How Digital Rights Management Laws Protect Creative Works From Online Infringement

Don't mess with the DRM.

The U.S. Copyright Act confers certain exclusive rights onto creators of original works. But the advent of digital technologies, particularly the Internet, has made infringement of those rights easier than ever. Books can be scanned, music files can be reproduced, and photographs can be edited and posted online within minutes. Copyright holders who produce all of that content have never been more exposed to infringement. Fortunately for them, however, technologies have been developed to assist in preventing rampant online infringement. Digital Rights Management (DRM) is a term that encompasses various processes or methods of restricting the use of, or access to, copyrighted works.

Defining Digital Rights Management

DRM is essentially an organized, systematic effort to combat digital copyright infringement. For example, consider what happens when you buy most types of commercial software. The software will typically be "locked" until you type in a unique access code that grants a license for use based upon a specific number of users.

Similarly, consider the process of downloading music. In many cases, music files, such as MP3s, are "locked" for distribution and can play only on the devices onto which they were downloaded. (Apple's iTunes Music Store is a notable exception, offering many songs as "DRM Free," meaning without any DRM restrictions.)

The goal of DRM is, broadly speaking, to prevent any unauthorized copyright infringement efforts of protected works. DRM is ordinarily accomplished through embedded code or other technological gate-keeping to impede infringement.

Initially, DRM technologies were created solely to prevent copying of software, but since the late 1990s they have been used in regard to other creative works, such as music, books, databases, and movies. DRMs are implemented at the discretion of the copyright owner.

The Digital Millennium Copyright Act

Passed in 1998, the Digital Millennium Copyright Act amended various provisions of the 1976 Copyright Act to bring the act into the current century. Among the amended provisions is 17 U.S.C.A. § 1201, which prohibits tampering or disabling DRM efforts: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."
Moreover, the Section provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that... is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title [and] 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...."
The Section defines "circumvent[ing] a technological measure” as any effort "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner."
In other words, it is unlawful to try to get around any DRM efforts or technologies. This would include, for example, a systematic effort to unlock software for mass distribution, or to "open up" encrypted music.
Those who violate this provision could be subject to both criminal and civil penalties. Through the DCMA, Congress has clearly expressed its intention to prohibit attempts to circumvent DRM technologies.

Circumventing DRM is not excused just because DRM-cracking tools may be widely available. In a 2010 case, Apple Inc. v. Psystar Corp., Apple sued a company that had circumvented its DRM system. The defendant company argued that tools for cracking the DRM were widely available and that therefore, the DRM itself was so ineffective as to be meaningless. The court disagreed. saying that if the DRM could not be circumvented without outside information or tools, it would be considered as effective DRM.

Ongoing Rulemaking by the Library of Congress

While prohibitions on DRM meddling are strict, Congress understood that they are sometimes case-specific and excusable depending on the type of technology involved. Rather than amend the Copyright Act with each new technological development, Congress authorized the Library of Congress (which oversees the U.S. Copyright Office) to conduct regular rulemaking and study of the DRM enforcement.

Specifically, 17 U.S.C.A. § 1201 provides that "The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under [this Section] that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected..."

For example, the Library of Congress issued rules in 2010 stating that wireless phone owners could break access controls on their phones in order to switch wireless carriers. Other rules issued more recently provide that computer users could bypass security dongles if the dongle no longer works and can’t be replaced, that users of eBook readers could break digital locks to use read-aloud software, and that educators and filmmakers could circumvent DVD protection for noncommercial purposes.

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