Let’s Lock Information Down

Today in Tedium: Digital rights management seemingly came out of nowhere to define our relationship with technology in the modern day. Popularly, it seemed like its birth had come as a direct response to the growth of piracy in the film and music industries, but what’s interesting—and perhaps not properly contextualized—is that it existed for years prior to Napster, and had a technical component before the Digital Millennium Copyright Act gave it a legal component. Today’s Tedium digs into the roots of DRM, which go back a little further than you might guess, as well as how those roots have played out in the broader market. — Ernie @ Tedium

Editor's note: The GIF at the top of the piece, which you've probably seen elsewhere, is adapted from this YouTube clip by Stian Berg Larsen.

The earliest uses of DRM came from CD-ROM databases intended for use in libraries. (Paulina101/Pixabay)

The roots of modern digital rights management came from the world of libraries

The word “middleware” isn’t sexy. Nor is the word “container.” And “encryption,” while slightly more sexy than the prior two words, just isn’t the kind of phrase that rolls off the tongue.

“DRM”? Now that’s a sexy phrase—a memorable one that sticks with people. But the terminology didn’t come about right away, and a big part of that has a lot to do with the fact that the problem of securing copyrights online was something that engineers and researchers were initially focused on.

Specifically, one company, made up of a whole lot of academically minded engineers, lined the roads on which a lot of secured content would drive down. That company was called Electronic Publishing Resources, Inc.—a firm that used the words “middleware,” “container,” and “encryption” to describe its earliest attempts at the creation of DRM.

The firm was founded by a guy named Victor Shear, who built his name in the information management sector. In the ‘80s, he was the head of a Maryland company called Personal Librarian Software, which produced a database management system that could effectively manage historic information. This company, which mostly served large corporations, exposed some of the earliest roots of digital rights management, as it Shear’s company pondered ways to limit access to different kinds of information.

A 1986 patent, credited to Shear, explained the issue as one of “return on investment”, in which methods of “tamper-proof” protection, such as a self-destruct feature, were added to the software to limit how much access a user had based on their payment. A 1989 article for Online noted that the goal of the software, which was literally called ROI, was to allow for access to CD-ROM databases both within libraries and outside of them, while ensuring the creators of those databases got paid. Per the article, the method was described as such:

PLS believes that libraries, as centers for subscription-based CD-ROM usage, would "seriously undermine potential CD-ROM publishing subscription revenues by providing users with an alternative to contracting for expensive subscription licenses." PLS believes that ROI would lessen the need for reliance on libraries and information centers "while providing a level of convenience and real-time response with which libraries can not compete."

This model clearly wasn’t long for this world—as I noted recently, encyclopedias were very much a race to the bottom once CD-ROMs came along—but it did inspire Shear’s follow-up company, Electronic Publishing Resources, later renamed InterTrust. By the mid-1990s, InterTrust had strongly advanced the ideas around the monetization and security. And they did so with some of the most complex patents you’ve ever seen. This one, for example, is 178 pages long (in tiny type), and includes 100 separate patent illustrations.

One of the 100 patent drawings in InterTrust's "Trusted infrastructure support system, methods and techniques for secure electronic commerce transaction and rights management." It wears me out just looking at it. (Google Patents)

In the paper “DigiBox: A Self-Protecting Container for Information Commerce,” three of Shear’s colleagues—Olin Sibert, David Bernstein, and David Van Wie—explain, in depth, the process of creating a secured container around a piece of information, with the goal of protecting the object’s commercial value.

“Without rules to protect the rights of content providers and other electronic community members, the electronic highway will comprise nothing more than a collection of limited, disconnected applications,” the authors argued.

The technology, called DigiBox, was perhaps the first, and most important, piece of modern digital rights management software. It would soon have many imitators—but none of them would be able to compete in quite the same way.

The Xerox-forged PARC, the birthplace of a major piece of DRM technology. (Ross Mayfield/Flickr)

Big companies suddenly become interested in DRM’s potential value

In the early ‘90s, idealists like Electronic Frontier Foundation founder John Perry Barlow saw the internet as an opportunity to fix the status quo of information exchange. Rather than keeping information locked away, the digital revolution, particularly online, would radically reinvent copyright.

