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Digital Learning Legal Background Paper
DRM Systems and Educational Use of Copyrighted Material 1
I. INTRODUCTION .............................................................................................................. 1
II. DRM SYSTEMS ............................................................................................................ 2
A. DRM Defined ....................................................................................................... 3
B. DRM-Protected Works and Education ................................................................ 4
C. Incentives for DRM Protection of Commercial Works ........................................ 7
D. DRM System Overview ...................................................................................... 13
E. The DRM System Arms Race ............................................................................. 21
III. DRM AND THE DMCA IMPAIR EDUCATIONAL USE OF DIGITAL WORKS .................... 22
A. Anti-Circumvention Provision ........................................................................... 22
B. Anti-Trafficking Provisions ................................................................................ 27
IV. INDUCEMENTS FOR EDUCATOR USE OF DRM ............................................................. 28
A. Strict Licensing Requirements ........................................................................... 28
B. Statutory Shortcomings: The TEACH Act ......................................................... 30
C. Lawsuit Avoidance............................................................................................. 30
D. Educator Interest in Protecting Intellectual Property ....................................... 31
V. EDUCATIONAL IMPACT ............................................................................................... 32
A. Increased Costs Imposed by DRM Technology ................................................. 32
B. Conquest of the DMCA Sword over the Educational Use Shield ...................... 32
C. Entrenchment of DRM ....................................................................................... 33
VI. A FRAMEWORK FOR RESTORING BALANCE ................................................................ 34
A. Legal .................................................................................................................. 34
B. Architectural ...................................................................................................... 34
C. Economic ........................................................................................................... 35
D. Normative .......................................................................................................... 36
VII. CONCLUSION .............................................................................................................. 37
I.
INTRODUCTION
Digital media holds tremendous promise for the future of education. Rich and
abundant content, powerful computer systems, and user-friendly tools for transforming
media objects into learning objects offer to enhance the learning experience. The Internet
has the potential to expand this benefit, allowing educators to reach beyond classroom
walls and connect with students at a distance. Indeed, the question is not whether to
harness the pedagogical power of digital media, but how.
Despite this promise, it is not a foregone conclusion that education will reap the
benefits digital media might afford. Digital rights management (“DRM”) systems are
poised to impede educational use and dissemination of digital works. The DRM threat to
educational use of digital media is two-fold. First, DRM systems used by rightsholders to
shield their content from unauthorized uses proscribe educational use of that content.
1
This legal background paper was produced as part of the Digital Learning project by the Berkman Center for Internet
and Society at Harvard Law School. Research and drafting was completed by Jackie Harlow, Student Fellow at the
Berkman Center and a member of the Harvard Law School class of 2006. This work is licensed under a Creative
Commons Attribution/Non-Commercial/ShareAlike License, as explained further at
http://creativecommons.org/licenses/by-nc-sa/2.5/.
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Digital works rightsholders employ DRM systems to regulate – through technological
means – precisely how their works are accessed and used. DRM systems empower
rightsholders to restrict copying, excerpting, and distribution of their works. Moreover,
these expansive technological controls are reinforced with legal ones. The Digital
Millennium Copyright Act (“DMCA”)2 provides rightsholders with legal rights designed
to buttress the technological protections DRM systems impose. Together these controls
jeopardize educator access to DRM-protected digital works, and leave educators with
limited recourse for making use of such works.
Second, contractual and statutory obligations, in addition to educator self-interest,
provoke educators to use DRM systems to protect the digital content they generate or
disseminate. Restrictive licensing terms require educators to safeguard digital works they
obtain permission to use with DRM systems. In addition, the safe harbor provided by the
Technology, Education and Copyright Harmonization Act (“TEACH Act”)3 contains a de
facto requirement for use of DRM systems to protect digital works. Furthermore, fear of
copyright infringement liability motives some educators to employ DRM systems when
distributing digital works, irrespective of whether they are seeking exemption under the
TEACH Act. Finally, the individual interests educators have in regulating their own
works might militate in favor of DRM system usage. Convergence of these factors could
create walled gardens at educational institutions, blocking the flow of knowledge.
This Paper undertakes to examine these potential effects of DRM systems. Part II
explores DRM systems in detail, identifying DRM-protected works relevant to education,
explaining why (and how) rightsholders use DRM systems to restrict access to their
works, and providing an overview of the technical aspects of DRM systems.
Part III considers the legal environment surrounding DRM systems. This Part
discusses the anti-circumvention and anti-trafficking provisions of the DMCA, and the
paucity of defenses available to educational users who violate those provisions.
In Part IV attention shifts from commercial rightsholder behavior to educator
behavior. This Part explores inducements that educators face to safeguard the digital
works they disseminate or create with DRM protections.
Part V reviews the arguments set forth in the previous parts and evaluates the
impact DRM systems are having on education. Building from that analysis, Part VI
outlines a multifactored framework as a starting point for addressing the impact of DRM
systems on educational use of digital works.
II.
DRM SYSTEMS
In an environment where large-scale copyright infringement takes little more than
a click of the computer mouse, so-called DRM systems have emerged as a supplement to
– and increasingly a replacement for – the remedies provided to rightsholders under
copyright law. DRM systems offer a secure framework for distribution of digital content,
which in turn encourages investment in the commercial development of such content.4
The security afforded by DRM systems emanates from the increased level of
control over access to and use of digital content these systems provide. DRM systems
2
17 U.S.C. § 1201 (2000).
See TEACH Act, 17 U.S.C.A. §§ 110(2) & 112(f).
4 See Stefan Bechtold, Digital Rights Management in the United States and Europe, 52 AM. J. COMP. L. 323, 324
(2004).
3
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enable rightsholders to specify and enforce terms of use for digital content persistently
and remotely.5 Rather than sell copies of digital works to consumers – as books are sold
to readers – rightsholders can license digital works equipped with DRM protections on
the terms of their choosing.6
This licensing-based distribution model can entail substantial restrictions for users
of digital content. Licenses enforced by DRM systems allow rightsholders to precisely
specify details of how a consumer can interact with digital content, such as how
frequently and with what devices content may be accessed.7 In contrast to the copyright,
which is constrained by the fair use doctrine and other exceptions that reduce the scope of
the grant,8 restrictions imposed by licenses and DRM systems are not subject to
equivalent limitation.9 DRM technology grants rightsholders de facto control over user
rights without regard to and in excess of the level of control they receive under copyright
law.10
Understanding the impact of DRM technology on the educational use of digital
media is a complex undertaking. Evaluation of the potential for DRM systems to
obstruct or facilitate educational use of digital media requires appreciation of how these
systems are structured – both in terms of the parties responsible for DRM system
implementation and the technological workings that make these systems so powerful.
This Part begins by defining what makes a DRM system and identifying the types of
DRM systems relevant in the educational context. It then examines how market
influences affect commercial DRM system deployment. It concludes by providing an
overview of DRM technology and the DRM arms race between digital rights holders and
content users.
A.
DRM Defined
Despite the importance of DRM to the digital media discourse, there is no
universally accepted definition of the term.11 Some critics charge the term is a misnomer,
either because the “rights” protected by DRM systems are contractual rather than
stemming from copyright, or because they find the term loaded in favor of rightholders.
Indeed, because of difficulties related to the terminology, some authors and technologists
have begun using other names, such as the broader term “technological protection
measures” (“TPMs”).12 While recognizing these difficulties, this paper will use the term
“DRM.”
5
See William Ku & Chi-Hung Chi, Survey on the Technological Aspects of Digital Rights Management, in
INFORMATION SECURITY 391, 392 (Kan Zhang & Yuliang Zheng eds. 2004).
6 See id. Certain DRM-protected media formats – such as DVDs – might still be thought of as being sold rather than
licensed. Those media formats are sold with substantial encumbrances, however, giving them much the same feel as
licensed goods.
7 See Ku & Chi, supra note 5, at 391.
8 See 17 U.S.C. § 107 (2000); 17 U.S.C. § 110(1) (2000); TEACH Act, 17 U.S.C.A. §§ 110(2) & 112(f) (2005).
Section 107 codifies fair use, § 110(1) codifies the classroom use exemption, and §§ 110(2) & 112(f) comprise the
TEACH Act. These three provisions serve to insulate users from copyright infringement liability for certain uses of
copyrighted works.
9 In fact, the Digital Millennium Copyright Act (“DMCA”), see 17 U.S.C. §1201, actually reinforces the technological
protections DRM systems offer with the force of law. See infra text accompanying notes 198-240.
10 See infra text accompanying notes 198-240.
11 See Ku & Chi, supra note 5; Bechtold, supra note 4, at 324.
12 Several different terms encompassing the same concept as DRM are found in the literature. A non-exhaustive list
includes: automated rights management (ARM), see Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated
Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. REV. 557 (1998); technological protection measures
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Examination of the elements that comprise DRM systems and how those elements
interrelate suggests a foundational definition. Broadly, a DRM system is a combination
of technological protections and licenses that supplies rightsholders with persistent
control of their digital works.13 Regardless of where a work is located, or whether a work
has been shared, traded, or resold, a DRM system enables rightsholders to permanently
enforce license terms – such as no copying allowed – through technological means. The
“client,” a mechanism such as Windows Media Player or a DVD player used to access the
content, enforces those licensing terms automatically.14
The components of a DRM system fall into two general categories: system
management and rights (or permissions) enforcement.15 System management refers to
the organization and design of the DRM system, including identification of digital
content, assignment of metadata to content, and specification of the terms and conditions
regulating how users may interact with content.16 Rights enforcement is the persistent
and remote regulation of content – through technological means – to ensure it is used in
compliance with the license terms chosen by the rightsholder. 17 For example, a license
specifying that a file can only be opened a set number of times, and on a device with a
particular address, would fit in the system management category; the technological means
used to enforce those terms, such as the software that prevents a DVD player from
playing unauthorized discs, would fall under rights enforcement.
B.
DRM-Protected Works and Education
A substantial force in the consumer and business markets, digital media – and the
DRM systems that protect it – is pushing its way into the classroom. Less than a decade
ago, DVDs and CDs were the only digital media objects likely to be found in the
classroom. Today, computers are pervasive and integral to learning. Indeed, some
elementary and secondary schools have abandoned traditional textbooks altogether in
favor of digital textbooks or online learning.18 Computers and other devices designed to
access digital media have opened the classroom – and the world beyond – to an
assortment of digital works with educational uses. In many instances, however, DRM
systems interfere with these uses. Categories of digital works important to education, and
the DRM systems that restrict their use, are described below.
(TPMs), see Fred von Lohmann, Protecting Content in the Digital Environment: Measuring the Digital Millennium
Copyright Act Against the Darknet: Implications for the Regulation of Technological Protection Measures, 24 LOY.
L.A. ENT. L REV. 635 (2004); copy protection controls, see Matthew Scherb, Comment, Free Content's Future:
Advertising, Technology, & Copyright, 98 NW. U. L. REV. 1787 (2004).
13 See Ku & Chi, supra note 5, at 391.
14 See Susanne Guth, A Sample DRM System, DIGITAL RIGHTS MANAGEMENT: TECHNOLOGICAL, ECONOMIC, LEGAL &
POLITICAL ASPECTS 157-161 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003) (explaining
that a client is “a secure viewer trusted by the DRM platform”).
15 See Ku & Chi, supra note 5, at 392.
16 See id.
17 See id.
18 See, e.g., Press Release, Forney Independent School District, Laptops Replace Textbooks at Johnson Elementary
School (May 6, 2004), http://forney.ednet10.net/prod_site/announcement/announcement_electrontext/
elect_text_book_01/elect_text_book_01.html; Daniel Scarpinato, All-Laptop High School to Open in Vail, AZ. DAILY
STAR, July 10, 2005, available at http://www.azstarnet.com/dailystar/allheadlines/83469.php (last visited May 7, 2006).
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DVDs
DVDs are one of the first DRM-protected works to find their way into the
classroom. Educators at all levels use movies and movie clips to teach history, art,
science, and numerous other subjects.19 As discussed in an accompanying case study,
within the burgeoning field of film studies, professors at universities nationwide routinely
show compilations of movie clips made from DVDs to their students. In addition, some
film studies professors post movie clips on the Internet or make copies of movie clips for
students to view outside of the classroom. Each of these activities requires circumvention
of the Content Scrambling System (“CSS”), a DRM system that protects DVD content
through an encryption and licensing scheme.20 Because DVDs are far superior to film
reels and VHS tapes as source material for creating movie clip compilations, educators
who use movie clips in their teaching are likely to continue circumventing CSS to gain
access to DVD content for the foreseeable future.
2.
Digital Textbooks
Digital textbooks are another example of the growing popularity of electronic
teaching tools. Numerous publishers, including McGraw-Hill Higher Education,
Houghton Mifflin Company, John Wiley & Sons, and Thomson Learning are making
DRM-protected versions of their titles available in digital format. 21 Just this year,
Princeton University and nine other universities participated in a digital textbook pilot
program, where they offered DRM-protected digital textbooks for sale in their
bookstores, side-by-side with their print counterparts.22 In addition, distributors such as
VitalSource are providing students with access to entire libraries of fully searchable
versions of digital textbooks.23 From the New York University College of Dentistry to
Johnson Elementary School in Forney Texas, integrated digital textbook libraries are
becoming ever more popular.24 The DRM systems protecting these textbooks specify
numerous parameters. These systems regulate for how long students can access titles,25
19
See Kimberly Brown, Education: Graduating from Ancillary to Primary, REELSCREEN, Aug. 1, 2005, at 25, available
at LEXIS.
