The Digital Dilemma Intellectual Property in the Information Age (2000) / Chapter Skim
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5 Protecting Digital Intellectual Property: Means and Measurements
5 Protecting Digital Intellectual Property: Means and Measurements
Pages 152-198
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From page 152... ...
Business models add a third, powerful element to the mix, one that can serve as an effective means of making more digital content available in new ways and that can be an effective deterrent to illegitimate uses of IP. The chapter also considers the question of large-scale commercial infringement, often referred to as piracy.
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From page 153... ...
Although it is tempting to talk about technical protection systems packages of tools integrated into digital environments and integrated with each other the committee believes that such systems are difficult to implement reasonably in the information infrastructure, an open network of interacting components, lacking boundaries that usefully separate inside and outside. In this environment it is better to talk about technical protection services; each service will be drawn on by information infrastructure components and will generally interact with other services.
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From page 154... ...
the committee provides a layman's description of the most important technical protection mechanisms, suggesting how each can be fit into an overall protection scheme, describing the limitations of each, and sketching current research directions. There are several classes of mechanisms:
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From page 155... ...
For effective protection, the developer of an IP-delivery service must choose the right ingredients and attempt to weave them together into an end-to-end technical protection system. The term "end-to-end" emphasizes the maintenance of control over the content at all times; the term "protection system" emphasizes the need to combine various services so that they work together as seamlessly as possible.
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From page 156... ...
There is, of course, an interesting circularity in symmetric-key encryption. The way to keep a message secret is to encrypt it, but then you also have to send the decryption key so the message recipient can decrypt the message.
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From page 157... ...
than symmetric-key encryption, a common technique for security uses them both: Symmetric-key encryption is used to encrypt the message, then public-key encryption is used to transmit the decryption key to the recipient. A wide variety of other interesting capabilities is made possible by public-key systems, including ways to "sign" a digital file, in effect providing a digital signature.
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From page 158... ...
In its simplest form, an access control system keeps track of the identity of each member of the user community, the identities of the data objects, and the privileges (reading, altering, executing, and so on) that each user has for each object.
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From page 159... ...
. Using these mechanisms, the content providers can specify whatever protection strategy their business models call for, from no protection at all to requiring that the receiving system be authorized via a certified cryptographic key, be prepared to communicate in an encrypted form, and be prepared to use a rights management system when displaying information to the end user.
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From page 160... ...
Not surprisingly, then, some technical protection mechanisms seek to restore these properties by somehow "reattaching" the bits to something physical, something not easily reproduced. The description that follows draws on features of several such mechanisms as a way of characterizing this overall approach.
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From page 161... ...
A third technique calls for special hardware in the computer to hold a unique identifier that can be used as part of the decryption key. Some approaches call for this hardware to be encased in tamper-resistant cases, to discourage tampering even by those with the skill to modify hardware.
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From page 162... ...
standard, an evolving standard developed through a collaboration of Hitachi, Intel, Matsushita, Sony, and Toshiba (see Box 5.1~. The computer and the peripheral need to communicate to establish that each is a device authorized to receive a decryption key.
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From page 163... ...
This more ambitious approach faces the substantial problem of requiring not only the development of a new and complex operating system but the widespread replacement of the existing installed base as well. This clearly raises the real possibility of rejection by con sumers.
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From page 164... ...
Currently, any system aiming to provide substantial technical protection will rely on encryption, anchoring the bits to a specific machine, and making encryption persistent through just-in-time decryption and lowlevel control of I/O. Systems using one or more of these ideas are commercially available, and others are under active development.
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From page 165... ...
at a particular point in time. The need for this arises from the malleability of digital information.
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From page 166... ...
Marking a document is of course only half the battle; monitoring is 16Embedding IF ownership information in documents in subtle ways has a long history and had been used much before the arrival of digital information. One of the oldest and simplest techniques is the mapmaker's trick of inserting nonexistent streets or roads.
