I
Digital Learning Legal Background Paper
DRM Systems and Educational Use of Copyrighted Material[1]
I. Introduction 1
II. DRM Systems 2
A. DRM Defined 3
B. DRM-Protected Works and Education 4
C. Incentives for DRM Protection of Commercial Works 7
D. DRM System Overview 13
E. The DRM System Arms Race 21
III. DRM and the DMCA Impair Educational Use of Digital Works 22
A. Anti-Circumvention Provision 22
B. Anti-Trafficking Provisions 26
IV. Inducements for Educator Use of DRM 28
A. Strict Licensing Requirements 28
B. Statutory Shortcomings: The TEACH Act 29
C. Lawsuit Avoidance 30
D. Educator Interest in Protecting Intellectual Property 30
V. Educational Impact 31
A. Increased Costs Imposed by DRM Technology 31
B. Conquest of the DMCA Sword over the Educational Use Shield 32
C. Entrenchment of DRM 32
VI. A Framework for Restoring Balance 33
A. Legal 34
B. Architectural 34
C. Economic 35
D. Normative 35
VII. Conclusion 36
Introduction
Digital media holds tremendous promise for the future of education. Rich and abundant content, powerful computer systems, and user-friendly tools for transforming media objects into learning objects offer to enhance the learning experience. The Internet has the potential to expand this benefit, allowing educators to reach beyond classroom walls and connect with students at a distance. Indeed, the question is not whether to harness the pedagogical power of digital media, but how.
Despite this promise, it is not a foregone conclusion that education will reap the benefits digital media might afford. Digital rights management (“DRM”) systems are poised to impede educational use and dissemination of digital works. The DRM threat to educational use of digital media is two-fold. First, DRM systems used by rightsholders to shield their content from unauthorized uses proscribe educational use of that content. Digital works rightsholders employ DRM systems to regulate – through technological means – precisely how their works are accessed and used. DRM systems empower rightsholders to restrict copying, excerpting, and distribution of their works. Moreover, these expansive technological controls are reinforced with legal ones. The Digital Millennium Copyright Act (“DMCA”)[2] provides rightsholders with legal rights designed to buttress the technological protections DRM systems impose. Together these controls jeopardize educator access to DRM-protected digital works, and leave educators with limited recourse for making use of such works.
Second, contractual and statutory obligations, in addition to educator self-interest, provoke educators to use DRM systems to protect the digital content they generate or disseminate. Restrictive licensing terms require educators to safeguard digital works they obtain permission to use with DRM systems. In addition, the safe harbor provided by the Technology, Education and Copyright Harmonization Act (“TEACH Act”)[3] contains a de facto requirement for use of DRM systems to protect digital works. Furthermore, fear of copyright infringement liability motives some educators to employ DRM systems when distributing digital works, irrespective of whether they are seeking exemption under the TEACH Act. Finally, the individual interests educators have in regulating their own works might militate in favor of DRM system usage. Convergence of these factors could create walled gardens at educational institutions, blocking the flow of knowledge.
This Paper undertakes to examine these potential effects of DRM systems. Part II explores DRM systems in detail, identifying DRM-protected works relevant to education, explaining why (and how) rightsholders use DRM systems to restrict access to their works, and providing an overview of the technical aspects of DRM systems.
Part III considers the legal environment surrounding DRM systems. This Part discusses the anti-circumvention and anti-trafficking provisions of the DMCA, and the paucity of defenses available to educational users who violate those provisions.
In Part IV attention shifts from commercial rightsholder behavior to educator behavior. This Part explores inducements that educators face to safeguard the digital works they disseminate or create with DRM protections.
Part V reviews the arguments set forth in the previous parts and evaluates the impact DRM systems are having on education. Building from that analysis, Part VI outlines a multifactored framework as a starting point for addressing the impact of DRM systems on educational use of digital works.
DRM Systems
In an environment where large-scale copyright infringement takes little more than a click of the computer mouse, so-called DRM systems have emerged as a supplement to – and increasingly a replacement for – the remedies provided to rightsholders under copyright law. DRM systems offer a secure framework for distribution of digital content, which in turn encourages investment in the commercial development of such content.[4]
The security afforded by DRM systems emanates from the increased level of control over access to and use of digital content these systems provide. DRM systems enable rightsholders to specify and enforce terms of use for digital content persistently and remotely.[5] Rather than sell copies of digital works to consumers – as books are sold to readers – rightsholders can license digital works equipped with DRM protections on the terms of their choosing.[6]
This licensing-based distribution model can entail substantial restrictions for users of digital content. Licenses enforced by DRM systems allow rightsholders to precisely specify details of how a consumer can interact with digital content, such as how frequently and with what devices content may be accessed.[7] In contrast to the copyright, which is constrained by the fair use doctrine and other exceptions that reduce the scope of the grant,[8] restrictions imposed by licenses and DRM systems are not subject to equivalent limitation.[9] DRM technology grants rightsholders de facto control over user rights without regard to and in excess of the level of control they receive under copyright law.[10]
Understanding the impact of DRM technology on the educational use of digital media is a complex undertaking. Evaluation of the potential for DRM systems to obstruct or facilitate educational use of digital media requires appreciation of how these systems are structured – both in terms of the parties responsible for DRM system implementation and the technological workings that make these systems so powerful. This Part begins by defining what makes a DRM system and identifying the types of DRM systems relevant in the educational context. It then examines how market influences affect commercial DRM system deployment. It concludes by providing an overview of DRM technology and the DRM arms race between digital rights holders and content users.
1 DRM Defined
Despite the importance of DRM to the digital media discourse, there is no universally accepted definition of the term.[11] Some critics charge the term is a misnomer, either because the “rights” protected by DRM systems are contractual rather than stemming from copyright, or because they find the term loaded in favor of rightholders. Indeed, because of difficulties related to the terminology, some authors and technologists have begun using other names, such as the broader term “technological protection measures” (“TPMs”).[12] While recognizing these difficulties, this paper will use the term “DRM.”
Examination of the elements that comprise DRM systems and how those elements interrelate suggests a foundational definition. Broadly, a DRM system is a combination of technological protections and licenses that supplies rightsholders with persistent control of their digital works.[13] Regardless of where a work is located, or whether a work has been shared, traded, or resold, a DRM system enables rightsholders to permanently enforce license terms – such as no copying allowed – through technological means. The “client,” a mechanism such as Windows Media Player or a DVD player used to access the content, enforces those licensing terms automatically.[14]
The components of a DRM system fall into two general categories: system management and rights (or permissions) enforcement.[15] System management refers to the organization and design of the DRM system, including identification of digital content, assignment of metadata to content, and specification of the terms and conditions regulating how users may interact with content.[16] Rights enforcement is the persistent and remote regulation of content – through technological means – to ensure it is used in compliance with the license terms chosen by the rightsholder.[17] For example, a license specifying that a file can only be opened a set number of times, and on a device with a particular address, would fit in the system management category; the technological means used to enforce those terms, such as the software that prevents a DVD player from playing unauthorized discs, would fall under rights enforcement.
2 DRM-Protected Works and Education
A substantial force in the consumer and business markets, digital media – and the DRM systems that protect it – is pushing its way into the classroom. Less than a decade ago, DVDs and CDs were the only digital media objects likely to be found in the classroom. Today, computers are pervasive and integral to learning. Indeed, some elementary and secondary schools have abandoned traditional textbooks altogether in favor of digital textbooks or online learning.[18] Computers and other devices designed to access digital media have opened the classroom – and the world beyond – to an assortment of digital works with educational uses. In many instances, however, DRM systems interfere with these uses. Categories of digital works important to education, and the DRM systems that restrict their use, are described below.
1 DVDs
DVDs are one of the first DRM-protected works to find their way into the classroom. Educators at all levels use movies and movie clips to teach history, art, science, and numerous other subjects.[19] As discussed in an accompanying case study, within the burgeoning field of film studies, professors at universities nationwide routinely show compilations of movie clips made from DVDs to their students. In addition, some film studies professors post movie clips on the Internet or make copies of movie clips for students to view outside of the classroom. Each of these activities requires circumvention of the Content Scrambling System (“CSS”), a DRM system that protects DVD content through an encryption and licensing scheme.[20] Because DVDs are far superior to film reels and VHS tapes as source material for creating movie clip compilations, educators who use movie clips in their teaching are likely to continue circumventing CSS to gain access to DVD content for the foreseeable future.
2 Digital Textbooks
Digital textbooks are another example of the growing popularity of electronic teaching tools. Numerous publishers, including McGraw-Hill Higher Education, Houghton Mifflin Company, John Wiley & Sons, and Thomson Learning are making DRM-protected versions of their titles available in digital format.[21] Just this year, Princeton University and nine other universities participated in a digital textbook pilot program, where they offered DRM-protected digital textbooks for sale in their bookstores, side-by-side with their print counterparts.[22] In addition, distributors such as VitalSource are providing students with access to entire libraries of fully searchable versions of digital textbooks.[23] From the New York University College of Dentistry to Johnson Elementary School in Forney Texas, integrated digital textbook libraries are becoming ever more popular.[24] The DRM systems protecting these textbooks specify numerous parameters. These systems regulate for how long students can access titles,[25] how many pages students can print,[26] and how many computers they can access the titles from.[27]
3 Digital Periodical Collections
In addition to digital textbooks, educators and students – particularly at the university level – rely on easy access to searchable collections of digital periodicals. For example, the eminent journal Science[28] is an important resource for undergraduate and graduate students, as well as research faculty.[29] Science and its peer journals are available through online subscription services to which many university libraries subscribe.[30] Publishers use DRM systems to prevent access by unauthorized users. These DRM systems are typically less elaborate than those used to safeguard digital textbooks and most other digital content formats. For example, Science permits authorized users to download PDF versions of articles, and even to download figures from articles directly to PowerPoint slides, for “use in teaching and educational presentations.”[31] Users access Science simply by entering a username and password, or logging in through their institution, which verifies the user’s identity and then grants access to the journal.[32]
4 Digital Slideshows
Computer generated slideshows – e.g., PowerPoint presentations – are replacing chalkboard- and transparency-based lectures as pedagogical tools. As discussed in the case study about the Center for History and New Media, these slideshows frequently include copyrighted third-party content as well as original content created by the instructor. The additional content, such as digitized reproductions of painting or audio clips, enhances the learning experience. In some cases, the content that educators wish to incorporate in their slideshows is DRM-protected – for example, an excerpt from a CSS encoded DVD. Often – as is the case with CSS – DRM systems prevent inclusion of the works they protect in a new work, such as a slideshow. DRM systems precluding such use present educators with choice: circumvent the DRM system in order to use the work, or forgo using the work in the slideshow.
5 Other Educational Content
DRM might find application not only in protecting commercial works, but also those created by educators and their students. DRM systems may also facilitate trade and exchange of digital teaching resources between educators or institutions.[33] For example, a university might possess a digitized library of lectures by a renowned faculty member that it wishes to share with its students and those at another institution, but no other parties. Protection of that collection with a DRM system could facilitate this transfer. Likewise, individual faculty or students might use DRM systems if they create digital works that they want to protect from manipulation or unauthorized use. “A flexible and effective DRM system can manage the creation, retrieval, trading and distribution of online learning objects and support collaborative development.”[34] Finally, academic users concerned with the integrity of a work from an outside source might rely on DRM systems to verify the source of a work and to confirm that the work has not been altered.[35] As discussed below, however, these applications of DRM technology may present problems as well, particularly if educational institutions feel obligated to use DRM systems but lack the resources to do so, or if such systems excessively and unnecessarily restrict public access to educational content.
