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Principal, Xamax Consultancy Pty Ltd, Canberra
Visiting Fellow, Department of Computer Science, Australian National University
Version of 2 January 2001
© Xamax Consultancy Pty Ltd,
2001
Note: The W3C-Document-License
was granted
The most likely path for the W3C DRM group to follow is extremely dangerous. Consumer access to information is directly threatened by early digital rights management initiatives. If W3C simply provides a framework for such aggressive products, it will stimulate a backlash by consumers. Some key requirements of the alternative approach are identified.
Copyright law have been developed during the last four centuries in order to provide incentive for the production and publication of works. This is achieved by vesting in the work's originator a very specific basket of rights.
The digital revolution of the late twentieth century has undermined the longstanding balances established by copyright law. How this has occurred is examined at Clarke & Dempsey (1999). The specific risks confronting copyright owners are identified at Clarke & Nees (2000). It appears unlikely that adaptation of the law will be sufficient to sustain the conditions that pre-existed the explosion in digital technologies.
Digital Rights Management (DRM) is a collective term for tools whose purpose is to enable owners of copyright works to control their use. DRM technologies impose constraints on the use of digital objects that correspond to the terms of the agreement between publisher and ultimate consumer. An analysis of protection approaches is at Clarke & Nees (2000).
Consumer access to works has long been based on copyright, but DRM tends to shift the emphasis away from copyright licences towards contracts. The owner of a copyright work is, by definition, a legislated monopolist in respect of that work; and the monopoly can only be broken if the owner grants a highly permissive licence to someone else. Hence, where a copyright owner imposes a contract on people who want to access their works, the owner is in a very strong bargaining position.
The early incarnations of DRM have been conceived in a manner that would not merely sustain copyright-owners' existing rights, but would greatly extend them. For example, Stefik (1997) distinguishes:
Copyright law vests in the owner of a work only the rights to reproduce it, to publish it, and to adapt it. The remainder of Stefik's list are assertions of new rights for originators and publishers of works. By utilising the World Intellectual Property Organisation (WIPO) and the U.S. Congress, the publishing industry has already been successful in negotiating extensions to copyright law. These shift the balance in the direction Stefik envisaged (and, moreover, criminalise some forms of breach of copyright law, and transfer the costs of enforcement from copyright owners to the public purse).
Consumers used to have the ability to purchase and own as property an article (such as a book or video) that embodied a copyright work. The owner of the article could access it (e.g. read or view it) when they wanted to do so, and as often or as rarely as they wanted to. The owner could dispose of it as and when they wished, including by lending it, gifting it, willing it, selling it, and destroying it. They could copy any part of it. If they copied a substantial part they were in breach of copyright law, and subject to civil action by the copyright owner; but this seldom occurred. DRM schemes are designed to preclude or qualify the ability of consumers to do these things.
In most cases, copyright works have been accessed by consumers either anonymously (e.g. through the purchase of books, access to books in libraries and viewing of films in theatres) or pseudonymously (e.g. when borrowing books from libraries, or hiring videos). The strong tendency of DRM initiatives is to require consumers to identify themselves to the copyright owner. This creates the potential for both corporations and governments to be aware of individuals' reading interests, and represents a serious threat to freedom of thought. This is further discussed at (Clarke & Dempsey (1999).
Freedom of access to copyright works has been fundamental to the economic and social progress of the twentieth century. Consumers have taken their rights for granted; but rather than being rights enshrined in law, these capabilities were merely actions that were not precluded by law. By moving away from copyright toward contracts, and by implementing DRM technologies, publishers threaten to undermine many vital consumer capabilities. The public policy implications are examined at Clarke (1999), Clarke & Dempsey (1999) and Greenleaf (1999).
During the first quarter of the new century, two broad scenarios need to be considered. The first sees a continuation of the recent dominance of rationalist economic thought. The power of nation-states wanes, and consumers are increasingly treated as pawns by powerful corporations that are subject to limited regulation. The second sees the re-emergence of social concerns as the dominant driving force, and economic objectives are once again perceived as being means to a social end rather than ends in themselves. In this case, governments act on behalf of an increasingly politically aware public, and impose meaningful regulation on the activities of corporations.
