A Common-law Approach to DRM

by on February 26, 2006 · 26 comments

Following a citation from Doug Lichtman’s latest paper on the legal implications of DRM, I found this longer paper on the legal status of self-help mechanisms. It covers a lot of the same ground, but it does so much more thoroughly, and includes some interesting examples outside the realm of high tech. I was particularly amused by the dispute between the Chicago cubs and the owners of neighboring buildings, who were erecting de facto skyboxes on their roofs and selling tickets to watch the Cubs play. This set off an arms race, in which the Cubs erected structures to obscure their view, while the property owners made plans to raise the height of the skyboxes to compensate. Sadly, the parties reached a profit-sharing agreement before courts could rule on the legal merits of the dispute.

The part I liked best about the paper was his discussion of the Grokster decision that begins on page 47. For example:

Consider the question of which legitimate uses should count as “substantial noninfringing uses” for the purposes of the Sony balance. In my view, a use should count only if it is both lawful and sincere, which is to say that the use is both technically permissible as a matter of law, and also a use for which the technology at issue has plausible charm. Grokster could in theory be used to disseminate copies of the Bible. That would be lawful, as there is no copyright in the Bible, but not sincere, in that there are so many equally good ways to acquire a copy of the Bible–websites that post free copies online, religious institutions in every community that offer free copies in print, hotel rooms where the Bible can routinely be found in a drawer–that there is little reason to defend the ability to acquire a copy through Grokster per se. Grokster similarly cannot be defended on the argument that peer-to-peer file sharing helps strangers recommend new music one to another, because suggestions could be made without actually offering the music files at the same time. Nor can KaZaA be defended as a mechanism for new artists to introduce their work, given that free centralized websites–like the original mp3.com–can easily be used as centralized repositories for music that is willingly placed in the public domain. Phrased another way, a legitimate use must be evaluated in light of plausible alternative means to accomplish the same end result. This is an important detail left unmentioned in the Sony decision, and a detail that the appellate courts seem also to have thus far overlooked.

I made a similar argument last year. More generally, he argues that when considering whether a particular technology has “substantial non-infringing uses,” they should take into account not only the bare technical characteristics of the product, but also should make a judgment of whether the developer made a good-faith attempt to discourage piracy.

I think this approach has applications beyond file-sharing issues. One application would be as an alternative to the DMCA. The DMCA currently says that (with a few narrow exceptions) no one is allowed to circumvent DRM controls for any reason. I think this is clearly too broad a rule, because there are cases where DRM prevents users from engaging in perfectly legitimate activities–for example, playing a DVD on a Linux computer, or transferring a legally-purchased iTunes song to a non-Apple MP3 player.

A better approach would be a legal standard that requires technology designers to make a good faith effort to discourage piracy with their products. So, for example, if you have software that transfers DRMed iTunes music to a Windows Media-based music player, you could open yourself up to liability if you failed to apply Windows Media DRM protections to the music.

One of the beneficial effects of this rule is that it would give DRM vendors a strong incentive to open up access to their platforms. If Apple makes FairPlay libraries available for anyone to use, then it has a much stronger case against those that circumvent the protections, because they could just as easily have used Apple’s libraries to accomplish the legitimate uses in question without exposing the files to casual copying. On the other hand, if there’s no reasonable way to accomplish a particular fair use (i.e. creating a Linux DVD player) without circumventing copy protection, then the courts probably ought to allow the circumvention, because DRM isn’t an end in itself, but a means to the end of discouraging piracy. DRM vendors would have an incentive to make sure their schemes weren’t overly restrictive, because the more fair uses the DRM restricts, the weaker their case would be against those who circumvent it.

There are some obvious problems with this approach, the biggest being its vagueness. Obviously, we don’t want legitimate electronics and software firms living in fear that their products will be declared piracy devices in the future. But there are a couple of ways this problem can be minimized.