3 Incentives for DRM Protection of Commercial Works
The technological and economic incentives for rightsholders to use DRM systems to safeguard the digital works described above (and others) are easy to understand. First and foremost, copying digital works is substantially easier than copying of traditional analog works, and copies of digital works are identical to the originals, unlike copies of analog works, which degrade with each round of copying.[36] These perfect copies then have the potential to erode the commercial market for digital works because they can be made available for little or no cost.[37] Accordingly, rightsholders use DRM systems to prevent users from copying, altering, or distributing works without permission.[38] Secondarily, DRM systems also enable rightsholders to engage in price discrimination, which allows them to maximize revenue by making different versions with different functionalities available for a range of prices.[39]
1 The Leakage Threat
If business models predicated on the use of DRM systems are to succeed, rightsholders must prevent “leakage” of their works. Leakage refers to the flow of works into the broader public beyond the control of rightsholders and DRM system protections.[40] For example, leakage occurs when a user cracks the DRM system used to protect a digital textbook and then distributes an unprotected version of the work. The new, unprotected work competes with the protected work for market share – whether or not the unauthorized copy is distributed for profit or for free.[41] Since the unprotected work is not restricted by the original license terms, users unmoved by the fact that the unprotected work is “stolen” will choose the less expensive (likely free), less encumbered version of the work.[42] This behavior underlies the success of peer-to-peer file-sharing networks for music, from the ubiquity of the original Napster to its third generation successors, BitTorrent[43] and YouSendIt,[44] notwithstanding the existence of authorized fee-based digital music distribution services such as iTunes or the new Napster subscription service. [45]
Most digital works are subject to two forms of leakage: digital and analog. Digital leakage occurs when DRM system protections are removed from works and unprotected versions are circulated, typically on the Internet.[46] Analog leakage, by contrast, involves the unauthorized distribution of analog reproductions of digital works – such as printed copies of digital textbooks or VHS tape reproductions of DVD content.[47]
Rightsholders, afraid of such leakage, are wary of offering educators and other fair users copies of digital works with reduced or eliminated DRM protection.[48] Such relatively unprotected works, particularly if they circulate among students (perceived to be especially likely to engage in unauthorized distribution of content), could become a significant avenue for leakage.[49] Similarly, rightsholders are loath to permit limited distribution of circumvention technology to educational or fair users, since circulation of that technology itself, or the unprotected content it yields, could severely harm the market for the digital products and eliminate the ability of rightsholders to control how their works are accessed and used.[50]
Likewise, although the potential for DRM systems to enable price discrimination is relatively undeveloped at this time, it remains highly attractive to rightsholders and distributors.[51] Some envision a world where rightsholders will be able to license heavily encumbered (and therefore less useful) “educational” versions of digital works for a profit.[52] This model would likely lead to more use of DRM technology in educational markets, not less. Arguably, this model eventually could eliminate the effectiveness of the fair use doctrine and educational use exceptions, because educators would be unable to make legitimate copies of DRM-laden content and the creation of such a market might tilt the fair use analysis away from educators.[53] While this scenario remains speculative for now, the prospect of such revenue sources in the future certainly discourages rightsholders from exempting educators from the reach of their DRM systems. It also represents something of a “nightmare scenario” for educational users. As discussed below, however, countervailing forces opposing the use of DRM systems for educational content may prevent this scenario from becoming reality, at least in the near future.
2 Leak-onomics
Almost by definition, rightsholders looking to earn a profit from licensing their digital works exhibit concern about leakage of their works.[54] The economic circumstances that characterize different product markets have an important impact on precisely how rightsholders attempt to control leakage, however. For example, digital textbook publishers impose fewer leakage controls on their works than do DVD-producing movie studios. As described below, high definition DVDs (“HD-DVDs”) and their players use an elaborate DRM system to identify the source of disc content, reject pirated discs and discs from distant geographic regions, and prohibit copying.[55] In contrast, common licensing terms for digital textbooks allow students to print a book in its entirety, access the book on more than one computer, and highlight and take notes in the digital copy of the book.[56] The remainder of this Section examines the differences between the markets for digital textbooks and DVDs, and uses these differences to explain the disparate levels of DRM system protection they receive.
1 DRM Light: Digital Textbooks
Market constraints force publishers of digital textbooks to tolerate a high risk of both analog and digital leakage relative to movie studios. Only a handful of students have adopted digital textbooks at universities where they are offered in the campus bookstore, opting instead for their print counterparts.[57] Likewise, distribution directly from publishers or Internet-based intermediaries, such as eBookMall,[58] has achieved only modest results.[59] Since the market for textbooks – digital and analog – is almost entirely comprised of educators and students, the success of the digital textbook industry hinges on adoption by these groups. Accordingly, publishers have a strong incentive to respond to their concerns.[60]
Perhaps counter-intuitively, low levels of digital textbook adoption also have the effect of reducing the risk of leakage, and in fact might lead to increased adoption, at least in the short term. Students are reluctant to transition from print to digital textbooks, citing inconvenience and unfamiliarity with the format, as well as concerns about the stability of the format, among the reasons for their hesitance.[61] Thus, the market for pirated digital copies of digital textbooks is small. Moreover, those students who do use leaked versions of digital textbooks might find the format superior to print and opt to purchase other digital titles in the future. (Of course, those students might instead search for leaked versions of those other titles as well.)
The financial risks posed by analog leakage also appear relatively insignificant in the eyes of publishers. Many publishers take the position that some students have always made unauthorized copies of physical textbooks, and some will inevitably make unauthorized printed copies of digital textbooks, regardless of the strength of the DRM system.[62] In addition, they assume that analog leakage will not be significant, since the cost of printing, in terms of time and ink, is substantial.[63] Furthermore, the modest percentage of students who have adopted digital textbooks, combined with the fact that publishers rely on sales from large catalogues of textbooks for profits, reduces the economic threat from both forms of leakage.[64]
Thus, publishers have responded to student pressure and reduced the extent of restrictions imposed by DRM systems on digital textbooks. Salient illustration of publishers’ responsivness to user demands comes from the Universal Digital Textbooks program started by MBS Textbook Exchange.[65] That program, which began in fall 2005, was the first to make licenses to digital textbooks available for purchase in campus bookstores.[66] Originally, the publishers participating in the program planned to equip their works with highly restrictive DRM systems.[67] For example, for many works, students could only use a digital textbook on one computer, access the work for a maximum of 150 days, and print a limited number of page per week.[68] The program suffered a great deal of bad press once word of these prohibitive terms got out.[69] Subsequently, participant publishers substantially reduced the scope of these restrictions.[70] Most publishers now permit students to store copies of digital textbooks on multiple computers, although they discourage this practice.[71] In addition, most permit indefinite use and unlimited printing.[72] This sea change in licensing requirements strongly suggests that market forces pressured publishers to reduce restrictions on access to and use of their works. Indeed, Kevin McKiernan the Director of Business Development at MBS Direct indicated that publishers are primarily concerned with the quality of user experience[73] – at least for now.
2 Draconian DRM: DVDs
The movie industry, in contrast, employs stringent protections to prevent both analog leakage (in the form of VHS copies of DVDs) and digital leakage.[74] Movie studios use the Macrovision video copy protection system to reduce the incidence of analog leakage from DVDs.[75] Macrovision encoded DVDs contain a signal that confuses the recording chip in VCRs, causing VCRs to introduce distortions into the pictures they record.[76] Consequently, VHS tapes recorded from Macrovision-encoded source material exhibit defects such as color loss, image tearing, variable brightness, and picture instability.[77] This deterioration in quality deters would-be creators and consumers of such unauthorized secondary copies. In addition, to prevent digital leakage the movie industry employs even more elaborate mechanisms, including watermarking[78] and encryption.[79]
Notably, the market conditions faced by the movie industry are vastly different from those in the digital textbook industry. Obviously, the market for DVDs is much broader than that for digital textbooks; the commercial segment of the DVD market is substantially larger than the educational segment.[80] Moreover, unlike the lack of widespread adoption facing digital textbook distributors, the number of households with DVD players has surpassed the number of households with VCRs, suggesting that DVDs are now the preferred format for at home movie consumption.[81] These combined factors – a diversified and predominantly non-educational market and the dominance of the DVD format – likely make movie studios much more cautious than textbook publishers when releasing their digital works in to the marketplace. They face both greater risk from leakage[82] and less danger from consumer resistance to DRM systems.[83]
In sum, market factors have a substantial influence on DRM system usage by rightsholders. Nonetheless, while there is a difference in the degree to which various rightsholders attempt to block leakage, it is important to recognize that all DRM system dependent rightsholders demonstrate concern over leakage and corresponding reluctance to treat educational or fair users differently with respect to DRM systems.
4 DRM System Overview
DRM systems protect digital works by using technological means to implement licensing terms that regulate access to and usage of those works. Typically, there are four parties involved in the implementation of DRM systems: rightsholders, distributors, license brokers, and users.[84]
Rightsholders are the primary players in DRM system implementation. They provide the works that the DRM system will protect, select the appropriate DRM system and licensing terms, and prepare DRM-protected works for distribution.[85]
DRM-protected works are transferred from the rightsholder to the distributor. As the name implies, distributors provide channels for delivering digital works to consumers. These channels include brick-and-mortar retailers, online retailers, peer-to-peer networks,[86] and other outlets.[87] Distributors are simply conduits for delivering digital works from rightsholders to users.[88] Although they may use information about the DRM system for marketing, distributors do not manipulate the DRM system itself.[89]
The rightsholder sends the license granting access to the digital work to the license broker.[90] The license broker is a trusted clearinghouse that handles all transactions pertaining to the issuance of licenses specifying the permissions granted to a user for use of digital works.[91] Users (or, more often, their clients) contact license brokers in order to obtain the license necessary for using the digital work they received from the distributor.[92] The license broker authenticates the user, verifies that payment has been made, and then transfers a license to the user.[93]
Users are the final party involved in DRM system implementation.[94] In actuality, the user’s client performs the operations necessary to license and access a digital work.[95] The user is removed from the implementation process to the greatest degree possible, since the interests of users are not aligned with those of rightsholders, and rightsholders want to protect their works from unauthorized access by users. [96] The following Sections outline a typical DRM system, explaining the technology used to protect digital content, and how content is delivered to and accessed by users.
1 DRM System Selection and Content Provision
The first step for a rightsholder seeking to safeguard a digital work with a DRM system is selection of that system.[97] In making this choice, rightsholders consider the nature of the digital work (e.g., text, music, or movie) and the type of protection sought. For example, a publisher seeking to make a digital version of a textbook available on the market might choose between the DRM systems offered by Adobe[98] and VitalSource,[99] an emerging competitor to Adobe in the digital book DRM system marketplace.
After deciding on a suitable DRM system, the rightsholder must make the work available to that system for encoding and protection.[100] This process requires conversion of the work into a format compatible with the DRM system. [101] DRM systems cannot secure works unless the works are available in a format the DRM system can recognize and operate on.[102] For example, a publisher who selects the Adobe PDF Merchant DRM system to protect a work must first convert the work into PDF format.[103] Otherwise, inoperability between the DRM system and the digital file will prevent the DRM system from successfully encoding the work.
Rightsholders must also supply an identifier and product metadata to the DRM system before it can encode the digital work.[104] Depending on the capabilities of the DRM system in question, rightsholders might enter identifiers and metadata manually, or the DRM system itself might automate the acquisition of this information.[105] Identifiers denote works persistently and unambiguously, permitting users to distinguish between individual works.[106] Metadata, in contrast, uses identifiers to relate concepts and identified objects (such as digital works) to each other.[107]
On its own, an identifier does not provide a user with detailed information about an entity. Much like an International Standard Book Number (“ISBN”), an identifier, without more, does little to describe the entity it identifies.[108] A user aware of the ISBN system can safely assume that ISBN: 0804750130 identifies a book, but little more. Further information about the nature of that book – such as the title, author, and publication date – requires reference to metadata describing the work.[109] Using Bowker’s Books In Print database to associate the ISBN identifier with metadata reveals that ISBN: 0804750130 is the identifier for “Promises to Keep,” written by William W. Fisher III, and published in August 2004.[110]
Similarly, identifiers and product metadata for digital works provide important information to users and distributors of digital works. Metadata linked to the identifier for a digital work often reveals: the title; author; publisher; format (e.g., text, audio, or visual); and additional identifiers it might have (a digital book may also have an ISBN, for example).[111] The project on interoperability of data in e-commerce systems provided a widely adopted framework for constructing metadata.[112]
2 Selection of Licensing Terms
Rightsholders are also responsible for specifying the licensing terms that will govern access to and use of the protected work.[113] These terms – often referred to as “rights metadata” – are the terms that the DRM system will automatically enforce after the digital work has entered the marketplace.[114] Licensing terms can address every imaginable aspect of how a work is accessed or used.[115] Rightsholders frequently use licensing terms to regulate which devices can access content, how many times a particular work can be accessed, whether the content can be copied or redistributed, and myriad other functions.[116] Individual rightsholders can create highly specialized licenses. A digital book publisher might select license terms that permit the user to access the work only from one computer, to print no more than 100 pages from the work per week, and to access the file for a period of one year from the date of license activation, for example.[117]
A typical DRM system will guide the rightsholder through a series of menus that allows specification of the licensing terms for a digital work.[118] This process generates a license written in a rights expression language (“REL”).[119] As the name implies, a REL is a means for expressing the access and use rights that govern a digital work.[120] Clients enforce DRM system licenses by reading, interpreting, and complying with REL licenses.[121]
3 DRM Application
After license term selection, properly formatted works are watermarked, fingerprinted, and encrypted.[122]
1 Watermarking
Digital works protected by even the most robust encryption schemes are vulnerable to copying when they are converted from machine-readable 1s and 0s to human-perceptible sounds and images.[123] Although a DRM system might successfully block a digital content user from directly copying the digital representation of a work, indirect copying will still be possible unless the content is watermarked.[124] Rightsholders use watermarks to identify copies of their digital works and to prevent unauthorized copying of those works.[125]
Indirect copying is duplication of the human-perceptible sounds and images rendered by the client used to access a digital work. Colloquially known as the “analog hole,” the susceptibility of audio and visual renderings of digital content to unauthorized copying presents a substantial risk for rightsholders seeking to control the use and distribution of digital works.[126] Judge Newman of the United States Court of Appeals for the Second Circuit provided a rudimentary illustration of indirect copying, stating that one could copy a movie contained in digital format on a DVD “by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie.” [127] Even though the resulting copy would be of lower quality than the original DVD, such copying does occur,[128] and Judge Newman’s example illustrates the analog loophole vulnerability. Copying schemes more elaborate than that suggested by Judge Newman, designed to yield higher quality copies, are not difficult to imagine.
