In defense of our rights and of freedom in the digital world, FSFLA denounces that Digital Restrictions Management (DRM) systems are Defective By Design.
What is DRM?
DRM (Digital Restrictions Management) are technical mechanisms which restrict the user's ability to access and copy works distributed in digital formats. Although their promoters like to call them "Digital Rights Management" systems, when we analyze their goals, it becomes obvious that they're only useful to manage restrictions.
Promoters of these systems argue that they are needed for the authors to be able to exercise their copyright in the digital world.
They do not tell us, though, that these systems may be (and actually are) used to restrict works which aren't under copyright, or to restrict them further than copyright law allows for. They also keep silent on the fact that the implementation of DRM is not something authors can do by themselves, but only through large publishers, record companies and producers, over which authors have no control.
There are different DRM Mechanisms, developed by different companies, but they all share some characteristics:
they detect who, when and under which conditions gains access to each work, and reports this information to the distributor;
they irrevocably grant or deny access to the work, according to rules which can be unilaterally changed by the distributor;
when they grant access, they do so under restrictive conditions, unilaterally imposed by the distributor of the work, regardless of the actual rights granted by law to the author or the public.
A particular feature of DRM is that its implementation isn't just technical, it includes legislative aspects: their proponents are pushing, through worldwide lobbying campaigns, bills that aim at forbidding the production, distribution an sale of electronic devices unless they are equipped with DRM, and criminalizing any effort to circumvent DRM, regardless of whether this circumvention actually infringes on copyright or not.
Where are they?
DRM are being included on many kinds of digital devices, without even telling buyers about the consequences
The electronic infrastructure needed to implement DRM is being sold by the industry under the tempting name of "Trusted Computing" (TC). The name suggests that a device equipped with this technology can be trusted by the user. When we realize that the main function of TC is to enable DRM to restrict the user, however, it easy to realize that "Treacherous Computing" is a more accurate interpretation of the acronym.
There are many devices equipped with treacherous computing hardware on the market. Some of them are computers, of course, but also DVD players, audio players, phones, televisions, radios, toys, answering machines, photocopiers, printers and many others.
If some bills being pushed by parts of the industry actually become law, it will be forbidden to produce or sell any device which can record or play sound, video, text or any other form of expression, unless it's equipped with hardware suitable to DRM implementations.
Even before the hardware infrastructure for it becomes omnipresent, as their proposers wish, there are many software-only DRM systems which, while not strong enough to effectively restrict copying, are annoying enough to complicate the life of a person who, for example, wants to listen to her own CDs on her own computer.
Most proprietary media players actually on the market include quite sophisticated DRM implementations without hardware support.
Who controls them?
The name "Trusted Computing" is obviously designed to evoke the feeling that these systems allow us to exercise better control over what the devices we own do.
If this were true, of course, we'd have to question the motivations behind the demand that every single digital device be equipped with this technology, or that its circumvention be criminalized.
This attitude shows that the real objective is to take control of the devices away from the user, and to transfer it to third parties: the software provider, the publisher, the record company, etc. It is them, not the public nor the authors, who operate the servers and distribution chains that make DRM systems work.
Put it another way: these mechanisms, which are able track what we listen to, read, look at and produce, and can even prevent us from doing so, are being run by strangers who use them to exercise control over us.
In the vision of DRM proponents, this control shall become even stronger than law itself: if the mere circumvention of DRM becomes a crime, companies turn into private legislators. They can implement arbitrary restrictions and controls on the works, without any regard for what the law actually allows, and then sue anybody for the simple act of attempting to exercise his or her own rights.
For instance, there are many countries in which people have the right to make copies for private use, even for works that are under copyright. But if the user can't make a copy without circumventing a DRM system designed to prevent it, the company who controls the DRM has just effectively suppressed a legitimate right of the user, since any attempt to exercise this right turns him into a criminal.
Laws of this kind are already in effect in some countries, thanks to the pressure exercised by big media companies, and in spite of the opposition of public rights' organizations and of many authors.
