[NOTE: this article will appear in the upcoming issue of Government Technology's Digital Communities Magazine.]

A massive secret war on consumers' rights to make legal use of audio, video, print, and other media is being waged. This battle, under the ironically titled rubrics of “Digital Rights Management” (DRM) is part of the ongoing battle to more fully commoditize previously free media use and exact additional control over copyrighted material and extract additional profits from media consumers. This article documents some of the changes surrounding copyright and focuses on the increasing use of Digital Rights Management and decreasing freedom all of us face.

A Brief History of US Copyright

Article I, Section 8, Clause 8 of the United States Constitution states that Congress shall have power, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Thus enshrined, the goals of copyright were, first and foremost to “promote the progress of science and the useful arts” through the use of copyright. Copyright was originally 14 years with a 14-year extension possible upon petition – granting a total potential period of 28 years. This term was changed only once in the first hundred years of US history – expanding initial copyright from 14 to 28 years in 1831. It was not until 1909 that Congress once again extended Copyright – this time extending the renewal term from 14 to 28 years (for a total potential copyright period of 56 years).

However, the past 45 years have seen an unprecedented explosion of copyright extensions. As copyright critic and Creative Commons founder, Lawrence Lessig writes in Free Culture, since 1962, “Congress has extended the terms of existing copyrights; twice in those 40 years, Congress has extended the term of future copyrights. Initial the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by 19 years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the terms of existing and future copyrights by twenty years.” The 1976 extension also eliminated the need to file a renewal for copyright, and after 1978, all copyrighted materials received the maximum term possible. Since over 85% of copyright holders never filed for extensions, this meant that the average copyright period went from roughly 32 years before 1976 to a mandated period of 95 years today.

In a nod to the Constitution's original intent to “to promote the progress of science and useful arts,” the Copyright Act of 1976 also mandated important limitations for copyright: “The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The Audio Home Recording Act of 1992 (AHRA) further expanded fair use rights, declaring: “No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.” As the Senate report on AHRA further clarified, these exemptions are meant to cover any use “not for direct or indirect commercial advantage.”

Regardless of the massive copyright extensions we have witnessed in the past several decades, between the 1976 and 1992 Acts, it would seem then that many noncommercial and private use of copyrighted materials, and most educational and research uses of these materials are a part of the fair use doctrine. While many people question the elimination of the renewal requirement of copyright, the increase from a 14-year initial period to an automatic 95-year copyright coverage, and the difficulties in promoting “science and the useful arts” when the last year that works were fully in the public domain was 1923, an even more insidious undermining of fair use has been quietly infiltrating fair use for the past decade.

The Digital Millennium Copyright Act

In response to massive lobbying efforts from copyright holders (e.g., MPAA, RIAA, NAB, ASCAP, BMI, SESAC, Disney), Congress passed the Digital Millennium Copyright Act of 1998 (DMCA). Among the myriad protections afforded to copyright holders, the DMCA criminalized the production and dissemination of technologies, devices, or services that could be used to circumvent control access to copyrighted works (AKA digital rights management) and also criminalized the act of circumventing an access control – even when there is no infringement of copyright itself.

The DMCA states that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title”; “no person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.” In other words, DMCA created a legal loophole whereby copyright holders could infringe upon the general public's fair use rights, and anyone circumventing this diminution of fair use rights could be fined “not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; [and] fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.” To put this into perspective, a US Department of Justice report found that the average time served in jail for “violent offenders” (e.g., homicide, rape, kidnaping, robbery, sexual assault – and who typically do not pay fines) was 43 months.i

Combined with the systematic extension of copyright to time periods far exceeding average human life expectancy, the DMCA provides a dangerous precedent for undermining our ability to freely access constitutionally protected rights. Yet even this would not unto itself be enough to harmfully effect fair use. The major dangers only arise when Digital Rights Management is built into the media we access as well as the hardware we access it on. As we shall see, the initial attempt to do exactly this was a resounding victory for fair use rights.

Digital Rights or Digital Restrictions – The Sony DRM Fiasco

In 2005, Sony BMG introduced a DRM technology on over 20 million CDs and that automatically installed a software program on users computers that would limit their ability to make fair use of their music. According to the Electronic Frontier Foundation, “At issue are two software technologies which Sony BMG claims to have placed on the music CDs to restrict consumer use of the music on the CDs but which in truth do much more, including reporting customer listening of the CDs and installing undisclosed and in some cases hidden files on users' computers that can expose users to malicious attacks by third parties, all without appropriate notice and consent from purchasers.” In essence, Sony created a secret program that installed itself onto a users' operating system, monitored the system, and reported back to Sony on what users were doing. In addition, the program disabled certain functions that Sony determined and hid itself from easy detection and un-installation.

