Why we must be apprehensive about DRM and digital locks

This little piece of news hasn’t yet got much coverage in the popular press, but it should. It shows why Canadians (and everyone, really) must be concerned about digital locks.  Librarians and lawyers are the ones taking note of it right now, but it’s an issue we should all worry about:

[blackbirdpie url=”http://twitter.com/#!/librarybazaar/status/139008379023667201″]

 

Yes, that’s right – as Michael Geist reports, if you are Canadian and have ever purchased music through Napster Canada, then you run the risk of losing access to content you have paid for:

These downloads are DRM-encoded WMA files and can be backed up by burning them to audio CDs. Doing this will allow you access to your music on any CD player and generally have a maintenance free permanent copy. If you do not back up your purchased Napster music downloads by burning them to CD and you later change or reinstall your computer’s operating system, have a system failure or experience DRM corruption, then the downloads will stop playing and you will permanently lose access to them.

(Source: Napster Canada PR via Geist’s blog)

Let’s put this into perspective:

  • Customers have purchased items (music, objects, widgets, whatever) from a company with the assurance that these items can be accessed.  But the use of these music files are limited by a lock that the company will no longer support now that it has pulled out of the market and been bought by a competitor.
  • Customers have been advised by the company to effectively circumvent their digital locks if they want to continue listening to their music.  

I suppose that Napster Canada/Rhapsody is acting in good faith when they explain to Canadian customers how to ensure that the content they have already purchased will always be accessible. Napster/Rhapsody has informed customers that all they need to do is copy the data to audio CDs to ensure that the music can be played even if the digital lock on the file is ever corrupted. But does anyone else find it a tiny bit illogical that a company that normally espouses the use of digital locks is now effectively telling its customers to break the law and circumvent the lock in order to make sure they will always be able to access this music?

Digital Rights Management is something we must be wary of.  DRM limits the consumer’s rights to the content he or she has purchased; it “manages” rights by taking them away from the consumer. This is of particular concern in Canada, when so many organizations are subsidiaries of larger companies located elsewhere. If Napster pulls out of the Canadian market, will the digital locks that limit access to the content you purchased still be supported? It seems not. If Amazon were ever to pull out of the Canadian market (which is an unlikely scenario, but a worthy point to make), would its digital locks that limit access to the content you purchased still be supported? That would be up to Amazon to decide.  Digital locks keep your purchases at the mercy of the vendor, which is reason enough to oppose them.

Copyright is a mess, especially in Canada.  The law is antiquated and it does need an overhaul to actually work in our digital landscape.  But DRM and digital locks place an undue burden and risk on consumers (be they individuals, families, or libraries), most of whom are law-abiding citizens, respect intellectually property and rights, and do not copy content.

 

Post script: Am I suggesting we back out of all e-content on account of DRM?  No, I’m not. What I’m trying to show, like so many others, is that the system is out of balance right now and will remain so in the future.  Advocacy is required to fix this.

Reading Lessig’s Remix : Copyright Regulating Culture

Lessig at Meet the Media Guru
Lawrence Lessig will tell you what copyright does to culture

My summer reading this year includes Lawrence Lessig‘s Remix, and it’s so far been refreshing to read about how copyright drives and hampers our culture.  Tonight, though, I’m hung up on a dark, sour fact about copyright, especially as it exists in America, which is that an act that was meant to control professional duplications (i.e., piracy) now regulates the lives of everyday citizens.

Lessig explains that American copyright legislation, as it was originally crafted in the 1790s, regulated the ‘printing, reprinting, publishing, and vending’ of works (2008, p. 100), i.e., it meant to prevent the professional reproduction and sale of texts; it wasn’t until the early 1900s that the law was redrafted to refer to the general copying of a text by a variety of means and for a variety of reasons.  As Lessig explains, “as the range of technologies that enabled people to ‘copy’ increased, so too did the effective scope of regulation increase” (p. 101).

On the surface, there isn’t anything necessarily wrong with this increased regulation – it should be well and proper that an individual’s creative works be protected, right? To an incredible degree, the answer is yes. A problem lies, however, in the fact that “every poet is a thief,” especially in a post-modern technoculture.  So much of art is inspired by one’s encounters with people, places, and texts (in a broad sense), and so many of these texts are today developed and then reserved under license by various copyright holders.  Art today, and our responses to art, are a pastiche of other objects (Lessig would call it a collage), which means that our ability to communicate freely is hampered by a law that has inadvertently grown out of control:

More and more people use technology to say things, and not simply with words. Music is remixed; video mash-ups proliferate; blogs begin to build a culture around the idea of talking back . . .

