June 5, 2002
Subcom. On the Courts, the Internet and Intellectual Property
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. 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. Some systems, such as Microsoft's Windows Media Player, assign a Globally Unique Identifier (GUID) to the media device that facilitates online tracking. These systems create records that enable profiling and target marketing of individuals' tastes by the private sector. 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. 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.
- 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. 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. 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 and EFF 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.
Electronic Privacy Information Center
Fred von Lohmann
Senior IP Attorney
Electronic Frontier Foundation
Electronic Privacy Information Center
 Julie Cohen, A Right to Read Anonymously: A Closer Look at 'Copyright Management' in Cyberspace, 28 Conn. L. Rev. 981 (1996), at http://www.law.georgetown.edu/faculty/jec/read_anonymously.pdf. Copy Protection: Just Say No, Computerworld, Sept. 4, 2000, at http://www.computerworld.com/managementtopics/management/opinion/story/0,10801,49358,00.html. Serious Privacy Problems in Windows Media Player for Windows XP, Computerbytesman, Feb. 20, 2002, at http://www.computerbytesman.com/privacy/wmp8dvd.htm. Chris Jay Hoofnagle, Consumer Privacy In the E-Commerce Marketplace 2002, 3rd Annual Institute on Privacy Law 1339 (June 2002), at http://www.epic.org/epic/staff/hoofnagle/plidraft2002.pdf. Jason Young, Digital Copyright Reform in Canada: Reflections on WIPO and the DMCA, Apr. 26, 2002, at http://www.lexinformatica.org/dox/digitalcopyright.pdf. Fred von Lohmann, Reconciling DRM and Fair Use: Preserving Future Fair Uses?, Conference on Computers, Freedom, and Privacy 2002, at http://www.cfp2002.org/fairuse/lohmann.pdf. Electronic Frontier Foundation, Unintended Consequences: Three Years under the DMCA, May 3, 2002, at http://www.eff.org/IP/DMCA/20020503_dmca_consequences.pdf. Richard Stallman, The Right to Read, Communications of the ACM, Feb. 1997, at http://www.gnu.org/philosophy/right-to-read.html. Electronic Privacy Information Center, Digital Rights Management and Privacy, at http://www.epic.org/privacy/drm/. Electronic Frontier Foundation, Campaign for Audiovisual Free Expression, at http://www.eff.org/cafe/.