Introduction to DMCA (Digital Millennium Copyright Act)

and DRM (Digital Rights Management)

by: Jeffrey Jonas

for Pervasive Computing

June 2003

or ...


Most sources concerning the recent copyright laws and software/hardware enforcement mechanisms are highly biased.
I have mixed feelings about all this.

I'm usually a software consultant, so the software I write is 'work for hire' and I'd like to think it's worthy of protection.
Yet I use open-source and freeware tools (such as GNU toolkit) to create such tools and for my home PCs.
But several friends are artists: they are financially hurt when their artwork is copied or used without permission. They use watermarks, digital watermarks or notices "Hey! Buy my art without this notice across the front" to discourage unfair-use. But what of music and video?

This is only a snapshot of the current state of copyright legislation and proposed enforcement since it's all in flux.

Copyright, patent or trademark?

Most countries (except China) have the concept that those who create useful or desirable things are entitled to profit from them and have protection from being copied.
Rights are granted and clarified by copyright, patent, trademark and licenses.

COPYRIGHT pertains to original works regardless of medium:
print (book, magazine), movie, sound recording, paintings, performanes, TV shows, etc.

The Berne Convention ( )
is the foundation for most national copyright laws, which specifies in Article 7:
(1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death.

(2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making.

The WIPO: World Intellectual Property Organization (
is an international organization dedicated to promoting the use and protection of works of the human spirit. These works - intellectual property - are expanding the bounds of science and technology and enriching the world of the arts. Through its work, WIPO plays an important role in enhancing the quality and enjoyment of life, as well as creating real wealth for nations.

PATENTS originally protected machines or devices,
but was recently extended to include software (which was traditionally copyrighted as a printed work).
US Patents last 20 years, or less if they're not renewed.

TRADEMARK protects names and images used to identify a company or its products.

LICENSES to quote Microsoft
A license is an agreement between the user and the software publisher which outlines terms of use of a software product. A software license grants you the legal right to use a piece of software. For each software program you use, you need a license, granted to you and documented in the license agreement.

to elaborate ...

Patents are granted after a review process to determine if it's really unique and worthy of protection. Sadly, many trivial patents have been recently granted which has hindered several industries (such as the "exclusive-or cursor" patent which should have been never granted since it was prior-art).
Patents expire in 20 years, but fees must be paid along the way:
according to :
All utility patents which issue from applications filed on and after December 12, 1980 are subject to the payment of maintenance fees which must be paid to maintain the patent in force. These fees are due at 3, 7 and 11 years from the date the patent is granted ...
A google search for "patent expiry" shows much interest in monitoring when drug patents expire, making them available for generic manufacturing.

Public Domain software makes use of devices whose patents have expired, such as the GIF format soon being available again.

US trademarks are files with the U.S. Patent and Trademark Office. You often hear about trademarks when the holder takes legal action against those using similar names or logos, often claiming it's intentionally creating confusion between the companies or products.
"trademark dilution" happens when the trademark is not enforced. For example: but they're considered common language now.

Intel's "Pentium" is a trademark since you cannot trademark numbers such as 80486. Intel tried to copyright the letter "i" but can only trademark a particular artistic expression.

Licenses are country, state and locality specific! Sadly, most End User License Agreements (EULA) take away user's rights and try to override copyright laws by restricting how many use it, for how long, and allow for monitoring and auditing for compliance. Most of the DRM or DRM-ready software forces you to agree to an EULA forfeiting your privacy just to download the program.

The Free Software Foundation's copyleft does the opposite: it encourages sharing the source and giving rights to those who use and develop the software.

Copyright is the hot topic of the day.
Think of all the places you see a copyright notice: on newspapers, books, TV broadcasts, radio broadcasts, web pages too.
Copyrights are supposed to be finite so things eventually become Public Domain (a good example is Project Gutenberg) but ...

perpetual copyright is granted in exceptional cases.

Now we finally have the foundation to start understanding DMCA and DRM.