. . . Digital technology also changes how RW [remix] culture and copyright interact.  Because every use of creative work technically produces a copy, every use of creative work technically triggers copyright law.  And while many of these uses might be fair use . . . the critical point to recognize is that this is still a vast change to the history of American copyright law. For the first time, the law regulates ordinary citizens generally . . . For the first time, the law reaches and regulates this culture. Not because Congress deliberated and decided that this form of creativity needed regulation, but simply because the architecture of copyright law interacted with the architecture of digital technology to produce a massive expansion in the reach of the law.

(Lessig, p. 103.)

The point to take home is this: Copyright as we know it is an old law.  So many recent changes to it (e.g., the DMCA) have maligned the original law’s intention and are encoding into law the regulation of culture.  This isn’t to suggest that we should run back to 1790 or 1909 and interpret the act as lawmakers would have then, but it is to state that our current interpretation of Copyright doesn’t account for the effects that modern technology has on our culture’s relationship with an old statute.  The maligned interaction between copyright law and digital technology was not deliberate, so we have no reason to assume that any modernization should enshrine this faulty status quo.

Readings: Lessig, Remix (2008) – Media Matters

Lawrence Lessig, <i>Remix</i>
Lawrence Lessig, Remix

I’m reading Lawrence Lessig‘s Remix for the first time and it’s a thrill.  Frankly, it makes me want to pursue doctoral work in information culture and the information society – a thought I’ve flirted with for a number of years.

Something that struck me about fifty pages into Remix is Lessig’s contemplation on the nature of fair use and citation with books versus the nature of copyright infringement with other media.  Lessig notes that in literature, academics, and to a certain extent, law, people are expected to borrow and acknowledge other people’s works; the citation serves to create a thread that connect similar ideas to one another.  The example he uses is the production of an English essay on Ernest Hemingway’s For Whom the Bell Tolls, where:

citation is required.  But the cite is always sufficient payment.  And no one who writes for a living actually believes that any permission beyond that simple payment should ever be required.  Had Ben [Lessig’s friend, a former English major and now an attorney] written the estate of Ernest Hemingway to ask for permission to quote For Whom the Bell Tolls in his college essays, lawyers at the estate would have been annoyed more than anything else.  What weirdo, they would have wondered, thinks you need permission to quote in an essay?

Lessig, L. (2008). Remix.  New York: Penguin.  p. 53

But on the following page, Lessig asks us to consider how the act of citing the text of For Whom the Bell Tolls differs from citing, quoting, or referring to Sam Wood’s filmed adaptation of Hemingway’s book: in today’s DMCA culture, permission would have to be sought from a film company for anyone to “use” a clip.  This entire passage struck me because just last week I had written commentary about labor rights in a personal blog after reading John Steinbeck’s The Grapes of Wrath.  I included in the post a quotation from the book – Tom’s famous “I’ll be everywhere” speech, followed by YouTube clips to the Ford filmed adaptation, and to Bruce Springsteen‘s and Woody Guthrie‘s songs about Steinbeck’s character, Tom Joad.  I knew I was likely violating some sort of DMCA regulation even though my post could probably be considered Fair Use (it certainly would be considered Fair Dealing in Canada).  I was aware of this while I wrote a proper citation for each work.  And I was aware of the fact I might be DMCA’ed not only for the film clip (a “remix” Ford probably secured rights to), but also for the Guthrie and Springsteen clips (where it’s questionble if either performer ever asked Steinbeck or his estate for permission to use the text).  In short, I can cite Steinbeck’s book with ease, but my ability to use these clips might be trumped by corporate rights-holders through the DMCA, even though my reasons for doing so – academic, critical, and commentary – would be considered fair use, even though the content in these clips is not necessarily “original”, and perhaps most important, even though the artists who produced this now-protect content did not not always seek permission to create their own adaptations, derivations, or remixes.

Lawrence Lessig, a different sort of culture warrior
Lawrence Lessig, a different sort of culture warrior

Lessig’s friend’s essay on Hemingway and my compilation of clips inspired by Steinbeck are great examples of what Lessig would call “remix culture”.  The legal manouvres made by the producers of these clips to ensure copyright protection, meanwhile, are great examples of everything that’s wrong with copyright law today.  Fair Use deems it okay to cite from a text, but the MPAA and the RIAA, through the DMCA, would trump Fair Use and demand that I take down these YouTube clips because I never secured permission – even though they are excerpts of cultural products that are remixes or adaptations of a wholy different and antecent cultural product.  The MPAA and the RIAA might claim that I am infringing on their copyright to Springsteen’s “Ghost of Tom Joad” even though Springsteen was inspired by (or to use the rhetoric of the day: pirated) the works of another.

