Protecting the Constitution against the DMCA and DRM
IT5160 Ethics in Information Technology
Dr. Joanne White Thunder
Wednesday, August 26, 2009
The United States Constitution grants powers to the Congress to create laws which promote the progress of science by allowing authors a time-limited exclusive right to their original works. While Copyright law has been amended in many successive movements overtime, it is important that all newly designed laws are upheld by the original intent and powers granted to the Congress by the U.S. Constitution. The creation of the Digital Millennial Copyright Act and subsequent implementations of Digital Rights Management technologies have encroached on the Constitution and have made allowances for the enforcement of unlawful limitations by copyright owners. It is thus beholden upon the American people to reject as unlawful the power of the DMCA and DRM technologies.
In 1791 the first ten amendments of the Constitution of the United States were ratified, these ten amendments were later to be known as the Bill of Rights. The fifth article of The Bill of Rights states that "[no person shall be] deprived of life, liberty or property, without due process of law (WikiPedia, 2009)." The Bill of Rights expands upon the foundation of law set forth in the Constitution. The Constitution and following amendments are a culmination of the attempt to create an environment built on freedom and justice, balancing the needs of the many against the needs of the individual in a way that seeks to uphold the claims put forth on July 4th, 1776 within the Declaration of Independence stating that all men (sic.) have the right to "life, liberty and the pursuit of happiness (WikiPedia, 2009)."
The pursuit of justice and liberty has been a reoccurring theme throughout the history of the United States, and involves issues teetering precariously on the struggle between the rights of the state and the rights of the people; commercial enterprise against consumer, one man or woman against another. If we were to peel away the details of the individual struggles of justice and liberty over the courses of time, we would find that at the core of this struggle is the question of property ownership (Ely, 2008, p. 26)."
In the past, questions of property, even questions that govern intangible ideas such as intellectual property, revolved around the physical ownership of things such as a typewritten book, a painted image, or a vinyl record, etc. As the American society continues to struggle to refine current laws around property ownership in copyright laws, civilization advances relentlessly forward and we are faced with new and intriguing challenges. Today, property rights extend to things as ephemeral as electrical impulses stored and forwarded across the central nervous system of a publically accessible super-brain referred to as the World Wide Web.
Law makers, as they have in the past, continue to focus on identifying the appropriate balance between justice and freedom; however, laws devised to protect and control the ownership of property must also be built upon and upheld by the foundation of the Constitution.
In 1998 the Congress of the United States passed into law an act referred to as the Digital Millennium Copyright Act. The DMCA put forth certain provisions allowing the rise of technologies that have been used to facilitate constitutional violations, have undermined the intent and use of the original U.S. Copyright laws, and have stifled technological and intellectual innovations. While the DMCA is the formal cause of this malfeasance enacted against the people of the United States, the material cause is a collection of technologies loosely coupled together and used to limit and control who and when digital content can be read and copied. These technologies are referred to as Digital Rights Management technologies or DRM.
It is the intent of this paper to outline examples of ways in which the DMCA and DRM have been used to facilitate constitutional violations, to address some of the ways in which DRM undermines the intent of the original copyright laws, and bring to the attention the controversy over the use of DRM in inhibiting the growth of intellectual innovations and humanity as a whole. To bring weight to these examples we must first examine the operational powers that have been granted to the U.S. Congress to enact laws protecting the property ownership rights of authored works.
Copyright Law in the United States
The term Copyright is used to denote a form of property protection provided to owners and artists for "original works of authorship (U.S. Copyright Office, 2009, p. 1)." While the U.S. Copyright laws consist of a significant number of amendments; to remain constitutional, all copyright laws and subsequent amendments must be built on the constitutional powers granted in Article I, section 8, clause 8, of the U.S. Constitution which allows Congress the power to "promote the progress of science and useful arts, by securing for limited tımes to Authors and Inventors the exclusive right to their respective writings and discoveries (U.S. Constitution)."