20 JIM TAYLOR, DVD DEMYSTIFIED 151 (2000).
21 See Press Release, Zinio, McGraw-Hill Higher Education and Zinio Offer High-Tech, Lower-Cost eBooks to College
Students (Aug. 15, 2005), http://img.zinio.com/corporate/pr38.html; Houghton Mifflin eBooks,
http://college.hmco.com/ebooks/ (last visited May 6, 2006); Press Release, John Wiley & Sons, Inc., Wiley Desktop
Editions, a New Digital Option That Will Save Students Money (Sept. 6, 2005), http://www.wiley.com/WileyCDA/
Section/id-101310,newsId-2218.html; Thomson Higher Education, http://www.thomsonedu.com/ (last visited May 6,
2006).
22 Press Release, MBS Textbook Exchange, MBS Textbook Exchange Announces Universal Digital Textbooks™,
Offering Students a Less Expensive Textbook Option (Aug. 1, 2005) (on file with author) (listing McGraw-Hill Higher
Education, Houghton Mifflin Company, Thomson Learning, and Sage Publications as digital textbook publishers);
John Borland, Coming to Campus: E-books with Expiration Dates, CNET News.com, Aug. 9, 2005,
http://news.com.com/Coming+to+campus+E-books+with+expiration+dates/2100-1025_3-5825301.html.
23 See, e.g., VitalSource Technologies, Inc., http://www.vitalsource.com/ (last visited May 6, 2006).
24 See Press Release, VitalSource Technologies, Inc., New York University College of Dentistry renews VitalSource
contract (Feb. 28, 2005), http://www.vitalsource.com/index/vitalsource-news-story-action?story=18; Press Release,
Forney Independent School District, supra note 18.
25 See, e.g., Universal Digital Textbooks, Getting Started: Service and Support, http://www.digitaltextbooks.net/dts/
GettingStarted.php?CSID=CDQ0MDK0DO0OUDDKUAUTQ (last visited May 6, 2006). (“Digital Textbooks are
valid and readable on your computer for a minimum of 12 months (expiration rules may vary by publisher).”).
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how many pages students can print,26 and how many computers they can access the titles
from.27
3.
Digital Periodical Collections
In addition to digital textbooks, educators and students – particularly at the
university level – rely on easy access to searchable collections of digital periodicals. For
example, the eminent journal Science28 is an important resource for undergraduate and
graduate students, as well as research faculty.29 Science and its peer journals are
available through online subscription services to which many university libraries
subscribe.30 Publishers use DRM systems to prevent access by unauthorized users.
These DRM systems are typically less elaborate than those used to safeguard digital
textbooks and most other digital content formats. For example, Science permits
authorized users to download PDF versions of articles, and even to download figures
from articles directly to PowerPoint slides, for “use in teaching and educational
presentations.”31 Users access Science simply by entering a username and password, or
logging in through their institution, which verifies the user’s identity and then grants
access to the journal.32
4.
Digital Slideshows
Computer generated slideshows – e.g., PowerPoint presentations – are replacing
chalkboard- and transparency-based lectures as pedagogical tools. As discussed in the
case study about the Center for History and New Media, these slideshows frequently
include copyrighted third-party content as well as original content created by the
instructor. The additional content, such as digitized reproductions of painting or audio
clips, enhances the learning experience. In some cases, the content that educators wish to
incorporate in their slideshows is DRM-protected – for example, an excerpt from a CSS
encoded DVD. Often – as is the case with CSS – DRM systems prevent inclusion of the
works they protect in a new work, such as a slideshow. DRM systems precluding such
use present educators with choice: circumvent the DRM system in order to use the work,
or forgo using the work in the slideshow.
See, e.g., id. (“Printing rules vary by publisher. Most eBooks have no limitations regarding printing capability, but
some allow only up to 100 pages per week.”).
27 See, e.g., Zinio, Downloading Publications to Another Computer, http://support.zinio.com/sw/bin/3/
supportwizard.cgi (last visited May 6, 2006) (“Please note that digital textbooks can only be downloaded and are
locked to ONE primary computer. They cannot be downloaded again or transferred to another computer.”).
28 Science, http://sciencemag.org/ (last visited May 6, 2006).
29 Science is the fourth most frequently cited scientific journal and the scientific journal with the tenth highest impact
rating out of over 5,900 journals for which citation data is collected according to the most recently available citation
index data. Institute for Scientific Information, Journal Citation Reports (Science ed.) (2004) available at ISI WEB OF
KNOWLEDGE (subscription required).
30 Science, Site Help: Why Advertise with Science?, http://www.sciencemag.org/help/advertisers/why.dtl (last visited
May 6, 2006) (“10 million users at major universities, corporations, and research institutions worldwide have access to
the new online version of Science through institutional subscriptions.”).
31 Science, Tools for Browsing, Reading, & Research, http://www.sciencemag.org/help/readers/user_tools.dtl. Direct
downloading of figures to PowerPoint is restrict to users with access to “premium services.” Science, How to Access
Science, http://www.sciencemag.org/about/access.dtl (last visited May 6, 2006).
32 Science, Sign In Page, http://www.sciencemag.org/cgi/login?uri=%2Fabout%2Faccess.dtl (last visited May 6, 2006).
26
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Other Educational Content
DRM might find application not only in protecting commercial works, but also
those created by educators and their students. DRM systems may also facilitate trade and
exchange of digital teaching resources between educators or institutions.33 For example,
a university might possess a digitized library of lectures by a renowned faculty member
that it wishes to share with its students and those at another institution, but no other
parties. Protection of that collection with a DRM system could facilitate this transfer.
Likewise, individual faculty or students might use DRM systems if they create digital
works that they want to protect from manipulation or unauthorized use. “A flexible and
effective DRM system can manage the creation, retrieval, trading and distribution of
online learning objects and support collaborative development.”34 Finally, academic
users concerned with the integrity of a work from an outside source might rely on DRM
systems to verify the source of a work and to confirm that the work has not been
altered.35 As discussed below, however, these applications of DRM technology may
present problems as well, particularly if educational institutions feel obligated to use
DRM systems but lack the resources to do so, or if such systems excessively and
unnecessarily restrict public access to educational content.
C.
Incentives for DRM Protection of Commercial Works
The technological and economic incentives for rightsholders to use DRM systems
to safeguard the digital works described above (and others) are easy to understand. First
and foremost, copying digital works is substantially easier than copying of traditional
analog works, and copies of digital works are identical to the originals, unlike copies of
analog works, which degrade with each round of copying.36 These perfect copies then
have the potential to erode the commercial market for digital works because they can be
made available for little or no cost.37 Accordingly, rightsholders use DRM systems to
prevent users from copying, altering, or distributing works without permission.38
Secondarily, DRM systems also enable rightsholders to engage in price discrimination,
which allows them to maximize revenue by making different versions with different
functionalities available for a range of prices.39
1.
The Leakage Threat
If business models predicated on the use of DRM systems are to succeed,
rightsholders must prevent “leakage” of their works. Leakage refers to the flow of works
into the broader public beyond the control of rightsholders and DRM system
protections.40 For example, leakage occurs when a user cracks the DRM system used to
33
See Mairead Martin et al., Federated Digital Rights Management: A Proposed DRM Solution for Research and
Education, D-LIB, July/Aug. 2002, http://www.dlib.org/dlib/july02/martin/07martin.html; Qiong Liu, Reihaneh SafaviNaini & Nicholas Paul Sheppard, Digital Rights Management for Content Distribution, 21 CONFS. IN RES. & PRACT.
INFO. TECH. 49, 52 (2003).
34 Liu, Safavi-Naini & Sheppard, supra note 33, at 52.
35 June M. Besek, Anti-Circumvention Laws and Copyright: A Report from the Kernochan Center for Law, Media, and
the Arts, 27 COLUM. J.L. & ARTS 385, 475 (2004).
36 See WILLIAM W. FISHER III, PROMISES TO KEEP 14-15 (2004).
37 See FISHER, supra note 36, at 31-32.
38 See Ku & Chi, supra note 5, at 391.
39 See FISHER, supra note 36, at 163-69.
40 See e.g., FISHER, supra note 36, at 156-57
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protect a digital textbook and then distributes an unprotected version of the work. The
new, unprotected work competes with the protected work for market share – whether or
not the unauthorized copy is distributed for profit or for free.41 Since the unprotected
work is not restricted by the original license terms, users unmoved by the fact that the
unprotected work is “stolen” will choose the less expensive (likely free), less encumbered
version of the work.42 This behavior underlies the success of peer-to-peer file-sharing
networks for music, from the ubiquity of the original Napster to its third generation
successors, BitTorrent43 and YouSendIt,44 notwithstanding the existence of authorized
fee-based digital music distribution services such as iTunes or the new Napster
subscription service. 45
Most digital works are subject to two forms of leakage: digital and analog.
Digital leakage occurs when DRM system protections are removed from works and
unprotected versions are circulated, typically on the Internet.46 Analog leakage, by
contrast, involves the unauthorized distribution of analog reproductions of digital works –
such as printed copies of digital textbooks or VHS tape reproductions of DVD content.47
41
See, e.g., Piet Bakker, File-Sharing—Fight, Ignore or Compete: Paid Download Services vs. P2P-Networks, 22
TELEMATICS & INFORMATICS 41 (2005) (examining competition between legal and illegal digital music distribution
systems). One report noted that “For publishers and authors, the question is, how many copies of the work will be sold
(or licensed) if networks make possible planet-wide access? Their nightmare is that the number is one.” NAT’L
RESEARCH COUNCIL, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE 2 (2000).
42 The dominance of unencumbered, no-cost goods over DRM-protected competitors is illustrated by the success of
illegal peer-to-peer music distribution systems over their legal for profit counterparts. The NPD Group reported that in
a survey of “40,000 online panelists balanced to represent the online population of U.S. Internet-enabled PC
households,” 2.4 times more households downloaded music using illegal peer-to-peer systems than using legal digital
music delivery systems in March 2005. Press Release, The NPD Group, Inc., Progress Report: Digital Music
Landscape Shifting, But Slowly, June 23, 2005, http://npd.com/dynamic/releases/press_050623.html. Despite the
overall dominance of peer-to-peer file-sharing, it is noteworthy that iTunes tied LimeWire as the second most popular
online music distribution service in March 2005. See Study: iTunes more popular than many P2P sites, CNET
NEWS.COM, June 7, 2005.
43 BitTorrent, http://bittorrent.com/ (last visited May 6, 2006).
44 YouSendIt, http://www.yousendit.com/ (last visited May 6, 2006).
45 See Jonathan Zittrain, A History of Online Gatekeeping, 19 HARV. J.L. & TECH. 253, 274 n.115 (2006) (describing
the rapid growth of the Napster peer-to-peer file-sharing service prior to its shut down); Bryan H. Choi, Note, The
Grokster Dead-End, 19 HARV. J.L. & TECH. 393, 400-404 (2006) (explaining the functionality and popularity of
BitTorrent and YouSendIt). YouSendIt transfers more than forty-three terabytes of data daily. See YouSendIt,
http://www.yousendit.com/ (last visited May 6, 2006). Studies suggest that BitTorrent consumes a majority of Internet
Service Providers’ bandwith. See Thomas Mennecke, EDonkey2000 Dethrones BitTorrent for Video Distribution,
SLYCK, Aug. 10, 2005, http://www.slyck.com/news.php?story-881.
46 See Peter Biddle, Paul England, Marcus Peinado & Bryan Willman, The Darknet and the Future of Content
Protection, in DIGITAL RIGHTS MANAGEMENT: TECHNOLOGICAL, ECONOMIC, LEGAL & POLITICAL ASPECTS 345
(Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003) (noting that leakage of digital content
occurs when a user overrides DRM system protections or when content is copied prior to DRM system application).
47 See Jon Udell, Sidestepping the Analog Hole, INFOWORLD, Mar. 1, 2006, http://www.infoworld.com/article/06/03/
01/75874_10OPstrategic_1.html?source=NLC-STADEV2006-03-02 (explaining analog leakage, and why it concerns
the movie industry). Digital works captured through analog leakage are sometimes converted back into digital form
before they are re-distributed. See, e.g., Press Release, Motion Picture Association of America, Glickman, MPAA
Praise HR 4569, Dec. 16, 2005, http://search.mpaa.org/cs.html?charset=iso-8859-1&url=http%3A//www.mpaa.org/
press_releases/2005_12_16b.pdf&qt=analog+hole&col=mpaa&n=2&la=en (asserting that piracy perpetrated by
obtaining copies of digital works through analog leakage undermines digital media security, thereby reducing
rightsholder incentives to release works in digital format and threating consumer choice). These digitized versions of
analog reproductions still suffer the decrease in quality that comes with analog copying of digital works.
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Rightsholders, afraid of such leakage, are wary of offering educators and other
fair users copies of digital works with reduced or eliminated DRM protection.48 Such
relatively unprotected works, particularly if they circulate among students (perceived to
be especially likely to engage in unauthorized distribution of content), could become a
significant avenue for leakage.49 Similarly, rightsholders are loath to permit limited
distribution of circumvention technology to educational or fair users, since circulation of
that technology itself, or the unprotected content it yields, could severely harm the market
for the digital products and eliminate the ability of rightsholders to control how their
works are accessed and used.50
Likewise, although the potential for DRM systems to enable price discrimination
is relatively undeveloped at this time, it remains highly attractive to rightsholders and
distributors.51 Some envision a world where rightsholders will be able to license heavily
encumbered (and therefore less useful) “educational” versions of digital works for a
profit.52 This model would likely lead to more use of DRM technology in educational
markets, not less. Arguably, this model eventually could eliminate the effectiveness of
the fair use doctrine and educational use exceptions, because educators would be unable
to make legitimate copies of DRM-laden content and the creation of such a market might
tilt the fair use analysis away from educators.53 While this scenario remains speculative
for now, the prospect of such revenue sources in the future certainly discourages
rightsholders from exempting educators from the reach of their DRM systems. It also
represents something of a “nightmare scenario” for educational users. As discussed
below, however, countervailing forces opposing the use of DRM systems for educational
content may prevent this scenario from becoming reality, at least in the near future.
