DRM and Fair Use

Aron Schatz
April 18, 2006
This report will discuss the implications and ramifications of Digital Rights Management (DRM) and how it impedes on consumers right to fair use. Fair use is what gives consumers basic rights to content that they purchase. Copyright owners have been against fair use since the first piece of electronic recording equipment was released. Consumer rights are being violated by DRM.
Tags Rights

Page 1: Intro, The VCR, The Broadcast Flag


Consumers vs. content owners. This is the new digital war that is in many different headlines. The question must be asked; why are content owners against consumers? The answer to the question is very simple taken at face value. They are not against their primary source of income. Doing so would cause a collapse in their industry and this is not what any company wants. It is their actions and motives that are against consumers. Fully disclosing the intent and actions of content owners needs to be complemented by remembering some key cases and events in the past. The question still remains even though they are targeting their cash cow business processes. It is fair use that is part of the answer. Content owners and businesses that support them are adamant about letting consumers that purchase their works any rights at all. It was a few decades ago when the first major trial occurred that challenged fair use.

The VCR:

The VCR, or VTR as it was known back in 1976, was released by Sony and it was the first device that allowed consumers to record and playback what they witnessed on TV. Today this process is called time-shifting and is perfectly legal, but back when the VTR was introduced Universal Studios and Disney felt that the VTR infringed on their copyrights. The case was brought to the California district court in 1976. Two years later, the court ruled in favor of Sony. The opinion of the court was that the device was primarily used for non-commercial home use and is allowed under the First Amendment of free information for public use.

The trial went into the appeals process where it was decided in the Ninth Circuit Court that Sony was liable for damages and was contributing toward copyright infringement by creating this enabling technology. The court decided that Sony should have to pay fees and damages resulting from the creation of this device. The trial eventually landed in the Supreme Court and, in 1984, decided that Sony was within its legal rights to sell the device and consumers are allowed to purchase and use it. The opinion of the court to reverse the Ninth Circuit Court was slim, a 5-4 vote. The outcome of the trial was that time-shifting is fair and legal and the content owners have no right to disallow this process under the current copyright law. This was not the last time that the content owners attempted to quell consumer rights.

After the court battle, the content owners lobbied congress to pass laws protecting its copyright. Since the VCR was well entrenched in the homes of America after eight years of court, congress did not want to impede the use of the device. Congress mandated that a statutory fee be placed on blank VCR tapes. This ensured that anyone buying a VCR tape would be paying for its use to the content owners (which is a salvo against consumers). This type of fee should be illegal because the intended use of the tape may not be for recording a copyrighted show. It may possibly be a home movie or other noncopyrighted work. Unfortunately, the fee makes no regard to this use and is mandatory. It is interesting to know that blank audio CDs also have this type of fee attached to them.

Broadcast Flag:

Another angle that the content owners pursued was a feature that would be mandatory in all VCRs. A sensor would be installed that would detect a "no copy" signal and refuse to copy the content. If content owners were successful in placing this type of rights management into the VCR, the courts would have never had the chance to evaluate its use under copyright law and to legalize time-shifting as fair use.(1) Remember that content owners love to double dip on consumers. The more they purchase the same media, the more money that the content owners make in pure profit.

This "no copy" signal recently came into light in another issue. The FCC mandated that all TVs should be able to distinguish a broadcast flag that would prevent copying of the content over any medium (Antenna or Cable). "Responding to pressure from Hollywood, the FCC had adopted a rule requiring future digital television (DTV) tuners to include "content protection" (aka DRM) technologies. All makers of HDTV receivers would have been required build their devices to watch for a broadcast "flag" embedded in programs by copyright holders. When it comes to digital recording, it would be Hollywood's DRM way or the highway. Want to burn that recording digitally to a DVD to save hard drive space? Sorry, the DRM lock-box won't allow it. How about sending it over your home network to another TV? Not unless you rip out your existing network and replace it with DRMd routers. Kind of defeats the purpose of getting a high definition digital signal, doesn't it?"(2)


Medium Image View Large