Digital Rights Management: Justice in Cyberspace

___________________________________________________________________________

Name: Richa Singh

Designation: Assistant Professor (Law), Kalinga University,

Email-id: richa.singh@kalingauniversity.ac.in

Balance of rights:

“The defining battle of censorship in cyberspace…, will not be fought over pornography, neo-Nazism, bomb design, blasphemy, or political dissent. Instead, the Armageddon of digital control, the real death match between the Party of the Past and Party of the Future, will be fought over copyright.”

— John Perry Barlow

DRM is going to be the epitome of sterile technology[1] and it would be the inception of curtailment of freedom to innovate[2], the so-called messiah for the copyright holders, served regulators of the code more than the copyright holders and the consumers.

The ‘property rights approach’[3]  being enforced in the copyright world via DRM regime deserves criticism because it would stifle generative technologies and would be the ultimate demise of creativity, innovation- which finds its substratum in sharing.  The major idea behind copyrighted works is that after expiry of 60 years they will enter domain of common’s this is quite unlike property in traditional sense.

However, introduction of DRM is stifling just use and is thus “forcing” the world towards sterile technologies. The term forcing fits quite rightly because stakeholders enforcing DRM’s have dominant position and the standard forms of contracts curated by them strip users of their autonomy and rights, for instance Netflix.

The stakeholders involved in this transaction are copyright holders, customers and intermediaries/ regulators. DRM is purposed to create a perceived balance albeit not real one, for plethora of fairness questions arise. Coders/ manufacturers/ intermediaries are regulators and are at a dominant position in the aforementioned transaction for they possess the controlling reign as they legislate, execute and pass the dictum as well- on the rights of customers and copyright holders. The balance is skewed towards the regulators and both the copyright holders and the customers are at the losing end.

As the time is passing regulators are growing far more and the rights of the users are shrinking even further.

Impact on Rights of Copyright holders

Impact of piracy goes deeper than the surface and livelihood of copyright holders is infringed. However, majority of money that is paid by consumers actually goes into the wallet of intermediaries who make the copyrighted works available to the masses. A better business model is thus to remove privacy in its entirety and cut off middlemen, but is it possible? It is if the work of creation of such websites is not delegated to private corporations such as Netflix, Amazon Prime, Spotify, Jio Saavan, etc. Various Artists such as Taylor Swift, James Blunt[4] have criticised the minimal benefit copyright holders receive in the digital space.

Further, as a consequence of the restrictions imposed by DRM ultimately there is difficulty in circulation of copyrighted works and no real fanbase of artists gets created, and thus the sales gets reduced even further.

Impact on Rights of Consumers

In 2009, Amazon deleted purchased copies of Orwell’s 1984 and paid back money to customers[5], this raises a pertinent question whether users actually own the digital content or is it merely temporary? Hindrance in just use occurs as a consequence of DRM and the questions arise that whether consumers ever actually own the movies, videos, music they are paying for? They can neither inherit it, nor copy or modify it, nor can they even attempt to even repair it if it is malfunctioning. Further if they travel from India to US there is a huge possibility that suddenly the content they owned cannot be accessed without the use of VPN. (Customer is getting penalized for innovation & functionality defects) Further restrictions such as compatibility issues for instance certain CDs cannot be played in all CD Players or personal computers, similarly if the user does not have access to internet, they will not be able to do online authentication and thus will not be able to access Online Persistent DRM based content. Further, the performance of the devices decreases with the use of DRM, for instance recently Denuvo Anti Tamper slowed down performance of users or locked them out of the games.[6] Further DRM can never wholly secure for instance the analogue hole vulnerability renders non interactive copyright works subject to piracy.

Thus, accessibility, usability, performance, robustness, affordability, ownership, privacy all parameters are negatively impacted and users have to bear the brunt of it.

a.      Rich countries values being implemented on poor nations:

Since the incorporation of 65A & 65B and India becoming party[7]  to WCT & WPTT, there has been concerns that the rich countries values are being implemented on poor nations. Not all countries have yet developed reliable telecom and electricity infrastructure and thus, digital content utilising online persistent DRM Systems cannot be used by citizens of a nation where the telecom or electricity infrastructure is frail.

Further, even though DMCA though not applicable in India, still in the Play Fair Case[8] in Trivandrum, DMCA infringement was enforced by the American Authorities by merely sending notice to the infringer, that raises questions.

Poor countries rely on shared resource or community access to digital content, in such a scenario screen limitation, copying limitations, downloading restrictions, limited time usage, lack of ownership, restriction on reselling etc creates dissemination of information a major issue and thus violating their innovation, education, etc.

b.      Proponents of DRM Free World

“Would we witness proliferation of Nikola Tesla’s left to die?”

