TARLETON GILLESPIE: Digital rights management, or DRM, is designed to stand in for the law where copyright can't reach or is ineffective. The technical solution is very appealing. Rather than relying on law to catch the people who can be caught, technology intervenes in every case. It intervenes before the violation happens. It's very appealing to those who would like to see piracy halted.
As such, it's not surprising that the debate's been largely about the technology either as a sort of neutral, fair intervention into a complex problem or as a clumsy tool where law is more subtle. But really, technology should not be the focus of this story. Technical copy protection requires a series of political, legal, economic, and cultural arrangements to support it.
In some ways, it's a high wire act, getting together a series of elements-- laws, licenses, economic partnerships, cultural ideas-- and these efforts, regardless of whether DRM ever succeeds, may have their own consequences. The strategy of technical copy protection is never just a technical one, though it's often discussed that way. What we can look for in this case is how the imposition of this technical solution requires both political mobilization of a series of allies who don't necessarily share the same interests and cultural legitimation, trying to convince people this is the right solution, the only solution, the inevitable solution.
So rather than intervening through the law, trying to prohibit activity and punish it afterwards, DRM tries to make infringement of copyright technically impossible, make it so that the devices you use can't be used to copy, can't be used to distribute. This means intervening at the point of manufacturer, convincing the designers of technologies who may not benefit from these restrictions to play along and to impose DRM restrictions. And if it's hard to get one manufacturer to agree, it's even harder to get all manufacturers to agree. Despite their symbiosis and the fact that these industries are increasingly converging, they have very different economic and ideological goals.
So we might think about three ways in which the content industries could convince or compel manufacturers to play along with the DRM strategy. The first, perhaps naively, is to ask nicely, to ask manufacturers of electronics and technology to impose a set of restrictions through their tools. And the music and movie industries have pursued this tactic. In public presentations about the dangers of piracy, they've tried to convince technology manufacturers that they'll be harmed by internet piracy as well. More importantly, they've convened a series of coalitions of willing industry partners to try to reach voluntary agreements, a consensus about digital copy protection.
The problem with trying to pursue a voluntary agreement, first, is that it may be very difficult to convince electronics companies and technology companies that they are, in fact harmed by internet piracy. There is an argument to be made that they're in fact helped by copyright infringement, that it's only the content industries who see any harm. In the process of trying to reach consensus, anyone could walk away from the negotiating table if they don't see their own interests being pursued. So reaching some kind of consensus is a very difficult thing to do.
And even if you get everyone at the table to agree to some copyright protection system, the next company to come along won't necessarily agree. So once again, the market will provide upstarts who have less restriction than the technologies that were part of the debate. Clearly, mobilizing these unruly allies requires some kind of binding force, some way not just to convince manufacturers to play along, but to compel them to. But how would the content industries, the music music and movie industries, find some way to obligate manufacturers to participate in the DRM strategy even if their economic interest doesn't support doing so?
A second tactic is to call upon the state. The state is in a powerful, but not perfect position to impose obligations on manufacturers of technologies, whether or not they want to play along with the DRM strategy or not. Their obligations are not easily refused. They come with the legitimacy and the authority of the state, and they can impose rules not just on US companies, but internationally through trade agreements.
But by all accounts, calling upon the state is a double-edged sword. The state is bureaucratically complex, as we know. It is beholden to its citizens and probably more powerfully to those who persuasively have its ear. Most importantly, any obligations they impose have to be justifiable in terms of their public mandate.
But there's a third tactic, and we'll see it in the case of DVD copy protection which has been the most successful DRM system yet, even though the DRM has been cracked and movie piracy continues. The movie industry found that the content itself, the films they produce, offered a curious political leverage for imposing obligations on the manufacturers of DVD players and applications. Hollywood didn't want to make the same mistake that the music industry did. They didn't want to release their content in digital form before they had worked out some kind of copy protection system, so they waited on the DVD until they had come up with one.
