APIG DRM Inquiry: What happens when DRM systems are discontinued?

Suw Charman Anderson, 02 December 2005

Point 4: How should consumers be protected when DRM systems are discontinued?

What happens when DRM systems become outdated? What are the effects of old DRM on access to materials? What responsibilities would companies that use DRM have to keep software current?

Simon Gibbs

Reply #6 on : Sat December 03, 2005, 18:14:09

Two things seem important here. The first is that DRM doesn't sit still. You can be forced to suffer through an upgrade that end up degrading your experience.

The second, is that any system of DRM that is enforced by communication with a central server will stop working exactly when the record company says it stops working. This is really important when companies go bust, for example.

Consumers should also be protected by ensuring that circumvention of DRM is not in itself illegal. This is important in the case of bankruptcy where access to a central server is required for the system to work. Rather than appealing to the administrator for a refund I should have the option of getting together with other former consumers and cracking the DRM protection. As long as I don't then infringe the artists copyright I won't have done anything wrong.

Its also important that upgrades (i.e. those upgrades that tend to be downgrades) also force a re-evaluation under consumer protection law. Essentially any change should be considered exactly as if it were a new sale. I get to choose, again, whether the change suits me and can return every affected song if I want and can expect a prompt refund.

kenkil

Reply #5 on : Mon December 05, 2005, 12:53:37

If a customer has paid for access to content, and that access is mediated via DRM, it seems that if anything happens that withdraws the agreed level of access, then the customer is already protected by extisting legeslation.

But, what happens if the company goes bust, and the DRM system prevents the customer from accessing something they've already paid for? This might not be comparable to existing consumer protection situations. Perhaps it should be illegal to deploy DRM that "locks out" customers in this way, or perhaps it should be legal to crack the DRM system, or demand access to a non-DRM'd version of the content held in escrow at a copyright deposit library?

It seems the easiest, least red-taped, most consumer-friendly way to do this is to not use DRM in the first place.

Future historians will curse us if we allow the deployment of systems that will forever lock them out of records or cultural artifacts. DRM systems risk this.

Reply #4 on : Tue December 06, 2005, 10:34:33

"It seems the easiest, least red-taped, most consumer-friendly way to do this is to not use DRM in the first place."

Umm, not from the point of view of someone trying to make money, it isn't. We have a mechanism for encouraging companies to be consumer-friendly - the free market - and I don't want to replace that with legislation.

If I sell a Betamax video, it's not my problem if Sony stop selling players, thereby making the purchase valueless. This is a practical issue, it's got nothing to do with rights. If Joe Bloggs, realising that he can't now buy a player for his Beta tape of Star Wars, wishes to build his own, that's fine. He's within his rights.

The issue is whether it should be illegal for Joe Bloggs to build a Beta player, on the grounds that the player, or some decoding action performed by the player, has special DMCA like legal protection. I think such protection should not exist.

If companies want to make their products harder to use as a tradeoff for making them harder to copy, I think that's fine. What I'm against is then doing this by resorting to legislation that infringes on existing rights. If it were a purely practical or technical issue, I'd have no problem with it.

Reply #3 on : Tue December 06, 2005, 10:43:55

Practically speaking, you could set up compulsory escrow for this kind of thing, so companies are required to submit the relevant keys etc to some body, that then releases them publicly in the event of company failure.

But, companies rarely just die and vanish. Far more likely, another company (Newco) will buy the remains at a bargain price, and so there'd be no reason for the escrowed keys to be released - they are an asset that has been purchased by Newco. There's not reason Newco should do anything other than sit on the keys, if it doesn't think it can get a return on the cost of re-creating the DRM enabling environment that the original company had.

Alternatively, you could have the keys escrowed and then released when copyright expires, which seems more reasonable in law to me, but of course is now a very long time away. If the DRM environment involves significant infrastructure / software / hardware as well as the keys, then it would be up to some 3rd party to re-create that infrastructure at their own risk (and be able to charge for use of it etc). With the keys in the public domain, there should be decent competition to re-enable content in strong demand. For content with little demand, there maybe no private investment in re-creating the DRM enabling environment. I don't think the taxpayer should foot the bill here, so realistically, some content is going to end up unaccessible. But that is something that happens today, too. An old platter of 35mm film is not something that's easy to view. You need some costly, antique projection hardware, a screen, and so on. So very old, minority interest films, are essentially unviewable due to cost barriers in re-creating the viewing infrastructure. That's sad, but it's not a big deal, ultimately.

Suw Charman

Reply #2 on : Mon December 19, 2005, 12:13:36

Whilst you can continue discussing this post, any comments posted after this one will not be included in the ORG public consultation paper.

Kevin Marks

Reply #1 on : Wed December 21, 2005, 12:39:32

Consumers are generally wise enough to reject DRM systems. Seeing them discontinued reinforces this wisdom. However, a requirement to provide DRM-free copies to the copyright deposit libraries will help.

A more robust requirement would be for the DRM-using publisher to be required to fund the costs of archival copying and emulation until the copyrighted work is released to the public domain, so that this does not burden the limited budgets of copyright libraries. As reliance on DRM frequently leads to bankruptcy due to consumer rejection, mandating the purchase of an annuity to fund this by DRM practitioners may be the safest course.

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