DRM, the rights of the consumer ... and the UN

• Digital locks have significantly realigned of the rights of consumer and creator
• Consumer advocates were at the UN seeking to reset that balance of rights

Digital Consumers by Dr Jeremy Malcom
 
I WROTE this while in Geneva, where earlier this month the United Nations was considering whether to give stronger recognition to the rights of digital consumers.

More on that later – first, how did we get here?
 
It began, perhaps, with the rise of digital content distribution, and the first copy protection schemes, originally used to protect content distributed on video cassette. Now, while video cassettes are considered ancient history, copy protection technologies are alive and well, though they are now more commonly known as digital rights management (DRM) systems, or more descriptively, ‘digital locks.’
 
Digital locks upset the balance
 
From the outset, digital locks upset the balance between content owners and consumers.
 
Prior to this, it was largely up to consumers to decide on the limits of their use of copyright material. Consumers would, for example, decide how wide the ‘personal circle’ of family and friends with whom copyright works could be shared. They could decide for themselves how much of an article they could copy in exercising their ‘fair use’ or ‘fair dealing’ rights.
 
But today digital locks take these decisions away from the consumer in favour of the copyright owner, who can use technology, with the help of contractual small print, to set limits on how much (if anything) can be copied, how many times (if at all) such copies can be made, and on what other devices (if any) the copy can be used.
 
Previously too, if a consumer purchased a product, he [or she] could use it for any purpose he liked. Now, the company puts digital and contractual fences around their digital products that constrain their use to only the purposes that the copyright owner approves.
 
For example the supplier decides in what other countries you can watch a DVD that you have legally purchased, whether third-party software can be used on a Sony PlayStation or an Apple iPhone, or even whether or not an e-book can be read aloud on a Kindle.
 
The boundaries of personal and private use are thereby being taken out of the consumer's hands.  Consumers are constrained by pages of small-print terms of use that they can't realistically be expected to read (still less to understand).
 
They are constrained by digital locks that stop them from copying and sharing, even for ‘fair use’ or ‘fair dealing’ purposes. Should they break those locks in order to gain access, or should they share the work more widely than the copyright owner says they ought, then they face a crushing burden of civil damages, and the prospect of criminal penalties.
 
Consumers and courts fight back
 
Occasionally the restrictions imposed by content owners push consumers too far, and they fight back.
 
The best recent example of this occurred when last month, Microsoft was forced to back down on its plans for the upcoming Xbox One console, which would restrict gamers from selling their old games, and require them to connect their consoles to the Internet every day in order to play.
 
The backdown was ultimately forced upon Microsoft by its competitor Sony, which used the fact that its own upcoming PS4 console would be free of such restrictions as a selling point.
 
The irony is in that in the past Sony has been an even worse offender than Microsoft in its use of digital locks, and indeed had patented a technology that would have allowed it to prevent the use of second-hand game discs in just the same manner as Microsoft had planned.
 
Has Sony now changed its tune?  It's doubtful; the company is even now planning new digital locks to protect 4k video content, including yet an always-online requirement again similar to Microsoft's. Withholding such restrictions from the PS4 was simple commercial one-upmanship.
 
Whilst public and commercial pressure was enough to force a backdown in this instance, at other times, courts or regulators have had to step in to force change.
 
For example, online retailer Amazon has been the target of legal complaints in the United States and Norway for its policies that allow it to delete content from its Kindle e-book reader.
 
The most notorious (but not the only) example of this was when it deleted the George Orwell book 1984 from the Kindle of 17-year-old student Justin Gawronski, who thereby lost all of the notes and annotations he had added. (The resulting legal action against Amazon was settled.)

Next page: Restoring balance to the relationship between content owner and consumer