Private Sector Initiatives to Design Technology to Enable (Some) Privileged Uses


Basics of Private Sector Initiatives

Freedom to Tinker Blog: DRM Wars: The Next Generation
August 9, 2006
Prof. Ed FeltenPrinceton University, Dept. of Computer Science & School of Public Affairs
“Public policy about DRM offers a spectrum of choices. On one end of the spectrum are policies that bolster DRM, by requiring or subsidizing it, or by giving legal advantages to companies that use it. On the other end of the spectrum are policies that hinder DRM, by banning or regulating it. In the middle is the hands-off policy, where the law doesn’t mention DRM, companies are free to develop DRM if they want, and other companies and individuals are free to work around the DRM for lawful purposes. In the U.S. and most other developed countries, the move has been toward DRM-bolstering laws, such as the U.S. DMCA.”

Freedom to Tinker Blog: DRM Wars: Property Rights Management
August 14, 2006
Prof. Ed Felten
Princeton University, Dept. of Computer Science & School of Public Affairs “The new argument for DRM-bolstering laws is that DRM enables price discrimination and platform lock-in, which are almost always good for vendors, and sometimes good for society as a whole. The new arguments have no real connection to copyright enforcement so (I predict) the DRM policy debate will come unmoored from copyright.”

Freedom to Tinker Blog: PRM Wars
August 16, 2006
Prof. Ed Felten
Princeton University, Dept. of Computer Science & School of Public Affairs
  “[T]echnology is starting to enable the use of DRM-like technologies, which I dubbed Property Rights Management or PRM, on everyday goods. Today I want to speculate on how the policy argument over PRM might unfold, and how it might differ from today’s debate over copyright-oriented DRM.”

The Place of the User in Copyright Law
November 2005
Prof. Julie Cohen, Georgetown University Law Center“
Copyright doctrine is characterized by the absence of the user. . . . The essay traces the effects of the user’s absence, and argues that a theory of the user is needed to restore doctrinal and theoretical balance. Specifically, it is commonly understood that users play two important roles within the copyright system: users receive copyrighted works, and some users become authors. Both roles further the copyright system’s larger project to promote the progress of knowledge. But copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole.”

New Digital Media Driving Market for DRM Tools
July 7, 2006
Mike Feazel, Asia-Pacific Broadcasting News, Staff Writer
“The race to provide DRM technology is far from over, with experts predicting incessant demand driven by easier digital retransmission. What features do content owners seek? . . . Clearly, the DRM market, while rapidly growing and seeing new opportunities in things like video-enabled mobile phones, remains largely in flux. Some fear that Microsoft could come to dominate the market, but the movement towards open standards for DRM and the number of fast-moving entrepreneurial firms like Verimatrix make it clear that the race is far from over.”

GPL’s DRM Restrictions are Revised
July 28, 2006
Stephen Shankland, CNet News, Staff Writer
“The Free Software Foundation has revised provisions concerning the thorny area of digital rights management in a new draft of the General Public License”,1000000121,39280021,00.htm


Initiatives for DRM Alternatives

Dare to DReaM
September 1, 2006
Sun Microsystems Research Spotligh
t“While the great DRM debates continue to rage, Sun Labs has made its open DRM specifications and code publicly available. Take a moment to consider the possibilities of Sun’s strategy.”

“By providing a set of modules and an architectural philosophy for generating RDF/RSS descriptions incorporating the Dublin Core and the extensible Creative Commons licenses, Authena seeks to marry a full spectrum of rights definitions to Open Source CMS.”

Audible Magic
“Audible Magic provides innovative electronic media identification and copyright management solutions for content owners, publishers, broadcasters, disk replicators, hardware & software developers and IT organizations.”

“Navio’s “rights-based” digital commerce solutions enable legal file sharing and innovative, far-reaching content distribution, based on a powerful new transaction model. Navio’s solutions decentralize commerce, much like web publishing is decentralized today. Now transactions can occur anywhere and not just on a few central commerce sites.”

