Media, DMCA & DRM
Last modified 15 July 2017.
There’s a burgeoning amount of electronic media, especially content on the Internet. How do we work with laws such as the Digital Millennium Copyright Act (DMCA), digital rights management (DRM), and recent court and Library of Congress rulings (DMCA exemptions), in order to maximize information accessibility, the sharing of knowledge, and expansion of cultural enrichment and education?
In the 1960s, [Ted Nelson] saw a world of networked, interlinked – intertwingled, if you will – documents where all of the world’s knowledge is able to interact and intermingle. — Douglas Dechow, ‘Intertwingled’ at Chapman muses on how Web could have been (I. Hamilton, 28 April 2014)
While Dechow’s quote references the Web and the Internet, I believe interwingularity is the basis of creativity, innovation, learning, research, and play. Nearly everything around us has some level of remix, borrowing from the past to make meaning of the present and future. However, these days we need to understand the DMCA and DRM, in order to behave and think effectively when working with digital media — especially as LIS professionals and promoters of information literacy
Also check out the articles on fair use in particular, as well as where to find public domain and DRM-free materials, and copyright information literacy.
DMCA 1998 text as a PDF file. This Act added Section 1201: Circumvention of copyright protection systems, to Title 17.
Every three years, the Librarian of Congress reviews proposals to changes in the exemption for Section 1201. Here are links to the last three rulings:
- 2009 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies
- 2012 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies
- 2015 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies
Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods, from the Government Accountability Office (GAO), 12 April 2010. This study showed the difficulty in accurate assessment:
Generally, the illicit nature of counterfeiting and piracy makes estimating the economic impact of IP infringements extremely difficult, so assumptions must be used to offset the lack of data. Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates. Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. (Highlights)
ALA offers Digital Rights Management (DRM) & Libraries guidelines.
Lumen, formerly known as Chilling Effects, is a database of legal complaints (cease and desist notifications) and removal requests (takedowns). The data collected are studied and made available, to gauge “the prevalence of legal threats and let Internet users see the source of content removals.”
Tools for accessibility
The following resources are meant as informational, notably concerning legally obtained media and content that are otherwise inaccessible to consumers, especially those with disabilities.
Lifehacker offers many helpful articles and guides regarding electronic media, device access, the DMCA, DRM, format conversion, and privacy.
Articles & books
In collaboration between EFF and the University of Glasgow (study by Erikson, Perez, & Sinha, 14 July 2017; article by Doctorow, 9 July 2017), research on DRM found that hardware and software compatibility and usefulness, i.e., “interoperability has a significant positive effect on the price that consumers are willing to pay for DVD players.”
In an early recommendation for the 2018 review of Section 1201 exemptions, the Copyright Office recommends (PDF) permanent right-to-repair legislation to allow consumers (e.g., buyers of licenses) to modify hardware and software — in order to maintain usage and access. (Doctorow, 23 June 2017; Koebler, 22 June 2017). Additionally, EFF provides thoughtful analysis on how the exemption process is “[a] piecemeal approach will solve just a few of the current problems, at the cost of ever more complexity and a continuing demand for massive public interest resources (Stolz, 28 June 2017).
Notice and Takedown in Everyday Practice (Urban, Karaganis, & Schoefield, 29 March 2016), which studies the longterm (nearly 20 years as of the article’s publication) effects of the DMCA on Internet service providers and copyright infringement.
Electronic Frontier Foundation (EFF) advocates for fairer and broader exemptions. EFF summarizes all of the Section 1201 exemption rulings, including:
- Video remixing and mobile phone unlocking allowed in 2009.
- 2012 reaffirmed the exemptions, but only expanded to allow online video clip usage.
- 2015 rulings brought wider exemptions (yet imperfect), allowing broader mobile unlocking (tablets as well as smartphones); jailbreaking allowed for good-faith security testing and automobiles; circumventing DRM to make devices accessible to persons with disabilities (reaffirmed), as well as for short audiovisual clips; and unlocking DRM for games abandoned by developers.
You Can Record Movies Off Netflix, Or Music Off Spotify, But You’re Not Allowed To (K. Cox, 6 November 2015). This article looks at how current copyright law and anti-circumvention tactics are inconsistent and limited, in light of the 2015 DMCA exemption ruling.