In 1996, a coalition of studios, consumer electronics companies, and information technology companies called the Copy Protection Technology Working Group proposed a series of solutions, the most important one for our story called CSS, the Content Scramble System. Every DVD that comes out of a Hollywood studio is now encrypted with CSS. You need the decryption key to play those movies. Those keys are built into your DVD player or your DVD application. Those keys are held by an organization called the DVD Copy Control Association, which again is a coalition of those same studios and technology companies.
Now, to get a key, you have to pay a small fee, a couple thousand dollars, which is a pittance for a major technology company. The other thing you have to do is you have to sign a license called the CSS license. And it's this license that obligates manufacturers to impose a set of rules about what users of their technologies can and cannot do.
The CSS license is the structural blueprint for the trust system that DRM is supposed to impose. The CSS license offers a series of stipulations. Most of them are about copy protection. The license has to ensure that the manufacturers design their devices so that they prevent copying, they prevent you from outputting the film in a format that would allow copying or distribution, and that they refuse to play illicit copied discs.
The license also obligates that the manufacturers of the technology obscure the process inside the technology so that prying eyes couldn't figure out how the system works. It compels manufacturers to upgrade the system whenever the film industry sees it as necessary. It even allows the DVD Copy Control Association to impose surprise inspections on their manufacturing floor. So now we have a license, backed, of course, by contract law, paired with encryption, creating an obligation and a binding force to compel manufacturers to ally with content industries in this strategy.
Still, this combination of lock and license is still not enough. Because it turns out there are people clever enough to figure out how the system works and to get around it. And not only do they get around it in order to make illicit copies of movies, but they also design little tools that can be distributed over the internet to allow anyone to do so as well.
This happened most prominently in 1999, when a team of hackers in Norway developed a technology called DCSS, a short piece of code that could be sent around online that would allow you to play a DVD and deposit it into an unencrypted format, a format that could then be copied or distributed on peer-to-peer networks. So it turns out that develop-- a DRM system that's supposed to replace the law, the film industry needed more law. And that law is the Digital Millennium Copyright Act, which was passed in 1998 at their urging.
The Digital Millennium Copyright Act, or the DMCA, says that if content has been given technical protection, some kind of encrypted barrier, security mechanism, then it's illegal to try to go around that system. It's also illegal to design tools that would help other people go around that system. So now CSS, the encryption that's on your DVD, enjoys the force of law behind it. Not only do we have a turnstile, but it's also illegal to jump that turnstile.
What we can see is the DRM, purportedly technical solution, depends on a series of legal, economic, and cultural arrangements. In the pursuit of DRM, copyright law has changed, the relationship between the content and the technology industries has changed, the line between a manufacturer and a hacker has changed, even our experience of movies has changed. It's also interesting to note that despite all these efforts, the DRM has in fact been cracked. And this may not matter that much.
Proponents of DRM systems early on were seeking a leak-proof system. The hope was that not a single copy of a single film would make it onto these peer-to-peer networks. Increasingly, the movie and music industries are growing comfortable with the idea of a curb high system-- in other words, a system that stops most of us most of the time. DCSS and 100 other decryption tools are still widely available on the internet, and every new Hollywood movie shows up almost immediately on peer-to-peer networks.
The movie industry is currently in the process of upgrading DVDs into a high-definition format-- two platforms, the Blu-ray platform and the HD DVD platform. Both of them come with a new and purportedly stronger encryption system called AACS. But even before the public has embraced these formats, AACS has already been cracked, and the codes that break AACS have already been circulated online by hackers, bloggers, and copyright activists. In the next chapter, I'll point out some of the consequences of this move not only of particular DRM systems, but the pursuit of DRM as a strategy at all.
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Join Tarleton Gillespie in examining the effect of copyright on digital culture, and develop insights into the ongoing negotiation about what the internet will be, what shape digital culture will take, and what role technology plays in the organization of society.
This video is part 4 of 5 in the Wired Shut: Copyright and the Shape of Digital Culture series.