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Is the Idea of Fair Digital Rights Management an Oxymoron? The

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Is the Idea of Fair Digital Rights Management an Oxymoron? The Royal Holloway Series Fair Digital Rights Management Fair digital rights management HOME THE BIRTH OF DIGITAL RIGHTS Is the idea of fair digital rights management an oxymoron? The MANAGEMENT music industry has been turned upside down by the Internet, and UNFAIR DIGITAL RIGHTS has tried various methods to protect its profits. But many of its MANAGEMENT actions have been either futile or heavy-handed. Christian Bonnici A DIGITAL RIGHTS and Keith Martin examine various approaches to see which would DILEMMA be most effective and fair to all parties. A COMPROMISE SOLUTION CONCLUSION REFERENCES 1 Royal Holloway Series Fair Digital Rights Management HERE ARE FEW issues more provocative than that THE BIRTH OF DIGITAL of the management of rights to digital content. RIGHTS MANAGEMENT For some consumers the internet is seen as an We will frame our discussion around music HOME Tagent of digital freedom, facilitating free and media, which is one of the most high profile types THE BIRTH OF easy access to digital content such as music and of digital content. FIGURE 1 (page 3) shows a sim - DIGITAL RIGHTS films. For some digital content providers the ple timeline indicating some of the milestones in MANAGEMENT internet has been seen as a technology that has the development of music media. The publication UNFAIR damaged their ability to earn money from selling of the MP3 music compression algorithm in 1991 DIGITAL RIGHTS their products. represents the most significant development with MANAGEMENT The solution to providers’ fears has been vari - respect to digital rights to music media, and this A DIGITAL ous attempts to control access to digital content event is pivotal to our discussion. RIGHTS through the use of technology such as digital Prior to 1991, the speed, quality and cost of DILEMMA rights management systems. But such systems music replication, distribution and storage A COMPROMISE often restrict the very basic rights that a con - arguably presented an appropriate balance SOLUTION sumer expects from purchased content, such as between the music industry’s copyright rights the right to make private copies or lend content and consumers’ fair use rights. For example, it CONCLUSION to a friend. was easy for consumers to fairly replicate a tune In this article we discuss the dilemma at the for personal use. Consumers would purchase a REFERENCES heart of the debate about digital rights manage - Long Play (LP), Music Cassette (MC) or Compact ment and ask whether it is possible that solutions Disc (CD) and only required access to a low cost can be found that are acceptable to all parties. Is MC recording module in order to make a copy. 2 it possible to have fair digital rights management? The illegal mass replication and transfer of pirate Royal Holloway Series Fair Digital Rights Management copies required expensive arrangements such as storage device cost reductions, and the emer - access to high quality recording equipment and gence of Peer-to-Peer (P2P) networking. These costly logistical arrangements. Prior to 1991 it can developments have pushed the balance between be argued that we had fair music media rights the music industry’s copyright rights and the con - management. sumers’ fair use privileges beyond the boundary However, since 1991 several technological of acceptability of the music industry. In other developments have contributed to making illegal words, we now have the potential for unfair digital replication, storage and distribution processes rights management. Unfair, that is, to providers. accessible to virtually everyone. These include This imbalance led to an era of Digital Rights HOME the development of the MP3 algorithm, the prolif - Management (DRM), which refers to any tech - THE BIRTH OF eration of the internet, bandwidth expansions, nology that does “ … everything that can be done to DIGITAL RIGHTS MANAGEMENT UNFAIR FIGURE 1 DIGITAL RIGHTS MANAGEMENT TIMELINE OF PREVALENT MUSIC DISTRIBUTION MEDIA AND TECHNOLOGIES A DIGITAL RIGHTS DILEMMA A COMPROMISE SOLUTION CONCLUSION REFERENCES 3 Royal Holloway Series Fair Digital Rights Management define, manage, and track rights to digital content” environments, many users are likely to own [1]. These technologies have taken different more than five devices on which they might approaches towards addressing the perceived potentially want to listen to music media that imbalance but, as we will shortly discuss, almost they have purchased. all have proved highly unpopular with consumers, who have seen them as providing unnecessary I Music sharing. Bob is unlikely to be able to restrictions on the basic rights that they feel they share his tune with a friend, which is some - are entitled to when owning music media. Thus thing he was able to do with all music media there are many who would claim that these prior to 1991. HOME schemes also provide unfair digital rights