Law experts leery of digital-rights solution

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By Scarlet Pruitt

SAN FRANCISCO, California (IDG) -- Even a conference room chock full of copyright law experts and technologists could not determine Tuesday what role digital rights management (DRM) should play in balancing the rights of users and content providers.

The panel grappled with the issue even as a hotly debated piece of proposed legislation aiming to place DRM in all consumer digital devices is currently snaking its way through the U.S. Congress.

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In fact, five hours of presentations and debate over the issues of fair use and DRM at the 12th annual Computers, Freedom and Privacy (CFP) conference in San Francisco Tuesday produced a wealth of questions and one clear answer: that it is too early in this era of technological innovation to start locking down digital content.

At the heart of the debate is fair-use rights, such as allowing the public to photocopy a copyright work or quote a lyric from a song.

"We have expectations that have been hatched under an analog environment that are under the threat of a new form of regulation," said Peter Jaszi, law professor at American University's Washington College of Law.

Jaszi referred to copyright holders' attempts to keep tight control over their digital content, such as some record companies' moves to distribute DRM-protected CDs that cannot be played on more than one device.

But even more threatening to fair-use advocates is proposed legislation introduced by Senator Ernest "Fritz" Hollings last month, which aims to place a built-in copyright protection measure in all consumer digital devices. The bill by the South Carolina Democrat has met with a firestorm of criticism from consumers and civil rights advocates who fear that their fair use rights essentially will be scrapped.

"Inevitably, whenever a minimum of rights is set, the other side pushes for those rights to be the maximum," Jaszi said.

Although most speakers at CFP Tuesday agreed that DRM was not the complete answer to the copyright question, they did not throw the technology by the wayside. Many agreed, in fact, that DRM would be more effective in balancing the rights of user and copyright holders than would be legislation.

Stefan Bechtold, a Stanford Law School fellow and author of a book on digital rights management, argued that although DRM can impede fair use and free speech, the technology is more progressive than law, given that it evolves quickly and can be deployed on a global level.

"The goal is to shift fair use as much as possible from law to design," Bechtold said.

The use of DRM, however, also requires a shift in how companies do business. Just as murky as the issue of maintaining fair rights is the question of whether companies want to change their business models. The record industry, for example, has not been eager to switch from selling CDs to pushing online music subscription services.

So, while consumer-minded parties argue for fair rights and companies ponder the future of their businesses, IT workers who manage the digital content that companies sell are left in limbo, wondering what to expect when it comes to the future of distributing and protecting content.

Although securing content and setting rules for consumer use is fairly easy through DRM technologies, it is much more difficult to ensure that users have fair use of that content, said Microsoft Security Architect Barbara Fox. Fox noted that copyright law is ambiguous when it comes to fair-use rights and DRM would be unable to determine whether a user should be able to use content under certain circumstances.

"(The DRM) would still be wrong most of the time," Fox said, referring to the technology's inability to judge when users should be able to access content under fair use. "How am I supposed to tell my management that?"

Many other IT professionals grappling with the use of DRM are probably asking the same question.

The CFP conference runs through Friday.