University of St Augustine for Health Sciences SOAR @ USA

Other Topics Faculty and Staff Research

12-2009

Digital Rights Management, Fair Use, and Privacy: Problems for Copyright Enforcement through Technology

Eric A. Robinson University of St. Augustine for Health Sciences, [email protected]

Author(s) ORCID Identifier: https://orcid.org/0000-0001-9554-8754

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Recommended Citation Robinson, Eric A., "Digital Rights Management, Fair Use, and Privacy: Problems for Copyright Enforcement through Technology" (2009). Other Topics. 12. https://soar.usa.edu/other/12

This Article is brought to you for free and open access by the Faculty and Staff Research at SOAR @ USA. It has been accepted for inclusion in Other Topics by an authorized administrator of SOAR @ USA. For more information, please contact [email protected], [email protected]. Working Paper: Digital Rights Management, Fair Use, and Privacy 1 Digital Rights Management, Fair Use, and Privacy: Problems for Copyright Enforcement through Technology

Eric A. Robinson San Jose State University https://orcid.org/0000-0001-9554-8754

Abstract This article discusses the nature of Digital Rights Management (DRM) systems with regard to the problems they pose to traditional exceptions to copyright restrictions. Problems of fair use and the copying of material for preservation are examined in the context of the architecture of digital rights management systems, and the limitations of current DRM systems in accommodating these policies are examined. The monitoring of usage by the licensing modules of these systems is also criticized for its lack of protection of user privacy and the potential chilling of intellectual freedom. Various potential solutions to these are briefly surveyed with a view of improving DRM and preserving traditional library values.

Introduction artifacts like books or CDs allowed the user the opportunity for relatively free use of the content. The advent of the Internet has enabled the sharing Although copyright law would ostensibly restrict of information on a level unprecedented in human unlawful use of material, in reality, economic history. Simple and speedy transferral of digital factors worked more strongly to inhibit copying content has created widely available educational and distribution of protected content. It was simply opportunities and the possibility for broader time-consuming to photocopy an entire work, only dissemination of vast libraries of cultural content to be left with a copy of vastly inferior quality, like music, art, and film in electronic forms. This e.g., an unbound ream of loose-leaf pages of poor incredible ease of dissemination has enabled file readability (Coyle, 2004a)⁠. The time required for sharing and use on vast scales that have strained duplication and the unsatisfactory product, thus, traditional interpretations of copyright law and previously made duplication less desirable than the spurred larger media firms to invest in digital digital environment does today. Digital content has technologies for controlling use of electronic files. drastically changed this precarious economic These technologies, referred to as Digital Rights balance, enabling instantaneous duplication and Management (DRM) systems rely upon computer broad dissemination with no loss of quality. Such systems to impose restrictions on the use of digital capability creates incredible potential to adversely content that adhere to the wishes of the copyright affect the marketability and profit-value of created holders, even in situations where individuals have works. paid for and own the content in question. DRM systems were created in an effort to Prior to the Internet era, ownership of content justifiably to constrain illegitimate duplication and

