Posting the Mobile Device Remote Identity Proofing paper in
parts seemed to work pretty well. The
paper as a whole received many more views than its two predecessors. “Possession” is not as long as “Mobile” but
lends itself to being divided in half.
The first half will focus on the problem, how to best handle Digital Rights
Management (DRM), along with the associated legal principles. Part Two will focus on the current methods of
securing Digital Rights Management and PKI as an alternative. I hope you enjoy the paper and encourage you
to comment.
The Digital Rights Management Conundrum
Background on digital media ownership
Every so often I run across a
word that I have not heard before or had the occasion to use. The latest entry in that category is
Ostensible. Ostensible is an adjective
defined by Merriam Webster as:
1. 1: intended for display : open to view2. 2: being such in appearance: plausible rather than demonstrably true or real.
I came across this word while
conducting the research for this post.
It was used in the Wall Street Journal’s Law Blog while paraphrasing a
2010 decision by the Ninth Circuit Court in San Francesco. The focus of the plaintiffs and the defendant’s
dispute was money, no surprise. The
argument was based on the difference in royalties paid to recording
artists. A song that is licensed
typically garners a hefty fifty percent share in revenue for the artist,
conversely a song that is sold brings in far lower royalty. The catalyst for the complaint, Apple
I-tunes. Time for a reality check; did
you really believe the tens of millions of dollars spent on music, movies,
books, and other publications in the I-Tune store actually resulted in
ownership? You may be thinking to
yourself that darn fine print well in fact the opening statement to the iTunes
licensing agreement tells it all.
“The Products transacted through the Service are licensed, not sold, to You for use only under the terms of this license, unless a Product is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. The licensor (“Application Provider”) reserves all rights not expressly granted to You. The Product that is subject to this license is referred to in this license as the “Licensed Application.” (Apple Inc., 2012)
The fact that the songs were
licensed not sold precipitated the suit against Universal Music Group by
producers affiliated with rapper Eminem.
Although the decision was not favorable for Universal Music Group it is
also, at least according to them, not precedent setting as it is specific to
one particular contract with a single artist.
They are obviously appealing the verdict.
In order to begin to grasp the
issues it is necessary to have a general understanding of the three legal
principles that have become ubiquitous in the digital media debate.
Copyright
Merriam Webster defines copyright
as the exclusive legal rights to reproduce, publish, sell, or
distribute the matter and form of something (as a literary, musical, or
artistic work). A copyright is granted
to the creator of an original expression of work; for example an author or
composer. There is more than one type of
copyright, those that are registered and those that are implied. Without
getting into too much detail suffice it to say that an implied copyright is
granted on initial publication of the work and a registered copyright is
granted by the US copyright office after the work is deposited along with
application and fee. The deposited work
[sample] becomes the property of the U.S. Library of Congress.
First Sale Doctrine
First sale doctrine as applied to
Copyrights allows the purchaser to sell or give away a particular lawfully made
copy of the copyrighted work without permission once it has been obtained. This
does not infringe the copyright owner's exclusive rights. Section 106 of the
1976 Copyright Act grants the owner of a Copyright six exclusive rights:
reproduction,
preparation of derivative works, distribution, public performance, public
display, and digital transmission
performance.
However, a Copyright owner’s right of
distribution is limited by the First Sale Doctrine, as codified in Section 109 of the
Act. Section 109(a) (Hyde, 2001) First sale doctrine is an exception to the
copy right. This exception allows you to
give a book to a friend or even sell it.
First Sale Doctrine enables libraries to lend books and video stores,
before they started going the way of the dinosaur, to rent video’s. First sale doctrine is not without
conditions. In order to receive the afore mentioned privileges ownership must
be established. Keep in mind that
ownership is not defined by mere possession which is why you cannot legally
copy a rented video or DVD.
Contract
Back in the pre-computer dark
ages access to music, literature, video etc was controlled by copyright
law. During the personal computer
enlightenment we were introduced to contract law as we accepted license
agreements during software installation or even through the act of breaking the
security seal. The internet introduced
the information revolution and really stood things on end with the Click Through License also known as a
Click Wrap Agreement
Clickwrap agreements came into use when software vendors began distributing software by means other than disks, such as when the software is pre-installed on a computer for the user, or when the software is downloaded over the Internet. Upon downloading, installation or first use of the application, a window containing the terms of the license opens for the user to read. The user is asked to click either "I agree" or "I do not agree". If the user does not agree, the process is terminated. The clickwrap agreements often remove many factual questions whether the user had adequate notice of the license terms and manifested assent to them. With respect to software downloads, the clickwrap terms often are displayed at the very start of the contract formation process, although often the terms are contained in a scrollable window that requires the user to scroll down to read all of the terms. This positioning often eliminates U.C.C. Section 2-207 issues regarding agreement to additional or different terms. (Kunkel, 2002)
Statistics and Sigma Six expert
Jeff Sauro confirmed a true lack of end user concern with end user license
agreements (EULA). Mr. Sauro examined a
couple of thousand log records over e few different consumer software
products. He found;
“The median time users spent on the license page was only 6 seconds! Generating a confidence interval around this sample tells us that we can be 95% sure at least 70% of users spend less than 12 seconds on the license page.Assuming it takes a minimum of two minutes to read the License Agreement (which itself is fast) we can be 95% confident no more than 8% of users read the License Agreement in full.”
It could be argued that the sheer
volume of these agreements in our everyday lives provided a disincentive in
getting the end user to read them. As
digital content providers race to catch up with advances in technology the
agreements compound often resulting in multiple EULA’s and Terms of use
agreements for individual products.
Consider that the order of a Kindle Fire™ requires that you consent to
ten different agreements with a combined forty eight pages of text (11point
font, standard margins). Disincentive or
not click wrap agreements are likely here to stay and current case law is
overwhelmingly in their favor.
Getting back to ostensible, you
are in fact the ostensible “buyer” when it comes to electronic media. The major providers are very aware of the propensity
of people to actually read the license agreement before clicking the check box
indicating “I agree”. The media providers think of you as a buyer of a service whereas you may think
of yourself as the buyer of a product. You have no right to resell what you have
purchased, in fact is difficult to lend or share what you have purchased
outside of your family group in your own home and then only when using software
designed to regulate that behavior. Even
if the majority of people were to read the license agreements chances are most
would complete the purchase regardless of what the license agreement outlines. This is in keeping with today’s instant
gratification society.