DRM- Free advocates are criticised to be utopian. Jonathan Zittrain[9], Lawrence Lessig[10], Julie E. Cohen[11], Aaron Swartz[12], Cory Doctrow[13] have been major proponents of DRM free world.  E ven business epicentres such as Bill Gates[14], etc recognize that DRM causes problems to legitimate customers.

In alternate to DRM the DRM free moment suggests the usage of subscription, Artistic Freedom Vouchers, concerts, merchandise, etc. It is argued by the proponents that if work shall we of immense value.

However, on an analysis, in the year 2015 Cory Doctrow provided a framework to eradicate DRMs in entirety in upcoming 10 years, however, if anything that has been witnessed in these 8 years that have already passed is proliferation of DRMs in OTT platforms such as Netflix, Amazon Prime, etc. The question then arises is that, is DRM a real necessity? It is undoubtable that DRM at this juncture cannot be eradicated in its entirety. However, what can be aimed for is strengthening the DRMs so that they cannot be cracked by hackers and simultaneously and much necessarily expanding the rights of the consumers.

Conclusion

In light of the aforementioned discussions, and with aspirations to create a fairer ecosystem in cyberspace balancing rights of customers, copy right holders and intermediaries- it is proposed that, DRMs shall be relaxed for too strict DRM’s infact lead to more violation of copyright infringements. They shall not evade the zone of customers, and shall infact widen the scope of rights of customers and should infact provide to the customers wider range of rights including ownership of content, transferring the content to the next generation, etc.

Thus, DRMs though infringes upon rights of customers is a necessity in current world, where piracy is rampant. To maintain law and order DRM Systems prove to be a beneficial tool. The advocacy of DRM Free world though genuine needs a long work to create an infrastructure with strong substratum.

References

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Statute

Digital Millennium Copyright Act,17 U.S.C. (1998).

Directive 2001/29/EC, Harmonisation of certain aspects of copyright and related rights in the information society, O.J. L 167, 10 (21 May 2001).

WIPO Copyright Treaty (WCT 1996).

WIPO Performances and Phonograms Treaty (WPPT 1996).

Statute of Anne, 1710.

The Copyright Act, 1957, No. 15, Acts of Parliament, 1957 (India).

CASES

Indian

Adobe Systems Inc. & Anr v. Arun Jain and Ors, Delhi High Court, Order (CS(OS) No. 166/2014, January 20, 2014).

Sony Computer Entertainment Europe Ltd. v. Harmeet Singh & Ors, 2012 (51) PTC 419 (Del).

Sony Music Entertainment Private Ltd. & Ors. v. YT1S.com & Ors, Delhi High Court, Order (CS(COMM) 13/2023, December 2, 2023).

Tata Sky v. Youtube, Delhi High Court, Order (CS (COMM) 223/2016, October 8, 2016).

UTV Software Communication Ltd. v. 1337X.to, 2019 SCC Online Del 8002.

Viacom18 Media Private Limited v. Bharath Sanchar Nigam Limited and others, Madras High Court, Order (CS(COMM) 227/2022,18 November 2022).

Foreign

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

Hachette Book Group Inc., et al. v. Internet Archive, et al., 542 F.Supp. 1156 (S.D.N.Y. 2023)

ONLINE

Articles

Michael Arrington,  Bill Gates on the future of DRM, Tech Crunch (Last visited on May 23, 2023, 7:20PM), https://techcrunch.com/2006/12/14/bill-gates-on-the-future-of-drm/.

Isabelle Crossley, Sarine wins Indian court case on copyright infringement, Fashion Network (Last visited on May 23, 2023, 7:35PM), https://in.fashionnetwork.com/news/Sarine-wins-indian-court-case-on-copyright-infringement,1467594.html.

Urs Gasser, Legal Frameworks and Technological Protection of Digital Content: Moving Forward Towards a Best Practice Model, The Berkman Center for Internet & Society Research Publication Series. (Last visited on May 23, 2023, 7:36 PM), http://cyber.law.harvard.edu/publications.

Riya Madaan, Denuvo Anti-Tamper reportedly causing performance issues & locking out players from their purchased games, Piunikaweb (Last visited on May 23, 2023, 7:36 PM), https://piunikaweb.com/2023/02/27/denuvo-anti-tamper-affecting-performance-and-locking-players-out/.