December 2009 Working Paper: Digital Rights Management, Fair Use, and Privacy 2 uses that would violate the legal protections purchase, a subscription, or some other licensing granted to copyright holders, giving the publishers agreement. All of these parameters must be greater control over the use and distribution of coordinated to determine the level of access their work (Stefik, 1997; Stefik & Silverman, authorization. If access is granted, limited 1997)⁠. The nature of these systems (as they allowances may be made by the system for currently stand) remains problematic, however, as utilization of the file. they are unable to accommodate the subtleties of copyright law. DRM has regularly been criticized A variety of types of access rights exist which for overreaching the bounds of copyright determine how digital content may be used. The legislation, enforcing a degree of control in excess most often encountered rights needed in a digital of the protections granted under copyright law and library setting are rendering rights. Rendering hindering the exercise of user rights as granted refers here to the production of accessible content under the law (Mulligan, 2003; Samuelson, 2003)⁠⁠. from an encrypted or controlled file. Rendering Logical implementation of the rights of use in can include playback of music, viewing of a video DRM software typically falls far short of the file, and printing or screen-viewing of a text or subtle consideration needed to evaluate legitimate image file. However, other rights exist that allow reproduction or dissemination which traditionally transfer of ownership, distribution, or excerption would fall under the exceptions to copyright law for critical or parodic uses. Each of these known as fair use. Further, many of the schemas possibilities must be explicitly defined and implemented by DRM controls rely upon user implemented in the DRM. tracking and retention of information regarding content use that could easily be viewed as Erickson (2003)⁠ defines a taxonomy of at least violation of the privacy of content users. four functions which must be served in DRM rendering rights. First and foremost, user actions This paper will examine briefly the nature of must be tied to policy-level terms, and any Digital Rights Management Systems (DRMS) and external rendering application must be forced to the problems they pose to the conventional receive authorization from an evaluation system exceptions to copyright law. It is argued that the before allowing content to be rendered. Second, current state of DRMS do not make allowance for policies must be evaluated by an intermediary the exceptional uses guaranteed under copyright system that examines requests and evaluates law, and that DRMS need to be further developed applicable rules in order to make an authorization to allow for anonymous tracking of user determination. Third, governing policies must be information to ensure intellectual freedom. in place, defining the rights and conditions of use. Finally these policies must be built into the system DRM Architecture and either embedded or linked to the content resource in a machine-readable language. Such DRM systems are intended to control and restrict systems have been termed “trusted systems” since illegitimate uses of digital media. In defining and publishers can assign rights and access conditions controlling access, the DRMS must coordinate a and then rely upon the system to enforce those multiplicity of terms and access rights. These terms (Stefik & Silverman, 1997)⁠. access rights may vary with the class of user or the conditions of use. Typically such conditions will While a wide range of schemata can be utilized to be tied to a financial transaction, such as a implement DRM, most are composed of variations

December 2009 Working Paper: Digital Rights Management, Fair Use, and Privacy 3 on the following generic components which identification of a content item, as well implement the taxonomy described by Erickson information for its discovery, but will also contain (2003)⁠: a content server with some sort of DRM a complex description of the rights associated with metadata packaging; a license server which the item. Depending on the level of sophistication utilizes rights description metadata to to generate of the system, it may also include statistical access licenses; and a client server with a DRM tracking for usage monitoring. Metadata controller used to determine access from the preparation may be performed in advance and license and decrypt content for use in various stored with the content or generated as material is rendering applications as expressed in the rights downloaded. These rights descriptions are agreement. The relationship between these accessed by other components of the DRMS to elements and their components, as discussed evaluate users' rendering rights for viewing, below, is outlined in Figure 1 (Rosenblatt, Trippe, printing, transferring or copying content to the & Mooney, 2001)⁠. conditions of the agreement, and may even restrict the full digital transferral of the data files, instead The content server typically houses both the requiring the user to view the content in an online information content repository, containing the or streaming format (Rosenblatt et al., 2001)⁠. actual content files, such as music .mp3 files or text .pdf files, and the DRM packager. The DRM The license server utilizes the above-mentioned packager relies upon a database of product content rights descriptions to generate encryption codes or metadata to prepare information for digital controlled-use licenses for transmission to the distribution (Rosenblatt et al., 2001)⁠. This client with the content. The DRM license component associates metadata for the generator houses rights information and the codes

Figure 1: Generic DRM architecture. Source: Rosenblatt et al., 2002.