The Digital Millennium Copyright Act The 1998 enactment of the Digital Millennium Copyright Act (DMCA) represents the most comprehensive reform of United States copyright law in a generation. The DMCA seeks to update U.S. copyright law for the digital age in preparation for ratification of the World Intellectual Property Organization (WIPO) treaties. Key among the topics included in the DMCA are provisions concerning the circumvention of copyright protection systems, fair use in a digital environment, and online service provider (OSP) liability (including details on safe harbors, damages, and "notice and takedown" practices).
DRM (Digital Rights Management): dare I admit that Microsoft has a good definition:
( )
A. Windows Media DRM is an end-to-end digital rights management (DRM) system that offers content providers and retailers a flexible platform for the secure distribution of digital media files. Using Windows Media DRM, content owners can now deliver music, videos, and other digital media content over the Internet in a protected format. It facilitates consumers to obtain digital media files legitimately while maintaining the rights of the content owners. ...

To generalize: DRM is hardware and/or software that enforces the DMCA.

now to the meat of it ...

Quoting from today's required class reading:
The Architecture of Privacy
Draft 2. Essay presented at the Taiwan Net '98 conference, in Taipei, March, 1998.
by Lawrence Lessig

There are parts of anyone's life that is monitored and there is a part that can be searched ...

I see the following structure to DMCA and DRM:

to elaborate:

I've suffered for my music,
and now it's your turn
-- Eric Idle


Record industry to sue downloaders

cnn_riaa.html or riaa.txt

Wednesday, June 25, 2003 Posted: 1910 GMT
We will go after the worst offenders first.
-- Carey Sherman, RIAA's president
WASHINGTON (AP) -- The embattled music industry disclosed aggressive plans Wednesday for an unprecedented escalation in its fight against Internet piracy, threatening to sue hundreds of individual computer users who illegally share music files online.

Microsoft and Intel tried to implement and deploy the Palladium system to enforce copyrights and licensing, but backed off over public outcry about privacy concerns. The TCPA (Trusted Computing Platform Alliance) is their next try at that.

But Orrin Hatch thinks that's not enough:
"WASHINGTON (Talon News) -- Sen. Orrin Hatch (R-UT), chairman of the Senate Judiciary Committee, has proposed destroying the computers of those users who illegally download copyright-protected music and movies over the Internet."

Good morning, Mr. Phelps. ...
this CD will self destruct in 10 seconds.

Tuesday, June 17, 2003 Posted: 1454 GMT
LONDON, England (Reuters) -- If technology firms like Sony and Microsoft have their way, songs and movies will expire after a single play -- unless you pay the copyright holder their due. The technology that makes this possible -- known as digital rights management, or DRM -- will forever change the way we consume media and software, experts believe.

And there's lots more.

Hush! It's time for the librarians to speak!

Libraries are impacted by the new stricter copyright laws and enforcement mechanisms since they interfere with the free and unlimited use that they're supposed to offer. Libraries are caught in the dilemma of adapting to new digital media yet preventing unfair copying. Even with scanners and photocopiers, copying large books is still unfeasible. But digital content is intangible.

This is somewhat related since the DRM provides monitoring which could be used to monitor people, and it shows that libraries and librarians are serious about privacy.
Librarians Use Shredder to Show Opposition to New FBI Powers
Staff members at the nine-branch Santa Cruz Public Library System used to destroy discarded paperwork as time allowed, typically once a week. But at a recent meeting of library officials, it was decided the materials should be shredded daily. "The basic strategy now is to keep as little historical information as possible," said Anne M. Turner, director of the library system. The move was part of a campaign by the Santa Cruz libraries to demonstrate their opposition to the USA Patriot Act.

and here's a letter from Eli Edwards, a librarian:
DRM and DMCA: Libraries’ p.o.v.


