The Role of Scientific and Technical Data and Information in the Public Domain Proceedings of a Symposium (2003) / Chapter Skim
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15. The Challenge of Digital Rights Management Technologies
15. The Challenge of Digital Rights Management Technologies
Pages 109-116
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From page 109... ...
DIGITAL RIGHTS MANAGEMENT TECHNOLOGIES DRM technologies include, first, technologies that can be used to impose direct functionality restrictions on digital content. A simple example is encryption technology that restricts access to a database to those individuals or devices having the appropriate password or key, but DRM technologies also can impose more complex restrictions.
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From page 110... ...
Alternatively, they might be used to impose narrower restrictions, such as a prohibition against disclosure of the data to the public, or against use of the data for a commercial purpose, or against use of the data to reverse engineer a computer program. One recent case brought by the New York State attorney general involved a click-wrap contract restriction prohibiting the publication of a critical review of a software package.2 Finally, DRM technologies can be designed to effectuate what I will call self-help, such as disabling access to the database or to some portion of the database if the system detects an attempt to engage in some sort of impermissible action, or detects unauthorized files residing on the user's computer.
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From page 111... ...
Another exception allows circumvention and the development of circumvention tools for the purpose of reverse engineering computer software to create interoperable software, subject to some conditions: (1) the copy of the software must have been lawfully obtained; (2)
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From page 112... ...
Finally, the information that is gained from the research must be shared with the copyright owner. There is also an exception for computer security testing, which is subject to conditions similar to those that apply to the reverse engineering and good faith encryption research exceptions.
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From page 113... ...
In the Sony Betamax case,6 the Supreme Court held that the VCR was capable of many substantial non-infringing uses; therefore, Sony could not be held liable simply because people could also use VCRs to engage in unlawful copying. In contrast, the courts have read the DMCA's anti-device provisions to say that there is no "substantial non-infringing use" defense to a charge of manufacturing or distributing circumvention tools.
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From page 114... ...
In holding that technology providers have no standing to invoke possible fair uses by others to support constitutional defenses, courts reinforce this message, and ensure that would-be fair users who are not technologically savvy are out of luck. Even though users technically retain circumvention privileges in cases involving copy controls (as opposed to access controls)
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From page 115... ...
In addition, the encryption research exception includes a credentialing provision, which directs the court to consider whether the person claiming the exception is employed or engaged in a legitimate source of study in computer science. The computer science research community is far broader than that, and this wording seems clearly to privilege a certain kind of scientific elite over others who might want to tinker with and improve software and enhance understanding of programming techniques.
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From page 116... ...
If DRM functionality continues to migrate deeper into the computing layer, we also may see decreased penetration of open-source systems simply because it is going to be difficult legally to create the kinds of interoperability that are necessary for open-source systems to attain greater market share. In the pre-DMCA world, if consumers wanted their DVD players or their word processing program to behave in a certain way, the opensource community could do that relatively easily.
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