Buy A Customized MP3 At Yahoo! Music
July 19, 2006
Ian C. Rogers, Blogger
“Which is why we’re so excited about these personalized Jessica Simpson tracks. Not only is it pretty cool to have a version of the song which speaks to me (I was shocked to see they had “Ian”, did they do that for me?), but it’s in MP3 format, which I have no problem paying a little more for (though $1.99 is a premium price because of the PERSONALIZATION, not the DRM, the right price for MP3s is somewhere between $0.99 and there, IMHO).”

MESEC (Mobile Enabled Secure Exchange of Content)
Rene van Buuren, Project Manager
“Content providers are still hesitant to distribute their valuable content on the Internet. In many cases very strict usage rights are coupled to the content which is far from the ‘fair-use’ experience of consumers. . . . The MESEC ambition is to develop a secure content exchange mechanism that balances the advantages for both content owners and consumers.”

Digital Watermarking Alliance
“The Digital Watermarking Alliance (DWA) is a group of companies that share a common interest in furthering the adoption of digital watermarking and which are actively involved in commercialization of digital watermarking-based applications, systems and services. Member companies service a broad range of industries around the world.”
See also
(explaining the watermarking technology in a PowerPoint presentation).


Critiques and Commentary of Initiatives

Watermarks: A better DRM than DRM itself?
November 20, 2005
David Berlind, ZDNet, Executive Editor
“[M]aybe, just maybe, there’s a glimmer of hope in yesterday’s announcement by TiVo. If TiVo’s ‘watermark’ approach to the same problem that DRM was meant to solve takes any root, I’m wondering whether most if not all of the problems created by DRM could be eliminated overnight. . . . In other words, content that you download and encode will be uniquely watermarked so it can be traced back to you. So, if you want to load something you recorded up to the Net for illegal distribution, go right ahead.  But don’t be surprised if the authorities come knocking on your door a few days later.”

Audible Magic — No Silver Bullet for P2P Infringement
July 12, 2004
Chris Palmer, Electronic Frontier Foundation, Staff Technologist
“Information from public sources suggests that Audible Magic’s filtering technology is trivial to defeat. For universities, this means an investment today may well be worthless tomorrow. Policymakers, meanwhile, would do well to examine all filtering technologies closely before putting faith in the promises of vendors. A close look at Audible Magic’s technology suggests that its filtering is no silver bullet.”

Navio Working on DRM Alternative to FairPlay
May 23, 2006
Victor Mihailescu, Softpedia News, Apple News Editor
“The company hopes to offer a DRM that stores the right information associated with a piece of music, a game or a movie in the file itself. But Navio plans to take things one step further and start offering a solution for iPod ready videos that anyone could sell. This will allow anyone to tap into the iPod, not just Apple.”


DRM Design Considerations

Metrics for Digital Rights Management
September 8, 2006
David Sohn, Center for Democracy and Technology, Staff Counsel
“On Thursday CDT released a paper called “Evaluating DRM: Building a Marketplace for the Convergent World.” We informally call it our “metrics” paper, because it aims to provide metrics for evaluating DRM. . . . [W]e try to lay out systematically the types of questions one would want to ask to understand all the various choices and tradeoffs involved in a given DRM scheme.”

Open, Fair, and Strong: Building the Next Generation of DRM
October 25, 2005
Glenn T. Edens, Director of Sun Microsystems Laboratories
“In this Q&A, [Glen T.] Edens discusses the challenges surrounding DRM, and how Sun is helping to build a community to solve these problems.”

DRM: Rights and Wrongs
October 2006
Teun Putter, FreeNovation Online Magazine, Contributor
“Providers must be open to innovation when it comes to offering and distributing content. Existing business models will have to be rethought rather than duplicated into online versions. . . . Clearly, if content providers want to stay profitable, they’ll need to start thinking out of the box.”

What Role Should the Government Play in Enabling or Regulating DRM Technologies?

