OPINION: DRM divide
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By Paul Sweeting -- Video Business, 6/1/2007
JUNE 1 | DIGITAL RIGHTS MANAGEMENT continues to face a stiff headwind in Europe.
Paul Sweeting is editor of Content Agenda
The latest blow came just before the Memorial Day weekend, when a district court in Finland ruled that CSS is so ineffective at preventing unauthorized copying of DVDs at this point that it no longer rates legal protection under that country’s version of the Digital Millennium Copyright Act.
The ruling has since been appealed, a process that is expected to take several months. But even if its eventually overturned, it illustrates the growing gulf in attitudes toward the use of DRM between the U.S. and Europe.
Finland passed its version of the DMCA in 2002. The text of the law draws heavily on the EU Copyright Directive, which was issued by the European Parliament in 2001 to bring some consistency to the member countries’ implementation of the WIPO Copyright Treaty (implanted here by the DMCA).
Echoing the DMCA, the EU Directive requires member countries to provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used to control access to copyrighted works.
But it then goes on to define a technical measure as “effective” where “the use of a protected work … is controlled by the rightsholder through application of an access control or protection process, such as encryption, scrambling or other transformation of the work … or a copy control mechanism, which achieves the protection objective” [emphasis added].
In its ruling, the Finnish court relied on a very narrow reading of that last part.
“It has been reliably determined that once a Norwegian computer hacker succeeded in breaking the CSS protection for DVD discs in 1999, the situation from an end user’s viewpoint has changed so that similar circumvention software is available from the Internet in dozens, even free of charge,” the court wrote, according to an English translation posted online by a defense attorney in the case.
“From the viewpoint of copyright holders, [the defendants’] conduct described in the charge cannot be considered to have caused any slightest ‘gap’ in CSS protection compared to the circumstances already existing. CSS protection can no longer be considered an effective technological measure referred to in the law.”
IN THE MOST authoritative ruling on the circumvention of CSS in the U.S.—the Second Circuit’s opinion in the DeCSS case—explicitly rejected that reasoning.
“[T]his is equivalent to a claim that, since it is easy to find skeleton keys on the black market, a deadbolt is not an effective lock to a door,” the court wrote. “It is evident to this court, as it has been to previous courts, that CSS is a technological measure that both effectively controls access to DVDs and effectively protects the right of a copyright holder.”
According to the DMCA, a technical protection measure is “effective,” if “in the ordinary course of its operation,” it prevents unauthorized use. And clearly, circumvention is not part of the “ordinary course” of the operation of CSS.
That’s a very different sort of analysis than appears to be emerging in Europe. From the pressure on Apple to open its iTunes DRM to competitors, to the U.K. government’s investigation into the antitrust implications of regional coding, European political and legal authorities seem focused more on the real-world operation of DRM than the intentions (or even, some might argue, the rights) of copyright owners.
The danger for the studios in the Finnish court’s ruling, should it stand, is that nearly all other members of the EU have essentially identical language in their local laws. And given European sentiments, you could expect a pandemic of legal challenges to CSS and other wobbly DRM systems.
If circumvention becomes legal in Europe, it really doesn’t matter what the law says in the U.S.
