DRM Paper 1 of 37
Digital Learning Legal Background Paper
DRM Systems and Educational Use of Copyrighted Material[1]
I. Introduction 1
II. DRM Systems 2
A. DRM Defined 3
B. DRM-Protected Works and Education 4
C. Incentives for DRM Protection of Commercial Works 7
D. DRM System Overview 13
E. The DRM System Arms Race 21
III. DRM and the DMCA Impair Educational Use of Digital Works 22
A. Anti-Circumvention Provision 22
B. Anti-Trafficking Provisions 26
IV. Inducements for Educator Use of DRM 28
A. Strict Licensing Requirements 28
B. Statutory Shortcomings: The TEACH Act 29
C. Lawsuit Avoidance 30
D. Educator Interest in Protecting Intellectual Property 30
V. Educational Impact 31
A. Increased Costs Imposed by DRM Technology 31
B. Conquest of the DMCA Sword over the Educational Use Shield 32
C. Entrenchment of DRM 32
VI. A Framework for Restoring Balance 33
A. Legal 34
B. Architectural 34
C. Economic 35
D. Normative 35
VII. Conclusion 36
I. Introduction
Digital media holds tremendous promise for the future of education. Rich and abundant content, powerful computer systems, and user-friendly tools for transforming media objects into learning objects offer to enhance the learning experience. The Internet has the potential to expand this benefit, allowing educators to reach beyond classroom walls and connect with students at a distance. Indeed, the question is not whether to harness the pedagogical power of digital media, but how.
Despite this promise, it is not a foregone conclusion that education will reap the benefits digital media might afford. Digital rights management (“DRM”) systems are poised to impede educational use and dissemination of digital works. The DRM threat to educational use of digital media is two-fold. First, DRM systems used by rightsholders to shield their content from unauthorized uses proscribe educational use of that content. Digital works rightsholders employ DRM systems to regulate – through technological means – precisely how their works are accessed and used. DRM systems empower rightsholders to restrict copying, excerpting, and distribution of their works. Moreover, these expansive technological controls are reinforced with legal ones. The Digital Millennium Copyright Act (“DMCA”)[2] provides rightsholders with legal rights designed to buttress the technological protections DRM systems impose. Together these controls jeopardize educator access to DRM-protected digital works, and leave educators with limited recourse for making use of such works.
Second, contractual and statutory obligations, in addition to educator self-interest, provoke educators to use DRM systems to protect the digital content they generate or disseminate. Restrictive licensing terms require educators to safeguard digital works they obtain permission to use with DRM systems. In addition, the safe harbor provided by the Technology, Education and Copyright Harmonization Act (“TEACH Act”)[3] contains a de facto requirement for use of DRM systems to protect digital works. Furthermore, fear of copyright infringement liability motives some educators to employ DRM systems when distributing digital works, irrespective of whether they are seeking exemption under the TEACH Act. Finally, the individual interests educators have in regulating their own works might militate in favor of DRM system usage. Convergence of these factors could create walled gardens at educational institutions, blocking the flow of knowledge.
This Paper undertakes to examine these potential effects of DRM systems. Part II explores DRM systems in detail, identifying DRM-protected works relevant to education, explaining why (and how) rightsholders use DRM systems to restrict access to their works, and providing an overview of the technical aspects of DRM systems.
Part III considers the legal environment surrounding DRM systems. This Part discusses the anti-circumvention and anti-trafficking provisions of the DMCA, and the paucity of defenses available to educational users who violate those provisions.
In Part IV attention shifts from commercial rightsholder behavior to educator behavior. This Part explores inducements that educators face to safeguard the digital works they disseminate or create with DRM protections.
Part V reviews the arguments set forth in the previous parts and evaluates the impact DRM systems are having on education. Building from that analysis, Part VI outlines a multifactored framework as a starting point for addressing the impact of DRM systems on educational use of digital works.
