Consumers have developed a number of expectations concerning the use and copying of familiar types of content. Widespread use of the Internet and digital technologies is likely to foster additional expectations concerning personal use, as consumers grow accustomed to the flexibility that computer platforms provide. Of course, expectations may vary depending on the medium and the delivery method. But they may include (and are not necessarily limited to) the following:
Some traditional personal uses may not translate easily into the digital world. For example, it is easy and common to lend physical items, such as books. In contrast, it is somewhat less natural to “lend” a digital file, since people tend to copy files rather than physically moving or transferring them. Online music stores generally lack a simple mechanism for true lending – although users may be able to burn playlists onto physical CDs, which they could then lend. In addition, at least one major service permits subscribers to share music by sending a playlist to up to twenty friends, who may listen up to three times. This may serve some of the same purposes as lending from the consumer perspective.
To the extent that consumers value the personal uses provided by traditional physical media, product developers should make every effort to implement comparable capabilities in digital products. Doing so without opening the door to widespread infringement may pose significant technical and business challenges, but consumers and product reviewers may reasonably press product and platform developers to take on these challenges. In addition, where DRM-equipped products will not allow personal uses that have been commonplace for that type of media, that fact should be disclosed to consumers.
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Many consumers have already encountered compatibility limitations in the online music market. Songs purchased on iTunes will not work on portable music players other than Apple’s own iPods, and Apple’s iPods will not work with songs purchased from other online stores in Windows Media format. The confusing tangles of DRM incompatibility can be frustrating to users accustomed to buying CDs under the assumption that that they will play in any device in which they fit.
To some extent, compatibility limitations stem from the basic purposes of DRM. One major aim of DRM is to limit a user’s technical ability to use or distribute digital content in ways the copyright holder has not authorized. To do that, DRM needs to make the content incompatible with devices or platforms that would enable (or fail to prevent) such unauthorized uses. For example, if Apple’s iTunes song files were freely playable on any platform, then anyone could build a device or write software that played the songs but ignored or stripped the DRM. Thus, compatibility arguably needs to be limited to devices that are deemed trusted or secure.
Of course, DRM can also be used for purposes such as segregating markets or creating and enforcing different distribution windows. These uses of DRM can result in compatibility issues as well – as in the example of DVD region coding, which makes U.S. DVDs incompatible with players sold outside North America.
Given the purposes of DRM and the likelihood of multiple distribution platforms, it is not realistic to expect every digital distribution service and every DRM-equipped file to be compatible with every other platform or playback device. Nonetheless, DRM that is compatible with a range of platforms and devices – and thus permits competition and consumer choice – generally should be favored over DRM that locks users in to a narrow set of complementary technologies. Media products and technologies that can be expanded and deployed in ways not anticipated by the original developers are likely to have significant long-term advantages over those with more closed architectures.
One route to greater interoperability is for different products, services, and devices to adopt the same DRM platform. For example, if a vendor of DRM solutions licenses its DRM widely, a variety of companies can incorporate that DRM into a variety of competing downstream products. Alternatively, a group of companies may come together to develop a joint DRM standard they would all use. There is also an effort to develop an open, royalty-free DRM system, which in theory would eliminate licensing concerns as a potential barrier to widespread adoption. In any event, reviewers should recognize that the licensing policy for a DRM system may help determine not only the range of existing devices with which a product using that DRM will interoperate, but its compatibility with future innovations as well.
A different way of achieving interoperability would be to develop standard interfaces and protocols to enable users to shift their content back and forth between separate DRM platforms, so that content acquired in one DRM format nonetheless can be accessed and used with devices employing different DRM systems. The idea is that information relating to the user’s identity and the rights the user has acquired for particular content would be recorded in a standard format that is not specific to any one DRM platform. Based on that information, the content could be translated into, or exchanged for, alternative DRM formats as needed to make the content work with different devices – but only to the extent the user’s rights so permit, and without jeopardizing protections against unauthorized use. The viability of such a scheme remains to be seen, however.
In short, reviewers evaluating DRM-equipped products or services should probe the extent to which the DRM locks users into a particular family of products in complementary markets. Examining licensing agreements, policies for granting future licenses, and compatibility with any standard protocols that have been developed will be important parts of that inquiry.
As discussed above, where DRM does entail limitations on choice and interoperability, transparency is essential. Consumers would not have expected a tape deck to be capable of playing vinyl records, but in the world of digital media, compatibility-related complications may be less obvious for consumers to discern. Vendors should clearly and conspicuously label products in a way that makes it clear to users what compatibility problems they may face.
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Digital technologies and open computer architectures can empower individual consumers to be much more than passive consumers of media. The digital revolution has made mass publishing available to anyone with a computer. It provides cheap, easy access to the kind of music and video production tools previously available only to corporations and professionals. In a world in which people increasingly express themselves through rich media, they will want the ability to quote, comment, and editorialize on and through all kinds of media in the same way they have historically been able to do with text. Naturally, copyright law establishes some boundaries for such activity, but the fair use doctrine provides a certain amount of leeway, especially for noncommercial uses that have little impact on the market for a copyrighted work.
As much as possible, DRM solutions should seek to allow users to interact with, excerpt, and expand on existing works in ways that are consistent with copyright law. They should allow reuse of content for noncommercial creative purposes – such as using purchased music as background in home videos. And they should take advantage of the metadata capabilities of digital media to make it easy to purchase licenses to expand upon and redistribute content as part of users’ own creations.
DRM is currently not well adapted to the task of facilitating end user creation. Nor is it a simple task to develop DRM solutions that, in accommodating a broad range of creative uses, do not also open the door to uses that infringe copyright. But reviewers should recognize that the potential for interactivity and user creativity is one of the great advantages of digital media. In the long run, DRM should work towards allowing users of computers and consumer electronics devices to interact with and transform content, not just to consume it passively.
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In some cases, DRM may create risks that a user’s access to content unexpectedly could be interrupted or lost. In particular, DRM that involves some kind of ongoing, post-sale linkage to or dependence on the individual provider of the content could make content permanently inaccessible if the provider goes out of business. Access likewise could be impaired if the provider ceases to support a particular product line, format, or functionality. Similarly, when DRM requires some kind of Internet-based “handshake” or verification on an ongoing basis, a user’s access to purchased content could be interrupted if the user loses his Internet connection.
Of course, under some business models, users may acquire content with full understanding that their rights to access the content are not necessarily permanent. Access to rented content may expire after a certain period of time, and access to subscription-based content may expire if the user allows the subscription to lapse. But unless such limits are an explicit part of the bargain at the time of purchase, users generally expect that content they purchase will remain accessible and usable.
Whether risks of future loss of access exist is unlikely to be immediately apparent from direct tests of DRM equipped products or their associated platforms, or from the disclosures provided by the makers of those products or platforms. In general, assessing such risks will require a sound understanding of how a DRM scheme works and an effort to think through how it could be affected by various future contingencies. Product reviewers should conduct such an analysis, so they can inform consumers about any risk of purchased content becoming stranded and unusable.