The language of the Article I, section 8, clause 8, immediately brings to mind the desire to balance the rights of the individual over against the rights of society as a whole. Within this language, however, it can also be clearly seen that the purpose of securing to authors a time-limited exclusive right to their works was to promote the progress of science and useful arts.
When studying this power afforded by the constitution, it is paramount that we ensure that all enacted copyright laws remain constitutional in limiting the time in which authors are granted exclusive rights to their works, as well as having a primary purpose of promoting the progress of science and useful arts. If amended copyright laws act against either of these two primary constitutional objectives, they must be deemed unconstitutional and rejected by the American people.
Retarding the growth of intellectual pursuits around the world
When weighting the pros and cons of proposed law, it is often easy to reject opposition based on a projected forecast of future negative consequences. However, it is much harder to reject the historical data collected post-ratification that speaks clearly about the unforeseen negative consequences of an enacted law.
In an article entitled Unintended Consequences: Ten Years under the DMCA, the Electronic Frontier Foundation raises a number of concerns regarding the anti-circumvention provisions of the Digital Millennial Copyright Act, referred to as section 1201 (Electronic Frontier Foundation, 2008). These concerns include numerous Mafia like attempts, lawsuits and gag orders against personal, professional and University based technologists and researchers. These documented attacks on the freedom of speech, freedom of information and freedom of intellectual and academic pursuit come from such organizations as Sony-BMG, SunnComm, Microsoft, Hewlett Packard, and even the organization that builds the tools we use in our Capella University Courseroom – BlackBoard. The EFF continues by showing how the DMCA has lead to the violation of rights, threats and disreputable treatment of individuals being accused of violating the "anti-circumvention laws", with the primary purpose showing how DMCA supported actions have "chilled free expression and scientific research. (Electronic Frontier Foundation, 2008)."
This article continues to cite example after example in which the DMCA is the direct cause of inhibiting academic, scientific and artistic research, not only in the United States, but around the world. The capstone quote, calling for DMCA reform, summarizes the problem with the DMCA; in a 2002 statement from White House Cyber Security Chief Richard Clarke, Clarke is quoted as saying: "I think a lot of people didn’t realize that it [DMCA] would have this potential chilling effect on vulnerability research. (Electronic Frontier Foundation, 2008)."
In the end, while future forecasting may have been ignored in 1998 when the DMCA was first instituted, these historical views of the DMCA can clearly show its effect on stifling rather than "promoting the progress of science and useful arts."
If it wasn’t enough to stop there in showing the damage and the unconstitutional results of the applications of the DMCA; Digital Rights Management, one of the technical implementations whose use is being upheld by the laws enacted by the DMCA is found to be even more damaging to the academic and scientific progress of the world.
In their article titled Digital Rights Management: A failure in the developed world, a danger to the developing world the EFF once again takes aim at the problems caused by the DMCA and DRM. Here various aspects of dangerous implications of DRM are discussed in open detail. Among these dangers are concerns such as how renewable DRM can be used to cheat consumers out of products or services they have already paid for by disabling features at the whim of copyright holders.
Other dangers outline how DRM limits the abilities of developing countries that rely on second hand resale markets for dissemination of products and information for growth and maturity, how Libraries are being unable to exercise their lawful rights when moving to digital media, how DRM can allow authors to "unilaterally prevent" disabled people from exercising rights afforded by existing copyright laws, and even how DRM can inhibit the ability for schools and universities to offer distance education (Electronic Frontier Foundation, 2005).
Within this article, the EFF continues by showing detailed examples in which DRM shackled technologies such as DVD have experienced very little innovation over the years since being introduced because of the lack of academic research allowed within the technologies. In summary, railing against the way in which DRM is used to withhold information, the EFF points out: "Access to information is essential in education and research and has a direct impact on literacy levels, economic growth and quality of life (Electronic Frontier Foundation, 2005)."
