Making Room for Consumers Under the DMCA

Abstract:     
This Article seeks to articulate the interests of information consumers in the era of Digital Rights Management Systems ("DRMs"). The impetus for this inquiry is the growing threat to the interests of information consumers in the digital age. Digital copies protected by DRMs enable rightholders to exercise unparalleled control over the use of copies after purchase by consumers. Recent years have seen a growing number of instances where DRMs were used in ways that threaten consumer rights, such as invading privacy, disabling interoperability, causing security breaches, and limiting the ability of users to annotate or use copies in the time and space of their choice.

While many concerns raised by the use of DRMs - such as price and consumer friendliness - are relevant to all types of commodities, other concerns are closely connected to information policy. The ability to exercise physical control over the use of copyrighted works may threaten intellectual freedom and fundamental liberties. It is precisely this dimension, of consuming cultural goods, on which this Article focuses.

I offer a view of information consumers that is based on the theoretical framework of copyright law. Developing a notion of consumer protection in cultural markets involves expanding the focus on economic-consumers (consumers-as-shoppers) to incorporate an understanding of consumers as citizens and participants in creative processes. To make room for consumers under copyright law it is necessary to re-conceptualize the notion of 'information consumer' and acknowledge the participatory role of consumers under copyright theory. The perception of consumer-as-participant adds a new dimension to standard copyright analysis, which is particularly significant in the environment of user-generated content.

The inspiration for incorporating consumer discourse within copyright analysis originated from two U.S. decisions, Lexmark and Chamberlain, which addressed the interests of consumers in tangible articles of commerce (a printer cartridge and a garage door opener). The Court of Appeals in those cases concluded that consumer rights call for a narrow construction of the DMCA. I argue that the same rationale that convinced the courts to limit the scope of the anti-circumvention rules in Lexmark and Chamberlain should be applied in other contexts involving more conventional copyrighted works such as video games, music, video clips, and artistic images.

Number of Pages in PDF File: 27

Keywords: DRM, DMCA, Consumer, Lexmark, Chamberlain, Copyright, Information, Participation

JEL Classification: K00, K10, K39, l49, l86, l82, O31, O33, O34

Accepted Paper Series