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From page 167... ...
Frequently their intent is simply to indicate that copying is prohibited; the utility of these technologies relies on the fact that many people are honest most of the time. Trusted Systems The preceding discussion of technical protection mechanisms points out that the strongest intellectual property protection requires embedding protection mechanisms throughout the computer hardware and software at all levels, right down to the BIOS.
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From page 168... ...
One way to increase control over content is to deliver it into specialpurpose devices designed for purchase and consumption of digital content, but not programmable in the manner of general-purpose PCs. For example, game-playing machines, digital music players, electronic books, and many other types of devices could be (and some are)
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From page 169... ...
The trusted systems scenario faces substantial challenges, in part because accomplishing it would require changes to the vast installed base of personal computers, changes that the marketplace may reject. The need for specialized hardware would require buying new machines or retrofitting existing computers with hardware ensuring that the computer user was able to do with the digital object exactly those actions specified by the rights management language.
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From page 170... ...
An alternative version of the trusted system notion envisions creating software-based IP management systems whose technical protection arises from a variety of software tools, including encryption, watermarking, and some of the technologies discussed above. Although this would not provide the same degree of protection as systems using both software and special hardware, it may very well offer sufficient strength to enable an effective marketplace in low- to medium-value digital information.
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From page 171... ...
Digital video disks provide a second example of hardware-based copy protection for special-purpose devices, in this case for use by the entertainment industry (see Box 5.2~. Technical Protection Services, Testing, and the Digital Millennium Copyright Act of 199825 Understanding the interaction of intellectual property and technical protection services requires an understanding of how technical protection methods and products are developed.
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From page 172... ...
j72 ~ Damp Dam One meter of the community of cryptography and security researchers proposes a protection mechanism' and others then attack the proposal Eying to And Us vulner^~1hes. U is 1-ortant Mat Is process go on at bow We ~eoreOcal and experimental levels Proposals for new ideas are often first evaluated on paper' to see whether Mere are conceptual Dams.
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From page 173... ...
Fielded implementations, not abstract designs, are what customers will use; hence, real implementations must be tested in real use. A crucial part of the development of good technical protection mechanisms is thus the experimental circumvention, or attack, on hardware and software that are claimed to be secure.
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From page 176... ...
Distributors can lose in the marketplace because they choose a TPS that is too sophisticated or too expensive, just as easily as they can because they choose one that is too weak. THE ROLE OF BUSINESS MODELS IN THE PROTECTION OF INTELLECTUAL PROPERTY Intellectual property protection is frequently viewed in terms of two forces law and technology.
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From page 177... ...
By selecting appropriately from the wide range of business models available, a rights holder may be able to influence significantly the pressure for and degree of illegal copying or other unauthorized uses. By thinking creatively about the nature of the product and the needs of the customer, rights holders may be able to create new business models that are largely unaffected by the properties of digital information (e.g., the ease of replication and distribution)
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From page 178... ...
This erosion may be sufficiently extreme at times that rights holders may be wise to reevaluate their fundamental business model. In some cases digital information may be simply unprotectable, at least in practice if not in law and in principle.
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From page 179... ...
These are reviewed briefly here, to indicate how they are used in the digital environment and to set the stage for exploring less traditional business models in the next section. Traditional Business Models Some traditional business models are outlined below: 1.
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From page 180... ...
Here revenues depend on the number of copies sold or licenses signed, making the rights holder more sensitive to illegal copying, piracy, and even fair use, to the degree that any of these replace the purchase of a copy. Success of a business model of this type depends, in part, on the producer's ability to control postsale copying.
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From page 181... ...
Some of these are derived from models used for traditional products, while others appear to be unique to the world of information products. Eight of these less traditional business models are described below: 1.
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From page 182... ...
They also demonstrate the trend of relating pricing and other decisions to efforts to develop relationships with customers. Intellectual Property Implications of Less Traditional Business Models These less traditional models all reduce the need for enforcement of intellectual property protection against reproduction.