48
See Dan L. Burk, Anticircumvention Misuse, 50 UCLA L. REV. 1095, 1099-1100 (2003) (noting that the fair use
exemption is “often an annoyance to copyright holders, who might prefer to suppress such uses, or at least to profit by
them”).
49 The Recording Industry Association of American and Motion Picture Association of America have identified piracy
by college students as an “urgent” problem and announced plans to target illegal file-sharing by college students. See
Joanna Wypior, RIAA, MPAA To Target Illegal File Sharers On Campus, ALL HEADLINE NEWS, May 4, 2006,
http://www.allheadlinenews.com/articles/7003438027. A study conducted by the Pew Internet & American Life
Project in 2003 revealed that students are more than twice as likely as non-students to download music illegally. See
Mary Madden & Amanda Lenhart, Music Downloading, File-sharing and Copyright: A Pew Internet Project Data
Memo (July 2003), http://www.pewinternet.org/pdfs/PIP_Copyright_Memo.pdf. More recently, a survey performed by
Intellectual Property Institute at the University of Richmond School of Law indicated that one in three college students
illegally downloads music. See Press Release, National CyberEducation Project – Intellectual Property Institute,
University of Richmond School of Law, One in Three College Students Illegally Downloads Music, National Survey
Finds, (Apr. 4, 2006), http://law.richmond.edu/ipi/pdf/SurveyRelease.pdf.
50 Rightsholders have vigorously pursued litigation against parties engaged in the distribution of circumvention
technologies, rejecting arguments that those tools enable fair or educational use. See, e.g., Universal City Studios, Inc.
v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000) aff’d sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429,
452-53 (2d Cir. 2001); 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal. 2004); RealNetworks, Inc.
v. Streambox, Inc., No. C99-2070P, 2000 U.S. Dist. LEXIS 1889 (W.D. Wash. 2000).
51 See Burk, supra note 48, at 1099-1100.
52 See generally Tom W. Bell, Fair Use v. Fared Use: The Impact of Automated Rights Management on Copyright’s
Fair Use Doctrine 17 N.C. L. REV. 557 (1998) (predicting that technological controls will enable rightsholders to
engage in robust price discrimination against a broad spectrum of digital content users).
53 See id. (suggesting that price discrimination will reduce the scope of the fair use doctrine and that technological
controls will impose de facto restrictions on fair use). But see Kenneth W. Dam, Self-Help in the Digital Jungle, 28 J.
LEGAL STUD. 393, 400 (1999) (suggesting that technological controls will evolve to accommodate fair use).
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Leak-onomics
Almost by definition, rightsholders looking to earn a profit from licensing their
digital works exhibit concern about leakage of their works.54
The economic
circumstances that characterize different product markets have an important impact on
precisely how rightsholders attempt to control leakage, however. For example, digital
textbook publishers impose fewer leakage controls on their works than do DVDproducing movie studios. As described below, high definition DVDs (“HD-DVDs”) and
their players use an elaborate DRM system to identify the source of disc content, reject
pirated discs and discs from distant geographic regions, and prohibit copying.55 In
contrast, common licensing terms for digital textbooks allow students to print a book in
its entirety, access the book on more than one computer, and highlight and take notes in
the digital copy of the book.56 The remainder of this Section examines the differences
between the markets for digital textbooks and DVDs, and uses these differences to
explain the disparate levels of DRM system protection they receive.
a)
DRM Light: Digital Textbooks
Market constraints force publishers of digital textbooks to tolerate a high risk of
both analog and digital leakage relative to movie studios. Only a handful of students
have adopted digital textbooks at universities where they are offered in the campus
bookstore, opting instead for their print counterparts.57 Likewise, distribution directly
from publishers or Internet-based intermediaries, such as eBookMall,58 has achieved only
modest results.59 Since the market for textbooks – digital and analog – is almost entirely
See NAT’L RESEARCH COUNCIL, supra note 41, at 2.
See Barry Fox, New DVD Watermark Has Pirates in Its Sights, NEWSCIENTIST.COM, Nov. 2, 2005,
http://www.newscientist.com/article.ns?id=dn8247. See infra text accompanying notes 134-141.
56 See Universal Digital Textbooks, Getting Started: Service and Support, supra note 25. In addition to the permissions
listed on the Universal Digital Textbooks web site, users can highlight digital textbooks and download copies of digital
textbooks to multiple computers, so long as they are registered to the same user via the Microsoft Passport Network.
See Edward Wyatt, The Bottom Line on E-Textbooks, N.Y. TIMES, Apr. 23, 2006, at 4A (Education Life Supplement).
In addition to the permissions listed above, MBS Textbook Exchange indicated that users can download copies of
digital textbooks to multiple machines, so long as both machines are tied to the same Microsoft Passport account, and
that materials for the Universal Digital Textbook Program will explain this option beginning in fall 2006. Telephone
Interview with Kevin McKiernan, Director of Business Development, MBS Direct, LLC (Mar. 30, 2006). MBS
Textbook Exchange also clarified that most of the digital textbooks they carry permit unlimited printing and permanent
access (they do not expire). Id.
57 See Wyatt, supra note 56 (stating that digital textbook sales account for roughly 5 percent of sales for a given text in
campus bookstores); Megan Schmidt, Digital books picking up speed, BGNEWS.COM, Jan. 11, 2006, available at
http://www.bgnews.com/media/storage/paper883/news/2006/01/11/Local/Digital.Books.Picking.Up.Speed-1322873page2.shtml?norewrite200605071237&sourcedomain=www.bgnews.com (last visited May 7) (indicating that only
twenty copies of digital textbooks were sold at Bowling Green State University in fall 2005, even though nineteen titles
were offered); Stephanie Keene, E-Books Remain Unpopular, DAILY PRINCETONIAN, Apr. 5, 2006, available at
http://www.dailyprincetonian.com/archives/2006/04/05/news/15081.shtml (last visited May 7, 2006).
58 eBook Mall, http://www.ebookmall.com/ (last visited May 7, 2006).
59 Marketing of digital textbooks over the Internet has been heavily criticized. See Matt McKenzie, E-Text Publishers
Start to Understand Their Markets, SEYBOLD REP.: ANALYSING PUBLISHING TECH., Sept. 2002, at 16. One publishing
executive stated, “It’s a goofy business model to think students will make their way to some Web site to find an
electronic version of a textbook…. Students don’t want to bother with all that – they want to go to the college
bookstore to buy the required material.” Id. According to Jeff Cohen of MBS Textbook Exchange, “The publishing
companies have found more success with [the Universal Digital Textbook] program than with selling the books
themselves on the Web.” Kristen Hampshire, Digital Printing: Producing Tangible Technology, PRINT SOLUTIONS, Jan.
2006, at 71, available at http://www.printsolutionsmag.com/issues/january06/cs_digital.html (last visited May 7, 2006).
See also Mark Muckenfuss, Electronic Textbooks Seem Hip, But Tradition Still Prevails, PRESS ENTERPRISE, Mar. 30,
2006, at D1 (quoting Bruce Hildebrand, a spokesman for the Association of American Publishers as saying, “The
54
55
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comprised of educators and students, the success of the digital textbook industry hinges
on adoption by these groups. Accordingly, publishers have a strong incentive to respond
to their concerns.60
Perhaps counter-intuitively, low levels of digital textbook adoption also have the
effect of reducing the risk of leakage, and in fact might lead to increased adoption, at
least in the short term. Students are reluctant to transition from print to digital textbooks,
citing inconvenience and unfamiliarity with the format, as well as concerns about the
stability of the format, among the reasons for their hesitance.61 Thus, the market for
pirated digital copies of digital textbooks is small. Moreover, those students who do use
leaked versions of digital textbooks might find the format superior to print and opt to
purchase other digital titles in the future. (Of course, those students might instead search
for leaked versions of those other titles as well.)
The financial risks posed by analog leakage also appear relatively insignificant in
the eyes of publishers. Many publishers take the position that some students have always
made unauthorized copies of physical textbooks, and some will inevitably make
unauthorized printed copies of digital textbooks, regardless of the strength of the DRM
system.62 In addition, they assume that analog leakage will not be significant, since the
cost of printing, in terms of time and ink, is substantial.63 Furthermore, the modest
percentage of students who have adopted digital textbooks, combined with the fact that
publishers rely on sales from large catalogues of textbooks for profits, reduces the
economic threat from both forms of leakage.64
Thus, publishers have responded to student pressure and reduced the extent of
restrictions imposed by DRM systems on digital textbooks. Salient illustration of
publishers’ responsivness to user demands comes from the Universal Digital Textbooks
program started by MBS Textbook Exchange.65 That program, which began in fall 2005,
was the first to make licenses to digital textbooks available for purchase in campus
bookstores.66 Originally, the publishers participating in the program planned to equip
overwhelming majority of students prefer textbooks…. Ten years ago, there was this belief that e-books would capture
the whole market. Publishers invested heavily, but the market didn't support it”).
60 As one commentator noted, when a DRM system must compete with other DRM systems for market share, there is a
“strong economic motivation for user-friendly” design. Johannes Ulbrict, Business, Technology, and Law –
Interrelations of Three Scientific Perspectives on DRM, in DIGITAL RIGHTS MANAGEMENT: TECHNOLOGICAL,
ECONOMIC, LEGAL & POLITICAL ASPECTS 588 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds.
2003). When the “competing DRM system” is simply the analog version of the work, this motivation is likely even
stronger.
61 See Schmidt, supra note 57 (listing student criticisms of digital textbooks, and noting that according to Jeff Cohen of
MBS Textbook Exchange, adoption is slow in part because “It takes students a little bit of time to see the benefits of
[digital textbooks]”); Telephone Interview with Virginia France, Director of Marketing, U-Store, Princeton University
(Mar. 30, 2006) (explaining that students regularly cited unfamiliarity with digital textbooks and concern about their
stability as reasons for not purchasing them).
62 Telephone Interview with Kevin McKiernan, supra note 56
63 Id. Anecdotal evidence suggests students agree that the costs of printing are high. See Schmidt, supra note 57
(noting student complaints that printing digital textbooks is too expensive and time consuming).
64 See Wyatt, supra note 56 (indicating that digital textbooks accounted for only 5 percent of sales for titles offered in
both digital and analog format). Sales for all digital books, including digital textbooks in 2004 were $3.23 million – “a
mere rounding error compared to the multibillion-dollar market for paper books.” David Becker, Have E-Books
Turned a Page?, ZDNET NEWS, http://news.zdnet.com/2100-3513_22-5326015.html?tag=nl.
65 Universal Digital Textbooks, http://www.digitaltextbooks.net/dts/index.htm (last visited May 7, 2006). See Press
Release, MBS Textbook Exchange, supra note 22.
66 See Press Release, MBS Textbook Exchange, supra note 22.
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their works with highly restrictive DRM systems.67 For example, for many works,
students could only use a digital textbook on one computer, access the work for a
maximum of 150 days, and print a limited number of page per week. 68 The program
suffered a great deal of bad press once word of these prohibitive terms got out.69
Subsequently, participant publishers substantially reduced the scope of these
restrictions.70 Most publishers now permit students to store copies of digital textbooks on
multiple computers, although they discourage this practice.71 In addition, most permit
indefinite use and unlimited printing.72 This sea change in licensing requirements
strongly suggests that market forces pressured publishers to reduce restrictions on access
to and use of their works. Indeed, Kevin McKiernan the Director of Business
Development at MBS Direct indicated that publishers are primarily concerned with the
quality of user experience73 – at least for now.
b)
Draconian DRM: DVDs
The movie industry, in contrast, employs stringent protections to prevent both
analog leakage (in the form of VHS copies of DVDs) and digital leakage.74 Movie
studios use the Macrovision video copy protection system to reduce the incidence of
analog leakage from DVDs.75 Macrovision encoded DVDs contain a signal that confuses
the recording chip in VCRs, causing VCRs to introduce distortions into the pictures they
record.76 Consequently, VHS tapes recorded from Macrovision-encoded source material
exhibit defects such as color loss, image tearing, variable brightness, and picture
instability.77 This deterioration in quality deters would-be creators and consumers of such
unauthorized secondary copies. In addition, to prevent digital leakage the movie industry
employs even more elaborate mechanisms, including watermarking78 and encryption.79
Notably, the market conditions faced by the movie industry are vastly different
from those in the digital textbook industry. Obviously, the market for DVDs is much
broader than that for digital textbooks; the commercial segment of the DVD market is
substantially larger than the educational segment.80 Moreover, unlike the lack of
widespread adoption facing digital textbook distributors, the number of households with
67
See John Borland, Coming to Campus: E-Books with Expiration Dates, ZDNET NEWS, http://news.zdnet.com/21009588_22-5825301.html.
68 See id.
69 See, e.g., id.; Digital Textbooks –A Wave of the Future or Hand that Slaps You in the Face?, BOSTON POCKET PC,
Aug. 17, 2005, http://bostonpocketpc.com/modules.php?op=modload&name=News&file=article&sid=2909&mode=
thread&order=0&thold=0.
70 See Wyatt, supra note 56 (“Some of the biggest complaints registered by early users [regarding access and use
limitations on digital textbooks] have already been addressed [by publishers].”).
71 See Wyatt, supra note 56.
72 See Universal Digital Textbooks, Getting Started: Service and Support, supra note 25.
73 Telephone Interview with Kevin McKiernan, supra note 56.
74 See TAYLOR, supra note 20.
75 See id. at 195-96.
76 See id.
77 See id.
78 See infra text accompanying notes 134-141.
79 See supra text accompanying note 20.
80 The Digital Entertainment Group reported that consumers spent $22.8 billion on DVD purchase and rental for 2005,
and $21.2 billion for 2004. See Consumer Spending Reaches $24.3 Billion for Yearly Home Video Sales; DVD Players
in More Than 82 Million U.S. Homes, BUSINESS WIRE, Jan. 5, 2006, available at LEXIS. By stark contrast, in 2004,
the combined market for DVD and VHS sales to elementary and secondary schools was approximately $150 million.