In the latter case, access to information will be regarded as paramount, and rights of originators and publishers of information will be limited by law to that needed to encourage their activities. The recent extensions to copyright law will be reversed, and copyright owners will need to find new ways to encourage consumers to pay for digital works. If, on the other hand, economic rationalism continues to dominate, corporations will be actively opposed by collectives of consumers. They will react against the impositions on their access to information, will pay no more respect to corporate property than they are forced to, and will utilise every available countermeasure to subvert DRM technologies.
Either scenario therefore sees substantial opposition to the power of the publishing corporations that DRM has been conceived to assist. A useful term to describe this opposition is the Digital Consumer Rights Movement (DCRM). Perhaps a long-term tension between consumer and producer rights is inevitable, but it is also inevitable that confrontations will result in reduced confidence by consumers in the corporations that they deal with, less trust and less respect.
The W3C DRM group will inevitably be dominated by staff-members of corporations that derive revenue from copyright works and/or develop software to enable the protection of such revenue. It is therefore very likely that the group will follow the path of least resistance. That would involve devising a framework for mechanisms that protect the interests of copyright originators and publishers, and that would be seriously harmful to the interests of consumers. W3C would thereby become a weapon in the attempt by corporations to subjugate consumers. The organisation would lose its remnant credibility as a coordinative body for Internet tools that deliver valuable functionality but also balance the needs of the various participants.
If such a path is followed, digital rights management will stimulate the emergence of a formalised digital consumer rights movement. It will also result in pressure on legislators for corporate constraints and consumer protections, and much wider application of circumvention tools that enable sharing of works in breach of agreements.
If the W3C DRM group wishes to avoid that path, it must take a number of steps. These include the following:
Clarke R. (1998) 'Direct Marketing and Privacy' Proc. AIC Conf. Direct Distribution of Financial Services, Sydney, 24 February 1998, at http://www.anu.edu.au/people/Roger.Clarke/DV/DirectMkting.html
Clarke R. (1999) 'Freedom of Information? The Internet as Harbinger of the New Dark Ages' First Monday 4, 11 (November 1999), at http://firstmonday.org/issues/issue4_11/clarke/ and http://www.anu.edu.au/people/Roger.Clarke/II/DarkAges.html
Clarke R. & Dempsey G. (1999) 'Electronic Trading in Copyright Objects and Its Implications for Universities' Proc. Conf. Australian EDUCAUSE'99 Conference, Sydney, 18-21 April 1999, at http://www.anu.edu.au/people/Roger.Clarke/EC/ETCU.html
Clarke R. & Nees S. (2000) 'Technological Protections for Digital Copyright Objects' Proc. 8th Euro. Conf. Infor. Sys. (ECIS'2000), July 2000, Vienna Uni. of Economics & Business Administration, pp. 745-752, at http://www.anu.edu.au/people/Roger.Clarke/II/TPDCO.html
Greenleaf G.W. (1999) ' 'IP, phone home': ECMS, ©-tech, and protecting privacy against surveillance by digital works', Proc. 21st Conf. Privacy and Data Protection Commissioners, Hong Kong, 13-15 September 1999, at http://www2.austlii.edu.au/~graham/publications/ip_privacy/
Kristol D. & Montulli L. (2000) 'HTTP State Management Mechanism', RFC2965, 'Proposed Standard', IETF, October 2000, at ftp://ftp.isi.edu/in-notes/rfc2965.txt
Moore K. & Freed N. (2000) 'Use of HTTP State Management', 'Best Current Practice document' BCP 44, RFC2964, at ftp://ftp.isi.edu/in-notes/rfc2964.txt
Stefik M. (1997) 'Shifting The Possible: How Trusted Systems And Digital Property Rights Challenge Us To Rethink Digital Publishing', Berkeley Technology Law Journal, 12, 1 (Spring 1997), at http://www.law.berkeley.edu/journals/btlj/articles/12-1/stefik.html
Created: 31 December 2000
Last Amended: 2 January 2001
This paper is also available on the Author's site under http://www.anu.edu.au/people/Roger.Clarke/II/DCRM.html
Last update $Date: 2001/01/22 00:20:40 $ by $Author: rigo $