man - THE BIRTH OF agement. Unfair, now, to consumers. I Onward selling. Bob is unlikely to be able DIGITAL RIGHTS to sell his tune once he has finished with it, MANAGEMENT which is again something he was able to do UNFAIR UNFAIR DIGITAL RIGHTS MANAGEMENT prior to 1991. DIGITAL RIGHTS Until January 2009, the most prevalent DRM MANAGEMENT regimes supporting online music stores such as It would seem very reasonable that consumers A DIGITAL iTunes were ex-ante based DRM systems. By this such as Bob should be allowed to perform all RIGHTS we mean that they provide the music industry these actions. DILEMMA with the means to control how music media Indeed there are established doctrines to back A COMPROMISE should be consumed in an a priori fashion. this up. Within jurisdictions controlled by the SOLUTION For example, if Bob legally purchases the Guns World Intellectual Property Organisation (WIPO), N’ Roses’ tune “Chinese Democracy” from an copyright laws are likely to endorse a doctrine CONCLUSION online music store, the store is likely to restrict his which in the US is referred to as Fair Use and in use of it in a number of different ways: the UK as Fair Dealing. The doctrine’s underlying REFERENCES principles aim to create a balance between copy - I Device restriction: The tune is likely to be right rights and fair use exceptions by: restricted to about five devices. Given current 4 trends towards more ubiquitous computing 1. Enabling consumers of copyright protected Royal Holloway Series Fair Digital Rights Management material to flexibly use material in ways that pro - prove of ex-ante based DRM, they cannot do mote creativity, and the dissemination and appli - much to influence the exercising of DRM con - cation of its results, in ways that contribute to trols. As Cohen argued, “…market processes are economic and social development... not well suited to enable consumers to exert pos - itive, as opposed to negative, influence on the 2. ...while providing statutory expression to the design of technical standards. Consumers can moral and economic rights of creators in their refuse to buy, or can switch from one provider to creations and to the rights of the public in access - another, but there are no mechanisms to allow ing those creations. In other words, it is unrea - consumers to communicate as a prospective HOME sonable to expect that music content be made matter the precise level of functionality that they THE BIRTH OF available to all at zero cost. want…” [2]. DIGITAL RIGHTS Another reason is that the big four music dis - MANAGEMENT Thus ex-ante based DRM systems enforce tributors are currently in control of the physical UNFAIR contracts in ways that actually breach the WIPO music distribution market, which constituted over DIGITAL RIGHTS ideologies. This is definitely unfair DRM. 80% of the total music market revenues in MANAGEMENT 2007 3. This is possible because they have the A DIGITAL ability both to promote the mainstream music RIGHTS WHY DID UNFAIR DIGITAL RIGHTS producers’ works on an international level, and to DILEMMA MANAGEMENT “PREVAIL”? support the investments required to mass repli - A COMPROMISE It might seem surprising that unfair DRM could cate music to tangible media to meet global SOLUTION be so easily imposed on online music consumers. demand. Consequently, although the proliferation It might also seem surprising that in the presence of the internet has provided the infrastructure CONCLUSION of such unpopular technology, the non-main - required for very low cost mass distribution of stream music industry was not able to gain com - music, any mainstream music producers holding REFERENCES petitive advantage by adopting business process - the privilege of being able to establish binding es that did not employ ex-ante DRM. There are contracts with major music distributors would several explanations. not opt out of these contracts in order to supply 5 Although online music consumers do disap - music to a digital market that constitutes only a Royal Holloway Series Fair Digital Rights Management small portion of global music sales [3]. by using microphones to record the output of Thus the music distributors have the power and protected music. autonomy required to decide through which of The situation is not helped by the uncertain the online music stores to conduct business. This approach adopted by the law. There is precedent implies that the success of online music stores is dependent on the participation of the music dis - tributors [4], since the music distributors hold Circumvention is also the rights over music produced by the main - stream music producers. Therefore the music dis - often possible through HOME tributors are in a strong market position that exploitation of the “analogue THE BIRTH OF enables them to control the evolution of the DRM DIGITAL RIGHTS technologies that are used for the protection of hole”, for example by using MANAGEMENT the digital music distributed online. microphones to record the UNFAIR DIGITAL RIGHTS output of protected music.
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