See Brown, supra note 19.
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DVD players has surpassed the number of households with VCRs, suggesting that DVDs
are now the preferred format for at home movie consumption.81 These combined factors
– a diversified and predominantly non-educational market and the dominance of the DVD
format – likely make movie studios much more cautious than textbook publishers when
releasing their digital works in to the marketplace. They face both greater risk from
leakage82 and less danger from consumer resistance to DRM systems.83
In sum, market factors have a substantial influence on DRM system usage by
rightsholders. Nonetheless, while there is a difference in the degree to which various
rightsholders attempt to block leakage, it is important to recognize that all DRM system
dependent rightsholders demonstrate concern over leakage and corresponding reluctance
to treat educational or fair users differently with respect to DRM systems.
D.
DRM System Overview
DRM systems protect digital works by using technological means to implement
licensing terms that regulate access to and usage of those works. Typically, there are four
parties involved in the implementation of DRM systems: rightsholders, distributors,
license brokers, and users.84
Rightsholders are the primary players in DRM system implementation. They
provide the works that the DRM system will protect, select the appropriate DRM system
and licensing terms, and prepare DRM-protected works for distribution.85
DRM-protected works are transferred from the rightsholder to the distributor. As
the name implies, distributors provide channels for delivering digital works to consumers.
These channels include brick-and-mortar retailers, online retailers, peer-to-peer
networks,86 and other outlets.87 Distributors are simply conduits for delivering digital
works from rightsholders to users.88 Although they may use information about the DRM
system for marketing, distributors do not manipulate the DRM system itself.89
The rightsholder sends the license granting access to the digital work to the
license broker.90 The license broker is a trusted clearinghouse that handles all
transactions pertaining to the issuance of licenses specifying the permissions granted to a
81
DVD players are present in more than 82 million homes in the U.S. See Consumer Spending Reaches $24.3 Billion
for Yearly Home Video Sales; DVD Players in More Than 82 Million U.S. Homes, supra note 80. In fact, in 2004,
DVD players began to replace rather than supplant VCRs in U.S. homes. See VSDA's Annual Report on Home
Entertainment Industry Notes More People View Latest Movies on Home Video Than Any Other Medium; Report
Released Today Provides Overview and Analysis on the DVD, VHS, and Video Game Markets, BUISNESS WIRE, July
25, 2005, available at LEXIS.
82 In 2005, U.S. movie studios reported losses of $2.3 billion worldwide due to content leakage over the Internet.
Motion Picture Association of America, Internet Piracy, http://www.mpaa.org/piracy_internet.asp (last visited May 7,
2006).
83 DVDs have a de facto monopoly position in the video content market, earning revenues more than 15 times those
earned by VHS tapes. See Consumer Spending Reaches $24.3 Billion for Yearly Home Video Sales; DVD Players in
More Than 82 Million U.S. Homes, supra note 80. Accordingly, they do not face the same pressure for consumerfriendly DRM systems as digital textbooks do. See Ulbrict, supra note 60.
84 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
85 See Guth, supra note 14, at 155-56.
86 Rightsholders might permit distribution of secure works via peer-to-peer networks, since users will not be able to
access those works without first acquiring a license. Such distribution is known as “superdistribution.” See Liu,
Safavi-Naini & Sheppard, supra note 33, at 49 n.2.
87 Guth, supra note 14, at 156.
88 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
89 See id.
90 See id.
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user for use of digital works.91 Users (or, more often, their clients) contact license
brokers in order to obtain the license necessary for using the digital work they received
from the distributor.92 The license broker authenticates the user, verifies that payment has
been made, and then transfers a license to the user.93
Users are the final party involved in DRM system implementation.94 In actuality,
the user’s client performs the operations necessary to license and access a digital work. 95
The user is removed from the implementation process to the greatest degree possible,
since the interests of users are not aligned with those of rightsholders, and rightsholders
want to protect their works from unauthorized access by users. 96 The following Sections
outline a typical DRM system, explaining the technology used to protect digital content,
and how content is delivered to and accessed by users.
1.
DRM System Selection and Content Provision
The first step for a rightsholder seeking to safeguard a digital work with a DRM
system is selection of that system.97 In making this choice, rightsholders consider the
nature of the digital work (e.g., text, music, or movie) and the type of protection sought.
For example, a publisher seeking to make a digital version of a textbook available on the
market might choose between the DRM systems offered by Adobe98 and VitalSource,99
an emerging competitor to Adobe in the digital book DRM system marketplace.
After deciding on a suitable DRM system, the rightsholder must make the work
available to that system for encoding and protection.100 This process requires conversion
of the work into a format compatible with the DRM system. 101 DRM systems cannot
secure works unless the works are available in a format the DRM system can recognize
and operate on.102 For example, a publisher who selects the Adobe PDF Merchant DRM
system to protect a work must first convert the work into PDF format.103 Otherwise,
inoperability between the DRM system and the digital file will prevent the DRM system
from successfully encoding the work.
Rightsholders must also supply an identifier and product metadata to the DRM
system before it can encode the digital work.104 Depending on the capabilities of the
DRM system in question, rightsholders might enter identifiers and metadata manually, or
91
See id.
See id.
93 See Guth, supra note 14, at 156-58. Some DRM systems, such as CSS, perform these actions in a closed system.
For example, keys stored on DVDs and built in to DVD players permit DVD decryption. See DVD DEMYSTIFIED,
supra note 20. The “license broker” can be thought of as being built in to these systems.
94 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
95 See Guth, supra note 14, at 157-58.
96 See Gabriele Spenger, Authentication, Identification Techniques, and Secure Containers – Baseline Technologies,
DIGITAL RIGHTS MANAGEMENT: TECHNOLOGICAL, ECONOMIC, LEGAL & POLITICAL ASPECTS 62, 79 (Eberhard Becker,
Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003).
97 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
98 See Adobe, Adobe’s DRM Tools, http://www.adobe.com/uk/epaper/features/drm/drmtools.html (last visited May 7,
2006).
99 See VitalSource Technologies, Inc., Solutions for Publishers, http://www.vitalsource.com/index/publishers (last
visited May 7, 2006).
100 See Guth, supra note 14, at 155.
101 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
102 See id.
103 See Adobe, supra note 98.
104 See Guth, supra note 14, at 155.
92
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the DRM system itself might automate the acquisition of this information.105 Identifiers
denote works persistently and unambiguously, permitting users to distinguish between
individual works.106 Metadata, in contrast, uses identifiers to relate concepts and
identified objects (such as digital works) to each other.107
On its own, an identifier does not provide a user with detailed information about
an entity. Much like an International Standard Book Number (“ISBN”), an identifier,
without more, does little to describe the entity it identifies.108 A user aware of the ISBN
system can safely assume that ISBN: 0804750130 identifies a book, but little more.
Further information about the nature of that book – such as the title, author, and
publication date – requires reference to metadata describing the work.109 Using Bowker’s
Books In Print database to associate the ISBN identifier with metadata reveals that ISBN:
0804750130 is the identifier for “Promises to Keep,” written by William W. Fisher III,
and published in August 2004.110
Similarly, identifiers and product metadata for digital works provide important
information to users and distributors of digital works. Metadata linked to the identifier
for a digital work often reveals: the title; author; publisher; format (e.g., text, audio, or
visual); and additional identifiers it might have (a digital book may also have an ISBN,
for example).111 The <indecs> project on interoperability of data in e-commerce systems
provided a widely adopted framework for constructing metadata.112
2.
Selection of Licensing Terms
Rightsholders are also responsible for specifying the licensing terms that will
govern access to and use of the protected work.113 These terms – often referred to as
“rights metadata” – are the terms that the DRM system will automatically enforce after
the digital work has entered the marketplace.114 Licensing terms can address every
imaginable aspect of how a work is accessed or used.115 Rightsholders frequently use
licensing terms to regulate which devices can access content, how many times a
particular work can be accessed, whether the content can be copied or redistributed, and
myriad other functions.116 Individual rightsholders can create highly specialized licenses.
A digital book publisher might select license terms that permit the user to access the work
only from one computer, to print no more than 100 pages from the work per week, and to
access the file for a period of one year from the date of license activation, for example.117
105
See id.
See Norman Paskin, Components of DRM Systems: Identification & Metadata, DIGITAL RIGHTS MANAGEMENT:
TECHNOLOGICAL, ECONOMIC, LEGAL & POLITICAL ASPECTS 26, 27-29 (Eberhard Becker, Willms Buhse, Dirk Gunnewig
& Niels Rump eds. 2003).
107 See id. at 27-28.
108 See id. at 51.
109 See id.
110 Bowker’s Books in Print Professional, http://www.booksinprint.com/bip/ (last visited May 7, 2006).
111 See Paskin, supra note 106, at 51-52.
112 <indecs>, http://www.indecs.org/ (last visited May 7, 2006). See also Paskin, supra note 106, at 52.
113 See Guth, supra note 14, at 155.
114 See id.
115 See Bechtold, supra note 4, at 344-45.
116 See id. at 340.
117 See, e.g., Universal Digital Textbooks, Getting Started: Service and Support, supra note 25.
106
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A typical DRM system will guide the rightsholder through a series of menus that
allows specification of the licensing terms for a digital work. 118 This process generates a
license written in a rights expression language (“REL”).119 As the name implies, a REL
is a means for expressing the access and use rights that govern a digital work.120 Clients
enforce DRM system licenses by reading, interpreting, and complying with REL
licenses.121
3.
DRM Application
After license term selection, properly formatted works are watermarked,
fingerprinted, and encrypted.122
a)
Watermarking
Digital works protected by even the most robust encryption schemes are
vulnerable to copying when they are converted from machine-readable 1s and 0s to
human-perceptible sounds and images.123 Although a DRM system might successfully
block a digital content user from directly copying the digital representation of a work,
indirect copying will still be possible unless the content is watermarked.124 Rightsholders
use watermarks to identify copies of their digital works and to prevent unauthorized
copying of those works.125
Indirect copying is duplication of the human-perceptible sounds and images
rendered by the client used to access a digital work. Colloquially known as the “analog
hole,” the susceptibility of audio and visual renderings of digital content to unauthorized
copying presents a substantial risk for rightsholders seeking to control the use and
distribution of digital works.126 Judge Newman of the United States Court of Appeals for
the Second Circuit provided a rudimentary illustration of indirect copying, stating that
one could copy a movie contained in digital format on a DVD “by pointing a camera, a
camcorder, or a microphone at a monitor as it displays the DVD movie.” 127 Even though
the resulting copy would be of lower quality than the original DVD, such copying does
occur,128 and Judge Newman’s example illustrates the analog loophole vulnerability.
Copying schemes more elaborate than that suggested by Judge Newman, designed to
yield higher quality copies, are not difficult to imagine.
Watermarks offer protection from such indirect copying. A watermark is a mark
concealed within a digital work and recognizable to the client used to access the work,
118
See Guth, supra note 14, at 155.
See id.
120 See Ku & Chi, supra note 5, at 397.
121 See Bechtold, supra note 4, at 344-45.
122 See Guth, supra note 14, at 156.
123 See Fabien A.P. Petitcolas, Digital Watermarking, DIGITAL RIGHTS MANAGEMENT: TECHNOLOGICAL, ECONOMIC,
LEGAL & POLITICAL ASPECTS 81, 81 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003)
124 See id.
125 See id.
126 See Ku & Chi, supra note 5, at 395.
127 Universal Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).
128 See Motion Picture Association of America, Other Piracy, http://www.mpaa.org/piracy_other.asp (last visited May
7, 2006) (identifying “camcording,” which occurs when “Pirates use hand-held video cameras to record motion picture
films off of theater screens and then copy these films onto blank videocassettes and optical discs for illegal
distribution,” as a form of piracy).
119
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but imperceptible to the user.129 An essential aspect of a watermark is that it
fundamentally alters the digital content by embedding audio or visual distortions into the
work that are beyond the limits of human detection.130 Consequently, watermarks are
persistent – they appear in any copies of digital works, regardless of how those copies are
made.131 Watermarks can bind data as well as usage terms to digital content. Watermarks
can include information about the rightsholder, content user, and the user’s payment
history, as well as controls limiting access to the work.132 The client used to access the
work recognizes the watermark, uses it to identify the work, and determines whether to
permit the user to access or use the work.133
The movie industry employs watermarks in this fashion to thwart the type of
copying described by Judge Newman. In October 2005, members of the Motion Picture
Association of America (“MPAA”) unveiled a new watermarking scheme designed to
reduce movie piracy.134 The soundtracks of all movies produced by MPAA members and
released into cinemas will contain watermarks.135 In addition, the soundtracks of
commercially released HD-DVDs will contain a different watermark.136 These two
watermarks are distinct, allowing movie studios to identify the source – cinema release or
HD-DVD – of movie copies.137 New HD-DVD players will recognize both watermarks
and react to them in different ways. Upon recognition of the cinema release watermark,
which will only be present on DVDs made by illegally copying a film print or
“camcording” a movie as it is played in the cinema,138 an HD-DVD player will shut down
and refuse to play the disc.139 Upon recognition of the commercial release watermark,
the HD-DVD player will determine whether the disc is a licensed factory version or an
illicitly made unlicensed copy.140 If the latter, the device will shut down and refuse to
play the disc.141 As illustrated by this example, watermarks limit unauthorized copying in
two ways. Watermarks allow rightsholders to identify their digital works and subsequent
copies of those works.142 Moreover, a watermark can instruct the client to render the
work only if it finds a valid license.143
Watermarks are subject to two types of attacks: watermark removal and
watermark distortion.144 Complex watermarking algorithms that embed watermarks in
salient locations within works make it difficult for users to remove watermarks from
works. Nonetheless, watermarks are subject to attacks designed to estimate the “shape”
129
See Petitcolas, supra note 123, at 81-82.
