Recently, the anti-piracy code used on DVDs and Blu-Ray Discs was cracked and posted anonymously on the Internet. The code acts as a protection device that prevents content infringers from illegally accessing the work in a way that allows pirating movies. It was enacted as part of the 1998 Digital Millennium Copyright Act (DMCA) in an effort to legally enforce intellectual property rights holders. Investigations are seeking to find out who posted the code and how it was cracked. However, it is reported that the leak is not significant because the coded technology is something that must be embedded into the computer chip in order to effectively create a pirating device
out of the code. This process is generally difficult and expensive to accomplish. This brings up a broader question of how such Digital Rights Management (DRM) controls generally affect the other party involved in this matter; the consumers. If DRM methods are kept secret and licensed to various companies, this means that the consumers (the general public) have no access or control over this technology. Therefore, it would follow that consumers have no say in how their digital property rights are controlled by companies utilizing DRM.
The right of first sale doctrine prevailed when everyone bought books and music in physical format. Right of first sale confers to purchasers the right to transfer, or do anything with the work without the consent of the copyright owner (as long as that work was initially obtained in a lawful manner). However, this right is jeopardized with the use of DRM. For example, Amazon faced a lawsuit last year when it deleted copies of George Orwell’s 1984 from users’ Kindle accounts, after it discovered that it was distributing unauthorized copies. Although the user plaintiff was compensated for the cost of the work purchased, it brings up a greater question of whether or not any purchase of work in digital format confers the right of first sale to the purchaser. Judging by this example, if Amazon was allowed to unilaterally pull works from user accounts, that answer would be in the negative.
In support of DRM, the World Intellectual Property Organization (WIPO) stated that such measures were necessary to provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures.” However, the Electronic Frontier Foundation (EFF) takes the opposite stance, arguing that such controls overstep users’ rights to their purchased property. Another concern is that the protection system is not a defined term in the DMCA, and instead, refers to it as a “range of technological methods”. More importantly, DRM may hinder the innovation of technology in the context of open source software, because it prevents end-users (as potential innovators) from accessing the operating system in order to contribute their input by retooling the code, and thereby improving the product overall. For example, Droid users can access the operating system’s source code in a way that allows for them to re-program the code so that it better suits their needs. On the other hand, Apple’s iPhone, iPod Touch, and iPad does not allow users to tamper with the platform, and therefore takes a more paternalistic approach to their products.
Although there have been trends where companies have begun removing access controls, it seems that economic considerations continue to encourage the use of DRM on digital products. For example, eMusic is known for making DRM-free music available to subscribers. However, their library is limited by the fact that most major record labels have refused to sign with eMusic to distribute their music because the music files would be DRM-free. Another example exists in the formatting of digital books. Since digital works are coded only to open on one type of device, users will be forced to purchase yet another copy if he decides to use another platform with which to consume digital media. This seems to be more profitable for digital media companies because it would result in more purchases of digital works.
Overall, DRM seems to be a necessary evil to protect intellectual property rights, especially in the digital medium. Media industries have taken a hit from the massive occurrence of content infringement. For consumers, the only thing that seems to justify content owners’ use of DRM is that digital media is made available to them at a low cost. Thus, purchasing media in physical format at a higher price is akin to also “buying” the right of first sale. This shifts around some fundamental intellectual property principles quite a bit. From this perspective, maybe the doctrine should be re-named the “privilege” of first sale.
TeachReport.pdf (attached to email) – found on USPTO site