Digital rights management

Digital rights management (DRM) is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale. DRM is any technology that inhibits uses of digital content that are not desired or intended by the content provider. Copy protection which can be circumvented without modifying the file or device, such as serial numbers or keyfiles are not generally considered to be DRM. DRM also includes specific instances of digital works or devices. Companies such as Amazon, AT&T AOL, Apple Inc., the BBC, Microsoft, Electronic Arts and Sony use digital rights management. In 1998 the Digital Millennium Copyright Act (DMCA) was passed in the United States to impose criminal penalties on those who make available technologies whose primary purpose and function is to circumvent content protection technologies.^]

The use of digital rights management is controversial. Content providers claim that DRM is necessary to fight copyright infringement online and that it can help the copyright holder maintain artistic control or ensure continued revenue streams. Those opposed to DRM contend there is no evidence that DRM helps prevent copyright infringement, arguing instead that it serves only to inconvenience legitimate customers, and that DRM helps big business stifle innovation and competition. Further, works can become permanently inaccessible if the DRM scheme changes or if the service is discontinued. Proponents argue that digital locks should be considered necessary to prevent "intellectual property" from being copied freely, just as physical locks are needed to prevent personal property from being stolen.

 

SHORTCOMINGS OF DIGITAL RIGHTS MANAGEMENT

 

Methods to bypass DRM

There are many methods to bypass DRM control on audio and video content.

One simple method to bypass DRM on audio files is to burn the content to an audio CD and then rip it into DRM-free files.

Many software programs have been developed that intercept the data stream as it is decrypted out of the DRM-restricted file, and then use this data to construct a DRM-free file. These programs require a decryption key.

 Another method is to use software to record the signals being sent through the audio or video cards, or to plug analog recording devices into the analog outputs of the media player. These techniques utilize the so-called "analog hole" (see below).

Analog hole

All forms of DRM for audio and visual material (excluding interactive materials, e.g. videogames) are subject to the analog hole, namely that in order for a viewer to play the material, the digital signal must be turned into an analog signal containing light and/or sound for the viewer, and so available to be copied as no DRM is capable of controlling content in this form.

All DRM to date can therefore be bypassed by recording this signal and digitally storing and distributing it in a non DRM limited form, by anyone who has the technical means of recording the analog stream.. 

DRM on general computing platforms

Many of the DRM systems in use are designed to work on general purpose computing hardware, such as desktop PCs apparently because this equipment is felt to be a major contributor to revenue loss from disallowed copying.

Such schemes, especially software based ones, can never be wholly secure since the software must include all the information necessary to decrypt the content, such as the decryption keys. An attacker will be able to extract this information, directly decrypt and copy the content, which bypasses the restrictions imposed by a DRM system.

DRM on purpose-built hardware

Many DRM schemes use encrypted media which requires purpose-built hardware to hear or see the content. It tries to protect a secret decryption key from the users of the system.

While this in principle can work, it is extremely difficult to build the hardware to protect the secret key against a sufficiently determined adversary.. In addition user verification provisions are frequently subject to attack, pirate decryption being among the most frequented ones.

Watermarks

Watermarks can very typically be removed, although degradation of video or audio can occur.

Mass piracy failure

Mass piracy of hard copies does not necessarily need DRM to be decrypted or removed, as it can be achieved by bit-perfect copying of a legally obtained medium without accessing the decrypted content.

Obsolescence

When standards and formats change, it may be difficult to transfer DRM-restricted content to new media. Additionally, any system that requires contact with an authentication server is vulnerable to that server becoming unavailable, as happened in 2007 when videos purchased from Major League Baseball (mlb.com) prior to 2006 became unplayable due to a change to the servers that validate the licenses.

Amazon PDF and LIT eBooks - In August 2006, Amazon stopped selling DRMed PDF and .LIT format eBooks. Customers were unable to download purchased eBooks 30 days after that date, losing access to their purchased content on new devices.