First, Grokster got it right by focusing primarily on business decisions rather than technology, per se. Often, the best way to decide if a particular product is a piracy device is to look at its business plan, not its technological design. Grokster’s Achilles’ Heel was that it had plainly designed its software to profit from illegal file sharing. The “substantial non-infringing uses” they offered were red herrings. Grokster couldn’t possibly have been profitable based on those uses alone; the vast majority of Grokster’s profits came from piracy.

Secondly, the balance between encouraging innovation and discouraging piracy should be struck by the courts, not by Congress. The courts have the distinct advantage that they make law in an evolutionary fashion, considering one technology at a time and and attempting to draw clear but nuanced distinctions among technologies. They have been doing this for the last quarter century: in 1984, they ruled that VCR players are on the “legal” side of the line. In 1998, they said that MP3 players were also on the “legal” side. In 2000, they ruled (incorrectly, in my view) that MP3.com was on the “illegal” side of the line. In 2001, they ruled (correctly, I think) that Napster is on the “illegal” side, and they reached the same conclusion (again, correctly, I think) about Grokster in 2005. By considering one technology at a time, the courts avoid sweeping mandates like the DMCA’s anti-circumvention rule. It allows the law to evolve along with the technology it regulates, rather than being frozen in place by the whims of Congress in 1998.

I’m not sure precisely what legal principles would have emerged from this process had the courts not been strait-jacketed by the DMCA for the last 8 years. But I think the resulting body of law would have been more nuanced, more flexible, and more innovation-friendly than the rule we’ve got now. And I think they might have even done a better job of preventing piracy. Right now, software that “circumvents” DRM–even legitimate software like Liinux DVD players–exist only on the black market, so those who develop it have no incentive whatsoever to discourage consumers from engaging in piracy. Compare that to the peer-to-peer realm, in which post-Grokster companies like BitTorrent are making a good faith effort to discourage piracy with their products. I think everyone would be better off if the courts had the opportunity to develop Grokster-style rules for DRM technologies rather than being preempted by Congress.

  • Anonymous

    You seriously view Napster and Grokster as illegal? Does this mean you view them as ethical or not? Please clarify.

  • Anonymous

    You seriously view Napster and Grokster as illegal? Does this mean you view them as ethical or not? Please clarify.

  • http://www.techliberation.com/ Tim

    Well, I don’t think that a technology, as such, is either ethical or unethical. I regard much of what people did with Napster and Grokster to be unethical. Moreover, to the extent that their business model centered around profiting from the illegal actions of others, I might consider Napster and Grokster’s business models to be unethical.

    However, on the legal point, I agree with the Supreme Court in Sony when they cite “a copyright holder’s legitimate demand for effective — not merely symbolic — protection of the statutory monopoly.” It seems to me that Napster and Grokster undermined that statutory monopoly, and that they failed to demonstrate a “substantial non-infringing use” that would give us reason to overlook that problem. Hence, the courts, in my view, were justified in shutting them down.

    In contrast, BitTorrent has demonstrated a good faith effort to police piracy on its network, and it has a more plausible claim to “substantial non-infringing uses.” So I don’t think peer-to-peer technology, as such, is illegal–just peer-to-peer technology that seems designed for the explicit purpose of evading copyright law.

  • http://www.techliberation.com/ Tim

    Well, I don’t think that a technology, as such, is either ethical or unethical. I regard much of what people did with Napster and Grokster to be unethical. Moreover, to the extent that their business model centered around profiting from the illegal actions of others, I might consider Napster and Grokster’s business models to be unethical.

    However, on the legal point, I agree with the Supreme Court in Sony when they cite “a copyright holder’s legitimate demand for effective — not merely symbolic — protection of the statutory monopoly.” It seems to me that Napster and Grokster undermined that statutory monopoly, and that they failed to demonstrate a “substantial non-infringing use” that would give us reason to overlook that problem. Hence, the courts, in my view, were justified in shutting them down.

    In contrast, BitTorrent has demonstrated a good faith effort to police piracy on its network, and it has a more plausible claim to “substantial non-infringing uses.” So I don’t think peer-to-peer technology, as such, is illegal–just peer-to-peer technology that seems designed for the explicit purpose of evading copyright law.