The more prominent examples of such laws are the DMCA (Digital Millennium Copyright Act) in the USA and DADVSI (Droid d'Auteur et Droits Voisins Dans la Société de l'Information) in France. Free Trade Agreements with USA, such as the Free Trade Area of the Americas, require as a non-negotiable clause that member countries adopt legislation supporting DRM.
How do they affect Free Software?
DRM implementations and the legislations that legitimize them are in direct contradiction with Free Software ideals.
Laws such as DMCA and DADVSI not only turn those who circumvent DRM into criminals, they even enable content distributors to forbid the development of software to access those works, which violates Free Software developers' freedom of speech.
For Free Software users, this means that we can't legally run Free Software to access digital content, even though we wouldn't be violating any copyright by doing so, thus denying us our right to free access to culture.
In this way, distributors choose for us which software we should use if we want to access their contents.
The access to digital content under DRM using software modified by the user is not allowed, and generally requires the use of proprietary operating systems. This places a serious obstacle to the production and dissemination of Free Software.
Why are DRM Defective by Design?
When a device equipped with DRM doesn't do what the user expects it to do, it's not because of a mistake. It's due to the device being deliberately designed to prevent the user from doing it, granting the publishers' desires regardless of the users' rights. These defects are not accidents, they are part of the design, so the device is defective by design.
Which rights do they violate?
Some of the rights violated by DRM systems are:
The right to read and to participate freely in cultural life: DRM enables third parties to keep track of everything we see, hear, read and express in digital formats, and lets them monitor, control and even keep us from doing it.
The right to privacy: In order to grant or deny access to each work, those systems need to watch and communicate what we do. Thus, third parties get information about what, how and when we read books, listen to music, listen to radio, watch movies or access any digital media.
The right to make copies under particular circumstances: many copyright legislations recognize people's right to make private copies of any work, including the right to make backup copies, copies to enable access to the work on different devices, and even copies to share with people who are close to you, provided there is no commercial involved. These rights are rendered completely useless by DRM.
The right to produce derivative works: derivative works are a common and basic phenomenon in cultural production. Many works are derivative works from others, in some way. This includes translations, re-mixes, parodies and others. The very basic process of deriving works from materials who are enclosed in DRM becomes impossible.
Criticism and commentary, including the right of free speech, particularly by journalists: anybody working on literary, cinematographic, musical or political criticism uses quotation as the basic resource for commenting published works. DRM imposes technical obstacles to this quoting, which amounts to putting the freedom of speech in shackles.
"Fair use" and the copyright exceptions: this salient feature of US jurisprudence is another victim of the implementation of DRMs. Copyright laws leaves room for several exceptions for educational uses, or for handicapped people who may need to make copies of works in order to access them (for instance, to load them into a braille reader, or to convert text into an audio book). This recourse is still valid, in law, but DRMs make it inaccessible.
Public domain: copyright has an expiration date, DRMs don't. So, when a work under DRM finally becomes part of the public domain, the restrictions will remain in place, still preventing users from accessing and copying material that is no longer under copyright. The same happens with works which already are in the public domain, yet are deemed inaccessible to people when someone distributes them under DRM.
The presumption of innocence: DRMs assume citizens are guilty until they get proof of their innocence, preemptively denying them a number of rights, without them having committed any crime.
Freedom to tinker: the development and use of devices for circumventing DRM becomes a crime, even when it's done for research purposes or in order to access legally acquired contents, without any copyright infringementinvolved.
Universal Declaration of Human Rights
Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 11: 1. Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 27:1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
Actions in march
The Free Software Foundation started the Defective By Design campaign to publicly denounce the DRM threat. Join the campaign as http://defectivebydesign.org/
As part of the campaign, you will find the "Et Tu Bono" letter, by means of which activists for digital freedom will try to involve Bono in the public fight against DRM. Sign the petition!
At Free Software Foundation Latin America we have much work to do about DRM. Join our campaign Team!.
Campaign Resources and work in progress at our wiki.