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for the generation of encryption keys used by the These relationships attempt to capture the unique DRM to restrict access beyond the legitimate user. conditions for each potential usage permission that In order to ensure that usage is restricted to might be encountered. They use explicit licensed limitations, DRMs also require an identity conditional statements combined with the rights store, which houses information on individual use, metadata in the content package to comprise e.g. the number of pages of an e-book printed by a directions for action on digital content packages user, or the time frame allowed for viewing a (Erickson, 2003)⁠. Thus, as an example, the DRM document. system might use an REL to express that user A has paid a $10.00 fee to access an audio edition of The rights defined in these two systems are Moby Dick, the rights to which are held by typically expressed in the form of a Rights Penguin Press. They will also capture time frame Expression Language (REL). RELs provide a or subscription information expressing that for machine-readable vocabulary for expressing the example, the above user will be able to listen to relationships among data elements and the policy the audio book as many times as he likes within a provisions outlining the conditions of use (D. three-week period. These systems require very Mulligan & A. Burstein, 2002). These are intended precise language to specify the rights and to meet three broad goals: the statement of legal conditions that is completely unambiguous in order copyright, the expression of contractual language to be expressed in programming code. As we will in computer-interpretable form, and the see in the discussion of copyright exceptions implementation of usage controls (Coyle, 2004b)⁠. below, this unambiguous expression creates They thus express licensing controls as a digital problems for vaguer notions, such as fair use, formatting of permissions. Outlined in the REL which are difficult to model in precise language. will be the parties of a license or contract, statements of classes of access and usage, and The last element of the DRM architecture, the necessary financial transaction information client, is the system employed on the user- side to (Coyle, 2004b)⁠. These basic relationships are render the content. It includes several components outlined in Figure 2. for controlling access and decrypting content for

Figure 2: Rights relations in RELs. Source: Coyle (2004b)

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rendering. The main functional component on the publishers of the period and thus curb client side is the DRM controller. The controller is centralization of control of information in the hands of a few publishers (Lessig, 2004)⁠. the central element of the entire DRM architecture and handles all content authorization requests. That public progress and societal benefit are at the This is usually described as a 'virtual machine', a root of copyright legislation in the US is clearly piece of software that runs on top of the stated in Article I of the US Constitution in what computing environment, controlling access to has come to be known as the Progress Clause: digital content (Arnab & Hutchison, 2004)⁠. It is “Congress has the power to promote the progress responsible for accessing content, gathering user of science and the useful arts, by securing for identity information, obtaining the license from limited times to authors and inventors the the license server, authenticating rendering exclusive right to their respective writings and requests, and retrieving decryption keys from the discoveries” (Bailey, 2006)⁠⁠. Lessig (2004) argues license server. These keys are then used by the that this statement of the power of Congress is client system to decode the file for viewing, granted in order to promote progress and that the printing, listening, etc. Thus, it implements the primary motivation of copyright is not one of trusted system function described by Stefik creator reward, but rather the Progress Clause (1997), processing user authorization as defined encapsulates the need to stimulate the creation of by the content publisher. intellectual works. While the extent of the forefathers' interest in author compensation can be Copyright Law debated, copyright law is, at a minimum, viewed by legal scholars as facilitating a balance—rights In order to understand the significant problems of compensation for the authors for their creation posed DRM, it necessary to consider the balanced with the rights of the public to utilize that motivations of copyright law in Anglo-American information freely (Ferullo, 2004)⁠. history. The legislation has traditionally been focused upon the need to to create an environment Actual legislation of rights to copy works came that fosters intellectual and cultural advancement. with the US Copyright Act of 1790, which granted The control of information by DRM, it is often creators limited protections to control argued, extends far beyond the intentions of reproduction, distribution, and performance of copyright law, and works against the principles of their works, again with a limit of extension societal advancement embodied in the legislation totaling 28 years. Such limitations set upon (Lessig, 2004)⁠. copyright registration showed that the authors of this legislation viewed eventual entry into the The origins of copyright law in the Anglo- public domain as an important process for social American tradition extends to 1709 and the Queen progress. However, the laws have been amended Anne statute. This statute granted monopoly rights several times, creating a rather complex system of to printers and booksellers, but limited these rights determining whether a work is in the public to 28 years, thus assuring economic returns for the domain. The length of protection of works has creators of intellectual works (Urs, 2004)⁠ while been extended eleven times in the last forty years, still eventually allowing public access to published and the average term has tripled to 95 years works. However, the law was also intended by the (Lessig, 2004)⁠. House of Lords to foster competition among