Librarians who are also advocates for the public domain are really concerned about DMCA and other copyright legislation that has appeared over the last decade.
A lot of the new laws do not explicitly recognize first sale and fair use rights for digital content; first sale (i.e. once a person buys an item of content -- book, magazine, etc., -- the creator or owner of the copyright for that content no longer dictate to the buyer what the buyer does with that particular item; thus, people can sell, loan, borrow or give away the item without the express permission of the copyright holder) and fair use (exemptions to copyright which allow for content to be used or excerpted for scholarly, research or educational uses without the express permission of the copyright holder) are considered two of the bedrock principles that allow public, school, academic and even some special libraries to operate in the way they do.
What has been granted to libraries to do with digital content in such legislation is been interpreted as being very limited. Also, a lot of public domain advocates complain that the newest laws regarding copyright no longer require an intent to pirate; the action assumes intent. So, except for certain exemptions, if a library attempts to crack the encryption on a digital container (e-book, software, digital watermark) for a fair use reason, the DMCA has been interpreted to see any cracking as an attempt at piracy and a violation of the law.

Libraries seem to look at DRM and DMCA as two different beasts. As you know, DMCA is federal legislation that enjoins certain activities with the threat of criminal penalties. DRM, in the library world, refers to the various technologies and protocols that are used to license data from content owners (like Lexis/Nexis and Factiva, or journal publishers that provide print and/or electronic formats). Right now, I’d say there might be more librarians concerned with DRM than with DMCA, because every library that wants to offer electronic resources to their patrons has to deal with DRM (and patrons want electronic resources!). And I think that for right now, most librarians think that the publishers/aggregators (an in-house term for bibliographic database vendors) have most of the leverage, but there are various libraries that are working on ways to turn things in their/our favor.
My advisor just gave a paper/presentation talking about how library acquisitions are being affected by the shift to electronic formats; he didn’t mention DMCA (I don’t think, but he might have mentioned DRM ... let me check, and ask him if I can forward his paper to you). Patents and trademarks aren’t dealt with regularly by libraries, but copyright concerns are their stock in trade.

Here’s some library-related links to information:
ALA’s webpage on all things copyright-related: ALA’s take on DMCA: ALA re: DRM Fair Use Legislation: Howard Besser is a pioneer in digital preservation (particularly of art objects) and an expert on information policy. This paper does a really great job of summing up how the changes in copyright legislation affects libraries and the public domain in general: His website is:
And if you need more specifics on copyright law, past and present, as applied to libraries:
You may well have some public domain advocates that you’re already citing, but here’s a few that I particularly like: Lawrence Lessig, who argued against the DMCA in front of the Supremes (and lost):
Pamela Samuelson:
And this is from a conference on DRM that she organized earlier this year:
Edward Felten:
And of course, there’s EFF:

the RIAA censors more than just music sharing

The DCMA Horror Show
Censorship is real. See the paper and the statement at
The following statement was read by Edward W. Felten
at the Fourth International Information Hiding Workshop, in Pittsburgh, on April 26, 2001.
On behalf of the authors of the paper "Reading Between the Lines: Lessons from the SDMI Challenge," I am disappointed to tell you that we will not be presenting our paper today.

Our paper was submitted via the normal academic peer-review process. The reviewers, who were chosen for their scientific reputations and credentials, enthusiastically recommended the paper for publication, due to their judgment of the paper's scientific merit.

Nevertheless, the Recording Industry Association of America (RIAA), the SDMI Foundation, and the Verance Corporation threatened to bring a lawsuit if we proceeded with our presentation or the publication of our paper. Threats were made against the authors, against the conference organizers, and against their respective employers.

Litigation is costly, time-consuming, and uncertain, regardless of the merits of the other side's case. Ultimately we, the authors, reached a collective decision not to expose ourselves, our employers, and the conference organizers to litigation at this time.

We remain committed to free speech and to the value of scientific debate to our country and the world. We believe that people benefit from learning the truth about the products they are asked to buy. We will continue to fight for these values, and for the right to publish our paper.

We look forward to the day when we can present the results of our research to you, our colleagues, through the normal scientific publication process, so that you can judge our work for yourselves.