15 Pages Posted: 14 Feb 2006
Date Written: February 2006
Copyright holders today increasingly find their rights and responsibilities dictated not by the explicit words of the copyright statute, but instead by the powers and limitations of what has come to be known as "digital rights management" technology. In this ten-page magazine-style piece, I consider how copyright law should respond. My argument proceeds in two basic steps. First, I argue that, while DRM might represent a powerful restriction, the constraint will never be Orwellian. Consumers, after all, will use their dollars to vote against encryption techniques that are too limiting; and, besides, DRM suffers an Achilles heel: in every system designed to control content, at some point consumers must be able to read, hear, or otherwise experience the purchased information. Whenever that happens, the information is necessarily exposed. Second, if all this is true, then DRM simply makes copyright law look a lot like every other area of legal endeavor. There is a formal set of rules enforced by judges, administrative officials, and the like, and there is in addition a weak but effective overlapping capacity through which private actors can take matters into their own hands. Put differently: as I show in the piece, criminal law, trade secret protection, First Amendment jurisprudence, and indeed every other legal regime is today implemented through a combination of powerful public mechanisms and less costly but weaker private ones. DRM, I argue, simply brings copyright law into the fold.
Keywords: DRM, digital rights management, copyright, copyright law, trade secret, privacy, First Amendment, self-help
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By Dan Burk