The U.S.’s Stance – Relevant Law

United States Copyright Office:

Copyright Law in the United States, overview,

Summary of the DMCA,

Wikipedia, “Digital Millennium Copyright Act,”

John Hughes,
The Internet and the Persistence of Law,
44 B.C. L. Rev. 359 (2003).


Recent Developments

On November 22, 2006, the Librarian of Congress granted 6 exemptions to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)).

Bill Herman,
Copyright Office Grants 6 Exemptions for Circumventing DRM, (Nov. 22, 2006).


Criticism and Commentary on U.S. Law

Ed Felten,
Nuts and Bolts of Network Neutrality,
(July 11, 2006).
Arguing that government regulation of the internet is not desireable, but the threat of government regulation may serve a useful end: it might keep ISPs from active discrimination.

Gigi Sohn, Blog,
submitted on October 19, 2006.
Arguing that consumers should “say ‘yes’ to an affirmative agenda to bring balance back to copyright law and allow the public to engage in creative expression that is no longer the sole province of movie studios and record companies.”

Robert Gellman,
“Info@Policy: Government Should Use DRM Sparingly,” Government Computer News, October 9, 2006,
Molly van Houweling,
Cultivating Open Information Platforms: A Land Trust Model
1 Journal of Telecommunications and High Technology Law (2002),
available at secao/ShowFile_contentid=108507.pdf
Suggesting that one way to safeguard internet innovation in the public domain is to create a “land trust” wherein an inventor could assign his rights to another party.


International Alternatives

“Directive on the harmonisation of certain aspects of copyright and related rights in the information society.”
Summarizing the European Union Directive 2001/29/EC.

Gigi Sohn, Blog,
“Interesting Copyright Reform Proposal from Across the Pond,” submitted October 31, 2006.
Discussing a white paper submitted by the UK’s Institute for Public Policy Research, which advocates a progressive model of intellectual property rights that puts the public interest first.

The British Library: The World’s Knowledge, at

Consumer Protection Issues Posed by Sony BMG Copy-Protected CDs


Wikipedia entry,
“2005 Sony BMG CD Copy Protection Scandal”
This article describes Sony’s installation of copy protection software onto its CDs that interfered with user’s computers and allowed computer viruses to easily infect user’s systems.  It also includes general information about the legal actions that have been taken in response to the problem.•

John Borland,
“Sony recalls risky ‘rootkit’ CDs,”
CNet News, November 15, 2005
This article details Sony’s reaction to the rootkit incident, including its recall of 4.7 million CDs it had shipped with the ill-fated copy protection program.

Bruce Schneier, Security Technologist,
“Real Story of the Rogue Rootkit,” Wired News,
November 17, 2005
Schneier argues in this piece that the collusion of computer security companies and media content providers harms consumers because security programs do not adequately protect against problems like those caused by the Sony rootkit.


Legal Action

Electronic Frontier Foundation,
Sony BMG Litigation Info
EFF’s site is a resource for consumers whose computers were harmed by the Sony rootkit.  The page includes background information, Sony’s response, and information about claim settlement.  It also has a helpful FAQ section for consumers interested in learning more about the settlement. 

Sony BMG Information about Claim Settlement
Sony BMG’s official statement describing the terms of the settlement. 

Anne Broache,
“Sony rootkit settlement gets final nod,”
CNet News, May 22, 2006
This article gives background on the class action suits and the settlement.

Dr. Michael Geist
(Canada Research Chair of Internet and E-commerce Law at the University of Ottawa),
“Sony Rootkit Settlement Leaves Canadian Consumers Unsettled”
Geist highlights the differences between the American and Canadian settlements, noting that Canadian consumers will receive considerably less and that the Canadian settlement has no provision for injunctive relief.  Geist argues that differences between the Canadian and American regulatory and legal systems should not lead to substantially different outcomes in this case.


