Digital Rights Management, Who owns what?: Why we should think about what we’re buying

February, 2016

Everywhere we turn, we’re surrounded by digital content. From our music and e-books to the software in our cars, we’ve all bought and paid for “things” that don’t physically exist. But have you ever stopped to wonder what you’re actually getting for your money? The answer’s not as straightforward as you’d think.

Back in the day, most of us had shelves of books, stacks of CDs and boxes of computer software scattered around our homes. But today, in an age of faster and easier, many of us opt for downloading our games from Steam or buying the latest Adele single from iTunes. But somewhere along the way, we also came to accept a companion of that convenience: the understanding that if we want to sell our unread e-copy of James Joyce’s Ulysses, well … we can’t. Why? Because the creators of digital products have developed means, known as digital rights management (DRM), to protect their assets from the possibility of being copied.

Their logic is that without protecting their digital assets, the creators and rights holders won’t make money. And without making money, they will have no incentive to create more products. As Glenn Rollans, President of the Book Publishers Association of Alberta and Vice-President of the Association of Canadian Publishers, puts it, “DRM is about facilitating use within the bounds of the sales agreement. It creates a kind of moral handshake on the transaction.” What that means is that we share an understanding that if I sell you a digital copy of my song, you agree not to redistribute it. DRM simply ensures that everyone complies.

Where Did This Agreement Come From?

The idea behind this implied sales agreement originates with the idea of copyright itself. Originating in 1710 as a way to protect London publishers from illicit copying of their works, copyright (literally the right to copy) became entrenched in our legal systems to protect the rights of creators.

But with the rise of digital material, it became obvious that the law wasn’t enough. Digitized intellectual property proved too easy to copy in an increasingly computerized world. While it was impractical to mass copy things such as vinyl albums or paperback books (both of which suffered quality loss when duplicated), computer software (the first mainstream digital product) was infinitely easier to duplicate with no loss of functionality or quality.

To combat that, software companies began to add in hidden files or deliberate errors to prevent copying, but this was to no avail, and the relentless struggle between the owners of digital content and would-be copiers was on. So as each form of intellectual property became digitized, it adopted some form of copy protection to protect its rights holders. This evolved into what we now know as DRM. Sometimes, that protection is as simple as the enforced Interpol message on a DVD. But increasingly, DRM has become complex. In fact, it currently exists in so many forms and in so many products that it is sometimes impossible to recognize.

Take DVDs, for example. They contain regional locks so that they can’t be played on players manufactured in different regions. Music can also be locked to a specific number of devices, and computer software can be required to “check-in” online before it will run. The computer chip in your car contains proprietary code so that only authorized people can service it. Even the current issue surrounding Netflix and geo-blocking is a form of DRM that allows rights holders to control how and where people watch movies. And now, some 300 years after the invention of copyright to protect book publishers, e-books are a reality, and publishers are not content to rely on the law for copyright protection. DRM can prevent us from copying our e-books from one device to another and forces library e-books to “expire” after a certain number of days. And in some ways, publishers find themselves a test case for the reach of copyright and DRM.

Whose Interests Does DRM Protect?

It is important to ask who really benefits from DRM and what those benefits are. To answer that, you have to understand the players. In book publishing, authors and publishers are generally the rights holders. They produce the product and move it through a supply chain that puts it in the hands of consumers. To produce more books (or music or games), publishers and creators need to make money. For them, DRM ensures that, so the prevailing wisdom is that it’s a benefit to creators and consumers alike.

But John Maxwell, a professor at the Publishing Program at Simon Fraser University, doesn’t believe that DRM, in the book world at least, is that simple. He agrees that, “Publishers seem to be motivated primarily by a fear of piracy, or that unprotected content will be shared on a massive enough scale online that it will damage the market.” But he points out that there are other interests at play as well. “The other agenda is on the retail side: big retailers (like Amazon, Apple, Kobo and others) seem to be using DRM as part of a larger technical architecture aimed at enforcing customer loyalty; to prevent book purchasers from being able to take purchases outside of the original reading system.”

So What Exactly Did You Just Buy?

Because DRM originates with distributors and retailers, not the creators, big retailers are increasingly able to gain influence and control the terms of their agreements with publishers—agreements that, by the way, are confidential; none of the publishers I spoke to were allowed to discuss them. The nature of these agreements means retailers have domain over DRM and they use it to set—and enforce—the terms of the transaction with the consumer.