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These laws, as formulated over centuries, grant to transferring possession of the protected content the copyright holder several very specific, but (Anderson, 2002)⁠. limited rights to control the use of created content. These include, most importantly the rights of Under DRM, express permissions outlining reproduction, modification, and distribution. acceptable transferal of possession or ownership Holder rights also include the rights for public are necessary for lending of digital content. Under performance and public display. These rights also traditional copyright law, such transferal is not allow the holder to transfer rights the above- subject to control. Thus, any technological mentioned rights to a third party, such a publisher, hindrance or limitation on transfer or lending in order to disseminate the work (Urs, 2004)⁠. With presses traditional interpretations of copyright law regard to DRM, reproduction and distribution into new territory. Under digital licensing rights are those which are most critical as will be agreements, libraries may be forced to agree to seen below. limitations on transferal of content far beyond what those of traditional physical media to the Exceptional Uses and DRM extent that their ability to lend works is compromised. As has been mentioned, the rights of the creator are not all-encompassing. There are express Further, the nature of digital transfer raises a new exceptions to these constraints that have been issue in the nature of 'lending' of digital material. deemed necessary for the good and advancement In the digital age, every transferal of content over of society (Cohen, 2003a; Lessig, 2004, Bailey, the Internet, even transferal for temporary use, 2006)⁠. These reflect some of the vital ways in creates a copy which is transmitted. That is, the which information is used, and these protections digital transfer, as a copy, potentially places each have served to maintain intellectual progress legitimate use under the control of the copyright without undue hindrance by the commercial holder. (Lessig, 2004)⁠ This forces the traditional interest of copyright holders. These exceptions exceptions to copyright law to bear a burden not include rights to sell or transfer ownership, rights previously encountered in lending prior to the to duplicate protected content under certain digital era. conditions, the right to duplicate material for preservation purposes, and the right to reproduce Another exception granted for archiving purposes content under the doctrine known as 'fair use'. protects the act of preservation by allowing the production of copies of published or unpublished First sale doctrine refers to the disposition of works for preservation or to replace legitimately ownership that typically accompanies the purchase acquired works if they are damaged or lost. Under or a work. This doctrine grants users the right DRM, digital content is very restricted in the ways dispose of their legally obtained copy of a work as that it can be copied, frustrating the attempts of they wish, for example, by selling or transferring libraries to preserve content that they legally own ownership. This is one of the founding legal or or to backup digital content in the way that a principles of lending libraries, in that they are traditional work might be copied for the purposes given legal allowance to loan books to their users of preservation. Without recognition within the without being seen as infringing upon the REL for archiving and preservation needs, distribution monopoly granted by copyright, since legitimate duplication is simply not permitted. the are not duplicating, but only temporarily

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Fair use is the most controversial of the system is both too permissive and too restrictive” exceptions made to copyright restrictions, but also (2003, p. 58)⁠. That is, given the need to express one of the most important for education and these restrictions in machine-interpretable ways, libraries. Under the interpretation of fair use, users any system that could restrict all uses unacceptable can make single copies for personal or educational to the copyright holder will necessarily inhibit use of limited portions of a copyrighted work. The uses deemed legitimate by fair use principles. As concept of fair use is enshrined in section 107 of we will see, however, there may be hope for the the Copyright Act of 1976 and reflects many years creation of rights descriptions which might of court decisions recognizing the legitimacy of incorporate fair use and other elements in the these exceptions (American Library Association, coding of Rights Expression Languages. 2009)⁠. Fair use is the most contentious of the exceptions since it is, by intention, so vaguely Over the last several years, international treaties defined in the Copyright Act. Schulman writes that sponsored by the World Intellectual Property “differentiating between fair and unlawful use is Association have promoted treaties requiring often one of the most difficult problems in the law national legislation for greater copyright of copyright” (1967, p. 832)⁠, noting that the facts protection of works in digital format must be weighed on a case by case basis. (Szcezepanksa , 2004)⁠. These have led to very controversial provisions which can be seen as Indeed no simple a priori test for fair use has been paradoxical when viewed in light of the exceptions established; rather several factors are often relied to copyright discussed above. The Digital upon and weighed in the judicial balance to Millennium Copyright Act of 1998, an amendment determine if a use should be deemed legitimate to Title 17 of the United States Code, certainly (Coyle, 2004a)⁠. These include: the nature or created paradoxical provisions. The so-called anti- purpose of the use; the nature of the original work; circumvention provision of the DMCA prohibited the portion of the protected work used; and the the circumvention or promotion of technologies impact of the use upon the market (Felten, 2003, for the circumvention of DRM protections Crews 2006). (Lipton, 2005)⁠.