In addition to doing the functional equivalent of hacking into end-users computers to monitor their activities, unlike traditional CDs which, once bought, are owned by the purchaser, Sony BMG attached a 3000-word End User Licensing Agreement (EULA) that severely limited consumer's rights to make fair use of their purchased music.ii According to EFF, Sony's EULA states that “You can't keep your music on any computers at work. The EULA only gives you the right to put copies on a 'personal home computer system owned by you'”; “You have no right to transfer the music on your computer, even along with the original CD”; “Forget about using the music as a soundtrack for your latest family photo slideshow, or mash-ups, or sampling. The EULA forbids changing, altering, or make derivative works from the music on your computer.” In other words, Sony's EULA attempts to eliminate legally protected fair use rights.

After initially denying that any problem existed, Sony bowed to the massive public outrage, lawsuits, and numerous warnings about the security risks that Sony's DRM software introduced (including the issuance of a removal tool from Symantec and warnings from the Federal government) and began to address the issues caused by their DRM regime. Music CDs from numerous artists, from Britney Spears to Foo Fighters and Santana to the Strokes, was affectediii – and remediation continues to this day to repair the damage. However, if Sony's DRM fiasco was a shot across the bow, it was only a tiny taste of what was to come.

Introducing Windows Vista: Unprecedented Digital Restrictions for an Unsuspecting Populace

Windows Vista integrates many of the restrictions Sony's DRM rootkit directly into the operating system. One of the best analyses on the impacts of Vista's built-in DRM is by security expert and self-proclaimed professional paranoid, Peter Gutmann,iv who writes, “Windows Vista includes an extensive reworking of core OS elements in order to provide content protection for so-called 'premium content.' This incurs significant costs in terms of system performance, system stability, technical support overhead, and hardware and software cost. These issues affect not only users of Vista, but the entire PC industry.”

Among the other “features” of Windows Vista that Gutmann explores are:

• disabling of hardware that is not approved by Microsoft – the idea being that you could use unapproved hardware to copy copyrighted material (even if this copying is legally protected by fair use laws);
• degrading the quality of audio/video to prevent capture through other devices – Gutmann mentions the incredible problem this poses for telemedicine practitioners hoping to share high-resolution scans/videos of, for example, your brain;
• making decisions for you (the end user) as to what media you can and cannot copy (regardless of your legal right to do so) – in essence, an operating system that, though extra-legal means, eliminated your rights as the purchaser of media.

The question many readers might be asking is whether these fears are hypothetical or whether these actions are actually being taken. As it turns out, not only are these problems being experienced, they are well known to the major companies and media providers. Windows Vista has already been found to refuse to play legally bought media and has had problems with “disabling hardware” like iPods to the point where they permanently cease to function – as the Apple website itself states, “Ejecting iPod from Windows Explorer or by using the 'Safely Remove Hardware' feature in Windows Vista may corrupt your iPod. Microsoft is working on a software update for Windows Vista which addresses this compatibility issue.”v A non-exhaustive list of known problems between Windows Vista's DRM and iPod/iTunes include:

• iTunes Store purchases may not play when upgrading to Windows Vista from Windows 2000 or XP;
• iPod models with the “Enable Disk Use” option turned off may be unable to update or restore iPod software, and make changes to iPod settings;
• iPod models configured to Auto Sync and have the “Enable Disk Use” option turned off may require being ejected and reconnected to resync;
• Ejecting an iPod from the Windows System Tray using the "Safely Remove Hardware" feature may corrupt your iPod;
• Cover Flow animation may be slower than expected;
• Contacts and calendars will not sync with iPod.

Not only does the Vista operating system infringe upon your legal rights, it detrimentally impacts other hardware you may wish to attach to your computer. Since a vast majority of new computer buyers have no choice except the Windows operating system, these issues will affect potentially millions of unsuspecting consumers in the months and years to come. Taken together, copyright law, DRM, and Windows Vista represent an insidious trifecta for expanding the commodification of personal activities and an unprecedented assault on fair use, privacy, and legally protected activities.

Sascha Meinrath is a regular contributor to Digital Communities and a co-editor of www.MuniWireless.com. He is the co-author, with Victor Pickard, of “Feudalizing the Internet: Enclosures and Erasures from Digital Rights Management to the Digital Divide” and “The New Network Neutrality: Criteria for Internet Freedom” and secures Creative Commons licensure for all his writings. Sascha blogs regularly at www.SaschaMeinrath.com.

