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The Imperfect is the Enemy of the Good: Anticircumvention Versus Open Innovation


Wendy Seltzer


Harvard University - Berkman Center for Internet & Society; Yale Law School Information Society Project; University of Colorado Law School

October 1, 2009

Berkeley Technology Law Journal, Vol. 25, p. 911, 2010

Abstract:     
Digital Rights Management, law-backed technological control of usage of copyrighted works, is clearly imperfect: It often fails to stop piracy and frequently blocks non-infringing uses. Yet the drive to correct these imperfections masks a deeper conflict, between the DRM system of anticircumvention and open development in the entire surrounding media environment. This conflict, at the heart of the DRM schema, will only deepen, even if other aspects of DRM can be improved. This paper takes a systemic look at the legal, technical, and business environment of DRM to highlight this openness conflict and its effects.

Scholars have described DRM’s failures to protect copyright exceptions, its failures to stop unauthorized copying, and its impact on complementary innovation. This paper takes those debates as background to focus on the foreclosure of an entire mode of development and its opportunities for user innovation.

Under an anticircumvention regime, the producers of media content can authorize or deny authorization to technologies for playing their works. Open source technologies and their developers cannot logically be authorized. “Open-source DRM” is a contradiction in terms, for open source encourages user modification (and copyleft requires its availability), while DRM compels “robustness” against those same user modifications. Since DRM aims to control use of content while permitting the user to see or hear it, it can be implemented only in software or hardware that is able to override its user’s wishes - and can’t be hacked to do otherwise. For a DRM implementation to make any sense, therefore, its barriers against user modification of the rights management must be at least as strong as those against user access to its protected content.

I characterize a “DRM imperative” and explore the technical incompatibilities between regulation by code and exploration of code. We see DRM centralizing development and forcing the black-boxing of complementary media technology, in a widening zone as it mandates that protected media be played only on compliant devices, that those may output media content only to other compliant devices, etc. The home media network is thus progressively closed to open-source development.

Foreclosing open development costs us technically, economically, and socially. We lose predicted technological improvements, those of user-innovators (von Hippel) or disruptive technologies (Christensen) from outside the incumbent-authorized set, that could offer new options for content creators and audiences (such as better playback, library, mixing, and commerce options). We lose social and cultural opportunities for commons-based peer production.

In the full cost-benefit analysis of anticircumvention, the loss to open innovation would outweigh the gains from this imperfect mechanism of copyright enforcement. Treating code literally as law leaves the law with too many harmful side effects.

Number of Pages in PDF File: 64

Keywords: copyright, anticircumvention, digital copyright, DRM, digital rights management, user innovation, free software, open innovation

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Date posted: October 29, 2009 ; Last revised: May 13, 2014

Suggested Citation

Seltzer, Wendy, The Imperfect is the Enemy of the Good: Anticircumvention Versus Open Innovation (October 1, 2009). Berkeley Technology Law Journal, Vol. 25, p. 911, 2010. Available at SSRN: http://ssrn.com/abstract=1496058

Contact Information

Wendy Seltzer (Contact Author)
Harvard University - Berkman Center for Internet & Society ( email )
Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States
Yale Law School Information Society Project ( email )
127 Wall Street
New Haven, CT 06511
United States
University of Colorado Law School ( email )
401 UCB
Boulder, CO 80309
United States
303-492-0426 (Phone)
HOME PAGE: http://www.silicon-flatirons.org/
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