To use digital products, consumers have to agree to those terms. For example, when you make a digital purchase, you usually “agree” to a set of terms and conditions or to an End User License Agreement (EULA). Chances are also likely that you don’t read that agreement. And that’s not surprising. No one I asked while researching this article has. These terms are where the answer to “What we are actually purchasing?” lies. Let’s look at the terms and conditions of the big three e-book retailers: Amazon, Kobo and the iTunes store.

At first glance, the terms initially read as a way for the retailers to protect themselves from hackers and black hats out to damage their systems, but these agreements also restrict what users may do with their purchases. Terms to the effect that users may not modify, publish, sell or copy any of the digital content are common to all three retailors. By clicking “agree” you have, in a sense, simply leased—licensed—the right to use the product. Amazon actually makes this explicit: “Kindle Content is licensed, not sold, to you by the Content Provider.” This is the same fine print that led to Amazon’s infamous (and ironic) 2009 deletion of George Orwell’s 1984 from customers’ Kindles without their knowledge or permission. Amazon mistakenly sold a product they had no right to sell, so they corrected their error by simply removing the book from purchasers’ devices. This incident now stands as the classic example of how DRM is changing the concept of ownership.

OKay, so where’s the rub?

All this begs the question of why some people have an issue with DRM. The issue is twofold. All three retailers reserve the right to terminate the contract if you breach any of their conditions. A breach might be as simple as not keeping your customer data up to date (as per Kobo’s terms). That means you no longer have access to products from their systems even though you paid for them. Amazon demands that if they terminate the contract, “you must cease all use of the Kindle Store and the Kindle Content.” That is, you are no longer legally allowed to read any of the books you have acquired, and Amazon has both the right and the ability (through DRM) to remove them from any devices you have stored them on and does not have to refund your purchases.

But control over the product is not the only problem. Not only are you paying for a product you don’t ultimately control, but all the data you generate using a DRMed product—such as whether you finished reading the book or playing the game—becomes a potential source of revenue for whoever controls the DRM. Beyond books and games, DRM can also ensure that your car is serviced only by authorized, licensed mechanics and can track your usage patterns. It eliminates competition from resellers, enforces brand loyalty and guarantees a future market while potentially generating even more income through licensing fees.

This power may be fundamentally shifting how and why products are created. Rollans believes the ongoing drivers of DRM will create new models for businesses. Instead of selling large numbers of product for small margins, it will become a race to come up with the next big thing, to try to make their money on a “techno-lottery win.” He concludes, “If you are going to have something to sell in those scenarios, probably it is audience rather than product. And digital rights management is as essential for tracking your audience as it is for restricting the proliferation of the product.”

And Why Does This All Matter?

For those who are savvy, hacking DRM has become fairly widespread. In 2012, however, in response to international treaties, Canada made it illegal to crack or alter digital rights management systems. In his book Information Doesn’t Want to Be Free, digital media guru Cory Doctorow argues that the problem with DRM is that it turns consumers into criminals. Without a satisfactory way to use or even repair their possessions (in the case of vehicle electronics), people feel forced to break the law. As a result, there is a healthy, albeit grey, community that continues to seek methods for managing digital controls and the now illegal practice of removing DRM.

So now we find ourselves in possession of a wide range of products that, by law, we are restricted from using outside the terms set by the people who sold them to us. Is that really an issue? In most cases, other than the frustration of trying to move files from one device to another, it really isn’t. But the true implications are vast, and many people find the increasing degree of control held by companies determined to make more and more profit problematic.

It behooves us then to remember, as Rollans put it, “If I’m a system that applies DRM, I want to be in a relationship with you where I can find you and where I know what you’re doing.” Because the real value in a DRM-filled world is not control over the product—it’s control over the consumer. And now all we can do is simply be aware. We need to establish our personal comfort zones about how much control we are willing to exchange for our personal pleasures. And that takes a well-informed populace. t8n



Did You Know?

J.K. Rowling retained her e-book rights to the Harry Potter series, choosing (initially) not to release any of the books in a digital format. In 2007, however, when the last volume of the series was released, ardent fans lined up to purchase Harry Potter and the Deathly Hallows and, within 24 hours, made it available as an e-book by either retyping or scanning all 784 pages.



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