DRM Controversy

The Sony-BMG Debacle

Courtesy Sony BMG Music Entertainment

In 2005, Sony-BMG distributed select CDs (one estimate puts the number of titles at 20) that led to lawsuits, backtracking and a public-relations nightmare. The problem stemmed from two pieces of software on the CDs: SunnComm's MediaMax and First4Internet's Extended Copy Protection (XCP). The incident has raised questions regarding just how far copyright holders are allowed to go to protect their content. In this case, copy protection was the least of people's concerns.

In the first place, the MediaMax software doesn't protect a copyright at all. It tracks users' activities. Every time someone plays the "special" CD on his PC, MediaMax sends a message to the SunnComm server. Sony-BMG can find out who's listening to the CD and how often they listen to it. And this is all happening behind the scenes -- there are no obvious signs of the activity or disclaimers on the CD. To make matters worse, there's no easy way to uninstall it.

The other problem is a bigger one. First4Internet's Extended Copy Protection limits the number of copies a person can make of the CD to three -- this might be annoying, but it's arguably within the "copyright protection" realm. The XCP uproar is primarily about the software's other activities. First, it hides in the user's machine so the user doesn't know it's there and probably can't find it if she looks. It creates a hidden area (sometimes called a rootkit) in the Windows operating system that could potentially pose a security risk once virus writers find out it's there. A virus could live there undetected indefinitely. Virus scanners typically can't see the files in a rootkit. XCP also slows computing processes and automatically connects to the Sony-BMG server to install copy-protection updates. And there's no easy way to uninstall it. Some users had to reformat their hard drive to get rid of the files and their negative effects.

Sony recalled the millions of discs with this DRM software combination built in and has agreed to issue tools that make the hidden files visible. Lawyers have filed several class-action lawsuits on the basis that the CDs invade users' privacy and violate anti-spyware legislation. The Sony-BMG mistake is easily the most visible example of DRM gone awry, but digital rights management in general -- even the kind that doesn't invade a user's privacy and cripple her computer -- poses some serious conflicts.

DRM Standards

There are no industry-wide standards for DRM. At this point, many companies in the digital entertainment sector are opting for the crude, "because I said so" approach in which users can't copy, print, alter or transfer material, period. The area of most concern to activists regarding DRM has to do with the fact that current DRM trends surpass the protections afforded under traditional copyright law. For example, when you play a DVD that won't let you skip the trailers, that has nothing to do with protecting a copyright. Even more than consumers, though, libraries and educational institutions that archive and lend digital content have a lot to lose if highly restrictive DRM software becomes the norm. A library can't archive a piece of software with a time-limited encryption key, and it can't lend out a machine-specific license for viewing content using its traditional lending structure.

The arguments against digital rights management discuss issues like user privacy, technological innovation and fair use. Under copyright law, the fair use doctrine gives a consumer the right to make copies of copyrighted content for their own use. Other doctrines like "first sale," the right of a content purchaser to resell or give away the content he's purchased, and "limited term," the expiration of a copyright after a certain period of time, also afford consumers rights that fall by the wayside in DRM implementation. As we saw in the Sony-BMG error in judgement, secretly tracking consumer activities and hiding files on a user's computer invade user privacy -- they're the methods of a spyware application, not a legitimate rights management scheme. DRM systems can also affect technological innovation as it limits the use and form of digital content. Third-party vendors can't develop software-specific products and plug-ins if the computer code in that software is indefinitely protected by DRM, and consumers can't legally tinker with their own hardware if it's protected by a DRM scheme that prohibits alteration.

As Princeton University professor Ed Felten discovered, DRM affects not only technological freedom of development, but also freedom of speech. When Felten tried to publish an article on a faulty DRM system in 2001, members of the music industry threatened him with lawsuits. Several companies said that his research would assist people in bypassing DRM schemes, which is illegal in the United States. The Digital Millennium Copyright Act of 1998 ensures the protection of a DRM scheme regardless of whether or not it respects the fair use doctrine. It's not only illegal to get around DRM, but it's also illegal to create, purchase or download any product that enables you to bypass DRM restrictions. Consumer rights' groups are lobbying Congress to amend the section of the Digital Millennium Copyright Act that makes disabling a DRM system against the law, claiming that it gives an improper advantage to copyright holders by not placing limits on the type of DRM schemes they can employ.

In the increasingly embattled realm of digital content, we're left to wonder whether any DRM system can satisfy both copyright holders and consumers. As DRM becomes standardized across industries, the result will be what experts call "trusted computing." In this setup, DRM methods will ensure the protection of copyrighted content along each step of the way, from the production or upload process to the purchase or download to the use of the digital content once it's in the user's hands. Computers will know automatically what a user is legally allowed to do with a piece of content and will act accordingly. With the adoption of standards, consumers will be better off at least in part, because DRM-encoded media will play on all types of equipment. As far as user rights go, however, it doesn't look good for consumers. Their best bet is the chance that programmers will somehow quantify "fair use" so that computers can understand the concept.

For more information on digital rights management and related topics, check out the links on the next page.