As several media outlets noted, market research firm In-stat has published an update on DRM that concludes it's not going away any time soon. I typically don't review proprietary market research that is inaccessible to the average person. However, Michael Paxton, who wrote this report, was kind enough to provide a few excerpts.
I believe that the report's principal conclusions are exactly right: There is too much at stake economically for rightsholders to give up. At the same time, there is a significant tension between content control and perceived "fair use" rights. I think Paxton's discussion of "fair use" omits some important issues. I address the specifics below.
Nevertheless, Paxton draws several main conclusions that I think are on the mark and consistent with the postings here on this blog, specifically:
- Interoperability will likely drive the next wave of DRM technology development. The proprietary nature of many current DRM solutions prevents their use on different types of platforms, but this environment is slowly beginning to change. In the near future, we expect platform-to-platform interoperability (such as transferring content from a cell phone to a laptop computer) to become more common.
- "Forensic" DRM technologies will see much wider usage. These technologies, which are used to identify actual end-users of digital content, are being adopted by an increasing number of content developers.
- The recent "DRM-free" music tracks that were announced by Apple and Amazon.com do not herald the "death of DRM." Instead, the DRM-free model will likely be viewed as a music industry-only experiment, albeit one that will be closely monitored to see if a viable business model emerges.
Paxton says that there is an important tension between piracy and "fair use." Although Paxton references the legal sense of "fair use" under U.S. copyright law, I believe he means a more expansive concept, namely, that consumers generally expect to be able to freely use content they have purchased regardless of copyright law.
There are, in my view, two issues missing from the portion of Paxton's discussion that I've seen. First is the idea that for some time now rightsholders have sought to displace copyright law with contract law. Especially with respect to digital downloads, consumers at some point may have to agree to a license--a contract--that may include provisions at odds with "fair use" rights under Copyright. When I've asked lawyers about this, there seems to be no consensus regarding whether such contracts are enforceable or whether consumers can agree to more restrictive provisions.
Second, in the U.S., "fair use" is what lawyers call an affirmative defense (see the Wiki discussion on this topic for more details). This means that the alleged infringer must first admit to the infringement and then claim the use meets the various legal criteria for a "fair use" under the law.
So What? Since "fair use" is an affirmative defense and not an absolute right, publishers I've talked with at times assert that they are well within their rights to use contract law to further restrict or eliminate "fair use" rights. Consumers and their advocates strongly disagree.
Although legal questions abound, the battle between rightsholders and consumers is multidimensional and, as Paxton points out, will not be resolved soon.