Why is our relationship with books difference than with all other media?  By studying Lessig’s quotation above, we can see that some of it lies in two areas, value and purpose, and they are closely related to one another:

  • On Value – Lessig frames this as “payment”.  The citation his friend Ben makes to Hemingway’s text is not only an acknowledgement but a transaction of cultural or intellectual value.  Ben saw enough importance in Hemingway’s work to tell his readers that his own ideas were inspired by it.  It also creates a cultural and informational chain that links the consumers of Ben’s work to Hemingway’s book, which in this case is the “original” text.  But as Lessig later writes, since the value transaction Ben makes is not financial, his fair use of the work, his essay, and the citation is generally a non-issue to DMCA rights-holders.
  • On Purpose – Lessig makes clear in this paragraph that no lawyer would care about a silly permission when Ben wants to cite Hemingway’s work for an essay.  Things are different, however, when the object of the remix / cultural adaption / reproduction has discernable commercial purposes.  In my Steinbeck example, John Ford ostensibly secured the rights to adapting The Grapes of Wrath because his art’s mode of transmission (i.e., film) created a financial model that would benefit many others.  Perhaps Bruce Springsteen should have sought permission because his “remix” of elements of Grapes, “The Ghost of Tom Joad“, might have commercial value (see above), but I imagine The Boss didn’t bother because his song is written and performed in a folk tradition that often eschews the merits of capitalism.

Before I get ahead of myself, let me state that Lessig isn’t foolish enough to propose that the production of art should be divorced from the economic engines that drive it.  After all, there are fundamental differences between the economic value of an undergraduate essay or scholarly article and that of a motion picture or song. Lessig’s anecdote reminds me, however, that copyright law and copyright enforcement as it exists today not only protects the interests of the copyright holder (instead of the creator). And furthermore, copyright law is the de facto piece of legislation that regulates society’s relationship with culture (Lessig, 2008).  Something is wrong when I can’t talk online about how a book, its filmed adaptation, and songs derived from its main character, affect me without first securing the permission of rightsholders, especially since the Internet has become the dominant form of communication in western society.  There is something wrong because regardless of the cultural work’s mode of transmission:

  1. my consumption of it affects me so that my discussion is not wholly about the cultural product but about how I have interpreted the cultural product, and,
  2. any ecomomic model that demands constant permission from consumers to so much as talk about a product is rotten at the core.

Imagine having to call Atlanta every time you want to talk about Coca-Cola, Santa Claus, Polar Bears, and the business’s beautifully produced Christmas commercials.  That is not a recipe to control the the Coca-Cola brand and product – it’s a method to destroy any good will the company has with its consumers.  Although my first point is more important to me, I honestly have never been able to figure out why members of the MPAA or RIAA would carry on their ridiculous DMCA business on account of the second point, which is directly related to their ability to remain a going concern.  Creating barriers between the consumer’s ability to interact with your product is a sure-fire way to drive the consumer away from what you’ve got to sell.

For whatever reason, I can quote from Steinbeck’s book without any threat of litigation, but the moment I quote visually from Ford’s adaptation, I better be prepared to deal with a DMCA violation warning.  This may be one of the reasons why Lessig wants the world to open its eyes to the control that culture producers have over the consumer’s ability to interact with a cultural product.  It’s moved well beyond the point of restricting some people (i.e., culture pirates) from intentionally stealing cultural products.  At this point it about controlling the way that all consumers actually consume a work, right down to watching it, reading it, listening to it, and then talking about it. It’s no longer about the regulation, protection and control of the cultural product.  Now, it’s an unfair regulation of our lives.

DRM, Canada, and the long arm of contract law

One of my projects at work this month has been to promote the use of e-books.  I’m of two minds on the use of electronic book formats – I think the end user will one day see an incredible benefit from them, but I also think that until e-book readers (both software and hardware) become more user-friendly, e-books will remain subordinate to print editions, especially in the humanities.

At any rate, I’ve been reading a lot of contractual fine print on account of this project.  I’m up to my ears in Terms of Services Statements, Copyright Statements, and Privacy Policies, and some of the clauses in the contracts make me cringe.  Let’s look at some parts of eBrary‘s Terms of Service as an example (there is nothing out of the ordinary with eBrary’s TOS, by the way; I’m selecting it only because it is the reader I’ve been using this week).  You can find a link to the TOS at the bottom of your eBrary e-Reader page.  These links are routed through your own institution’s proxy server, however, so I’m instead linking to the TOS as listed on the eBrary corporate site.  The link may be different, but the terms remain the same.

