DRM, the law and the social cost
OUT-LAW Radio, 08/02/2007
As Apple's Steve Jobs calls for DRM free music, we look at the
legal basis and social impact of copy control technology, and we
look at a looming battle between the relatively new information
access and privacy laws.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to Out-Law Radio, the weekly podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the
latest news and in depth features that help you to make sense of
the ever-changing laws that govern technology today.
My name is Matthew Magee,
and coming up on this week's show we get some impartial advice on
the future of copy controls in music and software, and we look
ahead to a potentially crucial battle between open-ness and privacy
in the House of Lords.
But first, the news.
- A long-running software
patent case is brought to a close; and
- Dell execs are accused of
operating a pump and dump kickback scheme.
An attempt to overturn the
UK law banning software patents has been blocked after the House of
Lords refused permission to appeal. Australian entrepreneur Neal
MacRossan's two year battle is now over.
MacRossan had tried to
patent an automated system for acquiring the documents necessary to
incorporate a company in the UK. It was ruled to be unpatentable
because it was a software program and a mental act, both
unpatentable under UK law.
It was denied a patent by
the Patent Office, the High Court and the Appeals Court. MacRossan
cannot appeal any further.
Dell has been accused of
accepting secret kickbacks from Intel for only using that company's
chips in its computers. Intel had always been the only chip
supplier to Dell until last year, when it began offering some
machines that used chips from Advanced Micro Devices.
A suit filed by two Dell
shareholders says that Intel rebates were kept secret by Dell so
that Intel would not face further antitrust law suits. It also says
that Dell used the payments to falsely inflate its financial
results while Dell executives sold $3.3 billion of stock.
Calling the companies'
alleged actions "the largest insider trading pump and dump in
history", the suit, requests class action status.
Intel is already being sued
in the US in an antitrust case, and an EU investigation is ongoing
into the company's practices.
Dell has not commented on
the lawsuit, but an Intel spokesman, speaking to the Financial
Times, said that some aspects of the suit were "completely made
up".
That was this week's Out-Law
News.
Apple founder Steve Jobs
this week shocked and surprised the digital music world by
announcing that he wanted nothing more than to sell music tracks
free of copy control technology. Jobs, whose company is the world's
biggest seller of copy controlled music downloads, had kick started
yet another heated debate on one of technology's most fiercely
contested issues: digital rights management (DRM).
We are by now familiar with
the claims and counter-claims made by record companies and consumer
rights activists, so here at Out-Law Radio we thought we'd try and
take the broader view of the issue, and found a couple of experts
with no vested interests to tell us what they think the battles are
really about.
Francisco Javier Cabrera
Blazquez is a researcher with EU funded body the European
Audiovisual Observatory, and has just completed an extensive
research paper on the state of DRM technology in Europe, while
Professor Christopher May has just published a book looking at the
social and economic costs of DRM.
Firstly, Blazquez outlines
the legal basis of DRM in Europe. It turns out, he says, that DRM
laws across the world are all based on the same two Treaties from
the mid 1990s.
"The origin of the legal
protection of DRM's, it comes not from the European Law but rather
from International Law, that is from two Treaties, two WIPO
Treaties which were adopted in 1996 and from this International
Treaties came well in the US the Digital Millennium Copyright Act
and in Europe the Directive. DRMs are protected by copyright law
but on the other hand, the effects that DRM may have may have
implications as regards consumer protection and competition
law."
So that is how DRM is
regulated, but what effect does it have? As Steve Jobs pointed out
only this week it doesn't stop piracy, the peer to peer networks
humming with swapped music are testament to that.
So what function does DRM
actually perform? And what effect does that have on music
lovers?
Political economy Professor
Christopher May, of the University of Lancaster thinks that DRM is
being used not just to combat piracy, but to control our use of
music more closely than ever.
He says it breaks a
generations-long unwritten contract between us and entertainment
conglomerates.
"There has always been a
balance at the heart of intellectual property policy between the
private rights of reward for specific inventors or creators and the
public benefits of freely available information and knowledge. Now
what is interesting about Digital Rights Management is what is
removes is the area of negotiation over that balance that has
always existed within policies. It stops the sort of social
deliberation of these issues, the social deliberation of the
balance between private rights and public benefits and makes it
merely a technological issue. In other words, it tries to remove
the politics from intellectual property rights."
What May calls that process
of negotiation takes place via politicians in the law making
process, in Courts and even in bedrooms across the country as music
lovers taped each other's records on hissing, biro-labelled
cassettes.
"Some of that negotiation
leaves a sort of tacit negotiation through behaviour and practice
where either home tapers or people who gave mix tapes to their
friends, the industry itself regarded such things as not being
worth investigating. So the industry has always investigated large
scale commercial piracy, but has seldom in the past sought to try
and punish or govern if you wish the behaviour of individuals. Now
what has changed is that that governing has now become possible at
least potentially through the use of Digital Rights
Management."