See Ku & Chi, supra note 5, at 395-396.
131 See id.
132 See Liu, Safavi-Naini & Sheppard, supra note 33, at 53-54.
133 See id. at 54. Only clients equipped to recognize watermarks can perform these functions. Devices such as VCRs
and legacy DVD players do not include this functionality, and allow access to and use of content without regard for
watermark imposed limitations.
134 See Fox, supra note 55.
135 See id.
136 See id.
137 See id.
138 The MPAA uses the term “camcording” to describe the act of recording a film displayed on a cinema screen using a
portable video recorder. See Motion Picture Association of America, Other Piracy, supra note 128.
139 See id.
140 See id.
141 See id.
142 See Liu, Safavi-Naini & Sheppard, supra note 33, at 53.
143 See id.
144 See Petitcolas, supra note 123, at 87-91.
130
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of the watermark and excise it from the work.145 Alternatively, and more commonly,
users attempt to introduce distortions into watermarks that are imperceptible to humans
and that make it impossible for the client responsible for rendering the work to detect the
watermark.146 When a user knows the watermarking technique employed by the
rightsholder, the user can almost certainly mangle the watermark beyond recognition.147
The vulnerability of watermarks to these two types of attack limits their utility to
rightsholders.
In fact, watermarking algorithms are more easily broken than other copy
protection mechanisms, and may ultimately find limited use.148 Indeed, several years
ago, watermarking suffered a very public defeat when the Secure Digital Music Initiative
(“SDMI”) issued a worldwide challenge to computer hackers to defeat SDMI watermarks
and the hackers succeeded.149 It might well be the case that, as one participant remarked,
“‘no watermarking scheme is strong enough.’”150
b)
Fingerprinting
Rightsholders employ fingerprinting, also known as content-based identification,
as a complementary technology to support the identification function performed by
watermarking.151 Fingerprinting is a technique for identifying digital works based on the
features of those works.152 In contrast to watermarking, which requires embedding a
watermark into a digital work, fingerprinting does not require any alteration of the
original digital work.153 Instead, fingerprinting uses algorithms to analyze digital works,
and to create unique identifiers for those works based on that analysis.154 Since the
fingerprint for a particular work is a function of the work itself, fingerprints are not
susceptible to the same types of removal and distortion attacks that plague watermarks.155
Despite this robustness – or more accurately, because of it – fingerprints have less
functionality than watermarks. Fingerprints are simply content identifiers, not copy
control mechanisms.156 Moreover, in contrast to watermarks, which can vary between
different copies of the same digital work (e.g., one watermark for the cinema release of a
film and another for the commercial release), all copies of a digital work have identical
fingerprints.157
In the DRM context, the most robust application for fingerprinting is to locate
unauthorized copies of digital works.158 Since the fingerprint for a digital work depends
on its inherent attributes, users who copy a work cannot meaningfully alter its fingerprint
145
See id. at 88.
See id. at 88-91.
147 Mark Stamp, Digital Rights Management: The Technology Behind the Hype, (Dec. 19, 2002) (unpublished
manuscript, available at http://home.earthlink.net/~mstamp1/papers/DRMpaper.pdf).
148 See Petitcolas, supra note 123, at 91-92.
149 See Paul Talacko, Inside Track: Towards a Piracy High Watermark, FIN. TIMES, Dec. 29, 2000, at 8.
150 Id. (quoting Edward W. Felten) (
151 Jurgen Herre, Content Based Identification (Fingerprinting), DIGITAL RIGHTS MANAGEMENT: TECHNOLOGICAL,
ECONOMIC, LEGAL & POLITICAL ASPECTS 93, 93, 99 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump
eds. 2003).
152 See id. at 94.
153 See id. at 99.
154 See id. at 94-96.
155 See id. at 99.
156 See id.
157 See id.
158 See id. at 98.
146
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without severely distorting the underlying content.159 Accordingly, rightsholders can use
fingerprint data and web crawlers to search for illicit copies of their works on open
networks such as the Internet.160
The most well-known example of this use of fingerprinting was a product of the
Napster litigation. In that case, a court ordered Napster to block the sharing of
copyrighted music on its network161. The first filtering solution employed by Napster – a
simplistic filename-based filtering system – failed because users developed creative
naming schemes that “outsmarted” the filter.162 In response, Napster developed a
fingerprint-based filtering system to identify copyright protected works users were
trading on its network.163 Napster users could not circumvent this filter without adding
distortions that rendered the digital works valueless.
Although fingerprinting is a robust technique for identifying digital works, it has
limited utility for rightsholders who wish to prevent unauthorized copying of their works
ex ante. Despite this limitation, fingerprinting contributes to the security of a digital
work when used in conjunction with watermarking and other DRM technologies.
c)
Encryption
Encryption is the central element of digital content protection. DRM systems
employ encryption both to protect the digital representation of a digital work and to
create a “secure container” for the distribution of that work.164 Encryption controls
access to a digital work by using an encryption algorithm and a specialized key to encode
a work so it is usable only by clients with access to the appropriate decoding algorithm
and key combination.165 Rightsholders include decoding algorithm and key combinations
with the licenses that regulate access to and use of their works.166 Only users with a valid
license can decrypt digital content, subject to the license terms. 167 Encrypted content
appears as unreadable nonsense to applications or devices without the requisite license.
d)
Secure Containers
The final step in preparing a DRM-protected digital work for distribution is
encasing the work in a secure container.168 Secure containers ensure the security of
digital content transmission, authenticity of users, and persistence of access and usage
restrictions.169 After encryption, a digital work is packed into a secure container with its
identifier, product metadata, watermark and fingerprint information, and digital
159
See Ku & Chi, supra note 5, at 396.
See Herre, supra note 151, at 98.
161 See A&M Records, Inc. v. Napster, Inc., No. C 99-05183 MHP, 2001 U.S. Dist. LEXIS 2186 (N.D. Cal. 2001).
162 Brad King, Napster Filter More Like a Sieve, WIRED NEWS, Mar. 5, 2001, http://www.wired.com/news/mp3/
0,1285,42196,00.html.
163 Ronna Abramson, Napster Stops Its Old Ways, THE INDUSTRY STANDARD.COM, June 28, 2001,
http://www.thestandard.com/article/0,1902,27557,00.html.
164 See Guth, supra note 14, at 156.
165 See Spenger, supra note 96, at 63; Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
166 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
167 See id.
168 See Guth, supra note 14, at 156.
169 See Spenger, supra note 96, at 78-79; Liu, Safavi-Naini & Sheppard, supra note 33, at 54-55.
160
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signatures and certificates.170 In addition, the license governing access to and use of the
work, including the decryption key, is placed in a separate secure container.171
Secure containers use authentication protocols to ensure user identity and content
integrity.172 In the physical world, characteristics such as appearance and voice provide a
robust basis for verification of identity. The absence of this verification mechanism in the
digital world makes identity verification more difficult. To overcome this obstacle,
rightsholders rely on asymmetric cryptography – a type of encryption that allows
message recipients to verify the identity of message senders – as a means for
authenticating content users.173
The secure container housing the digital work or license and decryption key for
that work is usually authenticated using public key certificates.174 A public key certificate
is a digitally signed document that binds a user’s public key and identity.175 In this way, a
public key certificate, issued by a trusted certification authority, provides verification of a
user’s identity.
In addition to authenticating users and digital content, secure containers are often
tamper-resistant, to prevent users from physically “breaking in” and circumventing the
DRM system safeguards.176 These tamper-resistant containers recognize and report
tampering activity.177 They also enforce prohibitions on tampering by denying access to
content if the surrounding container has been tampered with.178
4.
Distribution
After DRM system application, protected works are transferred from the
rightsholder to the distributor.179 As the name implies, distributors provide channels for
delivering digital works to consumers.180 These channels include brick-and-mortar
retailers, online retailers, peer-to-peer networks, and other outlets.181 A digital book
publisher, for example, might use distributors such as the online retailer Zinio,182 which
sells digital book downloads on its website, and the brick-and-mortar book broker MBS
Textbook Exchange, which sells digital books in campus bookstores through its Universal
Digital Textbook program.183 Distributors are simply conduits for delivering digital
works from rightsholders to users.184 Although they may use information about the DRM
system and metadata from the digital work for marketing, distributors do not manipulate
the DRM system itself.185
170
See Guth, supra note 14, at 156.
See Liu, Safavi-Naini & Sheppard, supra note 33, at 50. The license and decryption key may be included in the
same secure container as the digital work depending on the rightsholder’s business model, however that scenario is
beyond the scope of this paper.
172 See Spenger, supra note 96, at 78-79.
173 See id. at 70-76.
174 See id. at 73-76, 79.
175 See id.
176 See id. at 79-80.
177 See id.
178 See id.
179 See Guth, supra note 14, at 156.
180 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
181 See id.
182 Zinio Digital Textbooks, http://textbooks.zinio.com/ (last visited May 8, 2006).
183 Universal Digital Textbooks, supra note 65.
184 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
185 See id.
171
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Licensing
The rightsholder sends the license containing the content decryption key to the
license broker.186 Decryption keys are necessary for gaining access to digital works.187 A
consumer in possession of a copy of a DRM-protected work, but without a license and
the corresponding decryption key, will not be able to access that work. The license
broker is a trusted clearinghouse that handles all transactions pertaining to the issuance of
a license specifying the permissions granted to a user for use of the content.188 For
example, a user who purchases a digital book license distributed by MBS Textbook
Exchange via the Universal Digital Textbook program at her college bookstore must
register her license online with the license broker before she can download a copy of the
text.189 To register, the user must enter her receipt number and the number contained on a
card provided to her by the bookstore at the point of sale.190 The license broker verifies
this data against data supplied by the distributor, and grants the user a license only if the
data is valid.191 Subsequently, the user can download and access the digital text.
Despite their importance, users are often unaware of the role license brokers play
in enabling access to digital content. This is because in many cases the client used to
access content, not the consumer, initiates licensing requests with brokers.192 Apple’s
iTunes software engages in this type of license verification for content licensed from the
iTunes Music Store.193 When a user licenses a song from the iTunes Music Store, that
license permits the user to access and store the song on up to 5 computers.194 Each time a
user attempts to access the song on a new computer (after storing a copy of the song on
that computer), the iTunes software requires the user to verify his license to play the song
by entering information from the account originally used to purchase the license. 195 This
transaction with the license broker is initiated directly by the iTunes software, with no
input from the user other than the user’s attempt to access the digital work.
A user in possession of a valid license and a copy of the corresponding DRMprotected digital work can access that work, but only within the bounds of the license
terms. Accordingly, if a work prohibits excerpting or other copying, an educational user
would not be able to extract an excerpt of that work for incorporation into a slideshow or
other teaching object.
E.
The DRM System Arms Race
As illustrated above, DRM systems incorporate multiple, complementary
technologies to secure digital works. These technologies work in concert to regulate how
the majority of users access and use digital works. These technologies are not invincible,
186
See id.
See Spenger, supra note 96, at 78-79.
188 See Liu, Safavi-Naini & Sheppard, supra note 33, at 50.
189 See Universal Digital Textbooks, Getting Started: Service and Support, supra note 25.
190 See id.
191 See id.
192 See, e.g., Guth, supra note 14, at 157.
193 See generally Urs Gasser et al., iTunes: How Copyright, Countract, and Technology Shape the Business of Digital
Media – A Case Study, Berkman Center for Internet & Society, June 15, 2004, http://cyber.law.harvard.edu/home/
uploads/370/iTunesWhitePaper0604.pdf.
194 See id. at 11.
195 Apple, About iTunes Music Store Authorization and Deauthorization, http://docs.info.apple.com/
article.html?artnum=93014 (last visited May 8, 2006).
187
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however. “Every piece of software is breakable.”196 Some users invest substantial
amounts of time in breaking in to or “cracking” DRM systems. While circumvention of
DRM systems by a few isolated users would have little impact on rightsholders, the
calculus changes in a digital environment because those users may quickly and easily
distribute the content they liberate from DRM system protections. Similarly, they may
disseminate the circumvention tools they create to other users. This risk causes
rightsholders to avoid distributing some valuable works in digital format, and provokes
them to employ ever-stronger DRM systems – which in turn triggers development of
more sophisticated circumvention tools. A wide range of firms, including Adobe and
Microsoft, has joined in this race. Adobe has evolved an arsenal of DRM systems to
replace the eBook password protection scheme Dmitry Sklyarov cracked in 2001, and
Microsoft has defeated multiple attacks on its WMA audio DRM system with patches.197
Given the value of digital media to rightsholders, and the interest in obtaining that media
of users, this arms race seems likely to continue.
As a result of this practice, educational users often must make do with heavily
burdened content that they cannot easily use or manipulate. And as the next Part
explains, those educators with the expertise or tools to override these DRM protections
run the risk of legal liability.
III.
DRM AND THE DMCA IMPAIR EDUCATIONAL USE OF DIGITAL WORKS
Designed to usher copyright law into the digital era, the DMCA created a new set
of legal entitlements for digital rightsholders.198 Under pressure from a substantial
number of interest groups, including the publishing, recording, and movie industries,
Congress approved the DMCA in 1998 to encourage creation of digital versions of
copyrighted works by providing rightsholders with legal rights intended to offset the
increased threat of piracy.199 The DMCA provides legal reinforcement for technological
controls that rightsholders place on copyrighted works to restrict access to and use of
those works.200 Although legislators stated their intent to “balance[] the interests of
copyright owners and users of copyrighted works,”201 in application the DMCA goes too
far, severely restricting educational access to copyrighted works.
A.