Music Team notified its customers via email they will be shutting down their DRM servers October 9, 2008 and any DRM-encumbered music acquired from them will no longer be accessible unless ripped to a non-DRM format before that date.

After bad press and negative reaction from customers, on October 9, 2008, Walmart decided not to take its DRM servers offline. 

Ads for Adobe PDF - Also in January 2009, Adobe Systems announced that as of March 2009 they would no longer operate the servers that served ads to their PDF reader. Depending on the restriction settings used when PDF documents were created, they may no longer be readable.

Adobe Content Server 3 for Adobe PDF - In April 2009, Adobe Systems announced that as of March 30, 2009 the Adobe Content 3 server would no longer activate new installations of Adobe Reader or Adobe Acrobat. In addition, the ability to migrate content from Adobe Content Server 3 to Adobe Content Server 4 would cease from mid-December 2009. Anyone who failed to migrate their DRMed PDF files during this nine month window lost access to their content the next time they had to re-install their copy of Adobe Reader or Adobe Acrobat.

 

Moral and legitimacy implications

1.    One of the principles of the Rule of Law is that "The law can be readily determined and is stable enough to allow individuals to plan their affairs." 

2.    A problem with DRM that EFF points to is: ".. in an effort to attract customers, these music services try to obscure the restrictions they impose on you with clever marketing." 

3.    DRM laws are widely flouted: according to Australia Official Music Chart Survey, copyright infringements from all causes are practised by millions of people.

DAMAGES - COMPENSATION FOR LOSS OR INJURIES

The examples and perspective in this article deal primarily with common law and do not represent a worldwide view of the subject

In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury  grammatically, it is a singular noun, not plural. The rules for damages can and frequently do vary based on the type of claim which is presented (e.g., breach of contract versus a tort claim).

1.    Example

1.1 Speculative damages

Speculative damages are damages that have not yet occurred, but the plaintiff expects them to. Typically, these damages cannot be recovered unless the plaintiff can prove that they are reasonably likely to occur.^[4]

2.    Quantification of personal injury claims

2.1 Special damages

Special damages compensate the claimant for the quantifiable monetary losses suffered by the plaintiff.  For example, extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of irreplaceable items, additional domestic costs, and so on. They are seen in both personal and commercial actions.

Special damages can include direct losses (such as amounts the claimant had to spend to try to mitigate problems) and consequential or economic losses resulting from lost profits in a business. Special damages basically include the compensatory and punitive damages for the tort committed in lieu of the injury or harm to the plaintiff.

Damages in tort are awarded generally to place the claimant in the position in which he would have been had the tort not taken place. Damages for breach of contract are generally awarded to place the claimant in the position in which he would have been had the contract not been breached. This can often result in a different measure of damages. In cases where it is possible to frame a claim in either contract or tort, it is necessary to be aware of what gives the best outcome.

If the transaction was a "good bargain" contract generally gives a better result for the claimant.

As an example, Neal sells Mary a watch for £100. Neal tells Mary it is an antique Rolex. In fact it is a fake one and worth £50. If it had been a genuine antique Rolex, it would be worth £500. Neal is in breach of contract and could be sued. In contract, Mary is entitled to an item worth £500, but she has only one worth £50. Her damages are £450. Neal also induced Mary to enter into the contract through a misrepresentation (a tort). If Mary sues in tort, she is entitled to damages that put herself back to the same financial position place she would have been in had the misrepresentation not been made. She would clearly not have entered into the contract knowing the watch was fake, and is entitled to her £100 back. Thus her damages in tort are £100. (However, she would have to return the watch, or else her damages would be £50.)

If the transaction were a "bad bargain", tort gives a better result for the claimant. If in the above example Mary had overpaid, paying £750 for the watch, her damages in contract would still be £450 (giving him the item he contracted to buy), however in tort damages are £700. This is because damages in tort put her in the position she would have been in had the tort not taken place, and are calculated as her money back (£750) less the value of what she actually got (£50).

