Freedom of Expression

In December 2001, the United States Patent and Trademark office granted two patents to Microsoft for an invention it called a "digital rights management operating system." This type of OS, the patent's summary explained, "protects rights-managed data, such as downloaded content, from access by untrusted programs while the data is loaded into memory." Long before the patent was granted, Microsoft had already begun building these features into the core of the operating system that became known as Windows XP.

So is that it? Game, set, and match—Microsoft has the market cornered on digital rights management for the foreseeable future? Not quite.

Microsoft's patents are merely the most recent entries in a history of filings in the DRM arena. Xerox PARC filed the first such claims in the mid-1990s for Dr. Mark Stefik's research in the areas of trusted systems. Among its registered inventions were "Interactive Contents Revealing Storage Device" (U.S. Patent 5,530,235), granted in 1996; and "System for Controlling the Distribution and Use of Digital Work Having Attached Usage Rights Where the Usage Rights are Defined by a Usage Rights Grammar" (U.S. Patent 5,715,403), granted in 1998. Xerox Corporation transferred ownership of those early inventions to its ContentGuard spin-off in 2000, giving the new company a formidable portfolio of patents to back up its work on DRM and the XrML language.

"We don't feel apologetic that the people at PARC were prescient enough to see down the road to patent this stuff," says Rajan Samtani, ContentGuard's director of sales and marketing. That's no surprise, considering that ContentGuard asserts, among other claims, that its patents grant it exclusive license to the very idea of a rights expression language. That claim will still hold, whether XrML becomes the eventual industry standard or not. By extension, ContentGuard could potentially continue to collect licensing fees on rights expression languages even if XrML fades into oblivion.

ContentGuard isn't the only DRM company that's banking on the value of patent registrations. At least a dozen companies claim patents in the DRM area, including Alchemedia, Digimarc, Digital Goods, IBM, InterTrust, Microsoft, and Xerox/ContentGuard. The language of many of these claims is quite specific. Less clear, however, is the impact that patent registrations will have on the DRM software industry as a whole.

In June 2001, leading DRM software vendor InterTrust filed suit against Microsoft for infringement of key InterTrust inventions, a filing that it has since expanded to reference seven distinct patents. Although the pockets of the Redmond-based software giant are obviously deep enough to defend itself against such a suit, the action sets a precedent that's liable to have a chilling effect on smaller vendors. Faced with what must seem like a virtual minefield of patent registrations, many software developers are liable to steer clear of the DRM tools market altogether.

DRM technologies were invented as a means of protecting intellectual property. The irony is that intellectual property law itself may prove to be one of the most significant factors limiting the growth of the DRM marketplace.

—NM