And thus, there should be no doubt that the DMCA and DRM have been used to inhibit the "progress of science and useful arts" and therefore it should be declared unconstitutional and rejected by the American people.
However, the problems do not end there; the DMCA and use of DRM directly impacts the ability of consumers to exercise the doctrine of Fair Use, and First Sale, both consumer rights protected in the U.S. Copyright law.
The Doctrine of Not-So-Fair Use and One-time-only Sales
In the Copyright Act of 1976, two important doctrines were formed and codified in the United States Code: the doctrine of Fair Use, and the doctrine of First Sale. Fair Use as defined in U.S. Copyright Law is intentionally ambiguous as each specific situation stands to dictate what is ‘fair’ (Lohmann, 2005). Section 107 of Article 17 of the United States Code declares that various situations can be used to determine fairness, including the purpose and character of the use and the nature of the copyrighted work (U.S. Copyright Office, 2007).
When examining the doctrine of Fair Use Fred von Lohmann, a senior Intellectual Property Attorney of the EFF states that the doctrine of Fair Use helps bring sanity into the law of copyright, protecting people in actions as innocent as whistling a tune walking down the road, or cutting out and posting a comic strip on an office wall (Lohmann, 2005). However, current implementations of DRM are incapable of creating allowances for the doctrine of Fair Use, and once combined with the DMCA anti-circumvention laws DRM effectively limits and destroys the capabilities provided in the doctrine of fair use to consumers.
On top of this violation of copyright law, the doctrine of First Sale allows ownership of material that has a copyright to be transferred when the product is purchased. In other words, when a consumer purchases a book that is held in copyright, that book then becomes the property of the consumer, and they have the right to gift or resell the book without being held in violation of U.S. Copyright Laws.
However, despite the protection provided to consumer by use of the doctrine of First Sale, current implementations of DRM restrict the transfer of copy protected works to the purchaser, and allow copyright holders to retain ownership of copy protected works, even after the ownership of said works has been legally transferred through the doctrine of First Sale.
Abuses of this illegal control afforded to copyright owners can be seen in recent cases such as when Amazon on behalf of a book publisher revoked the ownership of the works of George Orwell for users of the Amazon Kindle device (McSherry, 2009). Such actions, while not unprecedented have provoked outrage among many in the digital community causing one blogger to refer to DRM as Dystopian Rights Management, in honor of the irony of Amazon stealing copies of George Orwell’s 1984 from their Kindle users (D’Andrade, 2009).
As the constitutional case against the DMCA and DRM continues to grow, there is, yet another form of constitutional abdication taking place within the confines of the DMCA and DRM.
The unlimited limits of protection
Apart from the DMCA inhibiting scientific progress, and the violation of Copyright Law afforded by DRM technologies; we find another form of Constitutional violation with the use of DRM which provides unlimited copyright terms for authors and artists (or their representatives).
As we have previously discussed, the Constitution allows for time-limited exclusive rights of original works; however, the use of DRM affords a non-expiring monopoly on the copyright owner’s published works. Thus, DRM has once again been found to circumvent the original intent and purpose of the Constitutional foundation of U.S. Copyright laws.
Additionally, the use of DRM has also been used by publishers to take unofficial ownership of works that have passed into the public domain, thereby extending the limitations afforded copyright holders to anyone willing to brand a public work with DRM limitations, thus effectively allowing a time-unlimited extension to authored works.
Despite all of the constitutional and unlawful violations wrapped up into the introduction of the DMCA and DRM, despite how the DMCA and DRM lead to the destruction of the freedom of speech, the freedom of intellectual pursuit, and the freedom of academic and scientific progress; still, one is left wondering, who actually benefits from the use of Digital Rights Management?
Under Control of the Cartels
While outright unethical uses of DRM have been discovered by some security researchers such as when Mark Russinovich discovered Sony installing a DRM rootkit devised to circumvent PC security such as AntiVirus software (Russinovich, 2005), one is really left to wonder how much benefit artists and authors actually gain from the legitimate use of DRM?
