consult-apig-drm

MJR's submission to APIG DRM Enquiry

I think this wasn't the final version of my submission, but it was pretty close to this.

I am an author of software and articles about a range of topics, most of which are released under liberal licences. I have lost access to some past work because of questionable program licence management systems and closed formats in programs that I used to use. I am alarmed to see similar systems for content being supported by legislation, under the name of Digital Rights Management.

As both a user and producer of copyright works, I ask you to

restore the balance of copyright,
consider introducing a permitted act of "fair circumvention"; and
strengthen computer misuse, privacy and competition law to address DRM.

Whether DRM distorts traditional tradeoffs in copyright law;

Thank you for highlighting that copyright law is a tradeoff. The current position on digital restriction measures (a subset of digital rights management) changed that tradeoff by reducing the benefit to consumers. Works which would not be protected by copyright can be restricted by technology indefinitely.

Your briefing suggests that consumers should get more flexible terms in exchange for accepting DRM, but what do they gain for allowing DRM on works which are no longer covered by copyright? Please consider limiting legal protection of DRM to works covered by copyright.

Another problem is that DRM systems often reduce flexibility by being available on only a few maufacturer's players or computer platforms, like the BBC's integrated media player. I believe this should be regarded as anti- competitive. Conditional access TV units which are only available in one company's approved receivers are a similar problem. Copyright is almost a monopoly on the work but that monopoly should not be extended to the delivery mechanism.

What legal protections DRM systems should have from those who wish to circumvent them;

If DRM systems benefitted consumers with increased flexibility and choice, then it would be in the consumer's interest not to circumvent them. Systems are only circumvented if they are unjust or if someone wishes to engage in copyright infringement. If the system is unjust, then law should not support it. If the circumventer infringes copyright, other laws punish them, so there is no need for circumvention to be illegal itself. It should be merely an influence when considering other offences.

To what extent DRM systems should be forced to make exceptions for the partially sighted and people with other disabilities;

I suggest that DRM should not be allowed to restrict fair dealing or the rights of people with disabilities to equal access. There should be a type of "fair circumvention" of removing DRM coding which seeks to hinder those acts. For example, the BBC attempts to restrict timeshifting with its integrated media player. Timeshifting of public service broadcasters should not be criminal, even if DRM is used.

How copyright deposit libraries should deal with DRM issues;

How consumers should be protected when DRM systems are discontinued;

I believe it's impossible to protect users of DRM systems from discontinuation and system failure. While traditional copyright works are essentially open and then closed a little by legislation, DRM works are essentially closed and then opened a little by technology. If the DRM system fails, the works are closed. If the copyright system were to fail, the works would be open.

Copyright "fails safe" while DRM "fails shut" and may cause us to "lose" cultural resources in the future. This is another motivation for "fair circumvention": it would not solve this problem, but could create a possibility that not all DRM works will be lost.

Whether new types of content sharing license (such as Creative Commons or Copyleft) need legislation changes to be effective;

The collecting societies appear to cause problems for liberal licensing by not responding to creators' wishes to permit it. Maybe it is necessary to legislate to enforce creators' freedom to associate - and to no longer associate - with collecting societies.

Whether DRM systems can have unintended consequences on computer functionality;

Clearly, yes.

Some DRM systems essentially take control of the computer away from its owner. If owners are not in control of their computers, we are all at risk in this internet era, as shown by distributed denial of service attacks and zombie networks. The recent Sony DRM scandal shows the potential for problems. Any DRM system which carries out an act not approved by the user should have its operator held responsible for massive computer misuse.

Famously, UK law has prevented some Linux security update details being published by author Alan Cox, because it could easily be judged to describe a circumvention technique. Preventing good security practice is another unintended consequence of laws propping up poor DRM systems.

Even non-restricting Digital Rights Management systems can have unintended consequences if they send usage information to the rights holder. Such "phone home" systems may be an invasion of privacy and privacy invasion by DRM should be illegal.

Computer security and privacy invasion by DRM systems are two areas where UK law seems weak at the moment. Please ask: how many prosecutions have there been for such offences by DRM systems?

The role of the UK Parliament in influencing the global agenda for this type of technical issue.

The UK often seems to be in the leading edge of strengthening copyright, expanding scope and increasing punishments, such as the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002. This is worrying for liberal creatives who are concerned about whether DRM-free outlets will even exist in the future. Already, there are devices which only accept DRM-using media. Competition law must be updated or enforced to address DRM.

The UK's reputation is at risk from incidents such as the Sony-BMG rootkit, which was produced under the favourable UK regime by a UK business and caused damage in other countries, including the US.

If the UK takes steps now to limit DRM, it will send a clear signal that DRM is not a way to increase the scope of copyright forever, not a blank cheque for large publishers, but that copyright should continue to be a tradeoff, as it started here many years ago.

Again, I thank you for the opportunity to make this case and I hope that you will consider these suggested adjustments.

Signed and dated January 2006