A Copyfighter’s Musings

Following my post, Professor Felten offered two responses to the Cato P2P and DRM paper.  In the latter, he harps on a point I have refused to shut up about – the DMCA and DRM combine to stifle legitimate competition and technological innovation by limiting interoperability.  With this in mind, why don’t the Cato authors point to the DMCA as government intrusion into the market?  Again, what does it mean to support the functioning of the free market? 

Another way of seeing why these amiguious views about DRM are important:

There is a misconception that those who worry about DRM’s inhibiting legitimate uses also demand that the government limit the use of DRM.  In a post from a few months ago (referenced in this post discussing the Cato paper), Adam Thierer asserts that Cory Doctorow, Fred von Lohmann, and Mike Godwin want “DRM and [Trusted Computing] … to be limited by force of law.”  Mike objects in a comment, and I suppose Cory and FvL might similarly reply.  For my part, DRM’s downsides do not demand technological mandates, but rather DMCA reform.

The Copyright Act grants copyright holders certain limited exclusive rights.  The public retains certain rights not granted, like private performance, along with rights under fair use.  But for the DMCA, consumers would still be allowed to exercise the rights that the Copyright Act leaves to them, despite the barriers of DRM.  The DMCA upsets this carefully struck balance, allowing copyright holders to extend their rights and control otherwise legitimate consumer uses. 

Why not ban certain DRM implementations then? After all, even without the DMCA, DRM would have social costs in impeding legitimate uses, for some consumers would not be able to acquire tools to circumvent DRM.  However, we should still allow DRM to be used in ways that protect copyright holders’ rights.  Like Thierer, I worry that attempting to ban DRM that limits consumer rights may rub up against use of DRM aimed at protecting copyright holders’ rights.  This would be an unfortunate result.

It seems Thierer agrees with this position – the gap between himself and his three token DRM skeptics appears imaginary. In his post, Thierer states: “I currently rip and copy some of the DVDs I own just to eliminate the incredibly annoying opening menus and previews that some firms force you to watch before you get to the movie. (Yes, yes… I know I’m a DMCA violator for doing that, so go run to Johnny Ashcroft and report me! I’ll be happy to litigate a fair use case on this right up to the Supreme Court!)”  I’m glad Adam is so willing to litigate this most likely unwinnable case. Wouldn’t it be better if the DMCA allowed this use?

Thierer further states:  “My first rule for all copyright law and analysis is this: Congress should not ban or mandate specific technologies or technological outcomes in the name of protecting IP or fair use.”  I am in accord here as well and view the DMCA as problematic precisely becuase it bans certain technologies regardless of their legitimate uses.

Perhaps I misconceive Thierer’s view, and he is more in line with his fellow Technology Liberation Front blogger Braden Cox.  He argues in a blog post and a related article that DRM, and, more broadly, contracts should be allowed to extend copyright holders’ rights beyond what the Copyright Act has granted them.  He seems to making an argument much like Tom Bell’s in this article (which I repeatedly cite to even though it was written in 1998).  Given the conception that fair use is not meant to protect public interests but instead is meant to deal with market failures, DRM seems to resolve the problem.  DRM can now be used to charge for these fair uses.  Thus, there is no need to consider certain uses fair, and, via DRM, copyright holders’ rights should be allowed to extend into many domains in which they previously did not.

There are reasons to not buy into this view of copyright, some of which I’ve written (and read) about elsewhere.  I do not want to wade into that debate here. Instead, I want to point out that even this position is not necessarily comfortable with the DMCA as it stands now.  It would seem that those who view copyright and DRM this way would applaud the DMCA because it helps resolve the market failure problem.  Without enforcement under the DMCA, circumvention tools might proliferate, and thus DRM’s potential benefits in allowing copyright holders’ to extend their rights would be substantially reduced.

But consider the following graf from Cox’s article: “A policy goal of self-help applies well to the peer-to-peer (P2P) file sharing debate. It encourages intellectual property owners to use technology protections and contract. It reduces the need for new laws that would place liability on Internet service providers or file sharing networks. Enforcement efforts aimed toward primary infringement—instead of holding a person or network liable for the actions of another—lessens the potential for chilling effects on new technology development.”

Cox is discussing the dangers of extending secondary liability, and the DMCA is, in part, precisely such an extension.  Indeed, Cox seems to have the same worry that Thierer expresses about bans on technology.  The trafficking clauses (1201(a)(2) and 1201(b)) deal with not the primary infringer (nor the infringer who circumvents to do so).  They outright ban distribution of technologies that have both legitimate and illegitimate uses. 

What’s more, why shouldn’t we still allow the act of circumvention so long as the use of the copyrighted work is lawful?  Even Cox agrees that fair use should protect some uses involving criticism and news reporting and asserts that “Copyright law will ensure that fair use, as applied by the courts, exists.”  Thus, he seems in favor of allowing circumvention for legitimate purposes, too.

Thierer’s piece from August ends in the same ambiguous way that the Cato DRM and P2P piece does.  He doesn’t “want government to tilt the balance one direction or the other.”  But he fails to affirmatively say what he thinks of how the balance has already been set by the DMCA.  Does that constitute a tilting or not?

I bring this all up in part because of the misconception I started with.  For one, to the extent people like Thierer actually agree with the likes of Cory, FvL, and Godwin, I’d like the perceived barrier to be broken down. 

Furthermore, the ambiguities in these Cato pieces obscures the fact that they actually DO implicate potential government actions. Both Thierer and the new Cato piece make it a point to say that they neither agree with content holders on DRM nor with consumer advocates – they have some third way called the “free market” that is opposed to government intervention.  But both the content holders and consumer advocates claim that same free market argument for and against the DMCA.  So where do Thierer and the other Cato authors stand?  Why is the DMCA pro- or anti-market?  Their policy position is never really revealed.

Professor Felten notes this problem in discussing the Cato P2P and DRM piece: “This flaw — extolling the virtues of competition, but failing to follow up by recommending pro-competition policies — seems to run throughout the otherwise excellent Cato paper. It makes sense to rely on market competition to blunt the potential downside of DRM. That strategy will only work if we adopt pro-competition policies, or at least reverse the anti-competition aspects of our current policy. Talking about competition is good; but having competition is much better.”

[11:15 AM – corrected 2nd graf to say “private performance” is not granted to copyright holders.]

Filed by Derek Slater at 12:01 am under General news
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