Each of these exceptions creates a problem that This becomes seriously problematic when the ought to be accommodated by any DRM system. DRM measures assert control beyond the However, the imprecise definitions of these uses protections of copyright law. Under these are difficult if not impossible to implement. Fair conditions the law forbids someone from use is viewed as one of the most critical problems decrypting or tampering with anti-viewing or anti- for the architecture of DRM systems, since it must copying measures, even if those measures prevent be typically judged on a case by case basis and the user from engaging in legitimate uses as cannot be subjected the strict rule-based logic of defined by the Copyright Act. That is, by engaging computer software. Since it is so vaguely defined, in acts that allow them to exercise legally it is nearly impossible to implement representation protected rights disallowed by a DRM system, of all possible expressions of fair use within the users would be committing a crime (Bailey, 2006)⁠. REL in advance (Tyrvainen, 2005)⁠. As Edward This makes it extremely difficult for users to Felten has expressed, “an approach that makes engage in fair use of a vast amount of protected errors in only one direction simply makes too content. many errors, so we must accept that any practical

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Privacy ways, it is deemed by experts still to be linkable to the individual with little effort (Korba & Kenny, The implementation of digital control on the use of 2003)⁠. The possibility of such disclosures have a content also has significant implications for user strong potential to chill information seeking privacy. Stakeholders have increasingly begun to behavior. That is, when individuals expect their turn to surveillance to enforce copyright behavior to be subject to observation, they will protections in real-time. At a minimum, DRM behave differently, especially regarding more technologies place limitations on what individuals controversial subjects. Such a chilling of behavior can do in the privacy of their own homes and is not conducive to democratic principles and regularly go further, monitoring the actions of efforts to ensure privacy of information users in a variety of contexts. Culturally, there consumption has come to rank among the have been expectations of limits on the contraint principles of librarianship and the promotion of a of behavior in this way. Legally, privacy has been well-informed democratic populace (Office for defined in terms of other mechanisms such as tort Intellectual Freedom, 2009). laws regarding defamation or breach of confidence (Ganley, 2002)⁠. It is questionable whether any Solutions circumstance should allow external elements to determine acceptable private behavior with regard The problems of legitimate use and user privacy to information use (Cohen, 2003b)⁠. However, have long been debated in the literature, courts have not yet considered whether privacy particularly since the enactment of DMCA in protections under tort law extend to the monitoring 1998, and a number of solutions have been conditions of DRM systems. proposed and developed. These range from the creation of an administration agency to examine More worrisome is the possibility of DRM claims of fair use access (Lipton, 2005)⁠, to technology reporting back to the provider on user developments and advancements in the coding activities. Such monitoring is commonplace in process which are able to more accurately capture online shopping to collect data on user preferences the subtleties of fair use in the DRM environment for targeted marketing purposes. This data (Arnab & Hutchison, 2005; Ganley, 2002; Korba collection can also be employed in an information & Kenny, 2003)⁠. environment and used to discover user preferences for digital content. In most DRM situations One possibility for adjusting the range of control however, monitoring is of content usage. That is, involves user definition or user involvement in the an identity store on the licensing server might definition of rights descriptions. One of the major record information on the number of viewings a criticisms of DRM is that users do not have an particular item has been given, or the number of opportunity to negotiate the terms of the license. pages printed, or to whom a particular copy is These licenses are either 'click-through' licenses to registered. be read and agreed to, or 'shrink-wrap' licenses, which are a non-negotiable elements of a Although this monitoring is automated, this does packaged software products. In neither case is the not obviate the problem, for anytime that such user able to redefine or mediate the terms of the information is collected it is subject to agreement in any way. unauthorized disclosure. Even if data is recorded only to be associated with the user in ambiguous Ganley (2002)⁠ and Mulligan & Burstein