DRM began, says May, as a
control mechanism in the software world and was quickly imported
into the cultural sphere. He says that it is not only responsible
for emerging alternative music networks and some piracy, but also
for the open source software movement.
"Rights of consumers have
been so constrained by DRM that people are now seeking alternatives
to using DRM linked technologies and products. There is very
clearly opposition in the open source software movement to DRM has
been about rolling out forms of software that are not covered by
what we would call property rights. What we are seeing is that the
industry who are pushing DRM are now finding that the resistance if
we can call it that has produced a soft of alternative, so we have
alternative music, new Indie labels, new downloading systems that
are not linked to the music industry and equally in software we
have new organisational software over and above the organisation
through Microsoft as it were."
DRM has, then, caused major
corporations almost as many problems as it has solved, but there
could be other problems in store too. One is that it last longer
than the term of copyright. Soon old rock and roll recordings will
fall out of copyright protection, but your downloads of Elvis's
early years will still be restricted, and for no reason.
Another problem is that
exemptions from copyright for libraries, schools and hospitals
which apply with physical content do not apply when content is
provided on demand. As those methods of delivery become more
popular, users rights will be eroded even further says
Blazquez.
"There is a role in the
directive which permits the circumvention of DRMs to a certain
extent. But in the case of on demand content, this rule does not
apply. It seems that more and more the industry is going from
physical distribution of CDs and DVDs to internet distribution, to
on demand distribution of copyright content. There could be a
problem there if exceptions do not apply to on demand content and
the industry more and more provides content over on demand services
than the exceptions for them to be applicable any more."
We have a right to know how
our country, school, hospital and city are run, so says the Freedom
of Information Act.
We also have a right to
privacy, and for records Government and companies hold on us not to
be released to any old person that asks.
These rights are so
important that each has its very own piece of legislation. The
Freedom of Information Act allows us to peer into the workings of
power, while the Data Protection Act protects our privacy.
So what happens when the two
collide? Well, in a long-feared battle of the Acts, that is exactly
what is happening over leukaemia figures in Dumfries and
Galloway.
Michael Collie asked for
childhood leukaemia figures in particular areas. The NHS refused,
and the case proceeded through the Courts, with the NHS
consistently ordered to reveal the information. Now the NHS looks
set to take the case to the House of Lords.
William Malcom, a privacy
specialist with Pinsent Masons, the firm behind out-law.com,
outlines the issues.
"The Collie case is a very
interesting case and it concerns two important things. It concerns
the definition of personal data, you know what do we mean by that
phrase, whether we are talking about it in the context of the Data
Protection Act or whether we are talking about it in the context of
the Freedom of Information Act and it also looks at the application
of an important exemption in the Freedom of Information Act which
is designed to balance two important things: the public's right to
know and the individual's right to privacy. Not easy concepts to
reconcile and that really is at the root of why this case has been
fraught with disagreement and difficulty, because you are trying to
balance two very different rights and trying to ensure that those
rights are properly given protection in law."
The problem is that before
FOI existed, the Courts ruled in a case involving a Mr Durant that
personal data referred not to everything that mentioned your name,
but only to information that was primarily about you.
That meant that
organisations had to give you less information about yourself when
you asked for it, which suited them, but when FOI was introduced it
increased the amount of data they have to give out. This is because
it reduced the amount of information that was excluded from an FOI
request on the grounds of being personal data.
"The Durant case effectively
pegged back the definition of personal information or personal data
and said that data controllers had to disclose a small amount of
information in response to subject access requests. They only had
to disclose that which impacted on an individual's rights to
privacy. The exemption in the Freedom of Information Act states
that you really don't disclose personal data and of course that's
the rub, if you take a narrow view of the definition of personal
data for the purposes of a DPA then you are stuck with that same
narrow view when you are applying the FOI legislation, and that's
one of the issues that the court in Durant never got to consider
because Durant was pre FOI."
We await the decision of the
Lords on whether they will hear the case, but as Malcolm says, this
could be an ideal opportunity to sort out the clash between two
relatively new laws.
"It provides really quite an
important opportunity for the upper Courts to clarify what has
become quite a muddied area and to clarify once and for all what
the definition of personal data that people apply and what the
ground should be and also we get this balancing act between the
public's right to know and the individual's right to privacy. So it
is an important opportunity and I think people would welcome some
kind of guidance from the House of Lords on these points."
That's all we have time for
this week, thanks for listening.
Why not get in touch with
Out-Law Radio? Do you have a legal problem you would like us to
discuss on air? Do you know of a technology law story? We'd love to
hear from you on radio@out-law.com.
Make sure you tune in next
week; for now, goodbye.
Out-Law Radio was
produced and presented by Matthew Magee for international law firm
Pinsent Masons.