II. DRM Systems
In an environment where large-scale copyright infringement takes little more than a click of the computer mouse, so-called DRM systems have emerged as a supplement to – and increasingly a replacement for – the remedies provided to rightsholders under copyright law. DRM systems offer a secure framework for distribution of digital content, which in turn encourages investment in the commercial development of such content.[4]
The security afforded by DRM systems emanates from the increased level of control over access to and use of digital content these systems provide. DRM systems enable rightsholders to specify and enforce terms of use for digital content persistently and remotely.[5] Rather than sell copies of digital works to consumers – as books are sold to readers – rightsholders can license digital works equipped with DRM protections on the terms of their choosing.[6]
This licensing-based distribution model can entail substantial restrictions for users of digital content. Licenses enforced by DRM systems allow rightsholders to precisely specify details of how a consumer can interact with digital content, such as how frequently and with what devices content may be accessed.[7] In contrast to the copyright, which is constrained by the fair use doctrine and other exceptions that reduce the scope of the grant,[8] restrictions imposed by licenses and DRM systems are not subject to equivalent limitation.[9] DRM technology grants rightsholders de facto control over user rights without regard to and in excess of the level of control they receive under copyright law.[10]
Understanding the impact of DRM technology on the educational use of digital media is a complex undertaking. Evaluation of the potential for DRM systems to obstruct or facilitate educational use of digital media requires appreciation of how these systems are structured – both in terms of the parties responsible for DRM system implementation and the technological workings that make these systems so powerful. This Part begins by defining what makes a DRM system and identifying the types of DRM systems relevant in the educational context. It then examines how market influences affect commercial DRM system deployment. It concludes by providing an overview of DRM technology and the DRM arms race between digital rights holders and content users.
A. DRM Defined
Despite the importance of DRM to the digital media discourse, there is no universally accepted definition of the term.[11] Some critics charge the term is a misnomer, either because the “rights” protected by DRM systems are contractual rather than stemming from copyright, or because they find the term loaded in favor of rightholders. Indeed, because of difficulties related to the terminology, some authors and technologists have begun using other names, such as the broader term “technological protection measures” (“TPMs”).[12] While recognizing these difficulties, this paper will use the term “DRM.”
Examination of the elements that comprise DRM systems and how those elements interrelate suggests a foundational definition. Broadly, a DRM system is a combination of technological protections and licenses that supplies rightsholders with persistent control of their digital works.[13] Regardless of where a work is located, or whether a work has been shared, traded, or resold, a DRM system enables rightsholders to permanently enforce license terms – such as no copying allowed – through technological means. The “client,” a mechanism such as Windows Media Player or a DVD player used to access the content, enforces those licensing terms automatically.[14]
The components of a DRM system fall into two general categories: system management and rights (or permissions) enforcement.[15] System management refers to the organization and design of the DRM system, including identification of digital content, assignment of metadata to content, and specification of the terms and conditions regulating how users may interact with content.[16] Rights enforcement is the persistent and remote regulation of content – through technological means – to ensure it is used in compliance with the license terms chosen by the rightsholder.[17] For example, a license specifying that a file can only be opened a set number of times, and on a device with a particular address, would fit in the system management category; the technological means used to enforce those terms, such as the software that prevents a DVD player from playing unauthorized discs, would fall under rights enforcement.
B. DRM-Protected Works and Education
A substantial force in the consumer and business markets, digital media – and the DRM systems that protect it – is pushing its way into the classroom. Less than a decade ago, DVDs and CDs were the only digital media objects likely to be found in the classroom. Today, computers are pervasive and integral to learning. Indeed, some elementary and secondary schools have abandoned traditional textbooks altogether in favor of digital textbooks or online learning.[18] Computers and other devices designed to access digital media have opened the classroom – and the world beyond – to an assortment of digital works with educational uses. In many instances, however, DRM systems interfere with these uses. Categories of digital works important to education, and the DRM systems that restrict their use, are described below.
1. DVDs
DVDs are one of the first DRM-protected works to find their way into the classroom. Educators at all levels use movies and movie clips to teach history, art, science, and numerous other subjects.[19] As discussed in an accompanying case study, within the burgeoning field of film studies, professors at universities nationwide routinely show compilations of movie clips made from DVDs to their students. In addition, some film studies professors post movie clips on the Internet or make copies of movie clips for students to view outside of the classroom. Each of these activities requires circumvention of the Content Scrambling System (“CSS”), a DRM system that protects DVD content through an encryption and licensing scheme.[20] Because DVDs are far superior to film reels and VHS tapes as source material for creating movie clip compilations, educators who use movie clips in their teaching are likely to continue circumventing CSS to gain access to DVD content for the foreseeable future.