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(2002)⁠make a case for the use of XML to expand associated with their account. For example, a on rights expression languages such as the journalist might be given greater leeway for Extensible Rights Markup language (XrML) to excerption for citation, given his professional allow user participation in defining rights. Since credentials. By writing a new rule-based condition XML allows the customized definition of tags for into the REL, the DRM could allow certain rights describing the nature of an information element, given the presence of the credential. Of course, Ganley argues that users could be allowed to this would require the maintenance of additional define tags which capture agreements to which information in some sort of identity store, working they are willing to submit. Users could thus be counter to the need for privacy arrangements. involved in defining the data of the REL, rather than being subject to the imposition of a single The primary solution to the question of privacy of licensing framework. This would allow the user content access concerns the degree of information greater control in defining the licensing tracking by the licensing module. Such tracking is agreement. deemed as necessary to commercial viability and the public seems to endorse an element of such Arnab and Hutchinson (2005)⁠ propose a similar data tracking in the form of product mechanism in the form of a 'bi-directional REL', recommendations (Ganley, 2002). Given the that allows users to express their needs. Bi- apparent demand for usage monitoring, a directional languages would allow the users to minimum provision for privacy would necessitate better communicate their content requests and the separation of user identifying information from their intent of use in machine-evaluable terms. The any product tracking information. Such separation DRMS could then examine the user request in the is indeed part of Tyrvainen's (2005) proposal, but form of a REL, and either approve their license more is needed to help ensure that ambiguous data request or provide them with similar options. This cannot be assembled for individual identification. type of REL has been implemented in the Open Digital Rights Language (ODRL), and models of negotiable rights languages continue to be Cohen (2003b) argues for greater legal developed upon. involvement in this process, calling on representatives to create specific legislation which Tyravainen (2005)⁠ offers yet another variation on addresses these needs. Specification of a privacy this in the form of a license template, which the 'bill of rights' for users of information products user employs to create a license request to which would force DRM developments that better the system responds with a digital license. He respect information privacy. proposes a list of potential licenses and associated template requests. These would essentially allow Conclusion users to apply for exceptional uses, such the provision of a personal backup copy. Given the tighter controls being placed on digital content and the broadening protections of the Another solution to the fair use problems that has rights of copyright holders, it is becoming been proposed involves the assignment of role- increasingly difficult to access a broader range of based credentials (Arnab & Hutchison, 2005)⁠. content for personal uses that have traditionally Under this model users would be granted stood outside the protection of copyright law. The exceptional licenses according to the credentials rapid increase in size of electronic collections

December 2009 Working Paper: Digital Rights Management, Fair Use, and Privacy 10 makes it more likely that the majority of library professionals aware of the social and ethical content will become subject to DRM enforcement. implications of these traditions, we must work to create alternatives to the current DRMS, which do The traditions of copyright law have been to not provide for important accommodations of fair recognize that there is value in public access to use and privacy. Progress is being made in information, and that some uses of information are technological developments of rights expression exceptional and ought not be subject to the usual languages like ODRL, and while it may be restrictions on copyrighted material. Long held difficult to implement the every aspect of the values of intellectual freedom dictate privacy of subtleties of fair use and privacy restrictions it is information access. In the physical library these certainly possible to make improvements. Wider values were more easily protected. If the nature of awareness of these issues can spur further research information access is not to drastically to change and create a demand for improved legislation and in the Internet era, these traditions must also be modified access systems which will better support accommodated in DRM. As information these provisions.

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