Copyright Enforcement in the Internet Age: The Law and Technology of Digital Rights Management

Masthead Logo DePaul Journal of Art, Technology & Intellectual Property Law Volume 11 Issue 1 Spring 2001 Article 2 Copyright Enforcement in the Internet Age: The Law and Technology of Digital Rights Management Stephen M. Kramarsky Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Stephen M. Kramarsky, Copyright Enforcement in the Internet Age: The Law and Technology of Digital Rights Management, 11 DePaul J. Art, Tech. & Intell. Prop. L. 1 (2001) Available at: https://via.library.depaul.edu/jatip/vol11/iss1/2 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact , . Kramarsky: Copyright Enforcement in the Internet Age: The Law and Technology COPYRIGHT ENFORCEMENT IN THE INTERNET AGE: THE LAW AND TECHNOLOGY OF DIGITAL RIGHTS MANAGEMENT Stephen M Kramarsky I. INTRODUCTION: TECHNOLOGY AND THE COPYRIGHT LAW Digital information comes in many forms; an application such as Microsoft Word, a database of consumer information collected by an e-commerce website and a feature film stored on DVD are just a few examples. Each form of digital information is protected by a different set of laws and regulations serving a different range of policies. For example, commercial software is protected by copyright, but also by the individual "shrink wrap license" under which it is distributed.' On the other hand, electronic databases may enjoy the protection of specialized federal or state laws or regulations that are designed to. safeguard the privacy of individuals' sensitive information.2 * Stephen Kramarsky is a member of the firm of Dewey Pegno & Kramarsky LLP in New York whose practice focuses on technology and intellectual property issues in both litigation and transactional contexts. Prior to resuming private practice, Mr. Kramarsky was a founder and General Counsel of the Gryphon Group LLC, an New York Internet software and services. The author gratefully acknowledges the contributions of Nicholas R. Givotovsky in shaping his thinking about commercial digital rights management systems. 1. Most software is not actually "sold" to end users (though that fact might surprise the users themselves); it is licensed. The terms of these licenses thus typically govern the use of software (as limited by individual state contract laws). The controversial Uniform Computer Information Transactions Act, and, effective _, Virginia, is an effort to currently adopted as law in _ codify such transactions and create, among other things, a series of "default rules" regarding software licenses. 2. The Children's Online Privacy Protection Act of 1998, for example, 15 U.S.C. §§ 6501 et seq., governs the online collection, distribution and use of Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 11, Iss. 1 [2016], Art. 2 DEPAUL J ART. & ENT. LAW [Vol. XI: I This article focuses on a particular kind of digital informationdigitally encoded media such as music and movies-and the recently amended copyright law and related statues that protect that information. It is impossible to understand these statutes and regulations in a vacuum. They were passed with particular technologies and technological issues in mind against a background of an ongoing "battle" between large-scale copyright holders (primarily movie studios and record companies) and the unauthorized users of their intellectual property. Laws like the Digital Millennium Copyright Act (the "DMCA") and the Audio Home Recording Act of 1992 (the "AHRA") are fundamentally intertwined with the technological measures they describe and mandate. This article examines both the technologies and the laws that shape the present battle. A copyright is a Constitutionally mandated, short-term monopoly on certain uses of a given work that is granted to its author "to Promote the Progress of Science and useful Arts."3 A Constitutional mandate is necessary because the granting of exclusive rights of expression to one party necessarily entails the limitation of expressive conduct by others--a limitation that would otherwise run afoul of the First Amendment. Thus, the copyright laws must enact a delicate balance: On the one hand they must protect original works and create sufficient incentive for authors to create works for public consumption; on the other they must protect the public's rights of free expression and "society's competing interest in the free flow of ideas, information, and commerce." 4 Each new media technology presents a new challenge to this information regarding children under the age of 13. 3. U.S. Const. Art I, Sec. 8. 4. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 429 (1984). "The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired." Id. https://via.library.depaul.edu/jatip/vol11/iss1/2 2 Kramarsky: Copyright Enforcement in the Internet Age: The Law and Technology DIGITAL RIGHTS MANAGEMENT 2001] balance. The printing press was the impetus for the earliest British copyright protection;' the dire threat posed by the player piano roll gave rise to American copyright laws in 1908;6 and the wide availability of high quality consumer audio recording equipment led to the passage of the Sound Recording Amendment of 1971.' "From its beginning, the law of copyright has developed in response to significant changes in technology.... Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary." 8 Digital storage and distribution technologies present the most recent of these "new developments" and the major U.S. copyright holders have undertaken a war on two related fronts--technological and legal--to protect their valuable intellectual property. Section II of this article focuses on the first front: technology. It describes the currently available forms of digital media and the technologies available for the compression, distribution and protection of those media. Section III describes the legal protections available to back up these technological measures (under the DMCA and other statutes) and examines in detail the most significant recent cases interpreting those statutes. The article concludes, in Section IV, with a discussion of where these legal and technological paths may eventually lead. II. 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