1. Rights, Restrictions, and Respecting Copyrights

(a) The text, images, and other materials available on this site (collectively, the “Materials”) are protected by United States copyright and other applicable laws. You may not engage in any acts inconsistent with the principles of copyright protection and fair use (see the United States Code, 17 USC Sections 106-110). For example, you may not copy, print, reproduce, distribute, transmit, modify, display, or otherwise use the Materials or copies of the Materials, except that, subject to the other terms of this Agreement:

Unless you live in the United States (and the United States is admittedly a very large market), you’ve got problems at the outset.  These terms bind the users at my institution – a Canadian undergraduate university – to copyright laws developed by another nation.  Leaving aside the fact that an interpretation of these laws will be at best imprecise and uninformed because most LIS professionals are not lawyers and most users don’t bother to read an e-book vendor’s TOS, we’ve got a jurisdictional case study that I’m sure no WIPO representative fathomed in 1967.

The eBrary case presents an interesting dilemma in Canada.   Many Canadian Knowledge Research Network consortium members use eBrary to gain access to Canadian primary materials and critical literature.  This means that the Canadian-resident students and staff I serve are accessing Canadian materials through their Canadian university (which is normally subject to Canadian statues), but are bound to a contract framed by foreign law.  How many Canadian LIS professionals are forced to operate merely on the good faith of the vendor in a situation such as this?  Although I have no reason to believe that an organization like eBrary would intentionally place an entire consortia into a situation that could end only in litigation (that would be a complete and utter relationship-destroying measure), this sort of dealing still puts the Canadian LIS professional in a very weak spot.  Although I may know a thing or two about Canadian copyright law, especially as it pertains to fair dealing and libraries, archives and museums, I certainly can’t speak much to US copyright law, and I don’t think the majority of LIS professionals in Canada could, either.

7. Disclaimer of Warranties

THIS WEB SITE IS OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AS A CONDITION OF USING THIS SITE, YOU ASSUME ALL RISK OF LOSS RESULTING FROM THE USE OF, OR RELIANCE ON, THIS SITE OR ANY MATERIALS IDENTIFIED, LOCATED, OR OBTAINED BY USING THIS SITE. EBRARY AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTY REGARDING THE ACCESSIBILITY OF THE SITE OR THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE MATERIALS. EBRARY AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL CONDITIONS OF QUALITY. NO USER SHOULD RELY ON OR ATTEMPT TO TRY ANY INFORMATION, ACT OR OTHER EVENT PORTRAYED ON THIS SITE. AS WITH ALL INFORMATION AVAILABLE THROUGH THIS SITE, LEGAL, FINANCIAL, MEDICAL, HEALTH, AND SAFETY RELATED INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR ADVICE FROM A QUALIFIED PROFESSIONAL. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU.

This clause should remind us that the texts we read and interact with on eBrary are not our time-worn, dog-eared Penguin’s Classics.  Despite the fact that academic libraries pay tens of thousands of dollars in annual licensing fees to accommodate access rights for their communities, the portal their users must employ to view the text – the web site – is offered “as is.”  If the web site ever crashes, eBrary will not be held responsible.  If the notes and annotations one saves in an account disappears (a slim possibility, I admit), eBrary will not be held responsible.  If one chooses to use an e-book as opposed to borrowing a similar text but the site crashes over the long weekend before a funding application is due, eBrary will not be held responsible.

But perhaps the best part of this disclaimer is the statement that, “NO USER SHOULD RELY ON . . . ANY INFORMATION . . . ON THIS SITE.”  Excuse my excessive use of all-caps for a moment, but I wanted to mimic eBrary’s demand that we acknowledge and understand its blanket concession that its main product (information) and its main service (information dissemination) can ever be relied upon.  Ever.  In an attempt to safeguard itself from ridiculous lawsuits, eBrary has warned us that we can’t trust any of its wares to ever be reliable.  If only i could have put a disclaimer like that on every essay I ever wrote.

Sigh.

[eBrary Terms of Service]

Copyright and the abuse of user rights – a Canadian perspective

I love how I can find new voices and opinions on the Internet. Lately, I’ve been reading Shannon Turlington’s blog; Shannon has lately offered a good mix of information policy and criticism, and her work is enjoying to read. She’s also one of the intrepid bloggers who posted a few soundbites about the Associated Press’s decision to impose for-profit licenses on every word it has ever published, regardless of one’s aims when using the work. AP is working to implement a DRM system that “will register key identifying information about each piece of content that AP distributes as well as the terms of use of that content, and employ a built-in beacon to notify AP about how the content is used” (AP, 2009).