Academic Perspectives

J. Alex Halderman and Ed Felten
(Princeton University),
“Lessons from the Sony DRMA Episode,”
February 14, 2006
Computer scientists Halderman and Felten present a technical analysis of the Sony rootkit software, examining the design choices faced by the company and their consequences.  They argue that DRM systems are “mostly ineffective at controlling uses of content” and that DRM system design is only weakly connected to the rules of copyright law.  Instead, they argue, vendor and label business models more primarily dictate the structure and implementation of DRM systems.  

Doug Lichtman
(The University of Chicago Law School),
“SonyBMG’s DRM Mistake,”
December 13, 2005
In response to comments by EFF’s Fred Von Lohmann, Professor Lichtman argues that without DRM, the music industry would have little incentive to invest in music and might instead develop more extreme mechanisms to fight piracy, such as streaming music only to compliant players that protect the music.  He also argues that self-help technologies such as DRM can reduce the costs of legal regimes.  

Randy Picker
(The University of Chicago Law School),
“Adding Mistrust to Digital Rights Management,” February 17, 2006 – more
Working from the Sony rootkit and broadcast flag examples, Professor Picker argues that meaningful DRM may need to be identity based, meaning that the identity of the purchaser can be gleaned from the content itself.  He recognizes that cooperation between the content providers and professional decryptors is dangerous for consumers and argues that we may need to give content purchasers reasons to be reluctant to deal with professional decryptors, thereby adding “mistrust” to DRM schemes.

Natali Helberger
(Associate Professor at the Institute for Information Law, University of Amsterdam),
“The Sony BMG Rootkit Scandal,”
September 1, 2006
Helberger notes that the California and EFF Sony litigation are some of the first to use consumer protection law as a way of combating DRM.  The article discusses Sony’s End User License Agreement (EULA) and the ways in which state unfair competition law can be used as an additional possible remedy against DRM misuse, along with traditional copyright law.

Professor Ed Felten and J. Alex Halderman
Comment to Copyright Office
(represented by Deirdre Mulligan, Director of Samuelson Law Technology, & Public Policy Clinic and Aaron Perzanowski, Samuelson Clinic Fellow),
“Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,” December 1, 2005
In these comments to the Copyright Office, Felten and Halderman argue that the DMCA should exempt circumvention of technical protection measures for sound recordings and audiovisual works, where the protection measures create or exploit security vulnerabilities on users’ computers.  Using the Sony incident as an example, they argue that these types of DRM force consumers to choose between accepting “intolerable security risks in order to access lawfully purchased CDs” or circumventing the protection measures “in order to gain lawful access and maintain a safe computing environment.”

Interoperability Concerns about DRM Technologies

Interoperability Initiatives

The Marlin Developer Community
“In January 2005, five companies formed the Marlin Joint Development Association (JDA) to develop DRM specifications that provide interoperability across multiple multimedia devices and services. . . . The MDC’s mission is twofold – to develop specifications for an interoperable DRM platform for multimedia service, device and content providers, and to provide open access to these specifications to drive market adoption.”

Coral Consortium
“The Consortium’s goal is to create a common technology framework for content, device, and service providers, regardless of the DRM technologies they use. This open technology framework will enable a simple and consistent digital entertainment experience for consumers.”

Digital Media Project
“The DMP is a not-for-profit organisation with the mission to promote continuing successful development, deployment and use of Digital Media that respect the rights of creators and rights holders to exploit their works, the wish of end users to fully enjoy the benefits of Digital Media and the interests of various value-chain players to provide products and services, according to the principles laid down in the Digital Media Manifesto.”

Reasons to Love Open-Source DRM
April 3, 2006
Eliot Van Buskirk, Wired reporter
“[T]he very idea of using open-source software to enforce digital rights management runs counter to everything commonly assumed about the technology: that it needs to be secret, obscure, proprietary. But open-source DRM is exactly what Sun Microsystems has proposed, with its DReaM initiative. Its goal is to promulgate an open-source architecture for digital rights management that would cut across devices, regardless of the manufacturer, and assign rights to individuals rather than gadgets.”