Watermarks offer protection from such indirect copying. A watermark is a mark concealed within a digital work and recognizable to the client used to access the work, but imperceptible to the user.[129] An essential aspect of a watermark is that it fundamentally alters the digital content by embedding audio or visual distortions into the work that are beyond the limits of human detection.[130] Consequently, watermarks are persistent – they appear in any copies of digital works, regardless of how those copies are made.[131] Watermarks can bind data as well as usage terms to digital content. Watermarks can include information about the rightsholder, content user, and the user’s payment history, as well as controls limiting access to the work.[132] The client used to access the work recognizes the watermark, uses it to identify the work, and determines whether to permit the user to access or use the work.[133]
The movie industry employs watermarks in this fashion to thwart the type of copying described by Judge Newman. In October 2005, members of the Motion Picture Association of America (“MPAA”) unveiled a new watermarking scheme designed to reduce movie piracy.[134] The soundtracks of all movies produced by MPAA members and released into cinemas will contain watermarks.[135] In addition, the soundtracks of commercially released HD-DVDs will contain a different watermark.[136] These two watermarks are distinct, allowing movie studios to identify the source – cinema release or HD-DVD – of movie copies.[137] New HD-DVD players will recognize both watermarks and react to them in different ways. Upon recognition of the cinema release watermark, which will only be present on DVDs made by illegally copying a film print or “camcording” a movie as it is played in the cinema,[138] an HD-DVD player will shut down and refuse to play the disc.[139] Upon recognition of the commercial release watermark, the HD-DVD player will determine whether the disc is a licensed factory version or an illicitly made unlicensed copy.[140] If the latter, the device will shut down and refuse to play the disc.[141] As illustrated by this example, watermarks limit unauthorized copying in two ways. Watermarks allow rightsholders to identify their digital works and subsequent copies of those works.[142] Moreover, a watermark can instruct the client to render the work only if it finds a valid license.[143]
Watermarks are subject to two types of attacks: watermark removal and watermark distortion.[144] Complex watermarking algorithms that embed watermarks in salient locations within works make it difficult for users to remove watermarks from works. Nonetheless, watermarks are subject to attacks designed to estimate the “shape” of the watermark and excise it from the work.[145] Alternatively, and more commonly, users attempt to introduce distortions into watermarks that are imperceptible to humans and that make it impossible for the client responsible for rendering the work to detect the watermark.[146] When a user knows the watermarking technique employed by the rightsholder, the user can almost certainly mangle the watermark beyond recognition.[147] The vulnerability of watermarks to these two types of attack limits their utility to rightsholders.
In fact, watermarking algorithms are more easily broken than other copy protection mechanisms, and may ultimately find limited use.[148] Indeed, several years ago, watermarking suffered a very public defeat when the Secure Digital Music Initiative (“SDMI”) issued a worldwide challenge to computer hackers to defeat SDMI watermarks and the hackers succeeded.[149] It might well be the case that, as one participant remarked, “‘no watermarking scheme is strong enough.’”[150]
2 Fingerprinting
Rightsholders employ fingerprinting, also known as content-based identification, as a complementary technology to support the identification function performed by watermarking.[151] Fingerprinting is a technique for identifying digital works based on the features of those works.[152] In contrast to watermarking, which requires embedding a watermark into a digital work, fingerprinting does not require any alteration of the original digital work.[153] Instead, fingerprinting uses algorithms to analyze digital works, and to create unique identifiers for those works based on that analysis.[154] Since the fingerprint for a particular work is a function of the work itself, fingerprints are not susceptible to the same types of removal and distortion attacks that plague watermarks.[155]
Despite this robustness – or more accurately, because of it – fingerprints have less functionality than watermarks. Fingerprints are simply content identifiers, not copy control mechanisms.[156] Moreover, in contrast to watermarks, which can vary between different copies of the same digital work (e.g., one watermark for the cinema release of a film and another for the commercial release), all copies of a digital work have identical fingerprints.[157]
In the DRM context, the most robust application for fingerprinting is to locate unauthorized copies of digital works.[158] Since the fingerprint for a digital work depends on its inherent attributes, users who copy a work cannot meaningfully alter its fingerprint without severely distorting the underlying content.[159] Accordingly, rightsholders can use fingerprint data and web crawlers to search for illicit copies of their works on open networks such as the Internet.[160]
The most well-known example of this use of fingerprinting was a product of the Napster litigation. In that case, a court ordered Napster to block the sharing of copyrighted music on its network[161]. The first filtering solution employed by Napster – a simplistic filename-based filtering system – failed because users developed creative naming schemes that “outsmarted” the filter.[162] In response, Napster developed a fingerprint-based filtering system to identify copyright protected works users were trading on its network.[163] Napster users could not circumvent this filter without adding distortions that rendered the digital works valueless.
Although fingerprinting is a robust technique for identifying digital works, it has limited utility for rightsholders who wish to prevent unauthorized copying of their works ex ante. Despite this limitation, fingerprinting contributes to the security of a digital work when used in conjunction with watermarking and other DRM technologies.
3 Encryption
Encryption is the central element of digital content protection. DRM systems employ encryption both to protect the digital representation of a digital work and to create a “secure container” for the distribution of that work.[164] Encryption controls access to a digital work by using an encryption algorithm and a specialized key to encode a work so it is usable only by clients with access to the appropriate decoding algorithm and key combination.[165] Rightsholders include decoding algorithm and key combinations with the licenses that regulate access to and use of their works.[166] Only users with a valid license can decrypt digital content, subject to the license terms.[167] Encrypted content appears as unreadable nonsense to applications or devices without the requisite license.
4 Secure Containers
The final step in preparing a DRM-protected digital work for distribution is encasing the work in a secure container.[168] Secure containers ensure the security of digital content transmission, authenticity of users, and persistence of access and usage restrictions.[169] After encryption, a digital work is packed into a secure container with its identifier, product metadata, watermark and fingerprint information, and digital signatures and certificates.[170] In addition, the license governing access to and use of the work, including the decryption key, is placed in a separate secure container.[171]
Secure containers use authentication protocols to ensure user identity and content integrity.[172] In the physical world, characteristics such as appearance and voice provide a robust basis for verification of identity. The absence of this verification mechanism in the digital world makes identity verification more difficult. To overcome this obstacle, rightsholders rely on asymmetric cryptography – a type of encryption that allows message recipients to verify the identity of message senders – as a means for authenticating content users.[173]
The secure container housing the digital work or license and decryption key for that work is usually authenticated using public key certificates.[174] A public key certificate is a digitally signed document that binds a user’s public key and identity.[175] In this way, a public key certificate, issued by a trusted certification authority, provides verification of a user’s identity.
In addition to authenticating users and digital content, secure containers are often tamper-resistant, to prevent users from physically “breaking in” and circumventing the DRM system safeguards.[176] These tamper-resistant containers recognize and report tampering activity.[177] They also enforce prohibitions on tampering by denying access to content if the surrounding container has been tampered with.[178]
4 Distribution
After DRM system application, protected works are transferred from the rightsholder to the distributor.[179] As the name implies, distributors provide channels for delivering digital works to consumers.[180] These channels include brick-and-mortar retailers, online retailers, peer-to-peer networks, and other outlets.[181] A digital book publisher, for example, might use distributors such as the online retailer Zinio,[182] which sells digital book downloads on its website, and the brick-and-mortar book broker MBS Textbook Exchange, which sells digital books in campus bookstores through its Universal Digital Textbook program.[183] Distributors are simply conduits for delivering digital works from rightsholders to users.[184] Although they may use information about the DRM system and metadata from the digital work for marketing, distributors do not manipulate the DRM system itself.[185]
5 Licensing
The rightsholder sends the license containing the content decryption key to the license broker.[186] Decryption keys are necessary for gaining access to digital works.[187] A consumer in possession of a copy of a DRM-protected work, but without a license and the corresponding decryption key, will not be able to access that work. The license broker is a trusted clearinghouse that handles all transactions pertaining to the issuance of a license specifying the permissions granted to a user for use of the content.[188] For example, a user who purchases a digital book license distributed by MBS Textbook Exchange via the Universal Digital Textbook program at her college bookstore must register her license online with the license broker before she can download a copy of the text.[189] To register, the user must enter her receipt number and the number contained on a card provided to her by the bookstore at the point of sale.[190] The license broker verifies this data against data supplied by the distributor, and grants the user a license only if the data is valid.[191] Subsequently, the user can download and access the digital text.
Despite their importance, users are often unaware of the role license brokers play in enabling access to digital content. This is because in many cases the client used to access content, not the consumer, initiates licensing requests with brokers.[192] Apple’s iTunes software engages in this type of license verification for content licensed from the iTunes Music Store.[193] When a user licenses a song from the iTunes Music Store, that license permits the user to access and store the song on up to 5 computers.[194] Each time a user attempts to access the song on a new computer (after storing a copy of the song on that computer), the iTunes software requires the user to verify his license to play the song by entering information from the account originally used to purchase the license.[195] This transaction with the license broker is initiated directly by the iTunes software, with no input from the user other than the user’s attempt to access the digital work.
A user in possession of a valid license and a copy of the corresponding DRM-protected digital work can access that work, but only within the bounds of the license terms. Accordingly, if a work prohibits excerpting or other copying, an educational user would not be able to extract an excerpt of that work for incorporation into a slideshow or other teaching object.
5 The DRM System Arms Race
As illustrated above, DRM systems incorporate multiple, complementary technologies to secure digital works. These technologies work in concert to regulate how the majority of users access and use digital works. These technologies are not invincible, however. “Every piece of software is breakable.”[196] Some users invest substantial amounts of time in breaking in to or “cracking” DRM systems. While circumvention of DRM systems by a few isolated users would have little impact on rightsholders, the calculus changes in a digital environment because those users may quickly and easily distribute the content they liberate from DRM system protections. Similarly, they may disseminate the circumvention tools they create to other users. This risk causes rightsholders to avoid distributing some valuable works in digital format, and provokes them to employ ever-stronger DRM systems – which in turn triggers development of more sophisticated circumvention tools. A wide range of firms, including Adobe and Microsoft, has joined in this race. Adobe has evolved an arsenal of DRM systems to replace the eBook password protection scheme Dmitry Sklyarov cracked in 2001, and Microsoft has defeated multiple attacks on its WMA audio DRM system with patches.[197] Given the value of digital media to rightsholders, and the interest in obtaining that media of users, this arms race seems likely to continue.
As a result of this practice, educational users often must make do with heavily burdened content that they cannot easily use or manipulate. And as the next Part explains, those educators with the expertise or tools to override these DRM protections run the risk of legal liability.
DRM and the DMCA Impair Educational Use of Digital Works
Designed to usher copyright law into the digital era, the DMCA created a new set of legal entitlements for digital rightsholders.[198] Under pressure from a substantial number of interest groups, including the publishing, recording, and movie industries, Congress approved the DMCA in 1998 to encourage creation of digital versions of copyrighted works by providing rightsholders with legal rights intended to offset the increased threat of piracy.[199] The DMCA provides legal reinforcement for technological controls that rightsholders place on copyrighted works to restrict access to and use of those works.[200] Although legislators stated their intent to “balance[] the interests of copyright owners and users of copyrighted works,”[201] in application the DMCA goes too far, severely restricting educational access to copyrighted works.
1 Anti-Circumvention Provision
The DMCA prohibits users from circumventing the technological protections rightsholders employ to safeguard their digital works – often in the form of DRM systems – to access digital content. The judiciary, in turn, has interpreted this prohibition broadly, rejecting the fair use defense as inapplicable to alleged violations. As a result, the DMCA effectively bars many educational uses of DRM-protected digital media.