  • http://www.blindmindseye.com MikeT

    There are a number of things that the industry could have done to make the DMCA unnecessary. How about a DVD player that phones home to the movie studio saying that your disk is damaged and you need a replacement. The replacement, obviously, costs a few dollars plus a dollar for postage. The studio charges you say… $5-$6 to keep people honest and you get a guaranteed replacement that’s up to snuff. In reality, we know that they’d ruin everything with draconian measures that would make an alien abduction seem like a friendly chat over coffee.

  • http://www.blindmindseye.com MikeT

    There are a number of things that the industry could have done to make the DMCA unnecessary. How about a DVD player that phones home to the movie studio saying that your disk is damaged and you need a replacement. The replacement, obviously, costs a few dollars plus a dollar for postage. The studio charges you say… $5-$6 to keep people honest and you get a guaranteed replacement that’s up to snuff. In reality, we know that they’d ruin everything with draconian measures that would make an alien abduction seem like a friendly chat over coffee.

  • fishbane

    In my view, a use should count only if it is both lawful and sincere, which is to say that the use is both technically permissible as a matter of law, and also a use for which the technology at issue has plausible charm. [...] Phrased another way, a legitimate use must be evaluated in light of plausible alternative means to accomplish the same end result.

    As a legal matter, this test sounds terribly colorable to me.

    For instance, GMail is an invitation to piracy that doesn’t solve a problem that hasn’t already been solved. For that matter, HTTP as a protocol doesn’t take steps to discourage piracy, and FTP could have just as well been used.

    It seems like an argument that each new protocol or application need “discourage more” than the last, or else be judged by application of its users (anyone remember FSP?), in order to be considered “legitimate”. Seriously: take this argument back to 1990: Gopher didn’t take affirmative steps to discourage piracy.

    Freedom to tinker, indeed.

  • fishbane

    In my view, a use should count only if it is both lawful and sincere, which is to say that the use is both technically permissible as a matter of law, and also a use for which the technology at issue has plausible charm. [...] Phrased another way, a legitimate use must be evaluated in light of plausible alternative means to accomplish the same end result.

    As a legal matter, this test sounds terribly colorable to me.

    For instance, GMail is an invitation to piracy that doesn’t solve a problem that hasn’t already been solved. For that matter, HTTP as a protocol doesn’t take steps to discourage piracy, and FTP could have just as well been used.

    It seems like an argument that each new protocol or application need “discourage more” than the last, or else be judged by application of its users (anyone remember FSP?), in order to be considered “legitimate”. Seriously: take this argument back to 1990: Gopher didn’t take affirmative steps to discourage piracy.

    Freedom to tinker, indeed.

  • V

    In essence, you think it should be left to the judgement of rational people? Interesting. It’s a great model if the judges presiding over the decisions are tech-savvy and rational. Regardless of these legal terms, the purpose is clear: Kazaa was made for illegal copyright infringement, and the CD burner isn’t. You don’t need an elaborate set of laws to explain this concept; it’s common sense. You just need to use the technology to determine the difference, regardless of whether you actually understand the details. The only problem is how do you get Congress to keep its hands off.

  • V

    In essence, you think it should be left to the judgement of rational people? Interesting. It’s a great model if the judges presiding over the decisions are tech-savvy and rational. Regardless of these legal terms, the purpose is clear: Kazaa was made for illegal copyright infringement, and the CD burner isn’t. You don’t need an elaborate set of laws to explain this concept; it’s common sense. You just need to use the technology to determine the difference, regardless of whether you actually understand the details. The only problem is how do you get Congress to keep its hands off.

  • http://precision-blogging.blogspot.com Precision Blogger

    I disagree with your argument about “sincere” uses. In an extreme, it argues that only one web site can make something available for downloading; all the others who follow are insincere because the item is already available.

    Worse, the concept prevents anyone from trying to make a “one stop shopping” website, where collections of materials are directly available.

    Also there is no comparison of what’s involved in choosing a website. If site A offers the bible but also posts ads, am I sincere in posting the bible without ads? If site A posts the bible without ads, am I sincere in posting it WITH ads to try to make money?