As many others have pointed out, AP generally has a right to protect its copyright over its materials, but it should not be at the expense of either user rights or of the public domain. The example that’s been used to show the ridiculousness of the situation – AP’s attempt to charge a user a fee to “quote” from one of its articles a letter by Thomas Jefferson that rails against copyright – once again reminds us that when corporate rights-holders try to “negotiate” licenses with digital media, the notions of fair use and the public domain are often trampled underfoot.

At any rate, I’ve been thinking about what might happen if it was the Canadian Press (CP) who was trying to implement such a text-based DRM system. Canadian copyright law, we’re well aware, is terribly outdated and stake-holders are right now establishing beachheads for the next battle to create new legislation, but libraries, archives, and museums, as well as academic centers do have the tools to help protect our interests and user rights. Under the six-part fair dealings test that the Supreme Court developed in CCH v. Law Society of Upper Canada (2004), it’s likely fair to say that users can politely refuse to pay CP if ever it demanded similar license fees. Consider: under our Copyright Act (1985), fair dealings exceptions to copyright are granted for:

  • the purpose of research or private study (Sec. 29),
  • the purpose of criticism or review, if
    • the source is mentioned, and:
      • the author is listed, in the case of a work,
      • the performer, in the case of a performance,
      • the maker, in the case of a sound recording,
      • the broadcaster, in the case of communication signal (Sec. 29.1)
  • the purpose of news reporting, if:
    • the source is mentioned, and:
      • the author is listed, in the case of a work,
      • the performer, in the case of a performance,
      • the maker, in the case of a sound recording,
      • the broadcaster, in the case of communication signal (Sec. 29.2)

Of course, there are many limits to these exceptions (see sections 29.3ff), but the Act generally states that a Canadian work, copywritten in Canada, may be copied for the purposes of reportage, education, criticism, or analysis. It is generally “fair” for us to quote Rex Murphy at length so long as our intentions and output satisfy the exceptions listed above.

But what of that word, “fair”? Surely these terms – fair dealing in Commonwealth countries, and fair use in others – were developed because of the malleable nature of the adjective in question. “Fair” is open to interpretation, and therefore so are the user rights granted to us through the fair dealing exceptions. However, in the important 2004 CCH case, the Supreme Court said in no uncertain terms that “[t]he fair dealing exception, like other exceptions in the Copyright Act, is a user’s right” (para. 48). Understanding that the “fairness” of an action of largely a matter of degree, the court developed a six-point framework to help determine if an action falls within or violates the Copyright Act’s fair dealing exceptions. Since the CCH ruling, stakeholders, jurisdictions and courts must now consider:

  1. the purpose of the dealing
    • if “it is for one of the allowable purposes under the Copyright Act” (para. 54),
  2. the character of the dealing
    • courts “must examine how the works were dealt with” (para. 55), i.e. if multiple or single copies were made,
  3. the amount of the dealing
    • “the quantity of the work taken will not be determinative of fairness, but it can help in the determination” vis-a-vis the exception being used (para. 56). i.e. it may be admissible to copy more of an item for research purposes than it would be copy for the purposes of criticism,
  4. alternatives to the dealing
    • if there exists “a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court” (para. 57),
  5. the nature of the work
    • a document that is confidential “may tip the scales towards finding that the dealing was unfair”, but the dealing of an unpublished document that is non-confidential may be deemed “more fair in that its reproduction with acknowledgment could lead to a wider public dissemination of the work — one of the goals of copyright law ” (para. 58),
  6. the effect of the dealing on the work
    • if “the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair” (para. 59).

Researchers, academics, critics, reporters, and LAMs can generally quote at least portions of copywritten text – including CP’s works – so long as the work is properly attributed, if multiple copies are not made, and if there is no financial gain (or loss) by way of the action.

For the moment in Canada, advocates of user rights are standing on fairly solid ground, but it is a piece of land with major fault lines lying underneath it. The copyright “consultations” don’t bode well for us, though, and certainly if we don’t speak out minds on the issue. Whether we call ourselves “librarians” or “information professionals” – I’ll step back from my previous call to arms if it means rallying more troops to this cause – we owe it to ourselves to ensure that ill-conceived licenses such as AP’s won’t find a home within any provisions of a new Canadian copyright act. If you haven’t spoken up at a consultation or written a letter to the committee or to the Ministers of Industry and Culture, then please do so. This is as good an opportunity as any that we can actually affect positive change in Canadian information policy.