“Everything you know about intellectual property is wrong,” Barlow explained at the beginning of one essay on the topic for Wired.

Another digital visionary, a Xerox PARC research fellow named Mark Stefik, tried his hardest to prove Barlow wrong. In a 1997 essay for the Berkeley Technology Law Journal titled “Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,” Stefik specifically references Barlow’s comments, then calls them short-sighted, emphasizing that copyright did have a role in the digital revolution. He then, in a lengthy, technical essay, described the ways that digital rights management could work in practice.

“With digital works, it need not be the case that transfer rights are free or universally granted,” Stefik noted in a section about the difference between copying (which Xerox, of course, is known for) and transferring information. “Publishers could charge a small fee whenever a work is transferred between repositories. The same mechanisms that prohibit copying without a right to copy could prohibit transferring without a right to transfer. The same billing mechanisms for a copyright work for a transfer right. The technology itself is neutral on this point. Trusted systems could enforce either policy.”

The work of Stefik and others at PARC eventually came to be known as ContentGuard, a technology that would grow in prominence as the interest in digital rights management grew in the industry.

Not long after Xerox PARC formulated the idea, IBM licensed its own version of it from Xerox, putting its own twist on it, calling it a cryptographic envelope, or cryptolope. (Is “cryptolope” a sexy term?) The idea was part of IBM’s efforts to create “plumbing” online—that is, they wanted to run the internet’s backend, and offering digital rights technology was a small part of it. It sold off its content businesses, but offered its cryptolope as a way to secure online distribution of both content and Java applications.

IBM’s early efforts ultimately failed in part because its technologies asked too much of ‘90s computers. But the fact that IBM cared at all showed that DRM would soon become the lingua franca of big business, whether consumers liked it or not.

I could fill this post with dozens of patent drawings created by InterTrust, but I choose not to. (Google Patents)

The earliest DRM building blocks have proven most successful in the courtroom

If you look at the InterTrust website today, they look like basically any other enterprise cloud computing player, offering up tools that are clearly designed for large businesses instead of mere mortals.

But InterTrust, as a company, wouldn’t exist today if it were not for an incredibly ballsy lawsuit against Microsoft. In 2002, the company sued over the technologies in Windows Media Player—then expanded the suit to cover every major product line Microsoft had at the time, including Windows XP, Microsoft Office, and the Xbox.

The move came in part after a lack of success selling software—including a failed effort at launching a digital music store named after its encryption technology, DigiBox.

But it also was the result of the fact that InterTrust had created patents so immaculate and well-considered that it would have been wrong not to sue—you don’t create a patent with 100 separate drawings to just put on the shelf, never to use again. And they seemed to know this going in. Of InterTrust founder Victor Shear, one former employee told Fortune: “He never let us forget that we were not ‘protecting music,’ but ‘developing the basis for a civil society in cyberspace.’”

And that civil society in cyberspace paid well. Just a few years after Microsoft agreed to a major antitrust settlement, it agreed to a major InterTrust settlement, with the DRM maker receiving a $440 million payday. The gamble worked.

Years later, InterTrust received a similar settlement from Apple, though it’s not all about litigation for the company. Earlier this year, they launched a partnership with Google called PatentShield to defend small startups against patent lawsuits.

While InterTrust’s approach has proven effective over the years, its best-known DRM competitor, ContentGuard, has had a bit less luck doing the same thing.

It was spun off from Xerox in 2000 at the behest of Microsoft, and the bones of the firm were eventually sold off to a trio of firms—Microsoft, Time Warner, and Thomson—and its technology helped lead the way for Microsoft to produce its own DRM, PlayReady. (It also helped the acquisition took place around the time MS settled with InterTrust.)

But in 2011, the company was sold to Pendrell, a firm that invests in valuable intellectual property.

ContentGuard actually makes new apps with its technology—it built a Snapchat clone in 2014, for example—but it’s better known these days for suing the pants off of companies with DRM interests, like Apple, Samsung, and Google.

Those lawsuits, taking place in the patent-lawsuit-friendly Eastern District of Texas, have not gone well, with courts often finding against ContentGuard.

It’s probably because they didn’t use as many patent drawings.