating it.

Similar is true for the suggestion to carve out unambiguous =91rights=92 to
perform certain permitted activities such as private copying, even when
technological measures are applied. This is the approach taken by the
German legislator in the context of the implementation act.  In
practice, this suggestion will probably have limited practical effect.
Most importantly, this is because it is unlikely that consumers will
turn to the courts to claim the right to make a copy of a CD.


Secondly, there are good arguments to argue in favour of a more general
consumer protection agenda concerning DRMs. Some important points on
such an agenda could be:


2. DRMs and consumers interests

DRMs must be designed and applied in a way that they do not conflict
with  legitimate rights and interests of consumers

Key-aspects are:
Consumer friendly design

Comment: The use of DRM may not hinder the normal processing of content,
for example because of incompatibilities or because the TPM is not
robust enough to work with current and future technologies.

Responding to the needs of consumers with special needs

Comment: self-explanatory

Hardware and security issues

TPM users must respect the consumers=92 property in their hardware and
software.  Where TPMs cause damages to consumers' property, consumers
should be able to hold TPM controllers liable for the damage.

Comment: Hardware and security issues concern cases where TPMs come in
conflict with other software installed on a PC, a situation that can
lead to incompatibilities and application failures. Also, where TPMs
require an online registration procedure or are remotely controlled,
this should not confront consumers with the risk of external attacks.

Respecting the right to privacy

Comment: self-explanatory. An obligation to implement Privacy Enhancing
Technologies (PETs) may be an interesting route to follow.

Transparency

Consumers should receive sufficient information on whether TPMs are used
and how do they affect the usability of digital content. More
specifically, consumers should have information about
Are DRMs used?
How are DRMs used and how do they affect the usability of works (are
they used to collect personal data, do they allow private copying,
forwarding, sampling, etc., what are the terms under which all flags can
be  switched on or off before the device is purchased/acquired - Cory,
this is your point)?
What are the terms and conditions governing DRMs, are they changed
remotely, etc. ?
Who is the operator of DRMs? How to contact this operator?

Comment: information should be distributed in a way that is easily
understandable and accessible for the average user.  Self-regulatory
solutions might be an option.

Standard term contract

The formation and content of standard form contracts concluded in the
context of digital content delivery should be regulated so as to enhance
the fairness of terms and the consumers=92 confidence.

Right to withdrawal

If the contract terms change, consumers should have a right to withdraw.

Comment: Cory, this is your point. Actually, a similar provision can
already now be found in European telecommunications law.


DRMs must be designed and applied in a way that they do not create
obstacles to
functioning competition

Competition
DRMs may not be used in an anti-competitive way.

Comment: Actually, this is evident. If DRMs are used in an
anti-competitive way competition laws will apply. Important is the
underlying idea: DRM protected contents or services should meet the
legitimate expectations of consumers. Accordingly, the conditions should
be given for a competitive market for such products and services, so
that consumers are offered a choice from a range of different products
and services and can make a decision for the product that meets best the
consumers=92 expectations concerning quality and price of the product.
Important aspects in this context are:
Interoperability

This is a tricky one. Making DRMs interoperable in form of
standardisation is not always in the interest of consumers. Also, as
Cory points out very correctly, DRM standards must not preclude FOSS.
Still, it might be beneficial and competition enhancing to find ways to
prevent technical lock-in/out situations.

Transparency

Comment: It is not sufficient that consumers are free to switch between
different services and interoperable platforms; they must also be able
to access information about the choices available to them.  For
consumers to be able to compare terms and conditions and choose the
service that offers the most attractive conditions to them, they need
answers to the following questions:





--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367,
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