Anti-Circumvention Provision
The DMCA prohibits users from circumventing the technological protections
rightsholders employ to safeguard their digital works – often in the form of DRM systems
– to access digital content. The judiciary, in turn, has interpreted this prohibition broadly,
rejecting the fair use defense as inapplicable to alleged violations. As a result, the DMCA
effectively bars many educational uses of DRM-protected digital media.
196
Tobias Hauser & Christian Wenz, DRM Under Attack: Weaknesses in Existing Systems, DIGITAL RIGHTS
MANAGEMENT: TECHNOLOGICAL, ECONOMIC, LEGAL & POLITICAL ASPECTS 206 (Eberhard Becker, Willms Buhse, Dirk
Gunnewig & Niels Rump eds. 2003).
197 See id. at 207-212, 217-219; Adobe, Adobe’s DRM Tools, supra note 100.
198 See, e.g., 144 Cong. Rec. H7092-94 (Aug. 4, 1998).
199 See S. REP. NO. 105-190, at 2 (1998).
200 See Pamela Samuelson, Intellectual Property & the Economy: Why the Anti-Circumvention Regulations Need to Be
Revised, 14 BERKELEY TECH. L.J. 529 (1999); Pamela Samuelson, DRM {and, or, vs.} the Law, COMM. ACM, Apr.
2003, at 41; Jessica LITMAN, DIGITAL COPYRIGHT: PROTECTING INTELLECTUAL PROPERTY ON THE INTERNET (2001).
201 144 CONG. REC. H7074, H7094 (statement of Rep. Bliley).
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Wide Scope of Provision
The DMCA forbids circumvention of DRM system protections for the purpose of
accessing a digital work. The statute provides, “No person shall circumvent a
technological measure that effectively controls access to a work protected under this
title.”202 Problematically, the statute does not define the critical term “access.” The
definition of this term is implicit in the nature of digital works, however. It is impossible
to perceive digital works without accessing them first. While human beings can perceive
analog works directly, reading text printed on a page, for example, digital works contain
data that is imperceptible to humans and must be converted to be perceived.203
Accordingly, the scope of the term access likely includes “any act by which [a] work is
made perceptible.”204 This understanding of “access” is consistent with the meaning of
the term used elsewhere in the DMCA: “a technological measure ‘effectively controls
access to a work’ if the measure, in the ordinary course of its operation, requires the
application of information, or a process or a treatment, with the authority of the copyright
owner, to gain access to the work.”205
Such a broad reading of access brings all practical uses of digital works within the
scope of the anti-circumvention provision. Simply opening a document on a computer or
viewing a DVD involves accessing the digital work as a necessary first step.206 Likewise,
educational uses of digital media, such as creating a compilation of clips from DVDs to
show in a film studies course, require accessing digital works.
The threshold requirement that the anti-circumvention provision applies only to
technological measures that “effectively control access to a work” is easily satisfied. The
courts have found that a sufficiently effective access control need only be a digital
equivalent of “a lock on a homeowner's door, a combination of a safe, or a security
device attached to a store’s products.”207 The strength of the digital “lock” is not
relevant. For example, the courts have universally ruled that CSS, the encryption and
authentication scheme used to prevent copying of DVDs, qualifies as an effective access
control,208 despite the ease with which it can be circumvented.209 Only licensed clients
equipped with the keys necessary for unscrambling disc contents can access and perform
the information stored on CSS-protected DVDs.210 Noting that “One cannot lawfully
gain access to the keys except by entering into a license… or by purchasing a DVD
player or drive containing the keys pursuant to such a license,” the court ruled that “under
202
17 U.S.C. § 1201(a)(1)(A) (2000).
See R. Anthony Reese, The Law and Technology of Digital Rights Management: Will Merging Access Controls and
Rights Controls Undermine the Structure of Anticircumvention Law?, 18 Berkeley Tech. L.J. 619, 633-34 (2003).
204 Id. at 628; see also Jane C. Ginsburg, From Having Copies to Experiencing Works: The Development of an Access
Right in U.S. Copyright Law, 50 J. COPYRIGHT SOC’Y AM., 113, 115 (2003) (“Every act of perception or of
materialization of a digital copy requires a prior act of access.”); id. at 126 (“Thus, ‘access to the work’ becomes a
repeated operation; each act of hearing the song or reading the document becomes an act of ‘access.’”).
205 17 U.S.C. § 1201(a)(3)(B) (2000).
206 See, e.g., DVD DEMYSTIFIED, supra note 20, at 190-93.
207Universal Studios v. Corley 273 F.3d 429, 452-53 (2d Cir. 2001).
208 See, e.g., id. (“CSS [is] computer code that prevents access by unauthorized persons to DVD movies…. In its basic
function, CSS is like a lock on a homeowner's door, a combination of a safe, or a security device attached to a store's
products.”); 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085, 1095 (N.D. Cal. 2004) (“CSS is a technological
measure that both effectively controls access to DVDs and effectively protects the right of a copyright holder.”).
209 See FISHER, supra note 36, at 94-96 & n.29.
210 See, e.g., DVD DEMYSTIFIED, supra note 20, at 190-93.
203
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the express terms of the statute, CSS ‘effectively controls access’ to copyrighted DVD
movies.”211
The minimal requirements for “access” and “effective control” under the DMCA
bring nearly all digital works with any form of access restriction within the purview of
the anti-circumvention provision. Certainly, DRM systems of the type described in the
previous Part will nearly always be covered by the DMCA.
2.
Limited Defenses
a)
Traditional Exemptions from Copyright Liability
As illustrated in our case study of DVDs in film classes, content desirable for
educational use may be locked down within DRM systems that prevent such uses, at least
without circumvention of the DRM system. In such instances, an educational use that
would otherwise be protected under the Copyright Act becomes illegal under the DMCA,
vitiating the original protection.
The courts have nonetheless refused to recognize traditional defenses to copyright
infringement as defenses to violations of the DMCA’s anti-circumvention provision.
Rather, they have held that the DMCA created a cause of action for circumvention of
technological measures that effectively control access to copyrighted works, and that this
claim is distinct from causes of action for copyright infringement.212 Accordingly, while
fair use and the classroom use exemption shield educational users from copyright
infringement liability, these provisions do not provide any defense against liability for
circumvention under the DMCA.213 As one court explained its reasoning, “If Congress
had meant the fair use defense to apply to [actions under the DMCA’s anti-circumvention
provisions], it would have said so.”214 Another court addressed the limitations placed on
educational use of DVDs by the DMCA, unsympathetically declaring:
[T]he DMCA does not impose even an arguable limitation on the opportunity to
make a variety of traditional fair uses of DVD movies, such as commenting on
their content, quoting excerpts from their screenplays, and even recording
portions of the video images and sounds on film or tape by pointing a camera, a
camcorder, or a microphone at a monitor as it displays the DVD movie. The fact
that the resulting copy will not be as perfect or as manipulable as a digital copy
obtained by having direct access to the DVD movie in its digital form, provides
no basis for a claim of unconstitutional limitation of fair use.215
The DMCA’s anti-circumvention provision thus creates a parallel universe for digital
works, one in which the public interest in permitting certain uses of copyrighted works
goes unrecognized and the potential benefit from educational uses of digital works is
unrealized.
211
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d at 294, 317-18 (S.D.N.Y. 2000).
See Jeff Sharp, Coming Soon to Pay-Per-View: How the Digital Millennium Copyright Act Enables Digital Content
Owners to Circumvent Educational Fair Use, 40 AM. BUS. L.J. 1, 41 (2002).
213 See id.
214 Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 219 (S.D.N.Y. 2000). While the legislative history
of the DMCA speaks to the importance of fair use, see 144 CONG. REC. at H7093-94, the statute itself makes no
mention of a fair use defense to actions under the DMCA, see 17 U.S.C. § 1201 (2000), and the courts have refused to
read such a defense into the text of the statute, see Reimerdes, 82 F. Supp. 2d at 219.
215 Universal Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).
212
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In declaring fair use and other traditional exemptions from copyright infringement
liability inapplicable to actions under the anti-circumvention provision, the courts have
pointed to a “fail-safe” clause216 built into the anti-circumvention provision as evidence
that Congress did not intend traditional exemptions from copyright liability to serve as
exemptions from liability under the DMCA.217 Under the fail-safe clause, the Librarian
of Congress is empowered to waive the DMCA’s anti-circumvention provision for threeyear periods with regard to specific classes of works, for “adversely affected” users who
could not otherwise engage in non-infringing uses in light of the DMCA.218 In practice,
this clause has not provided meaningful exemptions for fair use or educational uses of
digital works. In fact, the Librarian rejected a proposed exemption for fair use works.219
One court stated that Congress meant to leave “limited areas of breathing space for fair
use” under the DMCA by including the fail-safe provision and other narrow exceptions
for highly specific activities.220 Given these provisions, that court concluded, “it would
be strange for Congress to open small, carefully limited windows for circumvention to
permit fair use” with the fail-safe provision and other exemptions “if it then meant to
exempt… any circumvention necessary for fair use.”221
On the other hand, the “savings clause”222 included in the anti-circumvention
provision points to the opposite conclusion. The savings clause provides, “Nothing in
this section shall affect rights, remedies, limitations, or defenses to copyright
infringement, including fair use, under this title.”223 Although this clause would seem to
suggest that fair use qualifies as a valid defense to an action for unauthorized
circumvention,224 the courts have read it quite differently. Indeed, one court found that
reading the savings clause to provide a fair use defense to circumvention was “outside the
range of plausible readings of that provision.”225 Instead, that court read the clause as
simply stating that a user who accesses a digital work without violating the DMCA can
assert fair use as a defense to an action for copyright infringement.226 This reading of the
savings clause reduces it to meaningless surplusage by interpreting it to mean “if the
DMCA does not make your acts illegal through its own prohibitions, then it does not
make your acts illegal through a different law either.”227 Nevertheless, the courts have
never upheld fair use as a defense to circumvention.228
216
See 17 U.S.C. § 1201(a)(1)(B) & (C) (2001).
See, e.g., Corley, 273 F.3d at 444.
218 See 17 U.S.C. § 1201(a)(1)(B) & (C).
219 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 68
Fed. Reg. 62014-18 (proposed Oct. 31, 2003).
220 Corely, 273 F.3d at 444 n.13. Other exceptions to these prohibitions include an exception for nonprofit libraries,
archives, and educational institutions to access a work in order to determine whether to acquire a copy of the work for
their collection, an exemption for law enforcement activities, and exceptions for reverse engineering of computer
programs and encryption research. See 17 U.S.C. §§ 1201(d)-(g).
221 Corely, 273 F.3d at 444 n.13.
222 17 U.S.C. § 1201(c)(1).
223 Id.
224 See Christina Bohannan, Reclaiming Copyright, 23 CARDOZO ARTS & ENT. L.J. 567, 610-11 (“A more plausible
interpretation of the savings clause is that a person who is sued for circumvention or trafficking under the DMCA may
assert as a defense that the sole purpose and effect of the circumvention or trafficking was to make or facilitate making
a noninfringing use of the content.”).
225 Corley, 273 F.3d at 443.
226 Id.
227 Bohannan, supra note 224, at 611.
228 Although one court concluded that “17 U.S.C. § 1201 prohibits only forms of access that bear a reasonable
relationship to the protections that the Copyright Act otherwise affords copyright owners,” see Chamberalin Group,
217
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This interpretation also undermines the structure of the Copyright Act itself. By
excluding fair use, educational use, and other traditional exemptions from copyright
infringement liability as defenses to circumvention actions, previously protected conduct
becomes illegal. Rather than simply providing additional penalties for piracy of digital
works, the DMCA outlaws numerous educational uses of digital works – uses that the fair
use provision and the classroom use exemption would otherwise permit. Far from
achieving the balance Congress promised, the DMCA hinders the educational use of
digital media.
b)
The TEACH Act
Enacted three years after the DMCA, and designed to facilitate “new hybrids of
traditional classroom education combined with online components,” the TEACH Act
promised to facilitate educational use of digital works.229 The Act did not create an
exemption for circumvention activities proscribed by the DMCA, however. Indeed, the
TEACH Act effectively incorporates the DMCA’s anti-circumvention provision into its
compliance requirements, thus eliminating any legal defense for those who circumvent
DRM systems to make educational use of digital works.
The TEACH Act requires that an institution transmitting digital works to students
“not engage in conduct that could reasonably be expected to interfere with technological
measures used by copyright owners to prevent [] retention or unauthorized further
dissemination” of those works.230 This prohibition on overriding DRM protections seems
to forbid educational institutions from providing their students with access to many DRM
system protected works outright. The TEACH Act fails to define what “conduct that
could reasonably be expected to interfere with technological measures used by copyright
owners to prevent [] retention or unauthorized further dissemination” is. From the plain
text of the statute, however, it is likely that any circumvention of access and use controls
used by a DRM system to protect a digital work would violate the TEACH Act.
Paradoxically, under this regime, even those institutions that incur the cost of
creating DRM systems and use them to protect the copyrighted digital works they
distribute to their students may not qualify for exemption from liability under the
TEACH Act. Indeed, even if an institution distributes a digital work with more potent
DRM protections than the rightsholder originally employed, the TEACH Act still will not
shield that institution from liability if it circumvented the original DRM protections at
any step – even if only to gain access to the work. This compliance requirement thus
renders the TEACH Act an ineffective measure for insulating educational users of digital
works from liability under the DMCA. The limitations of the TEACH Act, combined
with the inapplicability of traditional defenses to copyright infringement leave
educational users without recourse for avoiding liability for circumvention of DRM
protections to access works.
Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1202 (Fed. Cir. 2004), that court specifically declined to address the
relationship between the fair use defense and the anti-circumvention provision of the DMCA. See id. at 1200 n.14
(“We do not reach the relationship between § 107 fair use and violations of § 1201…. We leave open the question as to
when § 107 might serve as an affirmative defense to a prima facie violation of § 1201.”).
