DRM (Digital Rights Management, pejoratively known as Digital Restrictions Management) is said to be defective by design — making digital devices and content more annoying, less secure, less compatible, and generally less useful, and especially where protected by recent legislation, in conflict with free speech. If this dysfunction is not included by design, it is at least a direct side effect of a largely futile attempt to make computers worse at copying.

In light of these problems, Creative Commons licenses stipulate the following:

When You Distribute or Publicly Perform the Work, You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License.

This is not an outright prohibition of DRM on works distributed under terms of any CC license, but it does rule out existing DRM schemes that would clearly restrict the ability to exercise the rights granted in any CC license.

However, use of Digital Rights Expression, also variously known as Digital Rights Description and Rights Management Information, has always been a core part of Creative Commons’ strategy. The point of DRE and other information describing creative works is to describe works, not to facilitate restrictions imposed by your own computer. Computers should help users find and manage content, not help content owners manage and expose users.

We’ve only begun to exploit the ability of machine-readable code describing works and licenses to make media more valuable rather than less. Look for a paper on what we’re now calling ccREL — CC Rights Expression Language — coming soon.

ccREL has nothing to do with DRM, but this hasn’t stopped many people with DRM implementations or schemes from approaching us about making CC licenses work with their DRM. Nearly all of these conversations have been very brief as they were clearly futile.

The only exception to that certain futility rule has been Sun’s Project DReaM team. While it is far from clear that they have succeeded, theirs is perhaps the first honest attempt (at least outside academia) to specify a DRM system that supports CC licensed content and fair use — which we consider a requirement for supporting CC licenses.

The project has produced two white papers outlining potential support for CC licensed work and fair use, which are now open for comments: DReaM-MMI Profile for Creative Commons Licenses (pdf) and Support for Fair Use with Project DReaM (pdf). A forum has been set up to collect comments.

An introductory post from Susan Landau sets forth the challenge:

This is just to say that we welcome comments on the DReaM-MMI fair use document and the DReaM-MMI specification for implementing Creative Commons licenses. We’re not unaware of the inherent contradiction of a DRM’s support for fair use and Creative Commons licenses. What we are seeking to do in DReaM is develop an open-source DRM system, and include in it the things that ought to be part of any DRM system: support for fair use — and Creative Commons licenses.

We are very happy that Project DReaM has taken this step to encourage open discussion, which is certain to generate intense criticism, as anyone familiar with the DRM debates will immediately recognize. However, open criticism by many legal and computer security experts is the only way to properly evaluate a DRM system that aspires to support public licenses and fair use.

There is some existing literature on DRM and fair use. One starting point is a 2003 special issue of the Communications of the ACM on the theme “Digital Rights Management and Fair Use by Design.” Unfortunately these papers are not open access, but abstracts and exceprts are available at Cover Pages. Another is the DRM page of the Samuelson Law, Technology & Public Policy Clinic, which features several downloadable papers on DRM and fair use. In brief, there are two extremely difficult problems to overcome for a DRM system to support fair use: determining what constitutes fair use or trusting users and privacy.

Even if Project DReaM has successfully specified support for CC licensed works and fair use with DRM, there would probably be other hurdles to deploying truly non-defective DRM. The good news is that in the last year many more people have realized that DRM is not good for business or consumers, particularly in the music industry. However, attempts to make DRM work will probably be with us for some time. If it can be shown that it is possible to design a DRM system that supports fair use, consumers and advocates can demand that all DRM systems meet that standard. If not (and admittedly, we suspect this is the case), all the more reason to hasten the abandonment of DRM and the hindrance it poses to innovation, and to embrace technologies that make content more useful and empower users.