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From page 183... ...
converge, the need for IP enforcement clearly diminishes. Business Models as a Means of Dealing with Intellectual Property As the variety of models above illustrates, business model design and selection can play a significant role in grappling with questions of IP protection.
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From page 184... ...
. Technical protection mechanisms and business models can then play complementary roles in grappling with the difficulties of distributing IP content in digital form, each capable of reducing the degree of "leakage" of the product.
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From page 185... ...
Consider network effects in software, where the value of a program increases as more people use it, particularly as it approaches the status of a standard. For digital information products, there are large first-copy costs and almost negligible production and distribution costs.
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From page 186... ...
Many high-end professional software packages, for instance, still require a dangle for use, and providers of specialized business information frequently use intranets and extranets protected by passwords in order to keep control of their content. There is reason to approach doing business on the Web or in other electronic forms with some optimism, for there are a variety of business models to consider.
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From page 187... ...
.34 These trade associations and other groups representing rights holders publish figures intended to demonstrate the huge dollar cost of infringement of U.S. IP rights that occurs both domestically and abroad.
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From page 188... ...
One concern is that those who read figures of the sort found in the IIPA report may infer that all or most of the copyright industries' contribution to the GDP depends on copyright policy that protects works to at least the current degree and that perhaps the contribution now requires still greater copyright protection as a consequence of digital information and networks. However, within the economics community, the specific relationship between the level of IP protection and revenue of a firm in the copyright industries is unclear.38 A second problem is the accuracy of estimates of the costs of illegal copying.
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From page 191... ...
Even so, the committee as a whole recognizes that many creators believe that their works, as expressions of their individuality, deserve to be protected and controlled by rights holders, quite independent of the economic consequences. Because people differ in the weight they give to this argument, the committee believes that copyright policy will never be resolved solely by appeal to facts about its economic effects.
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From page 192... ...
Computer software was the first digital information product to challenge the traditional interpretation of patent concepts because of its dual nature as both a literary work (the textual source code) and a machine (i.e., a useful device)
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From page 193... ...
In 1978, the Supreme Court in Parker v. Flook denied patent protection for an algorithm useful for calculating "alarm limits" (i.e., dangerous conditions)
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From page 194... ...
94 THE DIGITAL DILEMMA widely regarded as vastly increasing the scope of patent protection available for software,46 and which led the PTO to begin issuing a number of quite broad patents covering methods for conducting business. In the State Street case, the patent in question covered a "hub and spoke" com 46State Street Bank and Trust Co.
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From page 195... ...
The PTO concluded that compton s claimed inventions had been disclosed or taught in prior art references, and, accordingly, on November g, 1994, the PTO issued a press release announcing it had formally canceled all 41 claims granted in the compton s patent. Many commentators believe the compton s case strongly underscores their concerns regarding the qualifications of the PTO to effectively evaluate prior art in the information technology field.
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From page 196... ...
Serious questions continue to exist within the information technology field about the PTO's software-related patent decisions. A number of legal commentators have pointed out that allowing these kinds of patents potentially makes concepts, not technology, the protectable property of the patent holder, "allowing virtually anything under the sun to win patent protection."48 48see, for example, Goldman `1999y, Scheinfela and sagley `1998y, Sandburg `199~y, and Sullivan ~lg99~.
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From page 197... ...
PROTECTING DIGITAL INTELLECTUAL PROPERTY 197 Second, the tradition of independent creation in the field of computer programming may run counter to assumptions and practices associated with patents as they are applied to its traditional domains. When someone patents a component of a manufactured system, for example, it will generally be possible for the inventor to manufacture that component or license its manufacture to another firm and reap rewards from the invention by sale of that component.
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From page 198... ...
For example, independent creation is a defense. Two people could write original but very similar stories for programs' independently; both would be copyrightable, and neither would infringe upon the other, because the standard for copyright protection is originality, not novelty.
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