229 S. REP. NO. 107-31, at 4 (2001).
230 17 U.S.C.A. § 110(2)(D)(ii)(II) (2005).
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Anti-Trafficking Provisions
In addition to outlawing individual acts of circumvention, the DMCA also
prohibits the manufacture and trafficking of software that primarily functions to
circumvent DRM systems.231 The DMCA sets forth these so-called “trafficking
provisions” in two parts. The first states:
No person shall manufacture, import, offer to the public, provide, or otherwise
traffic in any technology, product, service, device, component, or part thereof,
that-(A) is primarily designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a work protected under
this title;
(B) has only limited commercially significant purpose or use other than to
circumvent a technological measure that effectively controls access to a work
protected under this title; or
(C) is marketed by that person or another acting in concert with that person with
that person's knowledge for use in circumventing a technological measure that
effectively controls access to a work protected under this title.232
The second is largely identical, substituting the phrase “protects a right of a copyright
owner” in place of the phrase “controls access to a work.”233
While the anti-trafficking provisions of the DMCA may seem less pertinent to
educational users than the anti-circumvention provision, they are critically important,
because most educational users rely on circumvention tools created by others to access
digital works.234 For example, film studies professors rely on software programs such as
Fast DVD Copy 4235 to override the CSS DRM system and extract movie clips from
DVDs.236
The courts have employed both of the DMCA’s anti-trafficking provisions to
sanction parties engaged in the manufacture and trafficking of circumvention software.237
Continued litigation against those who supply circumvention software threatens the
availability of these products, and thus the ability of educators to make lawful uses of
digital content.238 Even if Congress, the courts, or the Librarian of Congress were to
establish an exception to the DMCA permitting circumvention of DRM systems for
educational uses, the strictures of the trafficking provisions might eliminate the supply of
circumvention software, rendering circumvention infeasible for all but the most
technologically proficient educational users capable of creating their own circumvention
tools. Indeed, one court suggested that Congress intended “to leave technologically
unsophisticated persons who wish to make fair use of encrypted copyrighted works
231
17 U.S.C. §§ 1201(a)(2) & (b)(1) (2000).
17 U.S.C. §§ 1201(a)(2).
233 17 U.S.C. §§ 1201(b)(1).
234 See Sharp, supra note 212, at 41.
235 See Fast DVD Copy 4, http://www.fastdvdcopy.com/.
236 Interview with David N. Rodowick, Professor of Visual and Environmental Studies, Harvard University, in
Cambridge, Mass. (Sept. 28, 2005) (stating that DVDs are essential for teaching film studies, and describing how
DVDs have transformed film studies scholarship); see
237 See, e.g., 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085, 1095, 1108 (N.D. Cal. 2004) (enjoining plaintiff
321 Studios from manufacturing, distributing, or otherwise trafficking in any type of DVD circumvention software, and
finding that CSS is both an access control and a rights control).
238 See Sharp, supra note 212, at 41.
232
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without the technical means of doing so.”239 While it is likely that some circumvention
technologies will always be available “underground,” such software may be harder to
come by and more difficult to use than tools that are currently available. 240 Accordingly,
any legal reforms designed to accommodate educational use of digital works must take
into account the importance of equipping educational users with a practical means to
access, use, and manipulate content protected by DRM systems.
In combination, the anti-circumvention and anti-trafficking provisions of the
DMCA effectively enshrine the restrictions rightsholders place on digital works. Indeed,
it might be said that the DMCA allows rightsholders to circumvent copyright law.
Although the DMCA does not state outright that traditional copyright law is inapplicable
to DRM-protected works, it has exactly this effect. As the law stands, rightsholders can
and do restrict uses of content to the extent they choose – without any limitations
safeguarding the public interest – simply through the application of DRM systems.
IV.
INDUCEMENTS FOR EDUCATOR USE OF DRM
The hazards to education posed by DRM systems extend beyond the constraints
those systems put on the use of digital media. DRM systems also threaten to restrict the
dissemination of knowledge from educational institutions to the world beyond. In this
era of DRM and the DMCA, educators may be compelled – by contract, by statute, and
by their own interests – to enclose digital media within institutional walled gardens. As
users of commercially produced digital works, educators who succeed at obtaining
licenses to use digital works may be required by the terms of those licenses to employ
DRM protections. Educators who seek the safe harbor of the TEACH Act are unlikely to
fare better, as that Act appears to require DRM protection of digital works in exchange
for freedom from copyright infringement liability. Indeed, fear of legal liability may
provoke educational institutions to require their faculty and students to enshroud content
containing copyrighted digital works in DRM protections before making it available on
the Internet. Finally, the personal interests of educators in regulating their own works
might motivate them to use DRM systems.
Combined, these influences could stanch the flow of information from
educational institutions to the public, to faculty and students at other institutions, and
even within different sections of the same institution. Adoption of DRM systems by
educators jeopardizes the dissemination of knowledge through the erection of walled
gardens that hold information within, to the detriment of those outside.
A.
Strict Licensing Requirements
Educators seeking to use DRM-protected works, or uncomfortable relying on fair
use or other copyright provisions to shield them from copyright infringement liability
often pursue licenses to make use of digital works.241 As a condition of such licenses,
rightsholders frequently require that licensees regulate users’ access to and use of the
licensed work – often mandating the adoption of DRM systems to do so. Common
limitations include: expiration after a set time period; restriction of access through user or
239
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d at 294, 324 (S.D.N.Y. 2000).
See Sharp, supra note 212, at 41.
241 Licenses for educational use of digital works are often difficult or impossible to obtain.
240
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device authentication; and limitations on the use of a work, such as copying and printing
prohibitions.
As a consequence, access to and use of content licensed for educational use may
be highly constrained. Moreover, the impact of such restrictions extends beyond the
licensed content itself. Consider situations where the licensed content is integrated into a
broader educational work, such as placing it on a web site or in a compilation. In many
situations, the only way to honor the requirement that the licensed content be protected
by a DRM system would be to impose such restrictions on the entire educational work
and all its components – even if, for example, the remaining content is unlicensed and
created by the educator, or is available under fair use or Creative Commons licenses. In
this manner, licensing conditions can become “viral,” spreading to unlicensed educational
content that would otherwise be available on an unrestricted basis.
This issue arose in New World Records (“NWR”) Database of Recorded
American Music (“DRAM”) project discussed in our NWR case study. The DRAM
project sought to create a system for digitally delivering the NWR music catalog to
universities, libraries, and other institutions, for scholarly use. Although NWR already
possessed the rights to distribute its collection on CD, those licenses did not anticipate the
possibility of digital delivery, and did not grant rights for that form of distribution.
Accordingly, NWR had to renegotiate licenses permitting digital delivery with
rightsholders. The principal rightsholder NWR had to renegotiate with was the Harry
Fox Agency, one of the primary agencies for collecting and distributing royalty fees on
behalf of music publishers, and the organization in control of the licensing rights to over
half of the titles in the NWR catalogue. The Harry Fox Agency eventually acceded to
NWR’s request for digital delivery rights, but only on the condition that any digitally
delivered works be protected by a DRM system. Because of this burdensome
requirement, NWR has had to postpone providing professors with direct online delivery
of digital content.
It is easy to imagine requirements for DRM system protection excluding large
classes of potential educational users from any opportunity to license content. Although
some institutions have engaged in “labor-intensive” negotiations with academic
publishers and successfully decreased the extent of restrictions on access to digital
works,242 NWR’s experience with the Harry Fox Agency suggests that commercial
content providers are less likely than academic ones to engage in such negotiations. The
different economic circumstances that confront academic and commercial markets
support this conclusion. Furthermore, smaller institutions and individual users likely lack
the leverage required to negotiate with either academic or commercial content providers.
If rightsholders insist on a DRM requirement, some educational institutions, especially
elementary and secondary schools, will lack the resources to fortify works with elaborate
DRM systems, and thus will be precluded from licensing those works. Individual
educational users rarely have the skills or resources to deploy such protections, and they
too will be unable to obtain licenses under such conditions.
242
See Ann S. Okerson, Buy or Lease? Two Models for Scholarly Information as the End (or the Beginning) of an Era,
DAEDALUS, Fall, 1996, 55, available at http://www.library.yale.edu/~okerson/daedalus.html (last visited May 8, 2006).
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Statutory Shortcomings: The TEACH Act
The complex requirements set forth in the TEACH Act (discussed further in
section 3.1 of the Digital Learning white paper) effectively oblige educational institutions
to use DRM systems to protect copyrighted digital works distributed to students.243 The
difficulty and sometimes infeasibility of compliance with these requirements undoubtedly
deters many institutions from seeking refuge in the safe harbor the Act was intended to
provide.
The TEACH Act requires educational institutions to take steps to secure the works
they make available to their students, and forbids those institutions from overriding
technological protection measures used by rightsholders to safeguard their works in order
to be exempt from copyright infringement liability. In particular, to benefit from the
exemption from liability, educational institutions must: (1) limit transmission of the work,
to the extent technology permits, to students enrolled in the related course; (2) apply
technological measures that reasonably prevent retention of the work in an accessible
form beyond the class session; and (3) use technological means to reasonably prevent
redistribution of the accessible work from the intended recipient to others.244
It is difficult to imagine how an educational institution might comply with these
requirements without using a DRM system. The Act requires educational institutions to
retain persistent control over digital works245 – one of the attributes of DRM systems that
differentiates them from other content protection systems. The obvious way to satisfy the
criteria is a garden-variety encryption-based DRM system with user authentication
procedures and a license restricting access to one class session and prohibiting
redistribution of the digital work. An educational institution would have to devote
significant resources to create a DRM system in conformity with those requirements.
The institution would have to dedicate server space for the secure storage, distribution,
and licensing of digital works. In much the same way that strict licensing requirements
hamper educational use of licensed works, the resource requirements requisite for
compliance with the TEACH Act will no doubt deter some educational institutions from
providing their students with access to digital works.
C.
Lawsuit Avoidance
Institutions sometimes require faculty and students to post digital content on
password-protected websites to reduce the risk of copyright infringement litigation. Film
studies professors at one major university are instructed to post any works containing
movie clips, such as lecture slideshows that incorporate clips, on a password protected
website to decrease the chances that the movie industry will detect this activity (and
increase the likely success of a fair use defense should litigation arise). Moreover, the
copyright policies of individual educational institutions often indicate that the preferred
practice is to limit access to distance-learning works and “electronic reserves” (e.g.,
course-related content posted to the Internet, often using a CMS) to students enrolled in
243
See 17 U.S.C.A. § 110(2) (2005).
See id. In addition to the three requirements listed here, the TEACH Act also forbids interference with DRM
protections employed by rightsholders. See supra text accompanying note 230.
245 See 17 U.S.C.A. § 110(2)(D)(ii)(I).
244
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the class, and only for the duration of the class term.246 This type of walled garden may
become more common as instructors adopt digital teaching tools and further integrate
digital media into their teaching methods.
D.
Educator Interest in Protecting Intellectual Property
Educational institutions and their faculty members sometimes use DRM systems
to protect the content they generate. Course materials created and distributed by
educators, often using institutional resources, are valuable to both educators and their
institutions. Educational institutions invest heavily in the infrastructure necessary for the
creation and distribution of digital content. Accordingly, they have an interest in how that
content is shared. Of course, the faculty creators also have an interest in maintaining the
integrity of their work, receiving credit for it, and sometimes remuneration. Thus,
academics’ self-interest limits their adoption of “open access” and related models for
distributing content unencumbered by copyright restrictions. The same impulses are
likely to lead academic content creators to restrict access to their works with the same
types of DRM systems as other rightsholders use.
An international study of how academics want to protect their open access
distributed works provides insight into how educators might use DRM systems to fortify
their own works. Eighty-seven percent of respondents to the study indicated that they
would require some form of restriction over the use of their works before releasing them
into the digital universe.247 As the study concludes, “This indicates that simply releasing
works into the ‘public domain’ for use by anyone for any purpose is not an option for
academics.”248 Academics indicated a strong interest in maintaining the integrity of their
works, as 67 percent indicated that they would limit reproductions to exact replicas of the
original.249 Similarly, 34 percent of respondents would require maintenance of security
features such as watermarks in reproductions, and 33 percent would require that
reproductions take the same format as the original work.250
Academic authors also indicated a strong interest in controlling the purposes for
which their works are used. Fifty-five percent of authors would limit use to particular
purposes – e.g., educational or non-commercial.251 Indeed, 31 percent designated that
works should only be available for personal use.252 In addition to expressing concern for
how their works are used, authors also demonstrated a strong interest in receiving credit
for their work. Eighty-one percent of respondents stated that they would expect
attribution for authorship of digital works.253
These results reveal that academic altruism is not absolute. Even though many
academics wish to eliminate the toll structure currently in place for the distribution of
digital versions of their works by offering no-cost digital copies, they still have a strong
246
See e.g., University of Texas, Fair Use of Copyrighted Materials, http://www.utsystem.edu/OGC/
intellectualProperty/copypol2.htm#research (last visited May 8, 2006).
247 Elizabeth Gadd, Charles Oppenheim & Steve Probets, RoMEO Studies 2: How Academics Want to Protect Their
Open-Access Research Papers, 29 J. INFO. SCI., 333, 344 (2003).
248 See id.
249 See id.
250 See id. at 345.
251 See id. at 344-45.
252 See id. at 345.
253 See id.
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interest in protecting their intellectual property. Accordingly, it is likely that DRM
system use by individual educators and their institutions will increase with time.
V.
EDUCATIONAL IMPACT
A.
