In DRM, the DMCA, and IP as Property, Derek tries to find the workable notion behind the use of DRM as an instrument to enforce legitimate exchanges in the digital realm, with and/or without something like the DMCA’s anti-circumvention provisions. He cites a large number of important sources of ideas, and it’s definitely worth taking the time to see the various threads that he tries to bring together in this posting.

Here’s a limited bibliography from his posting, focusing on the papers cited — but don’t miss the weblog postings:

1. Fair Use Infrastructure for Copyright Management Systems; Dan L. Burk and Julie E. Cohen; August 18, 2000; Georgetown Public Law Research paper No. 2039731

2. Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine; Tom Bell; 76 N. Carolina L. Rev. 557 (1998)

3. Property, Intellectual Property, and Free Riding; Mark A. Lemley; August 2004; Stanford Law and Economics Olin Working Paper No. 291

4. Copyright and a Democratic Civil Society; Neil Weinstock Netanel; 106 Yale Law Journal 283 (1996)

5. DRM: The Good, The Bad, and the Ugly; Colleges, Code and Copyright: The Impact of Digital Networks and Technological Controls on Copyright; John Mitchell; June 2004; Publications in Librarianship no. 56, American Library Association.

Derek concludes:

In sum: yes, we need to consider DRM and the DMCA’s costs and benefits in their totality; however, they aren’t necessarily beneficial on net, their harm depends on your viewpoint regarding copyright’s function, their benefits in practice may differ from their theoretical ones, and these factors must also be assessed.

All I can say is “maybe.” There’s a whole set of considerations, centered on the ways in which the notion of “access,” that receive far less consideration than it should in this context — the “crazy uncle in the attic,” so to speak, of the digital copyright debate. The more typical metaphor employed to confront this problem is that of literacy. For example, literacy is the presumptive skill that makes the copyright issues surrounding the sale of a book meaningful — without literacy, a book is just a bound collection of soiled paper.

In several key senses, DRM cripples the literacy of the public when it comes to making use of intellectual property accessible only though the use of technological instruments. It certainly is an imaginative solution to a design problem, but there is something sordid about the idea of basing a business model around crippling literacy.

Yes, I am sure that we can construct economically and even politically viable arguments showing that it has benefits — but it seems to me that there are boundaries that free societies should be very careful about crossing, and that this is one that carries with it so many ramifications that reliance upon mere cost-benefit analysis is missing the point by a mile.

And, Derek, thanks for a great reading list!!

Cash Bounties For Spammers Win Limited FTC Backing [pdf]

The Federal Trade Commission yesterday gave limited endorsement to offering cash rewards to people who help track down e-mail spammers, suggesting that such bounties might work but in fewer circumstances than had been pushed by some anti-spam activists.

The agency said that although Internet-savvy sleuths often can crack the technical disguises used by spammers to hide their identities and locations, the amount of information they could gather that would lead to successful prosecutions would be limited.

Instead, the FTC said that if Congress decides to set up a bounty system, it should reward only whistle-blowers inside or close to spam operations, who could provide detailed evidence that would lead to the operations being shut down.

The NYTimes gives Cary Sherman the opportunity to respond to Critic’s Notebook: No Fears: Laptop D.J.’s Have a Feast in this letter: Downloading Music. Sherman’s criticism? Someone tried to explain the realities of the law, rather than what the RIAA wishes were the case:

To the Editor:

In “No Fears: Laptop D.J.’s Have a Feast” (Critic’s Notebook, Sept. 10), Jon Pareles writes, “Downloading music from the Internet is not illegal.” That, of course, would be true with respect to music authorized to be downloaded. That important distinction was unfortunately left out.

It’s also suggested that the only thing that’s illegal is uploading, by referring to “the fine print” of the Recording Industry Association of America’s lawsuits that shows “that fans are being sued not for downloading but for unauthorized distribution.”

Every case involving music on the Internet has made clear that both uploading and downloading copyrighted music without authorization are direct infringements of copyright.

A number of musicians are giving away their work as a means of promotion. That’s their right, and downloading that music is legal. It’s just that there are a whole lot of musicians who have not chosen to give away their work, and it would be unfortunate if anyone believed that it’s legal to download their music anyway.

Cary Sherman

President, Recording Industry

Association of America

Washington, Sept. 14, 2004

Of course, Pareles’ article was quite clear:

That fact may come as a surprise after highly publicized lawsuits by the Recording Industry Association of America, representing major labels, against fans using peer-to-peer programs like Grokster and EDonkey to collect music on the Web. But the fine print of those lawsuits makes clear that fans are being sued not for downloading but for unauthorized distribution: leaving music in a shared folder for other peer-to-peer users to take. As copyright holders, the labels have the exclusive legal right to distribute the music recorded for them, even if technology now makes that right nearly impossible to enforce. [emphasis added]

Or, after all this, is it all going to turn out to be the VCR-MPAA saga all over again? 9 out of 10 cats prefer CDs to downloads

Not only is the CD format alive and well, but it’s emerging from the “online” revolution looking healthier than ever. 92 per cent of DRM-store downloaders surveyed by Entertainment Media Research prefer the plastic platters to their MP3 downloads, Revolution magazine reports.

It supports the theory that online downloads are complimenting, rather than replacing traditional CD sales; with shoppers using the online stores to sample music before getting “the real thing”. 80 per cent of “legal” downloaders surveyed said they will buy as many or more CDs buy as many or more CDs in the future.

CDs have better sound quality than music downloads, and in most countries have no restrictions on how the user listens to the music.

U.K. ITunes Prices Questioned

Apple Computer’s three-month-old European iTunes service came under attack Wednesday from Britain’s Consumers’ Association, which asked the Office of Fair Trading, a business watchdog, to investigate why the service’s prices are higher than those in the United States.

British iTunes customers pay 79 pence ($1.40, or 120 eurocents) per song, while French and German residents pay 67.7 pence ($1.20, or 99 eurocents), a difference of 17.5 percent. Americans pay even less: just 99 cents per song.

Apple declined to comment. But the Consumers’ Association said when it approached Apple with its complaint, the company replied, “The underlying economic model in each country has an impact on how we price our track downloads. That’s not unusual, look at the price of CDs in the U.S. versus the U.K. We believe the real comparison to be made is with the price of other track downloads in the U.K.”

[...] For the Consumers’ Association, the important point is that the United Kingdom, France and Germany are all part of what is supposed to be a single market. “This is precisely the sort of market where the internet should be delivering benefits to the consumer as well as industry,” said Graham Vidler, head of policy for the Consumers’ Association. “This is partly about the difference between a physical product and a digital market, but the key is that it’s a single-market issue. We know that iTunes is even cheaper in the U.S. than in France and Germany, but neither the OFT (Office of Fair Trading) nor the EC (European Commission) has any power to do anything about that. But they do have power as the guardians of the single market to see fair play.”

From Wired News: Attack of the Radio Clones (See earlier Looking for non-RIAA Music?)

Generic mouthwashes claim to be just as good as Listerine, and store-brand paper towels invite consumers to compare them to Bounty. This kind of marketing doesn’t raise many eyebrows. But what if an online radio station says it’s just “like” New York City’s Z100 or L.A.’s KROQ, and manages to sound pretty much the same?

Good question. Soon, the world’s largest software company, a staunch defender of its own copyrights, may have to answer it in court. Earlier this month, Microsoft began charging users to listen to online clones of 978 U.S. and Canadian radio stations with ‘”fewer ads, no DJ chatter and less repetition.” And no, Bill Gates didn’t ask the stations for permission to copy their playlists.