3.    Statutory damages

Statutory damages are an amount stipulated within the statute rather than calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine the value of the harm to the victim.

For example, United States Civil Code 18 USC §§2520 provides for statutory damages to victims of various wiretapping offences. The Lanham (Trademark) Act provides for minimum damages of $500 per type of item, for goods sold with unauthorized use of a trademark (15 U.S.C. § 1117(c), Lanham Act Section 35(c).). In copyright law, European directive  2004/48/EC on the Enforcement of Intellectual Property Rights bases damages on, "the amount of royalties which would have been due if the infringer has requested authorization".

4.    Aggravated damages

Aggravated damages are not often awarded; they apply where the injury has been aggravated by the wrongdoer's behavior, for example, their cruelty.

5.    Arbitration award

An arbitration award (or arbitral award) is a determination on the merits by an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of law. It is referred to as an 'award' even where all of the claimant's claims fail (and thus no money needs to be paid by either party), or the award is of a non-monetary nature.

6.     Subrogation

Subrogation in its most common usage refers to circumstances in which an insurance company tries to recoup expenses for a claim it paid out when another party should have been responsible for paying at least a portion of that claim.

More specifically, subrogation is the legal technique under common law by which one party, commonly an insurer (I-X) of another party (X), steps into X's shoes, so as to have the benefit of X's rights and remedies against a third party such as a defendant (D). Subrogation is similar in effect to assignment, but unlike assignment, subrogation can occur without any agreement between I-X and X to transfer X's rights. Subrogation most commonly arises in relation to policies of insurance, but the legal technique is of more general application. Using the designations above, I-X (the party seeking to enforce the rights of another) is called the subrogee. X (the party whose rights the subrogee is enforcing) is called the subrogor.

In each case, because I-X pays money to X which otherwise D would have had to pay, the law permits I-X to enforce X's rights against D to recover some or all of what I-X has paid out. A very simple (and common) example of subrogation would be as follows:

1.    D drives a car negligently and damages X's car as a result.

2.    X, the insured party, has Collision insurance, and claims (i.e., asks for payment) under his policy^[1] against I-X, his insurer.

3.    I-X pays in full to have X's car repaired.

4.    I-X then sues D for negligence to recoup some or all of the sums paid out to X.

5.    I-X receives the full amount of any amounts recovered in the action against D up to the amount to which I-X indemnified X. X retains none of the proceeds of the action against D except to the extent that they exceed the amount that I-X paid to X.

If X were paid in full by I-X and still had a claim in full against D, then X could recover "twice" for the same loss. The basis of the law of subrogation is that when I-X agrees to indemnify X against a certain loss, then X "shall be fully indemnified, but never more than fully indemnified ... if ever a proposition was brought forward which is at variance with it, that is to say, which will prevent [X] from obtaining a full indemnity, or which will give to [X] more than a full indemnity, that proposition must certainly be wrong."^[2]

I-X will normally (but not always) have to bring the claim in the name of X. Accordingly, in situations where subrogation rights are likely to arise within the scope of a contract (i.e. in an indemnity insurance policy) it is quite common for the contract to provide that X, as subrogor, will provide all necessary cooperation to I-X in bringing the claim.

Subrogation rights can also come into play when X brings the action against D. To the extent that X's recovery against D reflects damages incurred by X that were already covered by I-X, I-X will have a lien on the proceeds of the action. In the collision example above, it would be typical for X to sue D, asserting as one element of damage the cost of repairing X's car. I-X's lien would extend to whatever D paid X that was allocable to that claim, but not to what was allocable to X's other claims against D, such as lost wages or pain and suffering.

Subrogation is an equitable remedy and is subject to all the usual limitations that apply to equitable remedies.

Although the basic concept is relatively straightforward, subrogation is considered to be a highly technical area of the law.