Increased Costs Imposed by DRM Technology
The advent of DRM systems fundamentally altered the copyright landscape for
educational (and other) users of digital works. Before the development of DRM systems,
educational users could make whatever use they chose of copyrighted works, leaving the
shield of copyright infringement litigation as the remedy for restoring rightsholders to
their pre-infringement position. Emergence of DRM systems as robust technological
tools for protecting digital works transferred power from content users to rightsholders,
by permitting rightsholders to technologically control usage of their works. Rather than
require rightsholders to prosecute individual acts of copyright infringement, DRM
systems allow rightsholders to block access to and usage of their works ex ante, before
piracy occurs. This new landscape leaves educational users without access to many
copyrighted works, forcing them to find other recourse if they wish to use DRM system
protected works.
Shifting of the default for access to copyrighted digital works from open to closed
created a substantial barrier to the educational use of such works. In the current
environment, educational users cannot use digital works unless they have the means –
technological, legal, and otherwise – to overcome DRM system imposed protections.
This requirement impedes educational use by imposing new costs on would-be
educational users.
B.
Conquest of the DMCA Sword over the Educational Use Shield
In the pre-DMCA era, educational users capable of bearing these costs could still
make use of digital works. DRM system circumvention tools and the shield of the fair
use doctrine and educational use exemptions all appeared viable means for legally
overcoming DRM system imposed restrictions. The anti-circumvention and antitrafficking provisions of the DMCA radically changed this outlook. These statutory
restrictions gave DRM system imposed restraints the force of law, eliminating
technological recourse. Prohibitions on the trafficking and use of circumvention tools
designated these important implements as contraband; illegalizing the means many
educational users rely on to access and use digital content. Moreover, the courts’
interpretation of the anti-circumvention and anti-trafficking provisions to exclude fair use
and other copyright exemptions as defenses to actions under these DMCA provisions
stripped educational users of their shield against copyright infringement liability. The
DMCA effectively eliminated legal recourse for educational users of digital content, in
addition to proscribing technological recourse. Under the DMCA, educational users who
circumvent DRM system protections do so at their peril.
The TEACH Act does little to weaken the thrust of the DMCA. Its stringent
requirements are almost impossible to comply with. Indeed, the requirement that
educational users not interfere with DRM system protections employed by rightsholders
will likely be interpreted to prohibit use of any DRM system protected digital works
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under the Act. In any case, the unwieldy TEACH Act is an inadequate substitute for the
sanctuary of the fair use doctrine.
C.
Entrenchment of DRM
The technological and legal power conferred on rightsholders converges with
economic incentives, institutional architecture, educators’ interests in protecting their own
intellectual property, and fear of copyright infringement liability to further impede
educational use of digital works. Economic concerns compel rightsholders to guard their
works with DRM systems in the first place. As the monetary value of a particular digital
work rises, so to does the owner’s incentive to take advantage of the protections afforded
by DRM systems. Similarly, this motivation increases with the extent of the economic
harm posed by leakage. Absent economic justification for making works accessible to
educational users, it is unrealistic to expect rightsholders to do so on their own.
The current licensing environment bears out this expectation. Only a small
proportion of desirable digital works are readily available for licensing – often at
significant cost – and many of the licenses that are available severely restrict how works
are used. Moreover, as evidenced by the comparison between digital textbooks and
DVDs, the proportion of licensable works appears to decrease as the value of the work in
the non-educational – i.e., general commercial – market rises. The forecast for licensing
opportunities is bleak; without changed economic incentives or new regulations
mandating compulsory licensing, the number and quality of licensing options is unlikely
to improve. Accordingly, educational users are without legal alternatives for making use
of most DRM system protected digital content. Instead, they must choose between
forgoing use of desirable content or violating the DMCA if they wish to use protected
works.
Rightsholders are not the only parties responsible for limiting access to digital
works. Educators also interfere with access, both at the institutional and individual level.
Institutional barriers to access – inadvertent and intentional – lock digital works within
walled gardens. Works trapped behind these walls disserve the educational mission of
creation and dissemination of knowledge to the public at large, and in many instances,
even interested students and faculty members unaffiliated with a specific course.
Fortunately, new platforms for making digital content more openly available than allowed
under the existing commercial platforms are emerging. In addition, it might be possible
to change institutional attitudes toward content sharing through initiatives designed to
inform institutions about the protections afforded by copyright law, and introduce them to
sharing-enabled content distribution platforms.
The intellectual property interests of educational institutions and their faculties
also impede the educational use of digital works. Institutional concern for receiving a
return on investment in the creation of digital works and the infrastructure that supports
them offers an incentive for institutions to use DRM systems to restrict access to and use
of digital works. Moreover, a substantial number of individual scholars has indicated an
interest in using DRM systems to ensure that they receive credit for their work and to
maintain the integrity of their work. Many academics have also expressed an interest in
regulating how and by whom their works are used. These interests militate in favor of
academic employment of DRM systems. Even though the desire of scholars to use DRM
systems is worrisome, the primary goals these scholars have in mind suggest that their
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usage of DRM systems will not necessarily interfere with educational use of digital
media. Many academics express greater interest in facilitating educational and scholarly
use of their works rather than charging money to access their works. So long as
academics remain committed to such limited use of DRM systems, their activities should
not adversely affect educational use of digital works.
The primary impediments to educational use of digital media, DRM technology
itself, the law that buttresses it, the economic circumstances rightsholders face, and DRM
system usage by educators and their institutions, do not suggest a simple solution for
facilitating educational use of digital works. The following Part undertakes a modest
attempt to create a framework for developing solutions.
VI.
A FRAMEWORK FOR RESTORING BALANCE
Attainment of the educational benefits promised by digital media will require an
equalizing shift in the equilibrium between protecting digital works from unauthorized
use and permitting educational use of those works. Achieving such equalization will be
no mean feat. Recognizing the scope and complexity of the problem, this Part humbly
aims to set forth a simple framework as a starting point for examining the problem.254
A.
Legal
Creation of a legal exception permitting educational use of digital works, or a
compulsory licensing regime mandating licensing of digital works to educational users,
are perhaps the most obvious solutions to the educational use problem. Unfortunately,
the political power of rightsholders, and the uproar created over distribution of pirated
music and movies via peer-to-peer networks, makes either of these solutions as unlikely
as they are obvious. The line-drawing problem inherent in defining “educational” uses
also stands as a serious obstacle to such legal reform.
Legal reform mandating access to digital works for educational users would
generate substantial concern among rightsholders legitimately anxious regarding
economic harm from leakage of unprotected works out of the educational sphere and into
the greater public. Indeed, ad hoc legal reform mandating access to digital works for
educational users without addressing rightsholders’ leakage concerns might stifle the
creation of digital works by imposing too many risks on rightsholders and generating
skepticism about the potential for obtaining a reasonable return on investment by creators
and distributors. Accordingly, although legal reform is a laudable long-term goal, if it is
to succeed in stimulating educational access to digital works, it will likely need to be
supported by technological protections designed to assuage the concerns of rightsholders.
B.
Architectural
Currently, the architecture of the DRM systems employed by most rightsholders
does not accommodate educational use of digital works.255 Instead, these systems place
highly restrictive constraints on access to and use of protected works. DRM systems
could be restructured to permit some educational uses, however, without increasing the
This framework adopts Lawrence Lessig’s New Chicago School model as a guide. See Lawrence Lessig, The New
Chicago School, 27 J. LEGAL STUD. 661 (1998).
255 See Timothy K. Armstrong, Digital Rights Management and the Process of Fair Use, 20 HARV. J.L. & TECH.
(forthcoming, Jan. 2007) available at http://ssrn.com/abstract=885371).
254
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risk of content leakage.256 Such architectural changes could encourage rightsholders to
permit educational use of digital works, in addition to engendering support for legal
reform by reducing leakage risks.
Within limits, DRM system technology can accommodate educational use of
protected works. For example, architectural changes to DRM systems could enable
educational users to extract protected works for in-class use. Restrictions on protected
works could be changed to permit authorized educational users to reproduce excerpts of
protected works a limited number of times, and prohibit redistribution of those excerpts
(perhaps by linking the excerpts to a specific device). Such modifications would
facilitate educational use without creating leakage risks. Indeed, leakage risks might
actually decline, since educational users will no longer have an incentive to illegally
acquire works through circumvention tools.
While architectural changes to DRM systems that allow educators to extract
protected works for certain uses should be feasible, complete incorporation of the fair use
exception into DRM systems is presently infeasible in light of the complexity and
ambiguity of the fair use test. Indeed, one expert noted, “The vagueness of the fair use
test makes it essentially impossible to create a DRM system that allows all fair uses.”257
The limitations of DRM systems suggest architectural modifications are an incomplete
solution for permitting educational use of digital works. Nonetheless, such modifications
would significantly enhance educational use of digital media, and provide a useful
supplement to legal reforms.
C.
Economic
Market conditions and the economic motivations of digital rightsholders play a
powerful role in determining whether digital works are available for educational use.
Accordingly, educational users could take advantage of their aggregate power to
influence rightsholder conduct. For example, libraries from different educational
institutions sometimes form consortia to “obtain cost-effective bulk pricing ‘deals’ for the
purchase of on-line versions of existing journals and other databases.”258 Members of
such consortia use their aggregate power to negotiate access to a wider variety of
electronic journals at lower cost than they would otherwise pay. Through cooperating
with each other, educational users can create economic incentives for rightsholders to
make their works education-usable.
Market realities will limit the efficacy of educator cooperation, however. Owners
of digital works with large non-educational markets will be less susceptible to educator
pressure than will be rightsholders whose products are primarily consumed by educators
and their students. The lower the proportion of a rightsholder’s profits attributable to
educational users, the weaker the incentive for that rightsholder to negotiate with
educational users – even when educators approach the rightsholder in aggregate.
Accordingly, market manipulations, without more, are unlikely to fully alleviate the
problem presented by the unavailability of digital works for educational use.
In addition to using economics to their advantage, educators and policymakers
must work with rightsholders to better understand the economic and other factors that
256
See id.
Edward W. Felton, A Skeptical View of DRM and Fair Use, COMM. ACM, Apr. 2003, at 58.
258 See Okerson, supra note 242.
257
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cause rightsholders to block educational use of digital works with DRM systems in the
first place. Open and frank dialogue with rightsholders will be instrumental in crafting a
solution to the educational use problem satisfactory to both sides.
D.
Normative
Social norms are a form of regulation independent of the law. Norms are
society’s code of conduct – tacit or explicit. They “constrain an individual's behavior, but
not through the centralized enforcement of a state. If they constrain, they constrain
because of the enforcement of a community.”259 Norms are relevant to educational use of
digital works in two ways: they regulate the conduct of rightsholders and educational
users themselves. Existing norms governing rightsholders support educational use of
digital works, by requiring forbearance from pursuing litigation against those users. On
the other hand, norms obeyed by educational institutions and individual educators
actually curtail educational use, as these parties demonstrate reluctance to engage in
activities that create litigation risks or risks of misappropriation of their own intellectual
property. In both cases, reliance on norms is an inadequate means for fostering
educational use of digital works.
Currently, norms govern the relationship between some groups of educational
users of digital media – such as film studies professors – and the corresponding
rightsholders. For example, even though movie studios are well aware of the ways in
which film studies professors use DVDs, the studios have refrained from prosecuting film
studies professors. One likely explanation of this practice is adherence to norms. Studios
would undoubtedly suffer considerable public backlash if they pursued litigation against
film studies professors for making educational use of DVD content.
Even though norms proscribing litigation against educational users of digital
works offer some protection for educational users, that protection is uncertain and readily
revocable. If the economic risks posed by rightsholders’ continued restraint were to
increase, they could be expected to violate norms in order to protect their core business
interests. Moreover, it is too much to ask educators and their institutions to rely on
legally unenforceable norms as a basis for making educational use of digital works. The
financial risk to educators, and especially educational institutions, in the form of direct or
secondary liability, are simply too great. Indeed, quick study of the copyright policies in
place at educational institutions nationwide reveals a preference for restricting
educational use of digital works to avoid the risk of litigation. While norms provide
some leeway for educational use of digital works, they are untenable as a long-term
solution for facilitating such use.
In addition to an aversion to litigation, the widely held beliefs of many academics
that their works ought to be protected from misappropriation or undesirable use suggests
a norm against truly open access to digital works created by scholars. Although this norm
is not as destructive to educational use as one in favor of remuneration for such use
would be, it nonetheless creates an environment where restricted access to digital works
is acceptable. Educational initiatives designed to inform educators and educational
institutions of the specifics of copyright law might encourage some additional
educational uses of digital works, and prompt amendment of institutional copyright
policies to permit further educational uses of digital works. Initiatives aimed at
259
Lessig, supra note 254.
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informing educators as to the problems that arise from DRM system use and the barriers
such use creates for educational users of scholarly works might help to dissuade
educators from protecting their works with DRM systems, or at least reduce the degree to
which those systems are used to constrain access to and use of scholarly works.
Any framework for addressing the current restrictions on educational use of
digital content must take account of the legal, architectural, economic, and normative
options for crafting a solution to this important problem. Honest dialogue between
rightsholders and educational users regarding the risks and benefits of educational use
will be central to any solution.
VII.
CONCLUSION
DRM systems stifle educational use of digital works. Currently, the outlook is
bleak. Rightsholders and even educators themselves employ DRM systems to protect
their intellectual property by limiting access to and use of those works. These parties are
motivated by the current legal regime, which grants rightsholders the right to restrict
access to and use of their works as they see fit, and economic conditions that make it
more profitable to limit educational use than to facilitate it. In addition, DRM systems
and CMS as currently designed and deployed do not allow for educational use of digital
works. While changes to this architecture are feasible, they will not occur without
incentives to induce action by rightsholders.
The availability of digital works for educational use is critical to the advancement
of education itself. The future for educational use of digital works will depend upon the
legal, architectural, economic, and normative environment surrounding digital works.
Although change is possible, it will require cooperation of rightsholders, educators, and
policymakers. With the problem in focus, the remaining question is whether these parties
are up to the task.