Restrictions thwart 3D printing exemption (C. Wapner, 3 November 2015): Intellectual property and copyright become fuzzy regarding 3D printing, a growing activity in many libraries.
Everything is a Remix Remastered (2015, 38 minutes) by Kirby Ferguson, is an engaging video that discusses Lessig’s free culture, derivative and transformative works, copyright, fair use, and of course DRM and DMCA.
Pointing Users to DRM-Stripping Software Isn’t Copyright Infringement, Judge Rules (P. Higgins, 10 December 2014): A librarian informing a user about conversion or ripping tools does not equate to breaking copyright law!
The DMCA: How It Works and How It’s Abused (K. Trendacosta, 6 August 2014) is a layperson’s explanation to the DMCA, and illustrates how takedowns and counter-takedowns work, among other measures.
What YA Publishers and Authors Can Do to Fight E-Book Piracy (K. Springen, 18 July 2014): Breaking copyright should still be avoided, and how these authors can inform their readers helps in information literacy.
How exactly does piracy of digital content affect the market? Or, another way of phrasing the fourth factor in assessing fair use: how are profits of creators, publishers, and distributors affected? As the 2010 GAO report found, analysis is difficult. However, there are articles that don’t support claims of huge losses:
- How Copyright Industries Con Congress (J. Sanchez, 3 January 2012): Illustrates how legislative action such the Stop Online Privacy Act (SOPA) only show how misinformed politicians can be. SOPA failed to pass.
- How Much Do Music and Movie Piracy Really Hurt the U.S. Economy? (K. Raustiala & C. Sprigman, 12 January 2012): The authors explain the difficulties in obtaining and analyzing financial data.
- Digital piracy: An update (PDF, Belleflamme & Peitz, April 2014): This study showed
that illegal downloading has no effect on legal consumption. At best, this effect is positive: a 10% increase in clicks on illegal download websites leads to an increase of 0.2% in clicks on legal purchase websites. Piracy does not induce any displacement of the legal music purchase in digital format; it might even slightly boost sales.” (p.10)
- Effectiveness of anti-piracy technology: Finding appropriate solutions for evolving online piracy (H. Sudler, 2012): This article came to a similar conclusion: “Under these new ecosystems, . . . [DRM] has proven ineffective at stopping piracy. Furthermore, DRM systems have been shown to discourage legitimate buyers.”
The History of Digital Storage (E. Lyday, 20 March 2013) is an important, visual reminder how digital media formats change…especially when they become obsolete, and due to the DMCA, challenging or legally unacceptable to convert or emulate. This access barrier is a critical issue in digital preservation as noted in the Bollacker and Cerf articles.
Can Bruce Willis Leave His iTunes Collection to His Children? Inheritability of Digital Media in the Face of EULAs (C. Wong, 2012) shows how current licensing doesn’t guarantee persistent access to purchased content, i.e., how end-user license agreements (EULAs) conflict with the First Sale Doctrine in Section 109.
Avoiding a Digital Dark Age (PDF, K.D. Bollacker, 2010) and Digital Vellum and the Expansion of the Solar System (V. Cerf, 2015) are a informative article and insightful talk, respectively, about the ever-growing challenges of digital preservation. Hardware and software generally become obsolete, and considering the obstacles placed by the DMCA and DRM, the chances of forever losing that data and knowledge (P. Ghosh, 13 February 2015) may also skyrocket.
Why DRM Doesn’t Work, or How to Download an Audio Book from the Cleveland Public Library (B. Colbow, 1 March 2010) is an amusing but frank webcomic, illustrating the frustrating user experience of attempting to borrow a library audiobook.
Sita Sings the Blues (2009, 1 hour 22 minutes) by Nina Paley (2009, 1 hour 22 minutes), a beautiful example of remixed video art, an animation that is a jazzy mashup of autobiography with retelling of the Hindu story of Sita.
Free Culture (2004) and Remix (2011) by Lawrence Lessig, a pioneer of the open access movement, are excellent books about the stranglehold the DMCA and DRM can have on creativity, innovation, and learning — e.g., resulting in transformative works — and what alternatives (and examples) we could implement.
Media, DMCA & DRM by Sarah Liberman is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.