What Does It Mean to Be Interoperable?
Interoperability and content protection (a/k/a DRM) have been much in the news lately. As Deven blogged below, the French DADVSI law recently passed the French Parliament and then last week was modified by the Constitutional Council. Meanwhile, Apple is grappling with Norwegian regulators over the interoperability issue as well. And Randy Picker recently raised the issue of interoperability and video game servers over on the University of Chicago blog.
In the abstract, most people are in favor of interoperability, just like they are in favor of lower taxes, bigger houses, and better-tasting beer. But when it gets down to nuts and bolts, what’s the best way to provide for interoperability? More specifically, does an interoperable content-handling device need to protect the content in exactly the same way as the original device (which would arguably limit the amount of innovation)? Is there some sort of threshold of “good enough” protection that could be identified and mandated (and if so, by whom)? Or is it solely up to one party to decide?
Of course, there are many who hate content protection in all its forms; their answer is no doubt that the law should provide the broadest exception for interoperability possible, because that weakens content protection the most. This post is not really aimed at those people; debating the limits of an interoperability exception with diehard content protection opponents is a bit like discussing Carthaginian-Roman relations with Cato the Elder.
I’m more interested in addressing the three-part choice Randy Picker posed in his post on the bnetd case, namely that those interested both in content protection and interoperability could: (1) prohibit interoperable devices from being made over the technology owner’s objections; (2) give the second-comer complete discretion over interoperability; or (3) place constraints on both the owner’s ability to object and the second-comer’s discretion to decide what interoperability means.
It’s the third choice I’m interested in, and in particular what constraints there would be on the second-comer. The problem arises because content protection typically goes beyond the mere encryption wrapper used to protect the content, a fact that is seen by some as a brilliant legal innovation and others as a shadowy, nefarious plot to subvert our entertainment freedoms. If you decrypt the content with a license from the encryption technology author (not usually a content owner, despite ubiquitous references to “Hollywood” doing this or that with DRM) all sorts of terms and conditions are included in that license. Suppose you decrypt using reverse engineering, and intend to shield yourself under an “interoperability” exception. How many of those terms and conditions do you need to follow in order to claim coverage under the exception? Obviously not all of them, because one of the terms is likely to be that a license is needed, another may concern the fees to be paid, a third term and termination, etc.
For example, in RealPlayer, Inc. v. Streambox, Inc., Streambox made a software “VCR” that recorded RealNetworks streaming-only files for later viewing or listening. Streambox seems not to have raised a Section 1201(f) defense for some reason, but what if it had? Is a program that makes recordings “interoperable” with a program that was designed to send files for immediate playback only? If so, where does interoperability end? Can an “interoperable” device make recordings in the clear, and have unprotected outputs, essentially making it the very sort of “black box” the anticircumvention provisions were designed to prohibit? Granted, 1201(f) does not apply to any activities that “constitute infringement under this title.” But designing devices to make recordings in the clear, with unprotected outputs, is not per se copyright infringement; otherwise VCRs would be illegal.
I don’t have a good solution right now; my only point for the moment is that the “Middle Path” of limits on both technology manufacturers and interlopers is a very difficult one, far more than I think most people realize. But it seems to me the optimal path if a solution can be found.