June 5, 2002
Chairman Coble
Subcom. On the Courts, the Internet and Intellectual Property
B-351A RHOB
Washington, DC 20515
Dear Chairman Coble, Representative Conyers and Members of the Subcommittee:
We are writing on behalf of the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF) to express our organizations' views on the effects of digital rights management (DRM) technologies. We appreciate the Subcommittee's decision to hold a hearing on this topic on June 5, 2002 and request that this statement be included in the hearing record.
Today's hearing focuses on the consumer benefits of DRM, but the panel is comprised only of representatives from businesses developing content control systems, and omits the most important stakeholder in this debate—the consumer. DRM poses serious risks to consumer and societal rights, including privacy, fair use, free expression, and innovation. We encourage you to hold more hearings on these issues that include the entire spectrum of stakeholders so that the following risks can be considered:
- DRM weakens consumers' privacy.
Today, individuals are free to explore different ideas presented in books,
music, and movies anonymously. DRM encroaches on this right by allowing
copyright owners to monitor private consumption of content.[1] In
an attempt to secure content, many DRM systems require the user to identify
and authenticate a right of access to the protected media. In the case
of Microsoft's eBook Reader, this means that the media software and users'
choices in books are digitally linked to the hardware system and to the
Passport profiling system.[2] Some systems, such as Microsoft's
Windows Media Player, assign a Globally Unique Identifier (GUID) to the
media device that facilitates online tracking.[3]
These systems create records that enable profiling and target marketing
of individuals' tastes by the private sector.[4] Law enforcement can also gain access to
these records by subpoena or by simply purchasing them.
- DRM weakens consumers' "fair
use" rights. Fair use is an evolving concept and probably can
never be defined precisely by code. However, the nature of fair use is not
a shortcoming, but rather a strength that grants the courts an opportunity
to mediate the tensions arising between law and new technologies.[5]
Fair Use includes libraries'
and educators' rights to provide content to users, the right to sell physical
copies of certain content that one acquires lawfully (the "First Sale"
doctrine), and the ability to make a backup copy of software and music.
No DRM scheme developed affords users these rights.[6]
- DRM threatens consumers'
freedom of expression and the public domain. DRM restricts access
to the public domain at the whim of copyright owners and creates obstacles
to the free flow of information, even for legitimate purposes. The Constitution
grants copyright to authors for limited terms, after which works are supposed
to enter the public domain. Even with legal authorization, an archivist
cannot be confident in his ability to migrate and store content protected
by DRM, particularly when limitations are placed on which devices can be
used to access the content or when access is provided in conjunction with
a pay-per-use system.
- DRM threatens consumers with
criminal sanctions. Provisions in the Digital Millennium Copyright
Act (DMCA) prohibit the circumvention of DRM, even where there is no commercial
copyright infringement or criminal intent to defraud copyright holders.[7] Criminal
sanctions are blunt instruments and should be employed with great caution
in the copyright context. Until recently, penalties were invoked only for
serious, damaging infringers, and not against non-infringers or de minimis
infringers. DRM and the DMCA upset this balance.
- DRM limits consumers' ability
to use open source software. DRM schemes and laws that require embedding
copy protection into devices endanger the development of open-source software.
Open-source software developers rely on reverse engineering to write programs
that can interact with hardware. This practice is illegal under the DMCA.
Additionally, some industry standards for copy protection must be "tamper-resistant."
"Tamper-resistant" is defined in such a way that it makes open
source implementations noncompliant.
- DRM threatens consumers' expectations and sets the stage for a pay-per-use business model. DRM can limit users' interaction with media. Over time, DRM can change users' expectations about control and use of digital content. For instance, some have speculated that DRM could condition individuals into believing that lending a book is a form of theft.[8] DRM developers also may be acclimating consumers to a pay-per-use business model, one where consumers lose rights to access content that they have purchased unless they pay for each use.
Both EPIC[9] and EFF[10] maintain extensive online resources on DRM technologies. We encourage the committee to draw upon these resources, in this debate. We also request to meet with you or your staff to discuss these issues.
Sincerely,