Express News Service, Manufacturers, factories sued for copyright violation, Indian Express (Last visited on May 23, 2023, 7:36 PM), https://indianexpress.com/article/cities/surat/manufacturers-factories-sued-for-copyright-violation-7944519/.

Ryoichi Mori, Shuichi Tashiro, The Concept of Software Service System (SSS), Wiley Online Library (Last visited on May 23, 2023, 7:37 PM), https://onlinelibrary.wiley.com/doi/abs/10.1002/scj.4690190504.

Ira Steven Nathenson, Cyber law will die and we will kill it, Elgar Online (Last visited on May 23, 2023, 7:39 PM), https://www.elgaronline.com/display/edcoll/9781788119917/9781788119917.00007.xml.

Andrew Orlowski, Apple DMCA sends iTunes DRM decryptor offshore, The Register (Last visited on May 23, 2023, 7:40 PM), https://www.theregister.com/2004/04/09/playfair_dmca_takedown/.

Ryan Pearson,‘Suicide Squad: Kill The Justice League’ Faces Backlash After Rocksteady Reveals Battle Pass And Online Connection Requirements For Single Player, Bounding into Comics (Last visited on May 23, 2023, 7:40 PM), https://boundingintocomics.com/2023/03/05/suicide-squad-kill-the-justice-league-faces-backlash-after-rocksteady-reveals-battle-pass-and-online-connection-requirements-for-single-player/.

Prashant Reddy, Calcutta High Court orders ISPs to block songs.pk, SpicyIP (Last visited on May 23, 2023, 7:40 PM) https://spicyip.com/2012/02/calcutta-high-court-orders-isps-to.html.

Emily Reynolds, Why does James Blunt make so little from Spotify? Wired (Last visited on May 23, 2023, 7:41 PM) https://www.wired.co.uk/article/james-blunt-spotify-royalties.

RK Dewan & Co., A step towards protected India Mondaq (Last visited on May 23, 2023, 7:41 PM) https://www.mondaq.com/india/copyright/735452/a-step-towards-protected-india#:~:text=India%20is%20now%20party%20to,entered%20into%20force%20in%202002.

Ryuou Wang, Yan Shoshitaishvili, Christopher Kruegel, Giovanni Vigna, Steal This Movie – Automatically Bypassing DRM Protection in Streaming, University of California Santa Barbara, (Last visited on May 23, 2023, 7:42 PM)  https://sites.cs.ucsb.edu/~chris/research/doc/usenix13_moviestealer.pdf.

Reuters Staff, Amazon offers to replace deleted copies of 1984, Reuters (Last visited on May 23, 2023, 7:42 PM) https://www.reuters.com/article/us-amazon-idUSTRE58400920090905.

Ethan Zuckerman, Jonathan Zittrain at Freedom to Innovate, Ethan Zuckerman (Last visited on May 23, 2023, 7:42 PM) https://ethanzuckerman.com/2015/10/13/jonathan-zittrain-and-star-simpson-at-freedom-to-innovate/.

Youtube Video

Berkman Klein Center for Internet & Society, Cory Doctorow: Kill All DRM in the World Forever, Within a Decade (Oct. 27, 2015), https://www.youtube.com/watch?v=ugvtpCB8yzc&ab_channel=TheBerkmanKleinCenterforInternet%26Society .

Steal this Film, Aaron Swartz – On Peer To Peer, Digital Rights Management and Web 2.0. (Apr. 2007), https://www.youtube.com/watch?v=XOEfK8UesM0&ab_channel=StealThisFilm.

BOOKS

Thomas Hobbes, Leviathan, (Princeton University Press 1651).

Lawrence Lessig, Code 2.0 (Basic Books 2006).

Jonathan Zittrain, The Future of the Internet and How to Stop It, (Yale University Press & Penguin UK 2008).

JOURNALS

Swaraj Paul Barooah, Disruptive (Technology) Law? Examining TPM s and Anti-Circumvention Laws in Copyright (Amendment) Act, 2012, NUJS Law Review 5 (2012).

Prateek Chakraverty, Effective Applicability of Sections 65A and 65B of Copyright (Amendment), Journal of Intellectual Property Rights (2015).

Julie E. Cohen, The New Economic Orthodoxy of “Rights Management”, Michigan Law Review (1998).

Mulligan, Deirdre and Perzanowski, Aaron K., The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident, Case Western Reserve University- Faculty Publications (2006).

Megha Nagpal, Copyright Protection through Digital Rights Management in India, Journal of Intellectual Property Rights (2017).

Justice S. Muralidhar, Jurisdictional Issues in Cyberspace, The Indian Journal of Law & Technology 6 (2010).