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:
- Fair Use Infrastructure for Copyright Management Systems; Dan L. Burk and Julie E. Cohen; August 18, 2000; Georgetown Public Law Research paper No. 2039731
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)
Property, Intellectual Property, and Free Riding; Mark A. Lemley; August 2004; Stanford Law and Economics Olin Working Paper No. 291
Copyright and a Democratic Civil Society; Neil Weinstock Netanel; 106 Yale Law Journal 283 (1996)
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.
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!!