Digital Technology cannot offer reliable protection

The private implementation system provides copyright holders with advanced technology to prevent unauthorized access to copyright works. In other words, the major function of digital technology under the system is to deter and prevent copyright piracy. The employment of digital technology, however, indicates the undesirable results.

Within the private system, the digital technology is of most importance because it serves as the foundation to reinforce copyright holders’ control over their works. However, the weaknesses of digital technology gradually become the problem

through the operation of the system.

It is true that digital technology facilitates the control on digital works. Nevertheless, no guarantee can be made with respect to the protection against piracy. As a matter of fact, the harder copyright holders strive to protect their works through digital technology, the harder talented technicians work for

circumvention.85 _{Specifically, the major threat is the hackers group who are able}

to circumvent or “crack” encryption technology on a given work. The experience from computer games industry is a high-profile example.

Compared to other industries such as online music or e-books, the computer game industry generally received less attention by the public but suffer from more

severe piracy and losses.86 _{The severe piracy on computer games usually causes}

higher losses than other entertainment industry.87 _{The actual losses to computer}

games industry due to online piracy is difficult to gauge because pirated users

often claim they rarely purchased the games they actually pirate.88

The major concern to the computer games industry is the “Zero-day” piracy, which refers to the successful circumvention of digital protection on or before the

official launch date of a given computer game.89 _{Such kind of piracy is the most}

damaging because game fans are eager to gain access to the launched one and the

85 _{John Black, the Impossibility of Technology-Based DRM and a Modest Suggestion, 3 J.TELECOMM.&HIGH}

TECH.L. 387, at 388 (2005).

86 _{Andrew V. M oshirnia, Giant Pink Scorpions: Fighting Piracy with Novel Digital Rights Management}

Technology, 23 DEPAUL J.ART TECH.&INTELL.PROP.L. 1, at 3 (2012).

87 _{Julian Sanchez, SOPA, Internet Regulation, and the Economics of Piracy, ARTS TECHNICA, Jan.18}th

2012, available at

http://arstechnica.com/tech-policy/2012/01/internet-regulation-and-the-economics-of-piracy/ (last visited 9/17/2013).

88 _Id.

89 _{Koroush Ghazi, PC Games Piracy Examined, TWEAKGUIDES, available at}

http://www.tweakguides.com/Piracy_1.html (last visited 9/17/2013). 42

piracy offer them the convenience. The pirated version of games may contain bugs

or program flaws which still need modification and improvement.90 _{Under the}

circumstances, the undesirable gaming experience may adversely affects the sales of that game.

In addition, piracy also affects legitimate gamers. Put differently, the piracy often consumes resources devoted to sustain the operation of games. For example, gamers who use pirated version of copies may download patches or other content for the game, such as game skins or modifications, increasing the costs of

bandwidth to game server. 91 _{To computer games that contain multiplayer design,}

piracy may overload the main server of the game.92

Despite the threat, computer game companies still have strong confidence in digital technology with respect to the protection of their games. They argue that that circumventing digital technology required a huge amount of efforts, suffic ie nt experiences and investment of time. Their argument further goes that the majority of people are either incapable of cracking or are unwilling to invest substantia l costs on circumvention. Only a small group of people, usually the hacker group, who can break the technology and they do not account for the revenue to computer industry.

These optimistic arguments generate a positive effects on the adoption of digita l technology as protection, while omitting an important consideration—the Internet

90 _{See Moshirnia supra note 86, at 11.} 91 _{Id, at 19.}

92 _Id.

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transmission. A well-known principle among technicians community known as

BORA: “break once run anywhere”.93 _{Specifically, a hacker who invests time}

and efforts to break the digital technology will choose to distribute the unprotected content with the cracking technology through the Internet. Under the circumstances, ordinary online users merely need internet connection and the

knowledge of copying to access the unprotected content.94

Working under the general principle, the BORA, hackers design three main methods to circumvent the superficially powerful digital technology. Firstly, a hacker may locate the security weakness in DRM code which allows a hacker to break the technology without installing software onto the target computer. In other words, a hacker may take advantage of a known weakness in a given technology which originates from the basic design and the structure. For example, a hacker can edit a computer’s registry or delete given files in order to prevent the

technology from normal functioning.95

The second method relies on specialized software: Key Generator Software (KeyGens). This software is able to produce a serial counterfeit number which

can be used to unlock the licensed contents.96 _{Because a license is a necessary}

component that activates the use and distribution of computer software, right holder often issue a sequential code as the digital key to unlock protected contents as well as prevent access without authorization. Hence, the KeyGens actually

93 _{Id., at 391.} 94 _Id.

95 _{See Moshirnia supra note 86, at 7.} 96 _Id.

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break the technology framework and legal mechanism, resulting in the

distribution of unprotected works online.97

The third method is similar to the first type, which directly modify the code of software and prevent the detection and triggering of the digital protection. This

method is widely used in the circumvention of the DRM installed in PC games. 98

Because of the sophisticated process and substantial difficulty, only the elite

groups of hackers can successfully complete the circumventions.99

The weakness of digital protection and the challenge from hackers demonstrate that digital technology cannot provide reliable protection on copyrighted works. Although the hackers are minority compared to the majority of online users, the hackers’ devotion on widespread distribution of unprotected contents impose great threat to copyright holders. Therefore, relying on digital technology to prevent and deter online piracy is unsound and ineffective.

2. Digital Restriction is not the Only Factor to the Success of Online