What Should We Call DRM?
Continuing my apparent preoccupation with terminology (see this post)…
In the course of research and drafting of the white paper for the Berkman Center’s project on educational uses of content, we have found that Digital Rights Management (DRM) is among the most significant obstacles impeding access to content for educational purposes. For those who don’t know, DRM is technology that can mechanically prevent uses of content that copyright holders wish to prevent. It was originally deployed as a defense against large-scale copying by intellectual property pirates — the encryption encoded in DVDs exemplifies this original purpose. But the technology also allows much more fine-grained control over how consumers access and use content, as well as market segmentation and price discrimination. And whatever its intended purpose, DRM thwarts some perfectly legitimate uses of content. In our white paper, for instance, we have a case study about film professors who want to show clips from movies in class and confront the encryption of DVDs that aims to prevent any and all copying.
I do not like calling it “DRM.” Among the problems with this term:
1. It is cumbersome and aesthetically unattractive.
2. It does not explain itself as good descriptive terminology should, particularly to those who are not copyright specialists.
3. It may not describe the full range of technology that the word should encompass. For example, is region coding of DVDs (so that a DVD purchased in Europe will not play on an American machine) really management of rights?
4. Most important, the name is biased in favor of content providers. It placidly brushes off questions of who should control certain rights in certain circumstances, in favor of an assumption that content industries can and should “manage” their digital “rights” this way. But when most existing systems encounter an individual’s fair use rights, they “manage” those “rights” out of existence.
The question then becomes: what is the substitute? The phrase “technological protection measures” (TPM) has become somewhat popular, but that repeats all the above problems (except perhaps for number 3). It may be worse on the bias front — “protection” sounds even more benign than “management” of content. There are also references in the literature to “automated rights management” (a little more descriptive, but still suffers most of the same problems) and “copy protection controls” (better in some ways, although the technology controls access and use as well as copying, and there is that “protection” again).
Now, it would be just as bad to embrace some term that pushed bias to the other side. There are legitimate reasons to use technology to prevent the type of commercial piracy that becomes so much easier when content is digitized. That’s what makes the issue so thorny.
I would like to see a more neutral and simple term. Here is one suggestion: “access control” (or, as needed, “technological access control”). I think this language is more descriptive to a layperson than the vagueness of DRM and TPM. It is more neutral because it sidesteps all questions about protection and rights. And it has the further advantage of tracking the language of the Digital Millenium Copyright Act, which mandates: “No person shall circumvent a technological measure that effectively controls access to a work protected under [copyright law].”
Of course, “DRM” and “TPM” are first movers in this naming market and may already have occupied the field. But I am considering whether the white paper for our project should adopt a different term, such as “technological access control,” and apply it to the technology formerly known as DRM.
Filed under: Education & Copyright, Intermediaries, Scholarship
Certainly “access control” is a more descriptive and neutral term than “DRM.” Even though TPM and DRM have made their way into the legal lexicon, a quick search of LEXIS suggests that neither term commands a dedicated group of followers. “Access control” has advantages on the merits that might just make it a viable competitor to existing terms.
I do have a question about the term “access control,” however. I wonder whether it covers the space completely. In particular, the DMCA speaks of regulating not only “access” to digital works, but also prohibits manufacture and trafficking of technology for circumventing a “technological measure that effectively protects a right of a copyright owner.” While the courts seem to have conflated “access” and “rights” controls, should we nonetheless attempt to formulate a substitute term that encompasses both the access and rights control capabilities of these controls? I raise the question because it seems important to make the public aware that rightsholders are doing two things – they are protecting the rights Congress has created for them, and they are also restricting access to digital works, irrespective of the rights Congress carved out. Is there a way to reflect both types of restrictions in our terminology? And if there is, should we aim to do so?
[...] William McGeveran at Info/Law thinks that Digital Rights Management should be called access control. He makes a number of good points. DRM sounds like it should describe a government process in which the digital rights of copyright holders are managed. Access control (as McGeveran points out, mirroring language in the DMCA) is really what content creators are after: who can use my creation and how. Of course renaming DRM does not address the issue that the rights that many governments are granting content creators are not aligned with the best interest of the people or the culture, but it reframes the debate in terms of what legal protections (above and beyond copyrights) we want to award content creators for asserting technological control of their content. May 15, 2006 | In Publishing | [...]
[...] Problems caused for educators by DRM (or TPM or access control technology or whatever you want to call it) that locks up content and prevents even fair use; [...]
The problem with TPM is that it is a widely accepted name for the Trusted Platform Module. (See Dell Latitudes) This TPM is thought of by many as a hardware device which will be used to enforce DRM.
The issue really becomes one of Identity and authorization for use in the context of permitting sampling of information under fair use doctrines.
It is reasonable to argue that intellectual property rights must be controlled somehow. The ability to identify the user’s purpose as a legitimate educational purpose and to allow limited ability to use digital information should be part of the DRM conversation. There needs to be both fences and gateways.