DRM, the DMCA, and IP as Property

Read Ed Felten’s recent post on DRM and the comments – make sure to read Cypherpunk’s comment and follow-up with this Unlimited Freedom post. 

Cypherpunk clearly has a point here that you at least have to take these questions seriously in the abstract: If DRM prevents piracy, do its potentially socially harmful effects make it not worth it on balance?  If DRM+DMCA prevents piracy, same question.

It is imaginable that we’d all be, relatively speaking, better off with lessened fair uses, for instance, but also less piracy.  In the abstract, the answer to the questions on DRM are not so clear.  This question could really be further abstracted to: is copyright’s role in incentivizing authors worth it on balance given its socially harmful effects (e.g., monopoly-like effects, harm to follow-on creators, etc.)?  If you think this question is worth considering, then so is the above.

At the same time, when looking at the question in practice, I think the answers get a bit clearer, particularly with respect to the DMCA.  Today, DRM and the DMCA do roughly zero in preventing infringement.  I have discussed elsewhere (in draft form) two scenarios in which DRM might play an effective role. In the “Speed Bumps” approach, DRM and the DMCA might be ineffective or simply not meaningfully beneficial while causing harm.  The “Technological Lockdown” approach might also be ineffective, and it would be grossly more harmful and draconian.

In any case, I doubt Dan Burk would disagree with Unlimited Freedom/Cypherpunk on the abstract point.  In fact, he and Julie Cohen have considered it in great detail.  They suggest that we should place legal limits to curb the socially harmful uses, while allowing the identified socially beneficial uses to continue.

But: does DRM really do much harm?  Unlimited Freedom/Cypherpunk and Branden Cox don’t speak directly to this, but they do implicitly make some judgments on this score.  Branden Cox seems to say that it would be preferable to let copyright owners control uses through DRM and license them as they choose.  In his comparing IP to physical property and the workings of contract law to DRM, Unlimited Freedom/Cypherpunk implies that granting these broad entitlements is beneficial. Tom Bell has made such an argument with regard to DRM’s impact on fair use, and we saw glimpses of this argument in the Bridgeport decision. 

Though Unlimited Freedom/Cypherpunk writes that with regard to DRM, the “blogging world … all too often betrays a complete ignorance of economic effects,” this is hardly an open and shut economic question.  As Mark Lemley explains in great detail, there are many things economically wrong with treating copyright just like physical property.  Contra Unlimited Freedom/Cypherpunk, copyrighted products are public goods, and they don’t stop being public goods when wrapped in DRM; we should recognize how the public good character might change our approach.  Neil Netanel also cogently attacks the “neoclassical” approach to copyright, arguing that it ignores copyright’s important role in contributing to a democratic society.

If you accept that DRM has socially harmful uses, we could take many approaches to curtailing them.  Again, this is not in conflict with taking seriously the questions this post began with.  We could, as Burk and Cohen do, condition use of DRM on allowing certain uses. Tom Bell even suggests that copyright holders be forced to exit copyright and only receive contract law protections for DRM and contracts that control more than copyright allows.   Or, we could simply allow DRM but remove the DMCA, as Felten suggests and I agree with. John Mitchell, a keen DRM-critic, suggests numerous beneficial uses for DRM, and I think those should be allowed to develop in the marketplace; however, the DMCA provides so little in terms of meaningful benefits and so much clear harm that it should be removed.  That would go a long way to protecting legitimate uses impaired by DRM.  Also, I agree with Unlimited Freedom/Cypherpunk that arguments to ban certain technologies because of their potentially harmful uses may be quite knee jerk, but we ought to consider arguments about how the market might not function, like in instances of concentrated market power and limited competition.

In sum: yes, we need to consider DRM and the DMCA’s costs and benefits in their totality; however, they aren’t necessarily beneficial on net, their harm depends on your viewpoint regarding copyright’s function, their benefits in practice may differ from their theoretical ones, and these factors must also be assessed.

Downhill Battle Sampling Project

Downhill Battle has launched “3 Notes and Runnin’,” a new project to protest the Bridgeport decision (via Techlawdvisor).  They’re soliciting 30 second songs that use the George Clinton sample.  Wonder if Clinton and Bridgeport will get upset – that suit was not the first time they’ve gone after someone.