July 30, 2006
The DMCA’s Deserved Rap
In the comments of a post about Urs Gasser’s new paper on anti-circumvention laws, Tim Armstrong made this rather peculiar statement: “[M]y
paper on fair use and digital rights management (linked from the blog
posting) is in some measure an attempt to show that the DMCA has gotten
a bum rap — the statute has been blamed, incorrectly in my view, for
some problems that in reality stem from particular choices among
competing technological designs.”
What is the rap that Tim is referring to?
The main rap on the DMCA is that it has been completely and utterly ineffective in serving its chief aim: preventing “Internet piracy.” This rap is wholly deserved. A cleartext copy of any given DRMed song or movie will be practically as readily accessible if there were no DRM at all. The DMCA has done nothing to keep unencrypted media off P2P networks and other darknet sources. This all holds true in what I like to refer to as “reality” – not to be confused with the pre-Napster time warp that too much scholarship still resides in.
The DMCA has also stifled fair use and innovation. It greatly expanded copyright holders’ rights. I don’t see how that’s a bum rap simply because one can imagine DRM that does less damage.
Moreover, given the first rap, why do alternative technological designs even matter? If the DMCA isn’t creating its intended benefit, then any damage is a net loss for society. Tim has done a lot of careful thinking about alternative designs for DRM that better accomodate fair use and his paper is a nice extension of scholarship on this subject, starting roughly 5 years ago with a paper by Dan Burk and Julie Cohen and many papers on so called “rights expression languages.” But before weighing whether and how to accomodate fair use, it seems appropriate to examine whether DMCA+DRM can achieve their intended goals. If they can’t, then “better” DRM is a moot subject.
Now, there may be some other illegal uses DMCA+DRM could limit. For those who are unwilling or unable to find and acquire unencrypted content from alternative sources (e.g. P2P) *and* are unwilling or unable to use circumvention devices *and* are unwilling or unable to use the analog hole to make an unencrypted copy, perhaps DMCA+DRM could have an effect. If someone would like to try justifying all the damage the DMCA+DRM have done to fair use and innovation based on limiting these other unlawful uses, please go ahead.
A more likely tact, taken by Randy Picker among others, is to defend how the DMCA+DRM can limit *lawful* uses in order to enable platform monopolies and price discrimination. Note that it seems Tim would be very much against this line of thought, since he’s saying the DMCA would be fine if only DRM accomodated fair use.
Tim Lee has recently spent a lot of time considering this issue, and it’s also worth checking out Pam Samuelson and Suzanne Scotchmer’s article related to this subject from 5 years ago. While I’m in Lee’s camp here, there are some decent arguments on the other side. For the moment, all I’d like to say is this: I would love it if the policy discussion around the DMCA merely focused on this point. Enough about whether the DMCA prevents piracy (it doesn’t) or limits fair use (it does). Please defend the DMCA openly as an abrogation of fair use and celebrate a world in which upstarts can’t come along and create new
cool tools that help you get more from your music and movies. Please defend it as a reversal of established caselaw, and explain why that caselaw got it wrong in the first place.
Filed by Derek Slater at 3:37 pm under General news
4 Comments
Hey, but you know there are probably some people for whom the DMCA works pretty well. Somewhere out there in the long tail.
It’s certainly the case that the most widespread contemporary DRM systems do a poor job of protecting fair use, as the forthcoming Berkman Center white paper on education and digital media will likely demonstrate in great detail. To the extent that the DMCA justifies or ratifies a content provider’s decision to adopt restrictive DRM, it is rightly criticized.
But here’s the point: nothing in the DMCA requires the adoption of maximally restrictive DRM. The statute is technology-agnostic; it doesn’t care what capabilities any given DRM mechanism does, or doesn’t, have. Proposals for minimally restrictive DRM (which is to say, DRM that fully permits uses that would be recognized to be fair both under the law and under the more permissive social norms surrounding individual use of copyrighted works) are abundant in the computer science literature, although they haven’t crossed over into the legal literature yet.
You write: “I don’t see how [the complaints against the DMCA] are a bim rap simply because one can imagine DRM that does less damage.” But let me flip that around: you object to the DMCA *because* existing DRM is so restrictive, don’t you? If DRM systems weren’t so restrictive and permitted the full range of fair use, what force would be left in the most common objections to the DMCA? Not much, it seems to me.
And that’s all I’m trying to get at. Complaining about the statute, rather than the technology, shifts the blame onto Congress and away from where it really belongs: on the media companies who have elected to adopt maximally restrictive DRM. I’m sure those companies are happy to have the heat deflected by the DMCA, but don’t be fooled.
I’m not sure if this recent post mounts the defense that you are looking for, but I think that it is in some neighborhood of it:
http://uchicagolaw.typepad.com/faculty/2006/07/fair_use_and_ac.html
I also think that the darknet critique assumes too much homogeneity among users. By that I mean, that it assume that we don’t need DRM to police “good” users and that DRM will fail to control “bad” users. I think that the world is much more mixed than that, so that even if DRMed stuff will always make it into the clear, raising the transactions costs of getting to that content may keep a middle group of users from accessing the in-the-clear content.
Tim Armstrong said:
“If DRM systems weren’t so restrictive and permitted the full range of fair use, what force would be left in the most common objections to the DMCA?”
Are you serious? Fair use is not the only casualty of the DMCA, and may not even be the most important casualty. The loss of the ability to reverse engineer systems for interoperability purposes is a tragedy that harms technological innovation every year the law remains on the books. The DMCA sneers at open standards, and privileges platform monopolies. Please go to http://www.techliberation.com/archives/cat_open_source_open_standards_and_peer_production.php and read Tim Lee’s excellent series on this subject. Then see if you can still argue with a straight face that the DMCA will be okay if we just insert a couple of tweaks to preserve fair use.