It is well known that when protecting copyright works with DRM, unless every version of of a copyright work has been protected with DRM then DRM affords little protection against copyright infringement through unlawful copying. Thus in order to gain the full benefits of protection against unlawful copying, artists and authors and publishers must subscribe to the licensing services of intermediaries that act as gatekeepers of the DRM implementations, often at a high cost (Electronic Frontier Foundation, 2005).
"These licenses", state the EFF, "have the effect of turning publishers and performers and authors into customers for developed-world intermediaries to whom they become beholden (Electronic Frontier Foundation, 2005)."
In the end, while there are many issues left untouched regarding the problems afforded by the DMCA and the use of DRM, it should remain clear that the DMCA and associated DRM technologies are involved in the subterfuge of the rights of the American people. Through blatant violations of Constitutional law, Copyright law, and the United States Code, the Digital Millennial Copyright Act and associated Digital Rights Management technologies must be branded as a defector to the common welfare of the United States, and the world at large.
It is now the responsibility of you, the reader; as writer, or artist and co-consumer to cry out in anger and demand the rights and protections, and balance of liberty and justice afforded to you and your children and your children’s children, remembering if you give up your rights to property ownership, you give up your liberty. Protect the Constitution against the DMCA and DRM.
D’Andrade, H. (2009, July 07). Orwell in 2009 : Dystopian Rights Management. Retrieved August 08, 2009, from Electronic Frontier Foundation: http://www.eff.org/deeplinks/2009/07/orwell-2009-dystopia
Electronic Frontier Foundation. (2005, March). Digital Rights Management: A failure in the developed world, a danger to the developing world. Retrieved August 08, 2009, from Electronic Frontier Foundation: http://www.eff.org/wp/digital-rights-management-failure-developed-world-danger-developing-world
Electronic Frontier Foundation. (2008, October). Unintended Consequences: Ten Years under the DMCA. Retrieved August 08, 2009, from Eletronic Frontier Foundation: http://www.eff.org/files/DMCAUnintended10.pdf
Ely, J. W. (2008). The guardian of every other right: a constitutional history of property rights. New York: Oxford University Press.
Lohmann, F. V. (2005, March). Fair Use and Digital Rights Management. Retrieved August 08, 2009, from Electronic Frontier Foundation: http://www.eff.org/wp/fair-use-and-digital-rights-management-preliminary-thoughts-irreconcilable-tension-between-them
McSherry, C. (2009, August 5). The Kindle Lawsuit: Protecting Readers from Future Abuses. Retrieved August 08, 2009, from Electronic Frontier Foundation: http://www.eff.org/deeplinks/2009/08/kindle-lawsuit-protecting-readers-future-abuses
Russinovich, M. (2005, October 31). Sony, Rootkits and Digital Rights Management Gone Too Far. Retrieved August 08, 2009, from Mark’s Block: http://blogs.technet.com/markrussinovich/archive/2005/10/31/sony-rootkits-and-digital-rights-management-gone-too-far.aspx
U.S. Constitution. (n.d.). Art I, S. 8, cl. 8.
U.S. Copyright Office. (2007, October). Complete version of the U.S. Copyright Law. Retrieved August 08, 2009, from Copyright Law of the United States: http://www.copyright.gov/title17/circ92.pdf
U.S. Copyright Office. (2009, August 05). Copyright Basics. Retrieved August 08, 2009, from U.S. Copyright Office: http://www.copyright.gov/circs/circ01.pdf
WikiPedia. (2009, August 21). United States Bill of Rights. Retrieved August 24, 2009, from WikiPedia, the free Encyclopedia: http://en.wikipedia.org/wiki/United_States_Bill_of_Rights
WikiPedia. (2009, August 24). United States Declaration of Independence. Retrieved August 24, 2009, from WikiPedia, the free Encyclopedia: http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence