by Jeremiah Clifton
History
The entirety of copyright is dense and the rules that guide are many, but it is important to grasp the fundamental idea that an author retains exclusive rights for a term in order to understand the backstory and perceived need for DRM. The most fundamental of these rights is the right to copy the work, and throughout U.S. history this right was secured not only by criminal law or civil litigation brought by the copyright holder against the copyright infringer, but by a lack of technology on the part of the consumer. However, in a digitally connected world where works are transmitted on a global scale to a broadening number of people with the technology to copy media, these safeguards lose their value. With this as the current environment, copyright holders lean towards preventing infringement as opposed to litigation after the fact.1
DRM
In the late 1980s and after hitting the market with the Compact Disc (CD), Sony unveiled the DAT (digital audio tape) in order to replace the compact audio cassette. The remarkable technology allowed consumers to record audio equal to or better than CD quality.2 The DAT also allowed direct digital copying from digital source to digital media or what would become known as serial copying. This opened a new world to consumers and frightened holders of copyrights to sound recordings, mainly record companies. Columbia Broadcasting System, Inc. (CBS) proposed legislation that would insert a form of copy protection into every DAT recorder, but this was dropped after a report from the National Bureau of Standards asserted the sound quality was too degraded because of the protection scheme, and after Sony bought CBS Records in January of 1988, a push for legislation by CBS was all but forgotten.3
However, the fear of unfettered, serial copying remained, and in 1992 Congress passed the Audio Home Recording Act (AHRA), amending Title 17 by adding a new chapter 10, Digital Audio Recording Devices and Media.4 Among other regulations, the act prohibited any digital audio recording device that did not incorporate the Serial Copy Management System (SCMS) or another protection that disallowed serial copying of digital audio.5
Another safeguard for the recording industry added to the law is that distributors of digital audio recording media and devices must pay royalties to the recording industry.6 But consumers weren’t completely ignored in the deal: along with the payment of royalties from distributors, the inclusion of “prohibition of certain infringement actions” allows fair-use copying by consumers without fear of lawsuits for copyright infringement.7
The AHRA was the beginning of government-legislated DRM in the world of digital media. The law also provided a glimpse of future legislation and debate dealing with digital media and DRM by prohibiting circumvention of the mandated copy protection scheme.8
DMCA
At the end of 1996 the World Intellectual Property Organization (WIPO) concluded two copyright treaties, collectively known as the WIPO Internet Treaties.9 The treaties cover copyright in two distinct areas: the WIPO Copyright Treaty (WCT) protects literary and artistic works (including computer programs as literary works10), and the WIPO Performances and Phonograms Treaty (WPPT) protects producers of and performers whose performances are in sound recordings.11 Both treaties have articles concerning the obligations of contracting parties in dealing with circumvention of DRM. Article 11 of the WCT states,
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.12
Article 18 of the WPPT is very similar except directed towards rights protection technologies used by performers or producers with respect to performances or phonograms.13 The treaties also place stipulations on preservation of “Rights Management Information,” mandating “adequate and effective legal remedies” to persons who remove electronic rights management information or knowingly distribute media with rights management information removed.14 The purpose of the WIPO Internet Treaties was to update protection of copyright to standards aligned with the digital age,15 and by protecting the integrity of DRM with legal remedies, the international copyright community felt that works would be safe in digital formats and on digital networks.16
By the end of July 1997 a bill to implement the WIPO Internet Treaties was introduced in the House.17 Over the course of the next year the proposed legislation passed from committee to committee, and on August 4, 1998 Representative Coble of North Carolina made a motion to pass H.R. 2281 as amended, and the bill was passed in the House.18 Even though the bill passed in the House by two-thirds majority, some representatives expressed concern at the delicate balance between copyright protection and rights of the users of intellectual property the bill was trying to strike.19 At the end of August, H.R. 2281 was sent to the Senate for concurrence.20 In mid September the bill was brought for vote in the Senate, and after replacing the enacting clause with the clause from the Senate’s version of the bill (S. 2037), the Senate passed H.R. 2281.21 By now the bill was known as the Digital Millennium Copyright Act of 1998 (DMCA), and on October 28, 1998 the bill was signed by President Clinton, becoming public law.
The idea behind the DMCA was enactment of the WIPO Internet Treaties and to bring U.S. copyright law up to date with changes in technology. It also seems that U.S. interests played a key role in the lead up to the DMCA. Representative Coble stated that the treaties and implementation of them into U.S. law were “extremely important to ensure the adequate protection for American works in countries around the world,” and the DMCA
is only the beginning of Congress’ evaluation of the impact of the digital age on copyrighted works. Although it is just a beginning, it is essential to maintain the United States’ position as the world leader in the protection of intellectual property in the digital environment.22
However, it did not go unnoticed that the WIPO Internet Treaties, and the DMCA by proxy, had “little to do with copyright law. In fact, the ‘anti circumvention’ provisions of the Administration’s bill created entirely new rights for content providers that are wholly divorced from copyright law.”23 This needle, however, was threaded by Congress in the implementation of the DMCA and amending of the Copyright Law of the United States.24
  1. U.S. Congressional Research Service, Library of Congress. Copyright Law: Digital Rights Management Legislation in the 107th and 108th Congresses (RL32035 January 5, 2005) by Robin Jeweler. Text in PDF: Franklin Pierce Law Center Intellectual Property Library, IP Mall http://www.ipmall.info/. Available: http://www.ipmall.info/hosted_resources/crs/RL32035_050105.pdf. Accessed: November 4, 2008.
  2. Sony Corporation. Hardware and Software Get an Early Start. Text in HTML: Sony Global, Sony History http://www.sony.net/Fun/SH/. Available: http://www.sony.net/Fun/SH/1-21/h5.html. Accessed: November 28, 2008.
  3. “SOUND; Breaking the DAT Barrier.” The New York Times August 7, 1988 by Hans Fantel. Available: http://www.nytimes.com/ (go to advanced search and search for title of article). Accessed: November 28, 2008.
  4. Audio Home Recording Act of 1992, Pub. L. no. 102-563, 106 Stat. 4237 (October 28, 1992)
  5. 17 U.S.C. § 1002 (a) (2006)
  6. 17 U.S.C. § 1003 (a) (2006)
  7. 17 U.S.C. § 1008 (2006)
  8. 17 U.S.C. § 1002 (c) (2006)
  9. World Intellectual Property Organization (WIPO). The WIPO Internet Treaties (WIPO Pub. No. L450IN/E). Text in PDF: WIPO Website http://www.wipo.int/. Available: http://www.wipo.int/freepublications/en/ecommerce/450/wipo_pub_l450in.pdf. Accessed: November 30, 2008.
  10. WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 36 I.L.M. 65 (1997) (see Article 4).
  11. World Intellectual Property Organization (WIPO). The WIPO Internet Treaties (WIPO Pub. No. L450IN/E).
  12. WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 36 I.L.M. 65 (1997).
  13. WIPO Performances and Phonograms Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 36 I.L.M. 76 (1997).
  14. Article 12, WCT; Article 19, WPPT
  15. World Intellectual Property Organization (WIPO). The WIPO Internet Treaties (WIPO Pub. No. L450IN/E).
  16. U.S. Copyright Office, Library of Congress. The Digital Millennium Copyright Act of 1998 (U.S. Copyright Office Summary December 1998). Text in PDF: U.S. Copyright Office Online http://www.copyright.gov/. Available: http://www.copyright.gov/legislation/dmca.pdf. Accessed: November 12, 2008.
  17. Cong. Rec. 143. H6025 (July 29, 1997)
  18. Cong. Rec. 144. H7103 (August 4, 1998)
  19. Cong. Rec. 144 H7074-103 (August 4, 1998) – esp. note Rep. Boucher at H7096
  20. Cong. Rec. 144. S9680-81 (August 31, 1998)
  21. Cong. Rec. 144. S10537 (September 17, 1998)
  22. Cong. Rec. 144. H7091-92 (August 4, 1998)
  23. Cong. Rec. 144. H7094 (August 4, 1998) Rep. Bliley from Virginia
  24. see Digital Millennium Copyright Act of 1998, Pub. L. no. 105-304, 112 Stat. 2860 (October 28, 1998) for complete details of the DMCA