Before embarking upon the legal analysis of contemporary DRM e-commerce systems, as elaborated in other chapters of this book, a short presentation of the background that led to their development is deemed essential. DRM systems, as it will immediately be seen, have been the Content Industry’s technical, but not necessarily legal, response to a relatively recent and otherwise unprecedented volume of attacks against the copyright scheme, that could have ultimately brought its demise. Nevertheless, DRM e-commerce systems, essentially reflecting business rather than technical models, it remains to be seen whether they will indeed fare well under the legislative environment that regulates a number of their aspects.
The Digitization of Information
The digitization of information signaled the first difficulties for the copyright scheme1. Until that time the copyright system for protecting intellectual property had worked relatively successfully for around 200 years. It was first developed in the United Kingdom back in 17092, when the development of printing and the sale of legislative (and Shakespearean) texts begun evolving into an industry3. Law-makers of the time identified thus a new type of property, “intellectual” property. This had not been as evident then, as it perhaps appears to us today: for thousands of years before that time, property was divided into only two categories, fixed assets (land) and mobile assets (furniture, equipment, garments etc.). Only at that time did mankind realize that works of the intellect could be of an economic value, and therefore constituted “property” of their author (or right-holder). In this sense, the system that was then developed, and is still in use today, focused upon protection of the “work” of the intellect against unauthorized reproductions (copyright = right to copy). The author of such a protected work deserved compensation for each and every use (reproduction, copying) of his work by others.
The digitization of information challenged the practical, not theoretical, parts of this scheme. Until then reproductions (copies) of any “work” were relatively easy to control (and thus, ask for a fee): books had to be printed and sold on bookshelves, music had to be copied into vinyl and sold on record stores, paintings could only be seen at the premises of the person who owned them. All these actions of reproduction included cost (and thus could not be undertaken by anyone), and were controllable because of the relatively small distribution channels (shops) and the fragmented market (international commerce meant totally different things at the time). The digitization of information managed the first blow to this scheme: once texts and music and pictures became digital, anyone could reproduce them at minimum cost. No more were printing and binding machines or vinyl-cutting industries needed; once “works” became digital, anyone, even home users, could easily copy and store them in their computer systems for (unlimited) future use. Evidently, the 17th century scheme, whereby any act of copying would confer money to the author of the work automatically became obsolete: copying became so vast that the Content Industry could no longer control it as effectively as it did in the past. Even when new “works” emerged (for instance, movies) it was only a matter of time before digitization affected them in the same way too.