2. Digital Textbooks
Digital textbooks are another example of the growing popularity of electronic teaching tools. Numerous publishers, including McGraw-Hill Higher Education, Houghton Mifflin Company, John Wiley & Sons, and Thomson Learning are making DRM-protected versions of their titles available in digital format.[21] Just this year, Princeton University and nine other universities participated in a digital textbook pilot program, where they offered DRM-protected digital textbooks for sale in their bookstores, side-by-side with their print counterparts.[22] In addition, distributors such as VitalSource are providing students with access to entire libraries of fully searchable versions of digital textbooks.[23] From the New York University College of Dentistry to Johnson Elementary School in Forney Texas, integrated digital textbook libraries are becoming ever more popular.[24] The DRM systems protecting these textbooks specify numerous parameters. These systems regulate for how long students can access titles,[25] how many pages students can print,[26] and how many computers they can access the titles from.[27]
3. Digital Periodical Collections
In addition to digital textbooks, educators and students – particularly at the university level – rely on easy access to searchable collections of digital periodicals. For example, the eminent journal Science[28] is an important resource for undergraduate and graduate students, as well as research faculty.[29] Science and its peer journals are available through online subscription services to which many university libraries subscribe.[30] Publishers use DRM systems to prevent access by unauthorized users. These DRM systems are typically less elaborate than those used to safeguard digital textbooks and most other digital content formats. For example, Science permits authorized users to download PDF versions of articles, and even to download figures from articles directly to PowerPoint slides, for “use in teaching and educational presentations.”[31] Users access Science simply by entering a username and password, or logging in through their institution, which verifies the user’s identity and then grants access to the journal.[32]
4. Digital Slideshows
Computer generated slideshows – e.g., PowerPoint presentations – are replacing chalkboard- and transparency-based lectures as pedagogical tools. As discussed in the case study about the Center for History and New Media, these slideshows frequently include copyrighted third-party content as well as original content created by the instructor. The additional content, such as digitized reproductions of painting or audio clips, enhances the learning experience. In some cases, the content that educators wish to incorporate in their slideshows is DRM-protected – for example, an excerpt from a CSS encoded DVD. Often – as is the case with CSS – DRM systems prevent inclusion of the works they protect in a new work, such as a slideshow. DRM systems precluding such use present educators with choice: circumvent the DRM system in order to use the work, or forgo using the work in the slideshow.
5. Other Educational Content
DRM might find application not only in protecting commercial works, but also those created by educators and their students. DRM systems may also facilitate trade and exchange of digital teaching resources between educators or institutions.[33] For example, a university might possess a digitized library of lectures by a renowned faculty member that it wishes to share with its students and those at another institution, but no other parties. Protection of that collection with a DRM system could facilitate this transfer. Likewise, individual faculty or students might use DRM systems if they create digital works that they want to protect from manipulation or unauthorized use. “A flexible and effective DRM system can manage the creation, retrieval, trading and distribution of online learning objects and support collaborative development.”[34] Finally, academic users concerned with the integrity of a work from an outside source might rely on DRM systems to verify the source of a work and to confirm that the work has not been altered.[35] As discussed below, however, these applications of DRM technology may present problems as well, particularly if educational institutions feel obligated to use DRM systems but lack the resources to do so, or if such systems excessively and unnecessarily restrict public access to educational content.
C. Incentives for DRM Protection of Commercial Works
The technological and economic incentives for rightsholders to use DRM systems to safeguard the digital works described above (and others) are easy to understand. First and foremost, copying digital works is substantially easier than copying of traditional analog works, and copies of digital works are identical to the originals, unlike copies of analog works, which degrade with each round of copying.[36] These perfect copies then have the potential to erode the commercial market for digital works because they can be made available for little or no cost.[37] Accordingly, rightsholders use DRM systems to prevent users from copying, altering, or distributing works without permission.[38] Secondarily, DRM systems also enable rightsholders to engage in price discrimination, which allows them to maximize revenue by making different versions with different functionalities available for a range of prices.[39]