    The “Sincerity” test is terribly flawed, and all by itself is probably a first amendment violation.

    - Precision Blogger
    http://precision-blogging.blogspot.com

  • http://precision-blogging.blogspot.com Precision Blogger

    I disagree with your argument about “sincere” uses. In an extreme, it argues that only one web site can make something available for downloading; all the others who follow are insincere because the item is already available.

    Worse, the concept prevents anyone from trying to make a “one stop shopping” website, where collections of materials are directly available.

    Also there is no comparison of what’s involved in choosing a website. If site A offers the bible but also posts ads, am I sincere in posting the bible without ads? If site A posts the bible without ads, am I sincere in posting it WITH ads to try to make money?

    The “Sincerity” test is terribly flawed, and all by itself is probably a first amendment violation.

    - Precision Blogger
    http://precision-blogging.blogspot.com

  • http://www.angryblog.org/ Tim

    PB and fishbane: I wouldn’t want the test to be applied as strictly as all that. I think it’s indisputable that Grokster’s technological designs were made primarily with the intention of evading copyright law. If that’s not obvious from the way it works, it’s certainly obvious from the ads they put out and from internal company memos.

    I don’t know precisely what the legal standard ought to be–I’m not entirely comfortable with the “sincerity” formulation Lichtman suggests, although I think it’s a good starting point for discussion. But the difficulty of fashioning the ideal rule is precisely the reason Congress should have allowed the courts to wrestle with the problem without getting involved themselves. Because the courts deal only with particular cases and controversies and are insulated from special interest pressures, they’re much less likely to come up with sweeping, over-broad rules like the DMCA’s anti-circumvention rule.

  • http://www.angryblog.org/ Tim

    PB and fishbane: I wouldn’t want the test to be applied as strictly as all that. I think it’s indisputable that Grokster’s technological designs were made primarily with the intention of evading copyright law. If that’s not obvious from the way it works, it’s certainly obvious from the ads they put out and from internal company memos.

    I don’t know precisely what the legal standard ought to be–I’m not entirely comfortable with the “sincerity” formulation Lichtman suggests, although I think it’s a good starting point for discussion. But the difficulty of fashioning the ideal rule is precisely the reason Congress should have allowed the courts to wrestle with the problem without getting involved themselves. Because the courts deal only with particular cases and controversies and are insulated from special interest pressures, they’re much less likely to come up with sweeping, over-broad rules like the DMCA’s anti-circumvention rule.

  • fishbane

    I’m not sure I’m comfortable with the courts handling the question competently, either, but that’s a matter on which reasonable people can disagree.

    From my perspective, I’m not happy starting with “sincerity” as jumping-off point. If I (as a coder, or a company, or as a group of likeminded people) have to guess how my coding will be used by users and interpreted by courts (or the legislature, for that matter), there is a terrible chilling effect in play. Push this forward N years, and imagine open source projects starting. Apache was the outgrowth of a mailing list of syadmins trying to do things with the NCSA httpd that it couldn’t. If you introduce a legal analysis into the startup costs of that sort of effort, it simply won’t happen, or will happen only in places where such legal scrutiny doesn’t apply.

    It could be that a slippery slope argument here is incorrect, but at the very least, starting out halfway down the hill doesn’t help matters.

  • fishbane

    I’m not sure I’m comfortable with the courts handling the question competently, either, but that’s a matter on which reasonable people can disagree.

    From my perspective, I’m not happy starting with “sincerity” as jumping-off point. If I (as a coder, or a company, or as a group of likeminded people) have to guess how my coding will be used by users and interpreted by courts (or the legislature, for that matter), there is a terrible chilling effect in play. Push this forward N years, and imagine open source projects starting. Apache was the outgrowth of a mailing list of syadmins trying to do things with the NCSA httpd that it couldn’t. If you introduce a legal analysis into the startup costs of that sort of effort, it simply won’t happen, or will happen only in places where such legal scrutiny doesn’t apply.

    It could be that a slippery slope argument here is incorrect, but at the very least, starting out halfway down the hill doesn’t help matters.

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