Possession is nine tenths of the law? Part 1

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 view

2.       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.