Basics of DRM & Interoperability

Creative Commons in Review: Lawrence Lessig on Interoperability
October 19, 2005 at 08:40 PM
Prof. Lawrence Lessig, Stanford Law Schoo
l“Interoperability. Perhaps the most important thing that the Internet has given us is a platform upon which experience is interoperable. . . . We are close to a world where any format of sound can be mixed with any format of video, and then supplemented with any format of text or images. There are exceptions; there are some who don’t play in this interoperability game.”

Daring Fireball Blog: Interoperability and DRM are Mutually Exclusive
June 20, 2006
John Gruber, Blogger on so-called “Mac Nerdery”
“I’m not disagreeing that Apple’s dominance is unhealthy for the industry. . . . The industry’s idea of a ‘perfect’ DRM scheme is one that is not controlled by either Apple or Microsoft, and which gives only them (the record industry) complete control over what users can do with their downloads. Such a scheme does not exist, and it does not exist because it isn’t possible.”

DRM and Interoperability
May 11, 2006
Irvette Tempelman, Blogger on Dutch legal aspects of DRM
“According to Trevor Albery of Warner Bros Inc. interoperability has to evolve through market forces. I don’t think that leaving such an important issue to the market is a sufficient solution. It’s my believe that the legislator has a role in ensuring that interoperability is obtained.”


Domestic Perspectives

Oversight Hearing on: “Digital Music Interoperability and Availability
April 6, 2005
U.S. House of Representatives Judiciary CommitteeSubcommittee on Courts, the Internet, and Intellectual Property
“The digital music interoperability issue is of interest to more than consumers. Performers and songwriters are affected by the decisions made about how their music is made available. Music that is made available on only one digital music service will limit the options for artists to earn royalties.” – Opening remarks of Chairman Lamar Smith
“We are advocating a Consumer Technology Bill of Rights that will positively assert a consumer’s rights to fair use. . . . [Including] the right to use legally acquired content on the platform of their choice.”

Siggraph: Taking on fair use, privacy and DRM
August 1, 2006
Candace Lombardi, CNET Staff Writer“The panel let conference attendees question Sony directly about its digital rights management (DRM) policies, and attendees and panelists weren’t shy about expressing their views. . . . [Mitch Singer] took the question as an opportunity to point out Sony’s support of interoperability for content–an approach that would allow movies or music to be played on more than one type of device.”


International Perspectives

Digital Media Project – Part I: Towards an interoperable DRM platform
June 23, 2005
Ernő Jeges, Sr. Engineer, Budapest Univ. of Technology and Economics, SEARCH Lab
“The Digital Media Project, often referred to as DMP, is the fruit of a grass root movement that developed in 2003. Its main aim is to develop the fundamentals of standardized and interoperable Digital Rights Management for digital media. . . . [This article] aims to give a brief overview of DMP and its approach.”

Digital Media Project – Part II: Chances of an open standard
August 26, 2005
Ernő Jeges, Sr. Engineer, Budapest Univ. of Technology and Economics, SEARCH Lab
Kristóf Kerényi, Engineer, Budapest Univ. of Technology and Economics, SEARCH Lab
“The present second part tries to assess the [Digital Media Project] in a critical manner finding out the chances of DMP to establish a de-facto or even a de-jure DRM standard We see a good chance for it, provided the proposed standard would be mandated, for example by the EU for the European market.”

French Law Seeks Interoperability
March 17, 2006
Associated Press
“According to the latest amendments, however, copy-protection technologies like Apple’s exclusive FairPlay format and Sony’s ATRAC3 ‘must not result in the prevention of the effective application of interoperability.’ Companies would have to share all ‘information essential to the interoperability’ of their copy-protection formats with any rival that requests it. If they refuse, a judge can order its delivery, on pain of fines. . . . [C]onsumer groups argue that the only way to give customers real choice is to break open the restrictions. ‘It’s an essential condition for consumers and for the market itself,’ said Julien Dourgnon, a spokesman for UFC-Que Choisir, France’s main consumer organization.”

