Reading Gasser on DRM and Anticircumvention Rules

I’ll be leaving town tomorrow for this weekend’s AALS conference, but did not want to let too much time pass without highlighting Urs Gasser‘s new paper, Legal Frameworks and Technological Protection of Digital Content: Moving Forward Towards a Best Practice Model. I’m still reading Urs’s paper and will have more to say about it next week after the conference, but it’s well worth a look, particularly for people with an interest in the international aspects of the digital rights management debate.

A lot of the literature on DRM makes a fundamental analytical error: it points out flaws in this or that implementation of DRM technology and then generalizes to the much broader proposition that DRM per se is similarly flawed. The argument goes: DRM system “X” doesn’t allow me to engage in fair uses of works it protects, therefore DRM technology is inherently hostile to fair use. This inductive leap is so common that it has all but become an accepted piece of the conventional wisdom in contemporary discourse critical of DRM. It can be seen, for example, in the draft of the GPL Version 3, which seems expressly to forbid the inclusion of DRM technologies (irrespective of the particular capabilities, restrictions, or features of those technologies) in GPL-issued works. Stefan Bechtold, among others, has articulated a more nuanced view: DRM, like any tool, isn’t inherently good or bad; what matters is what it is designed to do and how it is used. If we have a problem with the functionality of a particular implementation of DRM, the solution might simply be to develop a better one, rather than to jettison DRM entirely. As I’ve argued elsewhere, for example, the tension between currently existing DRM implementations and the fair use doctrine under U.S. copyright law might be redressed by engineering DRM to protect fair uses. To be sure, such a system would not look very much like anything to which we’re currently accustomed to labeling “DRM,” but the basic point is that there is a lot more flexibility in the range of both the technological and legal responses to the protection of digital media works than is commonly assumed.

Urs’s new paper makes an important contribution to the literature here by illuminating the range of policy choices that are, or should be, on the table. He takes international law as a starting point: specifically, signatory nations are required under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty to adopt rules protecting DRM systems against circumvention. The range of rules that might be adopted to implement those requirements, however, is quite broad. The treaties raise, but don’t dictate, a host of social policy choices that different signatory nations have begun to resolve in different ways. I’ll say more next week about Urs’s discussion of the two most prominent national responses to the WIPO treaties (the Digital Millennium Copyright Act in the U.S., and the EU Copyright Directive in Europe). For now, however, I’ll simply say that the paper does a good job of demonstrating that international law provides ample room for flexibility in how individual nations implement anticircumvention protections, and suggests some approaches that ought to be considered “best practices” in this regard. Worth a careful read.

3 Responses to “Reading Gasser on DRM and Anticircumvention Rules”

  1. […] I’ve been meaning for some time to expand on my earlier brief remarks on Berkman Fellow Urs Gasser’s new paper, Legal Frameworks and Technological Protection of Digital Content: Moving Forward Towards a Best Practice Model. Urs’s essay does a terrific job at cataloging the range of options open to policymakers who want to provide legal protections for digital rights management (DRM) schemes against circumvention. […]

  2. […] Over the last few weeks, I’ve written two posts briefly summarizing Urs Gasser’s new paper (Legal Frameworks and Technological Protection of Digital Content: Moving Forward Towards a Best Practice Model) and giving my reactions to it. My posts are here: Reading Gasser on DRM and Anticircumvention Rules and More on the International Dimensions of Anticircumvention Policy. In my posts, I tried to draw a distinction between objections to the types of digital rights management (DRM) measures that are deployed to protect copyrighted works, and objections to the legal regime that protects those DRM measures against circumvention. This distinction seems self-evident to me, but my (possibly poor) efforts to articulate it have drawn fire. I’ll see whether I can do a better job in this post. […]

  3. […] Canada is writing against a blank statutory slate here, and Geist’s posts are aimed at trying to prevent Canada from making some of the same mistakes as the United States. His posts seem to be animated by the same idea that drives Urs Gasser’s recent comparative essay (about which I blogged here and here) on anti-circumvention regulations in the EU: assuming for the moment that international law requires the adoption of some form of anti-circumvention regulations, how might those regulations be framed so as to minimize the disruption of existing legal doctrines and consumer norms? Geist’s posts illuminate the range of choices from which policymakers might choose, and illustrate the importance of choosing the “right” ones. People interested in the DRM debate, particularly in its international and comparative aspects, will want to follow Professor Geist’s ongoing “30 Days of DRM” series closely. […]