Well, here's the first case of confirmed massive so-called "digital rights management" problems with Windows Vista -- Apple is now telling its customers not to upgrade to Vista because it doesn't work well with iTunes. So if you buy a new PC computer today -- you may not have access to your completely legal iTunes media. As I've said before, if you can control content on the end-users' devices, Network Neutrality really doesn't matter.

This is just the first of what will most certainly be widespread DRM problems -- since the Operating System is deciding for users what media they can and cannot consume. For Apple (which has huge resources as well as direct partnerships with Windows), the solution is to create patches so that their media will be exempted from Vista's draconian DRM. But what about for everyone else? Here's the list of just some of the Windows DRM problems straight from Apple's website, including things like
refusing to play legally bought media and turning your iPod into a really expensive doorstop if you follow the Windows "Safely Remove Hardware" instructions (I kid you not!):

* iTunes Store purchases may not play when upgrading to Windows Vista from Windows 2000 or XP.
* iPod models with the "Enable Disk Use" option turned off may be unable to update or restore iPod software, and make changes to iPod settings.

* iPod models configured to Auto Sync and have the "Enable Disk Use" option turned off may require being ejected and reconnected to resync.
* Ejecting an iPod from the Windows System Tray using the "Safely Remove Hardware" feature may corrupt your iPod.
* Cover Flow animation may be slower than expected.
* Contacts and calendars will not sync with iPod.

My good friend Victor Pickard and I are thinking about writing some of this up in a new paper we're going to be working on, "Feudalizing the Internet: Enclosures and Erasures from Digital Rights Management to the Digital Divide." Stay tuned for more as we trace the Windows Vista DRM debacle.

As I've continued to cover the growing controversies surrounding DRM (Digital Rights/Restrictions Management), we've seen more and more people fighting the ever-increasing restrictions on fair use rights. In the latest battle earlier this week, Digg members posted code to make it possible to copy copyrighted media.

As with almost any tool, this code can be used for both legal and illegal purposes -- as a civil society, we would be working against the public interest to adopt a lowest common denominator approach to copyright protection. In the end, a society that makes useful tools illegal lives under a very unstable roof.

From the LA Times

User rebellion at Digg.com unearths a can of worms

The site relents and lets members post a code that aids piracy despite threats of legal action.

By Alex Pham and Joseph Menn

Times Staff Writers

May 3, 2007

Building a business on mob rule is dangerous.

Digg.com, a website that lets anyone post and rank news stories and blogs, found that out when its members staged a revolt over what they saw as an effort to censor them.

It began this week when Digg started banning members from posting a software code that helps online pirates make bootlegged copies of movies. Digg took action because the entertainment industry had threatened to sue.

The ban set the masses off. Scores of Digg's 1.2 million registered users deluged the site, breaking traffic records and making sure that every one of the top 10 stories on the front page either included the software code, attacked Digg's ethics or both.

Many posted links to videos on YouTube that included the code's 32-character string of numbers and letters, including one song called "Oh Nine Eff Nine" (after the code's first four characters). Others tried to get around Digg's text filters by linking to photographs, drawings and electronic greeting cards containing the code.

One member digitally altered a church sign to spell out the code after the words "Jesus says." Another promised to tattoo it on the back of his neck if 10,000 people joined an online protest group he created.

Digg backed down — opening it up to a legal battle with Hollywood.

"You'd rather see Digg go down fighting than bow down to a bigger company. We hear you," co-founder Kevin Rose blogged, acknowledging that a lawsuit could wipe out the 3-year-old San Francisco company. "If we lose, then what the hell, at least we died trying."

The handling of the uprising is being closely watched. Digg's method for letting users decide what's important is being mimicked or considered by dozens of other websites, including major news organizations and social-networking giant MySpace.

"They're stuck because their community, which is their biggest asset, is the one putting them in this position," Forrester Research analyst Josh Bernoff said of privately held Digg Inc. "When you hand the keys over to the mob, they'll drive wherever they want to go."

Early this week, a Digg user posted a link to a story that referenced the so-called hex code, which had already been used to circumvent the anti-piracy software that prevents people from watching unauthorized copies of some high-definition DVDs. Dozens of movies in the new HD DVD format have been circulating on peer-to-peer networks.

Lawyers for a consortium of entertainment companies warned that posting the code violated their intellectual property rights. So Digg, which generates revenue by selling ads, began removing any mention of the code and deleting the accounts of members who posted it.

"In order for Digg to survive, it must abide by the law," Digg Chief Executive Jay Adelson wrote on the site Tuesday afternoon, adding, "We all need to work together to protect Digg from exposure to lawsuits that could very quickly shut us down."

That didn't sit well with Digg's libertarian-leaning users, who fill the site each day with commentary and links to stories about new technology, politics and a wide range of other topics. One particularly hot topic on the site has been the media industry's practice of wrapping movies, TV shows and songs in anti-piracy software.

Members accused Digg of kowtowing to Hollywood.

Digg cultivated a culture of free exchange among its members and then it betrayed those ideals by ripping down posts and deleting accounts, frequent user Ryan McGuire said.

"Certainly it's their website," said the 27-year-old computer programmer from Cedar City, Utah, "but it's contrary to how I feel it was designed in the first place, which is to be an open forum."

Late Tuesday, Digg reversed course. Soon other news stories started making it back into Digg's front page top-10 list.

Bernoff, the analyst, said that the 25-person company might be appeasing its members in the short run by capitulating, but that it risked a larger legal battle that could financially wipe out the company down the road.

But once the site gave in, even some of the executives who support the encryption code said they had little appetite for a suit.

"The law says they have to take it down when they're told about it," said one technology executive who declined to be identified. "But no one ever envisioned that the users would lock the system to stop it from getting taken down."

Michael Avery, a Toshiba Corp. attorney who manages the encryption consortium, declined to discuss his next move. But he acknowledged that the legal threats had spread the offending sequence and that a suit might do more of the same.

"If you try to stick up for what you have a legal right to do, and you're somewhat worse off because of it, that's an interesting concept," Avery said.

Rose defended Digg's turnabout during the OnHollywood digital media conference Wednesday morning in Los Angeles. He said that Digg's administrators would continue to remove links to pornography, hate speech and pirated software, but that they would look the other way when it came to the code that might help people crack HD DVDs.

"We always look to the community to provide direction for us," he said in an interview. "It was clear they didn't want us to back down."

That stance perplexed movie studio executives, who wondered how Rose could allow the code to be posted but block links to pirated versions of Photoshop.

"What the heck is the difference?" said Alan E. Bell, executive vice president and chief technical officer for Paramount Pictures. "These are very profound issues that are just as important as the ones the users of Digg.com voiced in their e-mails."

Other studio executives played down the importance of the code's spread, noting that it has been bouncing around the Internet for months.

Avery's software group can disable security keys that have been compromised and distribute new ones, preventing people from using them to make more unauthorized copies of movies.

Still, the entertainment industry's efforts to wipe the code off the Web clearly backfired.

One Digg member, Grant Robertson, said the incident reminded him of a quote from "NewsRadio," the 1990s TV show: "You can't take something off the Internet. That's like trying to take pee out of a swimming pool."

This article is copyrighted material, the use of which has not been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.

Here's the newest from Sascha Meinrath & Victor Pickard -- look for the full paper in coming months:

Feudalizing the Internet: Enclosures and Erasures from Digital Rights Management to the Digital Divide

As new media production and social networking capabilities flourish within the so-called Web 2.0 to empower users and transform politics and everyday life, less visible structural changes threaten to foreclose the Internet’s democratic possibilities. While recent research heralds the brave new world of digital networks (Benkler, 2006), others suggest more cautionary tales (Chester, 2007; Wu, 2006). Bringing this core tension into focus, this paper examines a number of recent and ongoing Internet policy battles, ranging from net neutrality to intellectual property rights, which will help determine the fundamental structures of the Internet. These fights come at a critical juncture in Internet development when multiple trajectories are possible. It is not hyperbolic to assume that the outcomes of these crucial debates will help shape the contours of the Internet for decades to come.

Despite the general excitement around the popularity and political power of You Tube, My Space, and other innovations in user-run media, recent digital rights management (DRM) issues criminalizing lawful behavior on the web, threats to net neutrality, and worsening digital divides complicate optimistic assessments. If these recent negative trends continue, we argue, the Internet might become, in effect, a feudalized space—one that limits democratic potential while enriching a relative handful of corporate interests, such as the phone, cable and software companies that stand to gain from various enclosures. Our paper seeks to both bring to light the specific policy debates connected to these problems, while uncovering normative understandings about the role of the Internet in a democratic society.

While earlier work examined fundamental Internet tensions between structure and agency, and between encroaching commercialization and democratic possibilities (Pickard, In Press), more recent work has focused specifically on the net neutrality debate, linking it to a larger set of normative criteria for democratizing the Internet (Meinrath & Pickard, 2006). What is still lacking from the scholarship is a comprehensive analysis of the key policy debates, both U.S. and global, around multiple layers of the Internet. By cataloguing current threats to a democratic Internet and closely examining the linkages between intersecting policy battles, this paper illuminates both what is at stake and what policy provisions should be implemented to prevent the feudalizing of the Internet.

Well, here's the first case of confirmed massive so-called "digital rights management" problems with Windows Vista -- Apple is now telling its customers not to upgrade to Vista because it doesn't work well with iTunes. So if you buy a new PC computer today -- you may not have access to your completely legal iTunes media. As I've said before, if you can control content on the end-users' devices, Network Neutrality really doesn't matter.

This is just the first of what will most certainly be widespread DRM problems -- since the Operating System is deciding for users what media they can and cannot consume. For Apple (which has huge resources as well as direct partnerships with Windows), the solution is to create patches so that their media will be exempted from Vista's draconian DRM. But what about for everyone else? Here's the list of just some of the Windows DRM problems straight from Apple's website, including things like
refusing to play legally bought media and turning your iPod into a really expensive doorstop if you follow the Windows "Safely Remove Hardware" instructions (I kid you not!):

* iTunes Store purchases may not play when upgrading to Windows Vista from Windows 2000 or XP.
* iPod models with the "Enable Disk Use" option turned off may be unable to update or restore iPod software, and make changes to iPod settings.
* iPod models configured to Auto Sync and have the "Enable Disk Use" option turned off may require being ejected and reconnected to resync.
* Ejecting an iPod from the Windows System Tray using the "Safely Remove Hardware" feature may corrupt your iPod.
* Cover Flow animation may be slower than expected.
* Contacts and calendars will not sync with iPod.

My good friend Victor Pickard and I are thinking about writing some of this up in a new paper we're going to be working on, "Feudalizing the Internet: Enclosures and Erasures from Digital Rights Management to the Digital Divide." Stay tuned for more as we trace the Windows Vista DRM debacle.

I've been saying for awhile now that DRM (so-called Digital Rights Management) is going to be a huge battle in the coming year. While I've written this into the New Network Neutrality paper I just co-authored and have been decrying Microsoft VISTA's internal DRM controls whenever I speak publicly, this issue still hasn't made it into mainstream news coverage and unsuspecting computer users still remain woefully ignorant of the travesty that is about to be foisted upon us.

Luckily, Peter Gutmann has drafted up a fantastic analysis of the costs of VISTA's DRM. I've included a copy of the December 27, 2006 draft below and I hope it proves illuminating to everyone who reads it. To drive home the point, here's a couple quick examples of what VISTA will do:

• disable hardware that is not approved by Microsoft because you might theoretically use it to copy copyrighted material (who cares if you're making a copy for your own use or not, something that is protected by law and which this system will completely ignore) – the problem is remarkably similar to the one I wrote about in the paper, “Hidden Interfaces to Ownerless Networks” back in 2004 and bodes ill for the future of open source driver support
• purposefully degrade high-quality audio/video to prevent capture through other devices (Peter mentions the incredible problem this poses for medical practitioners hoping to share high-resolution scans of, for example, your brain – think about it, this is scary stuff)
• make decisions for you (the end user) as to what media you can and cannot copy (regardless of your legal right to do so)

So, along with the myriad major security holes in VISTA, it looks like it also is providing worse services as a core feature. I'm looking to Europe to kick this idea to the curb – and that this will hopefully provide more impetus for users to switch to non-proprietary operating systems; but for the decidedly non-techical in the audience, buying a computer may lock them into systems that are downright nasty. Here's the full brief on VISTA and DRM:

Executive Summary

Windows Vista includes an extensive reworking of core OS elements in order to provide content protection for so-called "premium content", typically HD data from Blu-Ray and HD-DVD sources. Providing this protection incurs considerable costs in terms of system performance, system stability, technical support overhead, and hardware and software cost. These issues affect not only users of Vista but the entire PC industry, since the effects of the protection measures extend to cover all hardware and software that will ever come into contact with Vista, even if it's not used directly with Vista (for example hardware in a Macintosh computer or on a Linux server). This document analyses the cost involved in Vista's content protection, and the collateral damage that this incurs throughout the computer industry.

Executive Executive Summary

The Vista Content Protection specification could very well constitute the longest suicide note in history.

Read more...

While the telecommunications battle of 2006 has been all about Network Neutrality, a storm is gathering for 2007-8 to be the war over Digital Rights Management. With more and more elements of a dumb, end-to-end network under attack, with the planned unleashing of Windows Vista upon an unsuspecting, relatively DRM-free population, and with copyright fights getting nastier and nastier, it is going to be a doozy of a fight. Remember the flak over the Sony DRM computer virus (basically a root kit to prevent copying of CDs)? Well that was just the shot across the bow. Look for the battle to really heat up with Vista's release next year.