Apple gets reprieve from French DRM-busting law
July 31, 2006
Estelle Dumout, ZDNet France
Jo Best,
“France’s controversial copyright law, which had threatened to mandate interoperability between Apple Computer and rival online music players’ digital rights management, has been dealt a major setback as sections of the legislation are being ruled unconstitutional.”


Technical Perspectives

Standard Language Could Aid DRM Interoperability
April 18, 2005
Matt Rosoff, Directions on Microsoft Staff Writer
“One piece of the digital rights management (DRM) puzzle is falling into place, as Microsoft and several other players have begun to rally around XrML, a technology that could aid cross-vendor interoperability.”

DRM interoperability analysis from the perspective of a layered framework
Proceedings of the 5th ACM workshop on Digital Rights Management – 2005
Prof. Gregory L. Heileman, Univ. of New Mexico, Dept. of Elec. & Comp. Engineering
Pramod A. Jamkhedkar, PhD Student, Univ. of New Mexico
“Interoperability is currently seen as one of the most significant problems facing the digital rights management (DRM) industry. In this paper we consider the problem of interoperability among DRM systems from the perspective of a layered architectural framework.”

Towards a secure and interoperable DRM architecture
Proceedings of the ACM workshop on Digital Rights Management – 2006
Prof. Virgil D. Gligor, Univ. of Maryland, Dept. of Electrical and Computer Engineering
Gelareh Taban, PhD Student, Univ. of MarylandAlvaro A. Cárdenas, PhD Student, Univ. of Maryland
“In this paper we look at the problem of interoperability of digital rights management (DRM) systems in home networks. We introduce an intermediate module called the Domain Interoperability Manager (DIM) to efficiently deal with the problem of content and license translation across different DRM regimes. We also consider the threat model specific to interoperability systems, and introduce threats such as the cross-compliancy and splicing attacks. We formalize the adversary model and define security of an interoperable DRM system with respect to this adversary. We finalize by proposing detailed protocols which achieve our security requirements. In order to achieve these requirements we provide novel applications of recently proposed proxy resignature and proxy re-encryption algorithms.”

Consumer Protection: Inside of Copyright Law or Outside?

U.S. Criticism and Commentary

Peter Swire,
Trustwrap: The Importance of Legal Rules to Electronic Commerce and Internet Privacy,
54 Hastings L. J. 847 (2003).
Swire argues that binding legal rules to protect internet consumers will promote e-commerce.

Joseph P. Liu,
Copyright Law’s Theory of the Consumer,
44 B. C. L. Rev. 397  (March 2003).
Liu suggests that the common perception of the consumer of copyrighted works is incomplete.  He argues that “consumption” of copyrighted works is not an entirely passive enterprise, because a non-author has independent interests in self-expression, communication, and autonomy.  Finally, Liu suggests that understanding these interests can help direct changes in copyright law.


International Voices

Bernt Hugenholz,
“The Future of Levies in a Digital Environment,”
IViR Final Report,
The authors argue that DRM removes the need for mandatory copyright levy systems in the E.U.  They state that where technological measures and levies both apply to the same work, consumers suffer because they are forced to pay twice for the right to copy that work.

Jo Singstad,
iTunes’ Questionable Terms and Conditions
The Norwegian Consumer Ombudsma argues that iTunes is using DRM and corresponding terms of services to lock consumers into Apple’s proprietary systems.

Jan J.C. Kabel,
Commercial Communications,
in Study on Consumer Law and the Information Society 22 (2000),
Kabel gives an overview of European laws regarding communications to consumers. Then, Kabel compares existing laws to new conditions.

Michael Geist,
Sony Hit With Privacy and Consumer Protection Complaints,
(Sept. 21, 2006).
Discussing Canadian class-action suits against Sony alleging, among other claims, misrepresentation. Sony sold “roolkit” CDs which had hidden technologies to prevent reproduction of the software; and which also had the potential to transmit a virus into the computer of the  purchaser and gave private information about the purchaser.