A text transcription follows.
This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we will ask: is digital rights management technology depriving people of their legal rights?
But first, here are some of the top stories from out-law.com, where you can read breaking technology law news throughout the week.
Downloading music is 'fair use', says Harvard professor
and
Google loosens trade mark ad law further.
Downloading music without the permission of the copyright holder should qualify for copyright laws’ exceptions for 'fair use', a Harvard academic has said.
Partial responsibility lies with the music industry itself for failing to adapt, he said.
Harvard law professor Charles Nesson is defending Joel Tenenbaum, a 25-year-old American charged by record label Sony BMG and others with copyright infringement over his alleged downloading of music from peer-to-peer file-sharing networks.
In filings to the US District Court for the District of Massachusetts Nesson says that in order for the labels to be successful they must prove that Tenenbaum's use of the material was unfair. Nesson said that other factors would also be relevant to Tenenbaum's case of fair use, including the fact that the music industry has not adapted to the internet.
Google for the first time will allow companies to use other people's trade marks in search engine adverts without their owner's permission, it has said.
Use has previously been restricted to the use of trade mark terms as triggers for the ads. Google has said that companies which sell branded goods will be able to name those brands in their adverts on Google, even if the brands are trade marks and the consent of the trade mark owner has not been received.
The change will only apply in the US.
Google has long allowed US companies to pay to use other people's trade marks as keywords to trigger adverts, but it previously said that companies are not allowed to use the trade marked terms in the adverts themselves.
That has now changed in the US, according to an announcement by the company.
Those were some of this week’s top stories from OUT-LAW News.
The inventions of the world's technologists are truly, breathtakingly remarkable.
We can peer at the farthest end of the universe and at the goings on of the tiniest particles of matter, we can bounce moving images off satellites and duplicate living things.
But can we build a technology that can understand and replicate the intricacies of a law? And if we can build it can we actually make it work?
These are the questions asked by Dr Patricia Aikester, a researcher at Cambridge University's centre for intellectual property and information law.
She wanted to know if anti copying technologies used by record labels, film studios and publishers could properly reflect the intricacies of copyright law.
The complication here is that copyright law is much more sophisticated than a simple assertion that you can't copy things that other people have made.
In fact, you can: if you need the copy to access it because you have a disability, if you are a librarian or a student or a researcher.
These are the exceptions to copyright law.
As films, television, music and books became increasingly distributed in digital form throughout the 1990s, publishers began using technical measures to stop material being copied.
This was called digital rights management.
Right from the start, says Akester, the clash between DRM and copyright exemptions was apparent.
Akester: Some people said DRM was going to be fantastic and be great for authors consumers and owners because you know you would be able to make available works in lots of different ways and that would respond to the consumer demand. Authors and owners would get guaranteed payments through you know copy protection measures it was all great. Other people said look, you know doom and gloom it is going to be a nightmare because certain accesses, certain users that we now have for free are going to have to be paid for you know that is going to lead to digital lock-up and freezing of innovation and creativity.
The European Commission stepped in, legislating to stop all content suddenly becoming completely inaccessible.
The trouble was, says Akester, it did not exactly put its foot down.
Akester: The European Union, looking at these two scenarios or visions of DRM, came up with a solution, a legal solution, incorporated in the Information Society Directive, which basically rests on the hope that right holders will create voluntary measures as they are called by the Union to make sure that users citizens consumers libraries archives you know the visually impaired and so forth can still do certain things.
Akester's study looks at what happened next – can DRM take account of exceptions? Has the move to digital media actually undermined people's rights? She found yes: it has, but some industries are quite accommodating. She started by talking to the companies that actually make DRM technology and found that they claimed that their systems can take account of exceptions.
Akester: So DRM manufactures want to have a myriad of variables in place to please their customer. There the customer is the content owner right and so they say look we put variables in place that both allow and disallow exceptions, you can turn it on, you can turn it off and they say 'we put them in place'. But making available does not mean enforcing it in fact we cannot enforce them because we would lose our customers.
This was their position generally but then once you look at it in detail, what you realise is that even though they all came up with more or less these statements, not all of them can partition or distinguish between consumers and not all of them can authenticate these consumers, not all of them can make sure about you know A is A and not B so not all of them are really able to comply with the complex mechanisms which are set in the information site directive.
So the plot thickens.DRM makers say that their systems can take account of exceptions but content owners just switch that ability off when they use the systems. But Akester found that the systems were not quite as capable as the makers claimed. What is certainly the case is that content owners know fine well that they are under no legal obligation to make sure that DRM technology takes account of exceptions. That is fine if there are easy to use forms of redress, but Akester found that it is far from easy to take companies to task.
Akester: I think the whole problem that we are having is that the legislature hopes that content owners would make sure voluntarily you know on the basis of their goodwill and good faith that the consumer would still be able to benefit from these exceptions. What is happening though is that not everyone is coming up with these voluntary measures because of that we are having problems and then the solution in the UK in particular is that if you have a problem you are supposed to write a letter to the Secretary of State saying you have had a problem and could the Secretary of State deal with this. This is not a very feasible mechanism and in fact people I found out that people who have had problems have not used the complaint mechanism. Normal people are just not aware of this mechanism have not heard of it before and users, user representatives such as the British Library have problems, are having problems with DRM but have not used the system because they just find it too onerous and difficult to use you know it is just not feasible.
It all seems a bit of a mess. Luckily, Akester has her own ideas about how the system should work. She says that an easy-to-use online system where people register their needs to use material and prove that they qualify for the exception would lead to them being provided with material in a DRM free format they can use.
Akester: What you need online is an 'access to works' portal. If you are one of these people and if you are having a problem you should access the access portal and request the means to benefit from the exception, which could be you know a decryption key or a clean copy of the work or whatever people deem appropriate and then I am saying that you should provide elements of identification as you would do in a self certification traditional context. What you should do then is add an element of watermarking to the whole system and also make it in a sense to distribute in an illegitimate way these copies of work which are given to special beneficiaries.
The publishing industry is accommodating and helpful, says Akester, perhaps because of its long legacy of providing books in audio and Braille formats. But the music and film industries are a different story.
Akester: Well in the music and the film arenas I think there is a strong awareness that these guys do not have a full stop obligation to comply with exceptions. They know that the European law does not say that and they are very aware of this you know because the onus that the information site directives put on them was it sounds paradoxical but a voluntary owner so they know they do not have to do it.
People who are entitled to exceptions have to jump through too many hoops to get them, she says, which is why the formal processes are almost never used. What is needed is a system that does not waste so much of people's time just to allow them their rights, says Akester.
Akester: We have to optimize the process it is not efficient. There is a certain amount of goodwill but what the consumer needs is more than that the consumer needs a mechanism that functions in an optimum way that is efficient and speedy.
That is all we have time for this week, thanks for listening. Why do you not get in touch with OUT-LAW Radio? Do you know of a technology law story? We would love to hear from you on radio@out-law.com. Well, make sure you tune in next week; but for now, goodbye.