DMCA, the Right of Access, and Consumer Choice

Patrick Ross and Donna had an interesting exchange on DRM earlier this week, and I want to jot down some rough thoughts on the issues involved.

Let’s start where Patrick does. Would we be better off if Napster
could not use DRM to offer a rental service?  Would we be better
off if Napster could not even attempt to price discriminate
between To Go and Premium users using DRM?

In general, I think we can say the answer is no. Donna suggests
that many will not be interested in offers so restricted by DRM, but
that’s really beside the point.  Hopefully, consumers can
choose to purchase alternatives instead.

But the real question isn’t whether or not to allow
DRM.  The question is whether to protect DRM
with the DMCA.  Assuming that some of the offerings DRM
enables are beneficial, is securing that benefit worth the cost of the

The tiresome debate about DRM and piracy prevention has often masked this issue. FvL rightly points out
that DRM and the DMCA have been a total failure with respect to piracy, for it
only takes one unencrypted copy on P2P to allow such
infringement. However, the same logic does not apply to the
effectiveness of DRM in the context of controlling
consumer uses.  A Napster Premium user is still affected by
the DRM regardless of the fact that others are acquiring unencrypted
files on P2P; his usage is limited to the extent he can not easily
acquire a circumvention tool.  If DRM were not impacting such
users, you wouldn’t hear anyone complaining about not being able to use
Napster music on the iPod.  So regardless of “public
justification[s]” for the DMCA, enabling these sorts of services can be
an independent justification.

Is it a sufficient one?  That cuts to deeper issues about how
one views copyright.  The DMCA reformulated copyright,
granting an additional right of access beyond the exclusive rights in
section 106.  It grants copyright holders a far more extensive
right to control use.  

As I’ve written about before, some are quite comfortable with this shift.   If fair use is justified by nothing more than market failure, DRM restriction on fair use may appear far less severe.  But others
see fair use as securing important public rights and the market failure
justification as insufficient.  Moreover, the DMCA can also be
wielded to impede technological innovation and interoperability. 

Another relevant issue: without the DMCA, would offerings like
Napster 2.0 really not exist? Jane Ginsburg said we would not get
“cars on the information superhighway” without sufficient protections;
the MPAA argued that they would not use DTV without the broadcast flag
mandate.  But, in the end, is that a legitimate argument? 
Would rights holders not license Napster Premium without a DMCA? Would
everyone circumvent to get around the time-limit restrictions?

So I don’t mean this to be exhaustive – I’m more interested in
framing the issue. First, again and again, people in this arena end up
discussing banning DRM when the issue is the DMCA.  Take the
digital music interoperability hearing. Few are seriously
suggesting that we ban certain DRM and mandate interoperability.  Those who worry about the social welfare decreasing effects
of the iPod-iTMS tie see the DMCA, rightly, as the culprit.  The
usefulness of the DMCA, not DRM, is what we should be questioning.

Second, along with the costs in terms of fair use, innovation, et.
al resulting from DRM and the DMCA, we have to take seriously the benefits the DMCA
might provide in terms of enabling certain business models and certain
consumer choices.  To do so, we have to focus more on whether
structuring copyright around this “right of access” is really what we
want – if we’re, for instance, going to view fair use through the lens
of market failure.

Solum Reviews Free Culture

Lawrence Solum has written a thoughtful, critical review of Free Culture. Solum focuses on the power of Lessig’s stories and the lack of academic rigor in some of his arguments. Highly recommended. See also David Post’s review in Reason, and Julia Mahoney’s review in the Virginia Law Review.