Companies producing content, such as books, movies and music, are in a continuing struggle to try to adapt their products and practices to the digital media. Traditional copyright law can provide some guidance, but new technology presents new challenges.

The entertainment industryis main method of adapting to new technology has been to act through Congress. The content community's landmark accomplishment was the Digital Millennium Copyright Act (the DMCA) of 1998. The DMCA was enacted to afford copyright owners extra protection for their works in the digital world by prohibiting the circumvention of digital locks (also called "anti-circumvention of access controls") while providing legal "safe harbors" for those who simply provide services, like Internet Service Providers.

Many believe that although the DMCA's goal is admirable, the DMCA tipped the delicate balance of copyright overly in favor of the copyright owner.

Traditional copyright law generally says that when a person uses a copyrighted work without permission, it is infringement. To protect against infringement in the digital world, many copyright holders have used copy-protection technology as a way to further prevent infringement of their works. The anti-circumvention provision of the DMCA makes it illegal for a person to get around or break the technological measures used by a copyright holder to protect access to her copyrighted work. The problem with this provision is that it separates the concepts of copy-protection circumvention and copyright infringement. The DMCA has been interpreted to mean: it is illegal to simply get around the technology used to prevent access to a copyrighted material even if the use of that copyrighted material is non-infringing. The end result of the anti-circumvention provision is that a copyright holder's rights are extended beyond that of traditional copyright from excluding others from certain uses of their copyrighted works, to excluding others from complete access to their copyrighted works. Another way to put it: the copyright holder under the DMCA gains total control over who can access his or her digital work.

Despite the legislator's hopes, the DMCA does nothing to promote the use and sale of content. However, there are technologies and licensing models that will protect copyrighted material or create a framework for allowing the content to be used. Three of them are Digital Rights Management (DRM), compulsory licensing, and alternative licensing programs.

Digital Rights Management

Digital Rights Management (DRM) is the name given to technologies that prevent someone from using a copyrighted digital work beyond the uses the copyright holder intends for it. Content companies believe such technology is necessary out of concern that once an unprotected copy of a digital work becomes available, it will be distributed over the Internet, and as a result, will lose its value.

One common approach to copy protection is encryption -- the use of a mathematical/computational process to scramble information so that only those who have the right key or keys can obtain access to it. This, for example, is how DVD movies work -- their content is scrambled so that only DVD players that have the right keys can decrypt the content so that the viewer can watch the DVD movie. Similarly, a cable or satellite television subscriber's service provider normally scrambles content in ways that prevent most unauthorized people (that is, nonsubscribers) from getting access to it.

The basic approach for encryption is to encrypt the digital content so that only a player with both the decryption device or software and the proper key can play the content. The content owner can broadcast the content to everyone but unless the recipient has valid decryption keys he cannot play the content. Scrambling is a similar copy-protection approach, but without a user-applied key; instead, the key that includes the unscrambling algorithm resides in the player device (which may be hardware, or software, or both).

The second approach to copy protection is something we can call imarking; it depends on adding a mark in some way to the digital content. The mark may be used to indicate that the content is copyrighted, and in some cases it also carries instructions about what uses of the content are authorized. For example, in theory a mark may label some content as ido not copyi and another mark may label some other content as icopy once but donit re-copy.

There are three general forms a mark may take in the digital world. First, it may take the form of a simple label that is sent along with the content. Second, it may be a "watermark" -- an arrangement of digital bits hidden in the background of the digital content. Or, third, it may be a "fingerprint" -- a unique identifier that is derived from the characteristics of the content itself.

Marking is typically used for one of three reasons. First, it is used when an encryption-based method, for whatever reason, is not viable. For example, if the Federal Communications Commission requires that broadcast television signals not be encrypted -- that they be broadcast "in the clear" -- any DRM for broadcast television signals must be based on marking. Second, marking is used in systems that attempt to detect copying after the fact rather than preventing it -- such use is among the so-called "forensic" uses of marking. Putting a mark on a piece of digital music, for example, allows one to create a search engine that can find a marked clip on the Internet, which the searcher might then assume is an unauthorized clip (on the theory that authorized marked clips arenit available at all via the Internet). The third major use of marking is as a response to the so-called "analog hole." The term "analog hole" refers to the ability of a would-be infringer to capture content as it is being played (or just before it is played). An example of this would be playing of a DVD and capturing the DVDis content by using a camera with a microphone, or by replacing an output device such as a television set with a recording device, or by connecting to the digital player through analog connectors.

A third method is called "selective incompatibility". In this case, the manufacturer of a CD, for example, will add deliberate "errors" into encoding of music content on CDs, with the result that the CDs will be readable by some CD players (typically consumer-electronics single-purpose devices) and not by others (typically computer CD drives).

For a more full discussion of DRM, see What Every Citizen Should Know about DRM, a.k.a. eDigital Rights Management, by Mike Godwin, Public Knowledge Legal Director.

Compulsory License

Under the "compulsory license", content providers are required to make their material available for distribution at a price. This is, for example, how cable companies and satellite services pay for television programming, how musicians can record songs by other musicians and writers, and how webcasters get access to music. In these examples, the government sets the rates the programmers must pay to the content companies.

One proposal, made by The Electronic Frontier Foundation (EFF), would adapt the compulsory license to peer-to-peer (P2P) networks and file sharing to a voluntary collective license.

According to the EFF: The concept is simple: the music industry forms a collecting society, which then offers file-sharing music fans the opportunity to "get legit" in exchange for a reasonable regular payment, say $5 per month. So long as they pay, the fans are free to keep doing what they are going to do anyway -- share the music they love using whatever software they like on whatever computer platform they prefer -- without fear of lawsuits. The money collected gets divided among rights-holders based on the popularity of their music. In exchange, file-sharing music fans will be free to download whatever they like, using whatever software works best for them.

The music industry has opposed the proposal, saying antitrust laws would prohibit the music industry from working together on a collection mechanism and because the voluntary license would in reality be a compulsory license.

Alternative Licensing Programs

In addition to the protection from copyright laws, there are a number of other licensing regimes which, to one degree or another, allow content creators to have some flexibility in how their material is used.

Creative Commons, founded in 2001, provides a range of licenses for text, music, images and video that give creators a range of options. For example, an author could obtain an "attribution" license which lets others copy, distribute or display your work, as long as the writer is given credit. Another variation is the "noncommercial" license, in which others can copy, distribute or perform a work, but only for noncommercial purposes. A "no derivative works" license allows others to perform, copy, distribute or display a work, but not derivative products based on it. A "sampling" license allows for different uses of pieces of a work under various conditions.

For software code or documentation, other models are available. The Free Software Foundation has a General Public License that makes certain programmers can share their work and that others can modify it. As the Foundation describes its mission: "When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things. To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights."

A similar project is the Open Source Initiative, which also issues a number of licenses for software. OSI publishes standards for open-source licensing according to criteria set by the group. Software must be distributed under a license that guarantees the right to read, redistribute or change software.