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Should Copyright Owners Have to Give Notice about Their Use of Technical Protection Measures?


Pamela Samuelson


University of California, Berkeley - School of Law

Jason Schultz


New York University School of Law


UC Berkeley Public Law Research Paper No. 1058561

Abstract:     
Consumers expect to be able to do at least as much with digital content as they have been able to do with analog content, and more. Yet, some copyright owners are using technical protection measures to thwart certain consumer uses of digital content, and rarely do they give effective notice to consumers about these technical restrictions. This article identifies six types of consumer harms that have occurred from inadequate notice, including lack of expected interoperability, privacy invasions, security vulnerabilities, anti-competitive lock-out as to compatible systems, risks of inadvertent anti-circumvention liability, and unanticipated changing terms and discontinued service. It discusses a range of options for responding to the notice inadequacy problem, from trusting the market to substantive regulation that would forbid use of certain kinds of TPM restrictions (such as those that invade user privacy). Because the market has yet to yield effective notice to consumers of TPM restrictions, the article recommends that the Federal Trade Commission investigate the deployment of TPMs in digital content and make recommendations for standard notices that should be provided to consumers about the TPM restrictions.

Number of Pages in PDF File: 36

Keywords: copyright, digital rights management, consumer protection

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Date posted: December 5, 2007  

Suggested Citation

Samuelson, Pamela and Schultz, Jason, Should Copyright Owners Have to Give Notice about Their Use of Technical Protection Measures?. UC Berkeley Public Law Research Paper No. 1058561. Available at SSRN: http://ssrn.com/abstract=1058561 or http://dx.doi.org/10.2139/ssrn.1058561

Contact Information

Pamela Samuelson
University of California, Berkeley - School of Law ( email )
Boalt Hall
341 North Addition
Berkeley, CA 94720-7200
United States
(510) 642-6775 (Phone)
(510) 643-2673 (Fax)
Jason Schultz (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
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