I, copyright cop! Who controls the digital security guards?

by Russell McOrmond

In Isaac Asimov's story, "I, Robot", his robots above all else obeyed 3 simple laws: protect humans, obey humans (as long as this does not conflict with the first rule), and protect itself (as long as this does not conflict with the other two rules). Asimov's stories then explore the unintended consequences that can result when these rules are stretched to different possibilities.

I would like to explore a different narrative with similar unintended consequences. We are told that citizens can not be trusted to obey the creative rights expressed in copyright, and that governments must offer protection for "copyright cops" inside all electronic communications devices. These "copyright cops" are known as Digital Rights Management (DRM), a specific subset of Technological Protection Measures (TPMs) that are claimed to protect copyright.

In order to find out how well these "copyright cops" will do its job we must ask what laws it will obey.

What laws do these "copyright cops" obey?

Common myth says that there are two interests involved with DRM: copyright holders and audiences. DRM is claimed to obey the commands of copyright holders, and stops audiences from disobeying copyright.

In reality there are three conflicting interests: copyright holders, audiences, and the creators of the "copyright cops". With a robot it is the rules of the creator that the robot obeys, not the person who may later own the robot. In our case it is the interests of the creators of DRM, a specific subset of software vendors, that will be obeyed.

These "copyright cops" can be seen to obey 3 simple laws: obey the creators (DRM manufacturers), obey the licenses of the copyright holders (as long as this does not conflict with the first rule), obey the commands of the owners of the ICT devices (as long as this does not conflict with the other two rules).

How do "copyright cops" interact with audiences?

DRM will be embedded within communications devices such as VCRs, DVD players, home computers, cell phones and any other electronic device capable of communicating. These copyright cops were created to limit the activities of the owners of these devices, to revoke the level of control that they would have enjoyed with purchases of the past. Many believe that ownership rights include the right to control what is owned for lawful purposes, but this right will not be protected.

These cops are not there to enforce the laws of the country such as the Copyright Act or the Privacy Act. DRM will protect copyright or other such laws only when it is in the interests of the DRM manufacturers, and DRM will limit the right to carry out legal activities that are not in the interests of the DRM manufacturer.

How do "copyright cops" interact with copyright holders?

In order to receive the benefits of DRM a copyright holder must digitally encode their license agreements and lock (encrypt) their content so that only these "copyright cops" can access their content. Since this process involves having the right keys to lock the content, copyright holders will only be able to do so if they have an agreement with the DRM manufacturer.

When a DRM system receives a message it can unlock the content and license agreement. It will then decide, based on the rules given to it by its creator, what to do. It could obey the license agreement, and work as advertised, but it will only do so as long as it is in the interests of its creator to do so.

Unintended consequences?

What we are describing is a system where any communication between a copyright holder and their audience is mediated by a DRM manufacturer. While DRM-free communications systems are available today, the claimed benefits of DRM systems may reduce the number of alternate communications avenues that exist to reach the majority of audiences.

Every tool that is use to create and communicate creative works can also be abused to infringe copyright. In order to stop copyright infringement various copyright holders are supporting a regime of "private security guards" under the control of DRM manufacturers. This system will not only limit copyright infringement, but also limit new creativity and any ability to be independent of these DRM manufacturers. Only a court with human judges can be trusted to tell the difference between copyright infringement and creativity, and any attempt to automate this decision in technology can only stifle creativity.

This system is not a protection of rights such as copyright, but a replacement of public policy enforced by human police and courts with private policy encoded in computer software and enforced by technology. All the balance of rights, as well as all the accountability and transparency of the process of creating acts of parliament, are lost in this system.

The most powerful feature of the Internet is the ability to "skip the intermediaries" and allow more friendly relationships between creators and audiences. DRM seeks to "put the Internet genie back into the bottle" by imposing a specific set of highly controversial intermediaries. Current proposals regulate these new intermediaries far less than broadcast media was in the past, even though these new intermediaries will have far more power to control the means of communication and distribution.

What is not in the interests of the DRM manufacturers will not be protected. This regime will mean the end of fair dealings, the "first sale" doctrine, public libraries, and of creators "standing on the shoulders of giants" as they build upon our collective culture. This regime not only threatens copyright related rights like creators' rights, but also privacy rights, communications rights, cultural rights, and many other human rights our society should be protecting.

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