1 Wide Scope of Provision
The DMCA forbids circumvention of DRM system protections for the purpose of accessing a digital work. The statute provides, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”[202] Problematically, the statute does not define the critical term “access.” The definition of this term is implicit in the nature of digital works, however. It is impossible to perceive digital works without accessing them first. While human beings can perceive analog works directly, reading text printed on a page, for example, digital works contain data that is imperceptible to humans and must be converted to be perceived.[203] Accordingly, the scope of the term access likely includes “any act by which [a] work is made perceptible.”[204] This understanding of “access” is consistent with the meaning of the term used elsewhere in the DMCA: “a technological measure ‘effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.”[205]
Such a broad reading of access brings all practical uses of digital works within the scope of the anti-circumvention provision. Simply opening a document on a computer or viewing a DVD involves accessing the digital work as a necessary first step.[206] Likewise, educational uses of digital media, such as creating a compilation of clips from DVDs to show in a film studies course, require accessing digital works.
The threshold requirement that the anti-circumvention provision applies only to technological measures that “effectively control access to a work” is easily satisfied. The courts have found that a sufficiently effective access control need only be a digital equivalent of “a lock on a homeowner's door, a combination of a safe, or a security device attached to a store’s products.”[207] The strength of the digital “lock” is not relevant. For example, the courts have universally ruled that CSS, the encryption and authentication scheme used to prevent copying of DVDs, qualifies as an effective access control,[208] despite the ease with which it can be circumvented.[209] Only licensed clients equipped with the keys necessary for unscrambling disc contents can access and perform the information stored on CSS-protected DVDs.[210] Noting that “One cannot lawfully gain access to the keys except by entering into a license… or by purchasing a DVD player or drive containing the keys pursuant to such a license,” the court ruled that “under the express terms of the statute, CSS ‘effectively controls access’ to copyrighted DVD movies.”[211]
The minimal requirements for “access” and “effective control” under the DMCA bring nearly all digital works with any form of access restriction within the purview of the anti-circumvention provision. Certainly, DRM systems of the type described in the previous Part will nearly always be covered by the DMCA.
2 Limited Defenses
1 Traditional Exemptions from Copyright Liability
As illustrated in our case study of DVDs in film classes, content desirable for educational use may be locked down within DRM systems that prevent such uses, at least without circumvention of the DRM system. In such instances, an educational use that would otherwise be protected under the Copyright Act becomes illegal under the DMCA, vitiating the original protection.
The courts have nonetheless refused to recognize traditional defenses to copyright infringement as defenses to violations of the DMCA’s anti-circumvention provision. Rather, they have held that the DMCA created a cause of action for circumvention of technological measures that effectively control access to copyrighted works, and that this claim is distinct from causes of action for copyright infringement.[212] Accordingly, while fair use and the classroom use exemption shield educational users from copyright infringement liability, these provisions do not provide any defense against liability for circumvention under the DMCA.[213] As one court explained its reasoning, “If Congress had meant the fair use defense to apply to [actions under the DMCA’s anti-circumvention provisions], it would have said so.”[214] Another court addressed the limitations placed on educational use of DVDs by the DMCA, unsympathetically declaring:
[T]he DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use.[215]
The DMCA’s anti-circumvention provision thus creates a parallel universe for digital works, one in which the public interest in permitting certain uses of copyrighted works goes unrecognized and the potential benefit from educational uses of digital works is unrealized.
In declaring fair use and other traditional exemptions from copyright infringement liability inapplicable to actions under the anti-circumvention provision, the courts have pointed to a “fail-safe” clause[216] built into the anti-circumvention provision as evidence that Congress did not intend traditional exemptions from copyright liability to serve as exemptions from liability under the DMCA.[217] Under the fail-safe clause, the Librarian of Congress is empowered to waive the DMCA’s anti-circumvention provision for three-year periods with regard to specific classes of works, for “adversely affected” users who could not otherwise engage in non-infringing uses in light of the DMCA.[218] In practice, this clause has not provided meaningful exemptions for fair use or educational uses of digital works. In fact, the Librarian rejected a proposed exemption for fair use works.[219] One court stated that Congress meant to leave “limited areas of breathing space for fair use” under the DMCA by including the fail-safe provision and other narrow exceptions for highly specific activities.[220] Given these provisions, that court concluded, “it would be strange for Congress to open small, carefully limited windows for circumvention to permit fair use” with the fail-safe provision and other exemptions “if it then meant to exempt… any circumvention necessary for fair use.”[221]
On the other hand, the “savings clause”[222] included in the anti-circumvention provision points to the opposite conclusion. The savings clause provides, “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”[223] Although this clause would seem to suggest that fair use qualifies as a valid defense to an action for unauthorized circumvention,[224] the courts have read it quite differently. Indeed, one court found that reading the savings clause to provide a fair use defense to circumvention was “outside the range of plausible readings of that provision.”[225] Instead, that court read the clause as simply stating that a user who accesses a digital work without violating the DMCA can assert fair use as a defense to an action for copyright infringement.[226] This reading of the savings clause reduces it to meaningless surplusage by interpreting it to mean “if the DMCA does not make your acts illegal through its own prohibitions, then it does not make your acts illegal through a different law either.”[227] Nevertheless, the courts have never upheld fair use as a defense to circumvention.[228]
This interpretation also undermines the structure of the Copyright Act itself. By excluding fair use, educational use, and other traditional exemptions from copyright infringement liability as defenses to circumvention actions, previously protected conduct becomes illegal. Rather than simply providing additional penalties for piracy of digital works, the DMCA outlaws numerous educational uses of digital works – uses that the fair use provision and the classroom use exemption would otherwise permit. Far from achieving the balance Congress promised, the DMCA hinders the educational use of digital media.
2 The TEACH Act
Enacted three years after the DMCA, and designed to facilitate “new hybrids of traditional classroom education combined with online components,” the TEACH Act promised to facilitate educational use of digital works.[229] The Act did not create an exemption for circumvention activities proscribed by the DMCA, however. Indeed, the TEACH Act effectively incorporates the DMCA’s anti-circumvention provision into its compliance requirements, thus eliminating any legal defense for those who circumvent DRM systems to make educational use of digital works.
The TEACH Act requires that an institution transmitting digital works to students “not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent [] retention or unauthorized further dissemination” of those works.[230] This prohibition on overriding DRM protections seems to forbid educational institutions from providing their students with access to many DRM system protected works outright. The TEACH Act fails to define what “conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent [] retention or unauthorized further dissemination” is. From the plain text of the statute, however, it is likely that any circumvention of access and use controls used by a DRM system to protect a digital work would violate the TEACH Act.
Paradoxically, under this regime, even those institutions that incur the cost of creating DRM systems and use them to protect the copyrighted digital works they distribute to their students may not qualify for exemption from liability under the TEACH Act. Indeed, even if an institution distributes a digital work with more potent DRM protections than the rightsholder originally employed, the TEACH Act still will not shield that institution from liability if it circumvented the original DRM protections at any step – even if only to gain access to the work. This compliance requirement thus renders the TEACH Act an ineffective measure for insulating educational users of digital works from liability under the DMCA. The limitations of the TEACH Act, combined with the inapplicability of traditional defenses to copyright infringement leave educational users without recourse for avoiding liability for circumvention of DRM protections to access works.
2 Anti-Trafficking Provisions
In addition to outlawing individual acts of circumvention, the DMCA also prohibits the manufacture and trafficking of software that primarily functions to circumvent DRM systems.[231] The DMCA sets forth these so-called “trafficking provisions” in two parts. The first states:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.[232]
The second is largely identical, substituting the phrase “protects a right of a copyright owner” in place of the phrase “controls access to a work.”[233]
While the anti-trafficking provisions of the DMCA may seem less pertinent to educational users than the anti-circumvention provision, they are critically important, because most educational users rely on circumvention tools created by others to access digital works.[234] For example, film studies professors rely on software programs such as Fast DVD Copy 4[235] to override the CSS DRM system and extract movie clips from DVDs.[236]
The courts have employed both of the DMCA’s anti-trafficking provisions to sanction parties engaged in the manufacture and trafficking of circumvention software.[237] Continued litigation against those who supply circumvention software threatens the availability of these products, and thus the ability of educators to make lawful uses of digital content.[238] Even if Congress, the courts, or the Librarian of Congress were to establish an exception to the DMCA permitting circumvention of DRM systems for educational uses, the strictures of the trafficking provisions might eliminate the supply of circumvention software, rendering circumvention infeasible for all but the most technologically proficient educational users capable of creating their own circumvention tools. Indeed, one court suggested that Congress intended “to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so.”[239] While it is likely that some circumvention technologies will always be available “underground,” such software may be harder to come by and more difficult to use than tools that are currently available.[240] Accordingly, any legal reforms designed to accommodate educational use of digital works must take into account the importance of equipping educational users with a practical means to access, use, and manipulate content protected by DRM systems.
In combination, the anti-circumvention and anti-trafficking provisions of the DMCA effectively enshrine the restrictions rightsholders place on digital works. Indeed, it might be said that the DMCA allows rightsholders to circumvent copyright law. Although the DMCA does not state outright that traditional copyright law is inapplicable to DRM-protected works, it has exactly this effect. As the law stands, rightsholders can and do restrict uses of content to the extent they choose – without any limitations safeguarding the public interest – simply through the application of DRM systems.
Inducements for Educator Use of DRM
The hazards to education posed by DRM systems extend beyond the constraints those systems put on the use of digital media. DRM systems also threaten to restrict the dissemination of knowledge from educational institutions to the world beyond. In this era of DRM and the DMCA, educators may be compelled – by contract, by statute, and by their own interests – to enclose digital media within institutional walled gardens. As users of commercially produced digital works, educators who succeed at obtaining licenses to use digital works may be required by the terms of those licenses to employ DRM protections. Educators who seek the safe harbor of the TEACH Act are unlikely to fare better, as that Act appears to require DRM protection of digital works in exchange for freedom from copyright infringement liability. Indeed, fear of legal liability may provoke educational institutions to require their faculty and students to enshroud content containing copyrighted digital works in DRM protections before making it available on the Internet. Finally, the personal interests of educators in regulating their own works might motivate them to use DRM systems.
Combined, these influences could stanch the flow of information from educational institutions to the public, to faculty and students at other institutions, and even within different sections of the same institution. Adoption of DRM systems by educators jeopardizes the dissemination of knowledge through the erection of walled gardens that hold information within, to the detriment of those outside.
1 Strict Licensing Requirements
Educators seeking to use DRM-protected works, or uncomfortable relying on fair use or other copyright provisions to shield them from copyright infringement liability often pursue licenses to make use of digital works.[241] As a condition of such licenses, rightsholders frequently require that licensees regulate users’ access to and use of the licensed work – often mandating the adoption of DRM systems to do so. Common limitations include: expiration after a set time period; restriction of access through user or device authentication; and limitations on the use of a work, such as copying and printing prohibitions.
As a consequence, access to and use of content licensed for educational use may be highly constrained. Moreover, the impact of such restrictions extends beyond the licensed content itself. Consider situations where the licensed content is integrated into a broader educational work, such as placing it on a web site or in a compilation. In many situations, the only way to honor the requirement that the licensed content be protected by a DRM system would be to impose such restrictions on the entire educational work and all its components – even if, for example, the remaining content is unlicensed and created by the educator, or is available under fair use or Creative Commons licenses. In this manner, licensing conditions can become “viral,” spreading to unlicensed educational content that would otherwise be available on an unrestricted basis.
This issue arose in New World Records (“NWR”) Database of Recorded American Music (“DRAM”) project discussed in our NWR case study. The DRAM project sought to create a system for digitally delivering the NWR music catalog to universities, libraries, and other institutions, for scholarly use. Although NWR already possessed the rights to distribute its collection on CD, those licenses did not anticipate the possibility of digital delivery, and did not grant rights for that form of distribution. Accordingly, NWR had to renegotiate licenses permitting digital delivery with rightsholders. The principal rightsholder NWR had to renegotiate with was the Harry Fox Agency, one of the primary agencies for collecting and distributing royalty fees on behalf of music publishers, and the organization in control of the licensing rights to over half of the titles in the NWR catalogue. The Harry Fox Agency eventually acceded to NWR’s request for digital delivery rights, but only on the condition that any digitally delivered works be protected by a DRM system. Because of this burdensome requirement, NWR has had to postpone providing professors with direct online delivery of digital content.
It is easy to imagine requirements for DRM system protection excluding large classes of potential educational users from any opportunity to license content. Although some institutions have engaged in “labor-intensive” negotiations with academic publishers and successfully decreased the extent of restrictions on access to digital works,[242] NWR’s experience with the Harry Fox Agency suggests that commercial content providers are less likely than academic ones to engage in such negotiations. The different economic circumstances that confront academic and commercial markets support this conclusion. Furthermore, smaller institutions and individual users likely lack the leverage required to negotiate with either academic or commercial content providers. If rightsholders insist on a DRM requirement, some educational institutions, especially elementary and secondary schools, will lack the resources to fortify works with elaborate DRM systems, and thus will be precluded from licensing those works. Individual educational users rarely have the skills or resources to deploy such protections, and they too will be unable to obtain licenses under such conditions.
2 Statutory Shortcomings: The TEACH Act
The complex requirements set forth in the TEACH Act (discussed further in section 3.1 of the Digital Learning white paper) effectively oblige educational institutions to use DRM systems to protect copyrighted digital works distributed to students.[243] The difficulty and sometimes infeasibility of compliance with these requirements undoubtedly deters many institutions from seeking refuge in the safe harbor the Act was intended to provide.
The TEACH Act requires educational institutions to take steps to secure the works they make available to their students, and forbids those institutions from overriding technological protection measures used by rightsholders to safeguard their works in order to be exempt from copyright infringement liability. In particular, to benefit from the exemption from liability, educational institutions must: (1) limit transmission of the work, to the extent technology permits, to students enrolled in the related course; (2) apply technological measures that reasonably prevent retention of the work in an accessible form beyond the class session; and (3) use technological means to reasonably prevent redistribution of the accessible work from the intended recipient to others.[244]
It is difficult to imagine how an educational institution might comply with these requirements without using a DRM system. The Act requires educational institutions to retain persistent control over digital works[245] – one of the attributes of DRM systems that differentiates them from other content protection systems. The obvious way to satisfy the criteria is a garden-variety encryption-based DRM system with user authentication procedures and a license restricting access to one class session and prohibiting redistribution of the digital work. An educational institution would have to devote significant resources to create a DRM system in conformity with those requirements. The institution would have to dedicate server space for the secure storage, distribution, and licensing of digital works. In much the same way that strict licensing requirements hamper educational use of licensed works, the resource requirements requisite for compliance with the TEACH Act will no doubt deter some educational institutions from providing their students with access to digital works.
3 Lawsuit Avoidance
Institutions sometimes require faculty and students to post digital content on password-protected websites to reduce the risk of copyright infringement litigation. Film studies professors at one major university are instructed to post any works containing movie clips, such as lecture slideshows that incorporate clips, on a password protected website to decrease the chances that the movie industry will detect this activity (and increase the likely success of a fair use defense should litigation arise). Moreover, the copyright policies of individual educational institutions often indicate that the preferred practice is to limit access to distance-learning works and “electronic reserves” (e.g., course-related content posted to the Internet, often using a CMS) to students enrolled in the class, and only for the duration of the class term.[246] This type of walled garden may become more common as instructors adopt digital teaching tools and further integrate digital media into their teaching methods.
4 Educator Interest in Protecting Intellectual Property
Educational institutions and their faculty members sometimes use DRM systems to protect the content they generate. Course materials created and distributed by educators, often using institutional resources, are valuable to both educators and their institutions. Educational institutions invest heavily in the infrastructure necessary for the creation and distribution of digital content. Accordingly, they have an interest in how that content is shared. Of course, the faculty creators also have an interest in maintaining the integrity of their work, receiving credit for it, and sometimes remuneration. Thus, academics’ self-interest limits their adoption of “open access” and related models for distributing content unencumbered by copyright restrictions. The same impulses are likely to lead academic content creators to restrict access to their works with the same types of DRM systems as other rightsholders use.
An international study of how academics want to protect their open access distributed works provides insight into how educators might use DRM systems to fortify their own works. Eighty-seven percent of respondents to the study indicated that they would require some form of restriction over the use of their works before releasing them into the digital universe.[247] As the study concludes, “This indicates that simply releasing works into the ‘public domain’ for use by anyone for any purpose is not an option for academics.”[248] Academics indicated a strong interest in maintaining the integrity of their works, as 67 percent indicated that they would limit reproductions to exact replicas of the original.[249] Similarly, 34 percent of respondents would require maintenance of security features such as watermarks in reproductions, and 33 percent would require that reproductions take the same format as the original work.[250]
Academic authors also indicated a strong interest in controlling the purposes for which their works are used. Fifty-five percent of authors would limit use to particular purposes – e.g., educational or non-commercial.[251] Indeed, 31 percent designated that works should only be available for personal use.[252] In addition to expressing concern for how their works are used, authors also demonstrated a strong interest in receiving credit for their work. Eighty-one percent of respondents stated that they would expect attribution for authorship of digital works.[253]
These results reveal that academic altruism is not absolute. Even though many academics wish to eliminate the toll structure currently in place for the distribution of digital versions of their works by offering no-cost digital copies, they still have a strong interest in protecting their intellectual property. Accordingly, it is likely that DRM system use by individual educators and their institutions will increase with time.
Educational Impact
1 Increased Costs Imposed by DRM Technology
The advent of DRM systems fundamentally altered the copyright landscape for educational (and other) users of digital works. Before the development of DRM systems, educational users could make whatever use they chose of copyrighted works, leaving the shield of copyright infringement litigation as the remedy for restoring rightsholders to their pre-infringement position. Emergence of DRM systems as robust technological tools for protecting digital works transferred power from content users to rightsholders, by permitting rightsholders to technologically control usage of their works. Rather than require rightsholders to prosecute individual acts of copyright infringement, DRM systems allow rightsholders to block access to and usage of their works ex ante, before piracy occurs. This new landscape leaves educational users without access to many copyrighted works, forcing them to find other recourse if they wish to use DRM system protected works.
Shifting of the default for access to copyrighted digital works from open to closed created a substantial barrier to the educational use of such works. In the current environment, educational users cannot use digital works unless they have the means – technological, legal, and otherwise – to overcome DRM system imposed protections. This requirement impedes educational use by imposing new costs on would-be educational users.
2 Conquest of the DMCA Sword over the Educational Use Shield
In the pre-DMCA era, educational users capable of bearing these costs could still make use of digital works. DRM system circumvention tools and the shield of the fair use doctrine and educational use exemptions all appeared viable means for legally overcoming DRM system imposed restrictions. The anti-circumvention and anti-trafficking provisions of the DMCA radically changed this outlook. These statutory restrictions gave DRM system imposed restraints the force of law, eliminating technological recourse. Prohibitions on the trafficking and use of circumvention tools designated these important implements as contraband; illegalizing the means many educational users rely on to access and use digital content. Moreover, the courts’ interpretation of the anti-circumvention and anti-trafficking provisions to exclude fair use and other copyright exemptions as defenses to actions under these DMCA provisions stripped educational users of their shield against copyright infringement liability. The DMCA effectively eliminated legal recourse for educational users of digital content, in addition to proscribing technological recourse. Under the DMCA, educational users who circumvent DRM system protections do so at their peril.
The TEACH Act does little to weaken the thrust of the DMCA. Its stringent requirements are almost impossible to comply with. Indeed, the requirement that educational users not interfere with DRM system protections employed by rightsholders will likely be interpreted to prohibit use of any DRM system protected digital works under the Act. In any case, the unwieldy TEACH Act is an inadequate substitute for the sanctuary of the fair use doctrine.
3 Entrenchment of DRM
The technological and legal power conferred on rightsholders converges with economic incentives, institutional architecture, educators’ interests in protecting their own intellectual property, and fear of copyright infringement liability to further impede educational use of digital works. Economic concerns compel rightsholders to guard their works with DRM systems in the first place. As the monetary value of a particular digital work rises, so to does the owner’s incentive to take advantage of the protections afforded by DRM systems. Similarly, this motivation increases with the extent of the economic harm posed by leakage. Absent economic justification for making works accessible to educational users, it is unrealistic to expect rightsholders to do so on their own.
The current licensing environment bears out this expectation. Only a small proportion of desirable digital works are readily available for licensing – often at significant cost – and many of the licenses that are available severely restrict how works are used. Moreover, as evidenced by the comparison between digital textbooks and DVDs, the proportion of licensable works appears to decrease as the value of the work in the non-educational – i.e., general commercial – market rises. The forecast for licensing opportunities is bleak; without changed economic incentives or new regulations mandating compulsory licensing, the number and quality of licensing options is unlikely to improve. Accordingly, educational users are without legal alternatives for making use of most DRM system protected digital content. Instead, they must choose between forgoing use of desirable content or violating the DMCA if they wish to use protected works.
Rightsholders are not the only parties responsible for limiting access to digital works. Educators also interfere with access, both at the institutional and individual level. Institutional barriers to access – inadvertent and intentional – lock digital works within walled gardens. Works trapped behind these walls disserve the educational mission of creation and dissemination of knowledge to the public at large, and in many instances, even interested students and faculty members unaffiliated with a specific course. Fortunately, new platforms for making digital content more openly available than allowed under the existing commercial platforms are emerging. In addition, it might be possible to change institutional attitudes toward content sharing through initiatives designed to inform institutions about the protections afforded by copyright law, and introduce them to sharing-enabled content distribution platforms.
The intellectual property interests of educational institutions and their faculties also impede the educational use of digital works. Institutional concern for receiving a return on investment in the creation of digital works and the infrastructure that supports them offers an incentive for institutions to use DRM systems to restrict access to and use of digital works. Moreover, a substantial number of individual scholars has indicated an interest in using DRM systems to ensure that they receive credit for their work and to maintain the integrity of their work. Many academics have also expressed an interest in regulating how and by whom their works are used. These interests militate in favor of academic employment of DRM systems. Even though the desire of scholars to use DRM systems is worrisome, the primary goals these scholars have in mind suggest that their usage of DRM systems will not necessarily interfere with educational use of digital media. Many academics express greater interest in facilitating educational and scholarly use of their works rather than charging money to access their works. So long as academics remain committed to such limited use of DRM systems, their activities should not adversely affect educational use of digital works.
The primary impediments to educational use of digital media, DRM technology itself, the law that buttresses it, the economic circumstances rightsholders face, and DRM system usage by educators and their institutions, do not suggest a simple solution for facilitating educational use of digital works. The following Part undertakes a modest attempt to create a framework for developing solutions.
A Framework for Restoring Balance
Attainment of the educational benefits promised by digital media will require an equalizing shift in the equilibrium between protecting digital works from unauthorized use and permitting educational use of those works. Achieving such equalization will be no mean feat. Recognizing the scope and complexity of the problem, this Part humbly aims to set forth a simple framework as a starting point for examining the problem.[254]
1 Legal
Creation of a legal exception permitting educational use of digital works, or a compulsory licensing regime mandating licensing of digital works to educational users, are perhaps the most obvious solutions to the educational use problem. Unfortunately, the political power of rightsholders, and the uproar created over distribution of pirated music and movies via peer-to-peer networks, makes either of these solutions as unlikely as they are obvious. The line-drawing problem inherent in defining “educational” uses also stands as a serious obstacle to such legal reform.
Legal reform mandating access to digital works for educational users would generate substantial concern among rightsholders legitimately anxious regarding economic harm from leakage of unprotected works out of the educational sphere and into the greater public. Indeed, ad hoc legal reform mandating access to digital works for educational users without addressing rightsholders’ leakage concerns might stifle the creation of digital works by imposing too many risks on rightsholders and generating skepticism about the potential for obtaining a reasonable return on investment by creators and distributors. Accordingly, although legal reform is a laudable long-term goal, if it is to succeed in stimulating educational access to digital works, it will likely need to be supported by technological protections designed to assuage the concerns of rightsholders.
2 Architectural
Currently, the architecture of the DRM systems employed by most rightsholders does not accommodate educational use of digital works.[255] Instead, these systems place highly restrictive constraints on access to and use of protected works. DRM systems could be restructured to permit some educational uses, however, without increasing the risk of content leakage.[256] Such architectural changes could encourage rightsholders to permit educational use of digital works, in addition to engendering support for legal reform by reducing leakage risks.
Within limits, DRM system technology can accommodate educational use of protected works. For example, architectural changes to DRM systems could enable educational users to extract protected works for in-class use. Restrictions on protected works could be changed to permit authorized educational users to reproduce excerpts of protected works a limited number of times, and prohibit redistribution of those excerpts (perhaps by linking the excerpts to a specific device). Such modifications would facilitate educational use without creating leakage risks. Indeed, leakage risks might actually decline, since educational users will no longer have an incentive to illegally acquire works through circumvention tools.
While architectural changes to DRM systems that allow educators to extract protected works for certain uses should be feasible, complete incorporation of the fair use exception into DRM systems is presently infeasible in light of the complexity and ambiguity of the fair use test. Indeed, one expert noted, “The vagueness of the fair use test makes it essentially impossible to create a DRM system that allows all fair uses.”[257] The limitations of DRM systems suggest architectural modifications are an incomplete solution for permitting educational use of digital works. Nonetheless, such modifications would significantly enhance educational use of digital media, and provide a useful supplement to legal reforms.
3 Economic
Market conditions and the economic motivations of digital rightsholders play a powerful role in determining whether digital works are available for educational use. Accordingly, educational users could take advantage of their aggregate power to influence rightsholder conduct. For example, libraries from different educational institutions sometimes form consortia to “obtain cost-effective bulk pricing ‘deals’ for the purchase of on-line versions of existing journals and other databases.”[258] Members of such consortia use their aggregate power to negotiate access to a wider variety of electronic journals at lower cost than they would otherwise pay. Through cooperating with each other, educational users can create economic incentives for rightsholders to make their works education-usable.
Market realities will limit the efficacy of educator cooperation, however. Owners of digital works with large non-educational markets will be less susceptible to educator pressure than will be rightsholders whose products are primarily consumed by educators and their students. The lower the proportion of a rightsholder’s profits attributable to educational users, the weaker the incentive for that rightsholder to negotiate with educational users – even when educators approach the rightsholder in aggregate. Accordingly, market manipulations, without more, are unlikely to fully alleviate the problem presented by the unavailability of digital works for educational use.
In addition to using economics to their advantage, educators and policymakers must work with rightsholders to better understand the economic and other factors that cause rightsholders to block educational use of digital works with DRM systems in the first place. Open and frank dialogue with rightsholders will be instrumental in crafting a solution to the educational use problem satisfactory to both sides.
4 Normative
Social norms are a form of regulation independent of the law. Norms are society’s code of conduct – tacit or explicit. They “constrain an individual's behavior, but not through the centralized enforcement of a state. If they constrain, they constrain because of the enforcement of a community.”[259] Norms are relevant to educational use of digital works in two ways: they regulate the conduct of rightsholders and educational users themselves. Existing norms governing rightsholders support educational use of digital works, by requiring forbearance from pursuing litigation against those users. On the other hand, norms obeyed by educational institutions and individual educators actually curtail educational use, as these parties demonstrate reluctance to engage in activities that create litigation risks or risks of misappropriation of their own intellectual property. In both cases, reliance on norms is an inadequate means for fostering educational use of digital works.
Currently, norms govern the relationship between some groups of educational users of digital media – such as film studies professors – and the corresponding rightsholders. For example, even though movie studios are well aware of the ways in which film studies professors use DVDs, the studios have refrained from prosecuting film studies professors. One likely explanation of this practice is adherence to norms. Studios would undoubtedly suffer considerable public backlash if they pursued litigation against film studies professors for making educational use of DVD content.
Even though norms proscribing litigation against educational users of digital works offer some protection for educational users, that protection is uncertain and readily revocable. If the economic risks posed by rightsholders’ continued restraint were to increase, they could be expected to violate norms in order to protect their core business interests. Moreover, it is too much to ask educators and their institutions to rely on legally unenforceable norms as a basis for making educational use of digital works. The financial risk to educators, and especially educational institutions, in the form of direct or secondary liability, are simply too great. Indeed, quick study of the copyright policies in place at educational institutions nationwide reveals a preference for restricting educational use of digital works to avoid the risk of litigation. While norms provide some leeway for educational use of digital works, they are untenable as a long-term solution for facilitating such use.
In addition to an aversion to litigation, the widely held beliefs of many academics that their works ought to be protected from misappropriation or undesirable use suggests a norm against truly open access to digital works created by scholars. Although this norm is not as destructive to educational use as one in favor of remuneration for such use would be, it nonetheless creates an environment where restricted access to digital works is acceptable. Educational initiatives designed to inform educators and educational institutions of the specifics of copyright law might encourage some additional educational uses of digital works, and prompt amendment of institutional copyright policies to permit further educational uses of digital works. Initiatives aimed at informing educators as to the problems that arise from DRM system use and the barriers such use creates for educational users of scholarly works might help to dissuade educators from protecting their works with DRM systems, or at least reduce the degree to which those systems are used to constrain access to and use of scholarly works.
Any framework for addressing the current restrictions on educational use of digital content must take account of the legal, architectural, economic, and normative options for crafting a solution to this important problem. Honest dialogue between rightsholders and educational users regarding the risks and benefits of educational use will be central to any solution.
Conclusion
DRM systems stifle educational use of digital works. Currently, the outlook is bleak. Rightsholders and even educators themselves employ DRM systems to protect their intellectual property by limiting access to and use of those works. These parties are motivated by the current legal regime, which grants rightsholders the right to restrict access to and use of their works as they see fit, and economic conditions that make it more profitable to limit educational use than to facilitate it. In addition, DRM systems and CMS as currently designed and deployed do not allow for educational use of digital works. While changes to this architecture are feasible, they will not occur without incentives to induce action by rightsholders.
The availability of digital works for educational use is critical to the advancement of education itself. The future for educational use of digital works will depend upon the legal, architectural, economic, and normative environment surrounding digital works. Although change is possible, it will require cooperation of rightsholders, educators, and policymakers. With the problem in focus, the remaining question is whether these parties are up to the task.
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[1] This legal background paper was produced as part of the Digital Learning project by the Berkman Center for Internet and Society at Harvard Law School. Research and drafting was completed by Jackie Harlow, Student Fellow at the Berkman Center and a member of the Harvard Law School class of 2006. This work is licensed under a Creative Commons Attribution/Non-Commercial/ShareAlike License, as explained further at .
[2] 17 U.S.C. § 1201 (2000).
[3] See TEACH Act, 17 U.S.C.A. §§ 110(2) & 112(f).
[4] See Stefan Bechtold, Digital Rights Management in the United States and Europe, 52 Am. J. Comp. L. 323, 324 (2004).
[5] See William Ku & Chi-Hung Chi, Survey on the Technological Aspects of Digital Rights Management, in Information Security 391, 392 (Kan Zhang & Yuliang Zheng eds. 2004).
[6] See id. Certain DRM-protected media formats – such as DVDs – might still be thought of as being sold rather than licensed. Those media formats are sold with substantial encumbrances, however, giving them much the same feel as licensed goods.
[7] See Ku & Chi, supra note 4, at 391.
[8] See 17 U.S.C. § 107 (2000); 17 U.S.C. § 110(1) (2000); TEACH Act, 17 U.S.C.A. §§ 110(2) & 112(f) (2005). Section 107 codifies fair use, § 110(1) codifies the classroom use exemption, and §§ 110(2) & 112(f) comprise the TEACH Act. These three provisions serve to insulate users from copyright infringement liability for certain uses of copyrighted works.
[9] In fact, the Digital Millennium Copyright Act (“DMCA”), see 17 U.S.C. §1201, actually reinforces the technological protections DRM systems offer with the force of law. See infra text accompanying notes 197-239.
[10] See infra text accompanying notes 197-239.
[11] See Ku & Chi, supra note 4; Bechtold, supra note 3, at 324.
[12] Several different terms encompassing the same concept as DRM are found in the literature. A non-exhaustive list includes: automated rights management (ARM), see Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. Rev. 557 (1998); technological protection measures (TPMs), see Fred von Lohmann, Protecting Content in the Digital Environment: Measuring the Digital Millennium Copyright Act Against the Darknet: Implications for the Regulation of Technological Protection Measures, 24 Loy. L.A. Ent. L Rev. 635 (2004); copy protection controls, see Matthew Scherb, Comment, Free Content's Future: Advertising, Technology, & Copyright, 98 Nw. U. L. Rev. 1787 (2004).
[13] See Ku & Chi, supra note 4, at 391.
[14] See Susanne Guth, A Sample DRM System, Digital Rights Management: Technological, Economic, Legal & Political Aspects 157-161 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003) (explaining that a client is “a secure viewer trusted by the DRM platform”).
[15] See Ku & Chi, supra note 4, at 392.
[16] See id.
[17] See id.
[18] See, e.g., Press Release, Forney Independent School District, Laptops Replace Textbooks at Johnson Elementary School (May 6, 2004),
elect_text_book_01/elect_text_book_01.html; Daniel Scarpinato, All-Laptop High School to Open in Vail, Az. Daily Star, July 10, 2005, available at (last visited May 7, 2006).
[19] See Kimberly Brown, Education: Graduating from Ancillary to Primary, Reelscreen, Aug. 1, 2005, at 25, available at LEXIS.
[20] Jim Taylor, DVD Demystified 151 (2000).
[21] See Press Release, Zinio, McGraw-Hill Higher Education and Zinio Offer High-Tech, Lower-Cost eBooks to College Students (Aug. 15, 2005), ; Houghton Mifflin eBooks, (last visited May 6, 2006); Press Release, John Wiley & Sons, Inc., Wiley Desktop Editions, a New Digital Option That Will Save Students Money (Sept. 6, 2005),
Section/id-101310,newsId-2218.html; Thomson Higher Education, (last visited May 6, 2006).
[22] Press Release, MBS Textbook Exchange, MBS /WileyCDA/
Section/id-101310,newsId-2218.html; Thomson Higher Education, (last visited May 6, 2006).
[23] Press Release, MBS Textbook Exchange, MBS Textbook Exchange Announces Universal Digital Textbooks™, Offering Students a Less Expensive Textbook Option (Aug. 1, 2005) (on file with author) (listing McGraw-Hill Higher Education, Houghton Mifflin Company, Thomson Learning, and Sage Publications as digital textbook publishers); John Borland, Coming to Campus: E-books with Expiration Dates, CNET , Aug. 9, 2005, .
[24] See, e.g., VitalSource Technologies, Inc., (last visited May 6, 2006).
[25] See Press Release, VitalSource Technologies, Inc., New York University College of Dentistry renews VitalSource contract (Feb. 28, 2005), ; Press Release, Forney Independent School District, supra note 17.
[26] See, e.g., Universal Digital Textbooks, Getting Started: Service and Support,
GettingStarted.php?CSID=CDQ0MDK0DO0OUDDKUAUTQ (last visited May 6, 2006). (“Digital Textbooks are valid and readable on your computer for a minimum of 12 months (expiration rules may vary by publisher).”).
[27] See, e.g., id. (“Printing rules vary by publisher. Most eBooks have no limitations regarding printing capability, but some allow only up to 100 pages per week.”).
[28] See, e.g., Zinio, Downloading Publications to Another Computer,
supportwizard.cgi (last visited May 6, 2006) (“Please note that digital textbooks can only be downloaded and are locked to ONE primary computer. They cannot be downloaded again or transferred to another computer.”).
[29] Science, (last visited May 6, 2006).
[30] Science is the fourth most frequently cited scientific journal and the scientific journal with the tenth highest impact rating out of over 5,900 journals for which citation data is collected according to the most recently available citation index data. Institute for Scientific Information, Journal Citation Reports (Science ed.) (2004) available at ISI Web of Knowledge (subscription required).
[31] Science, Site Help: Why Advertise with Science?, (last visited May 6, 2006) (“10 million users at major universities, corporations, and research institutions worldwide have access to the new online version of Science through institutional subscriptions.”).
[32] Science, Tools for Browsing, Reading, & Research, . Direct downloading of figures to PowerPoint is restrict to users with access to “premium services.” Science, How to Access Science, (last visited May 6, 2006).
[33] Science, Sign In Page, (last visited May 6, 2006).
[34] See Mairead Martin et al., Federated Digital Rights Management: A Proposed DRM Solution for Research and Education, D-Lib, July/Aug. 2002, ; Qiong Liu, Reihaneh Safavi-Naini & Nicholas Paul Sheppard, Digital Rights Management for Content Distribution, 21 Confs. in Res. & Pract. Info. Tech. 49, 52 (2003).
[35] Liu, Safavi-Naini & Sheppard, supra note 32, at 52.
[36] June M. Besek, Anti-Circumvention Laws and Copyright: A Report from the Kernochan Center for Law, Media, and the Arts, 27 Colum. J.L. & Arts 385, 475 (2004).
[37] See William W. Fisher III, Promises to Keep 14-15 (2004).
[38] See Fisher, supra note 35, at 31-32.
[39] See Ku & Chi, supra note 4, at 391.
[40] See Fisher, supra note 35, at 163-69.
[41] See e.g., Fisher, supra note 35, at 156-57
[42] See, e.g., Piet Bakker, File-Sharing—Fight, Ignore or Compete: Paid Download Services vs. P2P-Networks, 22 Telematics & Informatics 41 (2005) (examining competition between legal and illegal digital music distribution systems). One report noted that “For publishers and authors, the question is, how many copies of the work will be sold (or licensed) if networks make possible planet-wide access? Their nightmare is that the number is one.” Nat’l Research Council, The Digital Dilemma: Intellectual Property in the Information Age 2 (2000).
[43] The dominance of unencumbered, no-cost goods over DRM-protected competitors is illustrated by the success of illegal peer-to-peer music distribution systems over their legal for profit counterparts. The NPD Group reported that in a survey of “40,000 online panelists balanced to represent the online population of U.S. Internet-enabled PC households,” 2.4 times more households downloaded music using illegal peer-to-peer systems than using legal digital music delivery systems in March 2005. Press Release, The NPD Group, Inc., Progress Report: Digital Music Landscape Shifting, But Slowly, June 23, 2005, . Despite the overall dominance of peer-to-peer file-sharing, it is noteworthy that iTunes tied LimeWire as the second most popular online music distribution service in March 2005. See Study: iTunes more popular than many P2P sites, CNET , June 7, 2005.
[44] BitTorrent, (last visited May 6, 2006).
[45] YouSendIt, (last visited May 6, 2006).
[46] See Jonathan Zittrain, A History of Online Gatekeeping, 19 Harv. J.L. & Tech. 253, 274 n.115 (2006) (describing the rapid growth of the Napster peer-to-peer file-sharing service prior to its shut down); Bryan H. Choi, Note, The Grokster Dead-End, 19 Harv. J.L. & Tech. 393, 400-404 (2006) (explaining the functionality and popularity of BitTorrent and YouSendIt). YouSendIt transfers more than forty-three terabytes of data daily. See YouSendIt, (last visited May 6, 2006). Studies suggest that BitTorrent consumes a majority of Internet Service Providers’ bandwith. See Thomas Mennecke, EDonkey2000 Dethrones BitTorrent for Video Distribution, SLYCK, Aug. 10, 2005, .
[47] See Peter Biddle, Paul England, Marcus Peinado & Bryan Willman, The Darknet and the Future of Content Protection, in Digital Rights Management: Technological, Economic, Legal & Political Aspects 345 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003) (noting that leakage of digital content occurs when a user overrides DRM system protections or when content is copied prior to DRM system application).
[48] See Jon Udell, Sidestepping the Analog Hole, InfoWorld, Mar. 1, 2006,
01/75874_10OPstrategic_1.html?source=NLC-STADEV2006-03-02 (explaining analog leakage, and why it concerns the movie industry). Digital works captured through analog leakage are sometimes converted back into digital form before they are re-distributed. See, e.g., Press Release, Motion Picture Association of America, Glickman, MPAA Praise HR 4569, Dec. 16, 2005,
press_releases/2005_12_16b.pdf&qt=analog+hole&col=mpaa&n=2&la=en (asserting that piracy perpetrated by obtaining copies of digital works through analog leakage undermines digital media security, thereby reducing rightsholder incentives to release works in digital format and threating consumer choice). These digitized versions of analog reproductions still suffer the decrease in quality that comes with analog copying of digital works.
[49] See Dan L. Burk, Anticircumvention Misuse, 50 UCLA L. Rev. 1095, 1099-1100 (2003) (noting that the fair use exemption is “often an annoyance to copyright holders, who might prefer to suppress such uses, or at least to profit by them”).
[50] The Recording Industry Association of American and Motion Picture Association of America have identified piracy by college students as an “urgent” problem and announced plans to target illegal file-sharing by college students. See Joanna Wypior, RIAA, MPAA To Target Illegal File Sharers On Campus, All Headline News, May 4, 2006, . A study conducted by the Pew Internet & American Life Project in 2003 revealed that students are more than twice as likely as non-students to download music illegally. See Mary Madden & Amanda Lenhart, Music Downloading, File-sharing and Copyright: A Pew Internet Project Data Memo (July 2003), . More recently, a survey performed by Intellectual Property Institute at the University of Richmond School of Law indicated that one in three college students illegally downloads music. See Press Release, National CyberEducation Project – Intellectual Property Institute, University of Richmond School of Law, One in Three College Students Illegally Downloads Music, National Survey Finds, (Apr. 4, 2006), .
[51] Rightsholders have vigorously pursued litigation against parties engaged in the distribution of circumvention technologies, rejecting arguments that those tools enable fair or educational use. See, e.g., Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000) aff’d sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 452-53 (2d Cir. 2001); 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal. 2004); RealNetworks, Inc. v. Streambox, Inc., No. C99-2070P, 2000 U.S. Dist. LEXIS 1889 (W.D. Wash. 2000).
[52] See Burk, supra note 47, at 1099-1100.
[53] See generally Tom W. Bell, Fair Use v. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine 17 N.C. L. Rev. 557 (1998) (predicting that technological controls will enable rightsholders to engage in robust price discrimination against a broad spectrum of digital content users).
[54] See id. (suggesting that price discrimination will reduce the scope of the fair use doctrine and that technological controls will impose de facto restrictions on fair use). But see Kenneth W. Dam, Self-Help in the Digital Jungle, 28 J. Legal Stud. 393, 400 (1999) (suggesting that technological controls will evolve to accommodate fair use).
[55] See Nat’l Research Council, supra note 40, at 2.
[56] See Barry Fox, New DVD Watermark Has Pirates in Its Sights, , Nov. 2, 2005, . See infra text accompanying notes 133-140.
[57] See Universal Digital Textbooks, Getting Started: Service and Support, supra note 24. In addition to the permissions listed on the Universal Digital Textbooks web site, users can highlight digital textbooks and download copies of digital textbooks to multiple computers, so long as they are registered to the same user via the Microsoft Passport Network. See Edward Wyatt, The Bottom Line on E-Textbooks, N.Y. Times, Apr. 23, 2006, at 4A (Education Life Supplement). In addition to the permissions listed above, MBS Textbook Exchange indicated that users can download copies of digital textbooks to multiple machines, so long as both machines are tied to the same Microsoft Passport account, and that materials for the Universal Digital Textbook Program will explain this option beginning in fall 2006. Telephone Interview with Kevin McKiernan, Director of Business Development, MBS Direct, LLC (Mar. 30, 2006). MBS Textbook Exchange also clarified that most of the digital textbooks they carry permit unlimited printing and permanent access (they do not expire). Id.
[58] See Wyatt, supra note 55 (stating that digital textbook sales account for roughly 5 percent of sales for a given text in campus bookstores); Megan Schmidt, Digital books picking up speed, , Jan. 11, 2006, available at (last visited May 7) (indicating that only twenty copies of digital textbooks were sold at Bowling Green State University in fall 2005, even though nineteen titles were offered); Stephanie Keene, E-Books Remain Unpopular, Daily Princetonian, Apr. 5, 2006, available at (last visited May 7, 2006).
[59] eBook Mall, (last visited May 7, 2006).
[60] Marketing of digital textbooks over the Internet has been heavily criticized. See Matt McKenzie, E-Text Publishers Start to Understand Their Markets, Seybold Rep.: Analysing Publishing Tech., Sept. 2002, at 16. One publishing executive stated, “It’s a goofy business model to think students will make their way to some Web site to find an electronic version of a textbook…. Students don’t want to bother with all that – they want to go to the college bookstore to buy the required material.” Id. According to Jeff Cohen of MBS Textbook Exchange, “The publishing companies have found more success with [the Universal Digital Textbook] program than with selling the books themselves on the Web.” Kristen Hampshire, Digital Printing: Producing Tangible Technology, Print Solutions, Jan. 2006, at 71, available at (last visited May 7, 2006). See also Mark Muckenfuss, Electronic Textbooks Seem Hip, But Tradition Still Prevails, Press Enterprise, Mar. 30, 2006, at D1 (quoting Bruce Hildebrand, a spokesman for the Association of American Publishers as saying, “The overwhelming majority of students prefer textbooks…. Ten years ago, there was this belief that e-books would capture the whole market. Publishers invested heavily, but the market didn't support it”).
[61] As one commentator noted, when a DRM system must compete with other DRM systems for market share, there is a “strong economic motivation for user-friendly” design. Johannes Ulbrict, Business, Technology, and Law – Interrelations of Three Scientific Perspectives on DRM, in Digital Rights Management: Technological, Economic, Legal & Political Aspects 588 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003). When the “competing DRM system” is simply the analog version of the work, this motivation is likely even stronger.
[62] See Schmidt, supra note 56 (listing student criticisms of digital textbooks, and noting that according to Jeff Cohen of MBS Textbook Exchange, adoption is slow in part because “It takes students a little bit of time to see the benefits of [digital textbooks]”); Telephone Interview with Virginia France, Director of Marketing, U-Store, Princeton University (Mar. 30, 2006) (explaining that students regularly cited unfamiliarity with digital textbooks and concern about their stability as reasons for not purchasing them).
[63] Telephone Interview with Kevin McKiernan, supra note 55
[64] Id. Anecdotal evidence suggests students agree that the costs of printing are high. See Schmidt, supra note 56 (noting student complaints that printing digital textbooks is too expensive and time consuming).
[65] See Wyatt, supra note 55 (indicating that digital textbooks accounted for only 5 percent of sales for titles offered in both digital and analog format). Sales for all digital books, including digital textbooks in 2004 were $3.23 million – “a mere rounding error compared to the multibillion-dollar market for paper books.” David Becker, Have E-Books Turned a Page?, ZDNet News, .
[66] Universal Digital Textbooks, (last visited May 7, 2006). See Press Release, MBS Textbook Exchange, supra note 21.
[67] See Press Release, MBS Textbook Exchange, supra note 21.
[68] See John Borland, Coming to Campus: E-Books with Expiration Dates, ZDNet News, .
[69] See id.
[70] See, e.g., id.; Digital Textbooks –A Wave of the Future or Hand that Slaps You in the Face?, Boston Pocket PC, Aug. 17, 2005,
thread&order=0&thold=0.
[71] See Wyatt, supra note 55 (“Some of the biggest complaints registered by early users [regarding access and use limitations on digital textbooks] have already been addressed [by publishers].”).
[72] See Wyatt, supra note 55.
[73] See Universal Digital Textbooks, Getting Started: Service and Support, supra note 24.
[74] Telephone Interview with Kevin McKiernan, supra note 55.
[75] See Taylor, supra note 19.
[76] See id. at 195-96.
[77] See id.
[78] See id.
[79] See infra text accompanying notes 133-140.
[80] See supra text accompanying note 19.
[81] The Digital Entertainment Group reported that consumers spent $22.8 billion on DVD purchase and rental for 2005, and $21.2 billion for 2004. See Consumer Spending Reaches $24.3 Billion for Yearly Home Video Sales; DVD Players in More Than 82 Million U.S. Homes, Business Wire, Jan. 5, 2006, available at LEXIS. By stark contrast, in 2004, the combined market for DVD and VHS sales to elementary and secondary schools was approximately $150 million. See Brown, supra note 18.
[82] DVD players are present in more than 82 million homes in the U.S. See Consumer Spending Reaches $24.3 Billion for Yearly Home Video Sales; DVD Players in More Than 82 Million U.S. Homes, supra note 79. In fact, in 2004, DVD players began to replace rather than supplant VCRs in U.S. homes. See VSDA's Annual Report on Home Entertainment Industry Notes More People View Latest Movies on Home Video Than Any Other Medium; Report Released Today Provides Overview and Analysis on the DVD, VHS, and Video Game Markets, Buisness Wire, July 25, 2005, available at LEXIS.
[83] In 2005, U.S. movie studios reported losses of $2.3 billion worldwide due to content leakage over the Internet. Motion Picture Association of America, Internet Piracy, (last visited May 7, 2006).
[84] DVDs have a de facto monopoly position in the video content market, earning revenues more than 15 times those earned by VHS tapes. See Consumer Spending Reaches $24.3 Billion for Yearly Home Video Sales; DVD Players in More Than 82 Million U.S. Homes, supra note 79. Accordingly, they do not face the same pressure for consumer-friendly DRM systems as digital textbooks do. See Ulbrict, supra note 59.
[85] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[86] See Guth, supra note 13, at 155-56.
[87] Rightsholders might permit distribution of secure works via peer-to-peer networks, since users will not be able to access those works without first acquiring a license. Such distribution is known as “superdistribution.” See Liu, Safavi-Naini & Sheppard, supra note 32, at 49 n.2.
[88] Guth, supra note 13, at 156.
[89] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[90] See id.
[91] See id.
[92] See id.
[93] See id.
[94] See Guth, supra note 13, at 156-58. Some DRM systems, such as CSS, perform these actions in a closed system. For example, keys stored on DVDs and built in to DVD players permit DVD decryption. See DVD Demystified, supra note 19. The “license broker” can be thought of as being built in to these systems.
[95] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[96] See Guth, supra note 13, at 157-58.
[97] See Gabriele Spenger, Authentication, Identification Techniques, and Secure Containers – Baseline Technologies, Digital Rights Management: Technological, Economic, Legal & Political Aspects 62, 79 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003).
[98] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[99] See Adobe, Adobe’s DRM Tools, (last visited May 7, 2006).
[100] See VitalSource Technologies, Inc., Solutions for Publishers, (last visited May 7, 2006).
[101] See Guth, supra note 13, at 155.
[102] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[103] See id.
[104] See Adobe, supra note 97.
[105] See Guth, supra note 13, at 155.
[106] See id.
[107] See Norman Paskin, Components of DRM Systems: Identification & Metadata, Digital Rights Management: Technological, Economic, Legal & Political Aspects 26, 27-29 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003).
[108] See id. at 27-28.
[109] See id. at 51.
[110] See id.
[111] Bowker’s Books in Print Professional, (last visited May 7, 2006).
[112] See Paskin, supra note 105, at 51-52.
[113] , (last visited May 7, 2006). See also Paskin, supra note 105, at 52.
[114] See Guth, supra note 13, at 155.
[115] See id.
[116] See Bechtold, supra note 3, at 344-45.
[117] See id. at 340.
[118] See, e.g., Universal Digital Textbooks, Getting Started: Service and Support, supra note 24.
[119] See Guth, supra note 13, at 155.
[120] See id.
[121] See Ku & Chi, supra note 4, at 397.
[122] See Bechtold, supra note 3, at 344-45.
[123] See Guth, supra note 13, at 156.
[124] See Fabien A.P. Petitcolas, Digital Watermarking, Digital Rights Management: Technological, Economic, Legal & Political Aspects 81, 81 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003)
[125] See id.
[126] See id.
[127] See Ku & Chi, supra note 4, at 395.
[128] Universal Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).
[129] See Motion Picture Association of America, Other Piracy, (last visited May 7, 2006) (identifying “camcording,” which occurs when “Pirates use hand-held video cameras to record motion picture films off of theater screens and then copy these films onto blank videocassettes and optical discs for illegal distribution,” as a form of piracy).
[130] See Petitcolas, supra note 122, at 81-82.
[131] See Ku & Chi, supra note 4, at 395-396.
[132] See id.
[133] See Liu, Safavi-Naini & Sheppard, supra note 32, at 53-54.
[134] See id. at 54. Only clients equipped to recognize watermarks can perform these functions. Devices such as VCRs and legacy DVD players do not include this functionality, and allow access to and use of content without regard for watermark imposed limitations.
[135] See Fox, supra note 54.
[136] See id.
[137] See id.
[138] See id.
[139] The MPAA uses the term “camcording” to describe the act of recording a film displayed on a cinema screen using a portable video recorder. See Motion Picture Association of America, Other Piracy, supra note 127.
[140] See id.
[141] See id.
[142] See id.
[143] See Liu, Safavi-Naini & Sheppard, supra note 32, at 53.
[144] See id.
[145] See Petitcolas, supra note 122, at 87-91.
[146] See id. at 88.
[147] See id. at 88-91.
[148] Mark Stamp, Digital Rights Management: The Technology Behind the Hype, (Dec. 19, 2002) (unpublished manuscript, available at ).
[149] See Petitcolas, supra note 122, at 91-92.
[150] See Paul Talacko, Inside Track: Towards a Piracy High Watermark, Fin. Times, Dec. 29, 2000, at 8.
[151] Id. (quoting Edward W. Felten) (
[152] Jurgen Herre, Content Based Identification (Fingerprinting), Digital Rights Management: Technological, Economic, Legal & Political Aspects 93, 93, 99 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003).
[153] See id. at 94.
[154] See id. at 99.
[155] See id. at 94-96.
[156] See id. at 99.
[157] See id.
[158] See id.
[159] See id. at 98.
[160] See Ku & Chi, supra note 4, at 396.
[161] See Herre, supra note 150, at 98.
[162] See A&M Records, Inc. v. Napster, Inc., No. C 99-05183 MHP, 2001 U.S. Dist. LEXIS 2186 (N.D. Cal. 2001).
[163] Brad King, Napster Filter More Like a Sieve, Wired News, Mar. 5, 2001,
0,1285,42196,00.html.
[164] Ronna Abramson, Napster Stops Its Old Ways, The Industry , June 28, 2001, .
[165] See Guth, supra note 13, at 156.
[166] See Spenger, supra note 95, at 63; Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[167] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[168] See id.
[169] See Guth, supra note 13, at 156.
[170] See Spenger, supra note 95, at 78-79; Liu, Safavi-Naini & Sheppard, supra note 32, at 54-55.
[171] See Guth, supra note 13, at 156.
[172] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50. The license and decryption key may be included in the same secure container as the digital work depending on the rightsholder’s business model, however that scenario is beyond the scope of this paper.
[173] See Spenger, supra note 95, at 78-79.
[174] See id. at 70-76.
[175] See id. at 73-76, 79.
[176] See id.
[177] See id. at 79-80.
[178] See id.
[179] See id.
[180] See Guth, supra note 13, at 156.
[181] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[182] See id.
[183] Zinio Digital Textbooks, (last visited May 8, 2006).
[184] Universal Digital Textbooks, supra note 64.
[185] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[186] See id.
[187] See id.
[188] See Spenger, supra note 95, at 78-79.
[189] See Liu, Safavi-Naini & Sheppard, supra note 32, at 50.
[190] See Universal Digital Textbooks, Getting Started: Service and Support, supra note 24.
[191] See id.
[192] See id.
[193] See, e.g., Guth, supra note 13, at 157.
[194] See generally Urs Gasser et al., iTunes: How Copyright, Countract, and Technology Shape the Business of Digital Media – A Case Study, Berkman Center for Internet & Society, June 15, 2004,
uploads/370/iTunesWhitePaper0604.pdf.
[195] See id. at 11.
[196] Apple, About iTunes Music Store Authorization and Deauthorization,
article.html?artnum=93014 (last visited May 8, 2006).
[197] Tobias Hauser & Christian Wenz, DRM Under Attack: Weaknesses in Existing Systems, Digital Rights Management: Technological, Economic, Legal & Political Aspects 206 (Eberhard Becker, Willms Buhse, Dirk Gunnewig & Niels Rump eds. 2003).
[198] See id. at 207-212, 217-219; Adobe, Adobe’s DRM Tools, supra note 99.
[199] See, e.g., 144 Cong. Rec. H7092-94 (Aug. 4, 1998).
[200] See S. Rep. No. 105-190, at 2 (1998).
[201] See Pamela Samuelson, Intellectual Property & the Economy: Why the Anti-Circumvention Regulations Need to Be Revised, 14 Berkeley Tech. L.J. 529 (1999); Pamela Samuelson, DRM {and, or, vs.} the Law, Comm. ACM, Apr. 2003, at 41; Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (2001).
[202] 144 Cong. Rec. H7074, H7094 (statement of Rep. Bliley).
[203] 17 U.S.C. § 1201(a)(1)(A) (2000).
[204] See R. Anthony Reese, The Law and Technology of Digital Rights Management: Will Merging Access Controls and Rights Controls Undermine the Structure of Anticircumvention Law?, 18 Berkeley Tech. L.J. 619, 633-34 (2003).
[205] Id. at 628; see also Jane C. Ginsburg, From Having Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law, 50 J. Copyright Soc’y Am., 113, 115 (2003) (“Every act of perception or of materialization of a digital copy requires a prior act of access.”); id. at 126 (“Thus, ‘access to the work’ becomes a repeated operation; each act of hearing the song or reading the document becomes an act of ‘access.’”).
[206] 17 U.S.C. § 1201(a)(3)(B) (2000).
[207] See, e.g., DVD Demystified, supra note 19, at 190-93.
[208]Universal Studios v. Corley 273 F.3d 429, 452-53 (2d Cir. 2001).
[209] See, e.g., id. (“CSS [is] computer code that prevents access by unauthorized persons to DVD movies…. In its basic function, CSS is like a lock on a homeowner's door, a combination of a safe, or a security device attached to a store's products.”); 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085, 1095 (N.D. Cal. 2004) (“CSS is a technological measure that both effectively controls access to DVDs and effectively protects the right of a copyright holder.”).
[210] See Fisher, supra note 35, at 94-96 & n.29.
[211] See, e.g., DVD Demystified, supra note 19, at 190-93.
[212] Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d at 294, 317-18 (S.D.N.Y. 2000).
[213] See Jeff Sharp, Coming Soon to Pay-Per-View: How the Digital Millennium Copyright Act Enables Digital Content Owners to Circumvent Educational Fair Use, 40 Am. Bus. L.J. 1, 41 (2002).
[214] See id.
[215] Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 219 (S.D.N.Y. 2000). While the legislative history of the DMCA speaks to the importance of fair use, see 144 Cong. Rec. at H7093-94, the statute itself makes no mention of a fair use defense to actions under the DMCA, see 17 U.S.C. § 1201 (2000), and the courts have refused to read such a defense into the text of the statute, see Reimerdes, 82 F. Supp. 2d at 219.
[216] Universal Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).
[217] See 17 U.S.C. § 1201(a)(1)(B) & (C) (2001).
[218] See, e.g., Corley, 273 F.3d at 444.
[219] See 17 U.S.C. § 1201(a)(1)(B) & (C).
[220] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 68 Fed. Reg. 62014-18 (proposed Oct. 31, 2003).
[221] Corely, 273 F.3d at 444 n.13. Other exceptions to these prohibitions include an exception for nonprofit libraries, archives, and educational institutions to access a work in order to determine whether to acquire a copy of the work for their collection, an exemption for law enforcement activities, and exceptions for reverse engineering of computer programs and encryption research. See 17 U.S.C. §§ 1201(d)-(g).
[222] Corely, 273 F.3d at 444 n.13.
[223] 17 U.S.C. § 1201(c)(1).
[224] Id.
[225] See Christina Bohannan, Reclaiming Copyright, 23 Cardozo Arts & Ent. L.J. 567, 610-11 (“A more plausible interpretation of the savings clause is that a person who is sued for circumvention or trafficking under the DMCA may assert as a defense that the sole purpose and effect of the circumvention or trafficking was to make or facilitate making a noninfringing use of the content.”).
[226] Corley, 273 F.3d at 443.
[227] Id.
[228] Bohannan, supra note 223, at 611.
[229] Although one court concluded that “17 U.S.C. § 1201 prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners,” see Chamberalin Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1202 (Fed. Cir. 2004), that court specifically declined to address the relationship between the fair use defense and the anti-circumvention provision of the DMCA. See id. at 1200 n.14 (“We do not reach the relationship between § 107 fair use and violations of § 1201…. We leave open the question as to when § 107 might serve as an affirmative defense to a prima facie violation of § 1201.”).
[230] S. Rep. No. 107-31, at 4 (2001).
[231] 17 U.S.C.A. § 110(2)(D)(ii)(II) (2005).
[232] 17 U.S.C. §§ 1201(a)(2) & (b)(1) (2000).
[233] 17 U.S.C. §§ 1201(a)(2).
[234] 17 U.S.C. §§ 1201(b)(1).
[235] See Sharp, supra note 211, at 41.
[236] See Fast DVD Copy 4, .
[237] Interview with David N. Rodowick, Professor of Visual and Environmental Studies, Harvard University, in Cambridge, Mass. (Sept. 28, 2005) (stating that DVDs are essential for teaching film studies, and describing how DVDs have transformed film studies scholarship); see
[238] See, e.g., 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085, 1095, 1108 (N.D. Cal. 2004) (enjoining plaintiff 321 Studios from manufacturing, distributing, or otherwise trafficking in any type of DVD circumvention software, and finding that CSS is both an access control and a rights control).
[239] See Sharp, supra note 211, at 41.
[240] Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d at 294, 324 (S.D.N.Y. 2000).
[241] See Sharp, supra note 211, at 41.
[242] Licenses for educational use of digital works are often difficult or impossible to obtain.
[243] See Ann S. Okerson, Buy or Lease? Two Models for Scholarly Information as the End (or the Beginning) of an Era, Daedalus, Fall, 1996, 55, available at (last visited May 8, 2006).
[244] See 17 U.S.C.A. § 110(2) (2005).
[245] See id. In addition to the three requirements listed here, the TEACH Act also forbids interference with DRM protections employed by rightsholders. See supra text accompanying note 229.
[246] See 17 U.S.C.A. § 110(2)(D)(ii)(I).
[247] See e.g., University of Texas, Fair Use of Copyrighted Materials,
intellectualProperty/copypol2.htm#research (last visited May 8, 2006).
[248] Elizabeth Gadd, Charles Oppenheim & Steve Probets, RoMEO Studies 2: How Academics Want to Protect Their Open-Access Research Papers, 29 J. Info. Sci., 333, 344 (2003).
[249] See id.
[250] See id.
[251] See id. at 345.
[252] See id. at 344-45.
[253] See id. at 345.
[254] See id.
[255] This framework adopts Lawrence Lessig’s New Chicago School model as a guide. See Lawrence Lessig, The New Chicago School, 27 J. Legal Stud. 661 (1998).
[256] See Timothy K. Armstrong, Digital Rights Management and the Process of Fair Use, 20 Harv. J.L. & Tech. (forthcoming, Jan. 2007) available at ).
[257] See id.
[258] Edward W. Felton, A Skeptical View of DRM and Fair Use, Comm. ACM, Apr. 2003, at 58.
[259] See Okerson, supra note 241.
[260] Lessig, supra note 253.
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