After reading the Library Journal article on fair use, I wanted to link together some pieces from the article by two Berkeley SIMS students about evaluating DRM systems. The latter cites a paper by Deirdre Mulligan, Berkeley Samuelson Clinic Director, and Aaron Burstein, a Berkeley grad student, about creating DRM that can expressly permit certain fair uses and allow customers to request uses through third-party rights servers (without giving up their privacy). You might also want to check out this similar paper by them.
Honestly, I can’t say I totally understand their suggestions on a technical level. But, if their plan is possible, it puts an interesting spin on DRM.
Most of the time, we think of DRM as the embodient of the “alls” in the copyright debate. With Mulligan and Burstein’s version of DRM, we have something a little closer to “some” – not the true “some” of Creative Commons, of DRE, but a bastardized “some” nonetheless, somewhere in between. It runs counter to part of David Weinberger’s fears in “Copy Protection is a Crime,” for perhaps DRM can provide latitude and exceptions.
Certainly, though better DRM might be better than the “hard-coded software incapable of applying the snicker test” that Weinberger’s thinking of, it’s still just software. It’s not a human.
That’s why Mulligan and Burstein realize that there needs to be, along with basic expressions of fair use, some sort of messaging between consumer and creator, and potential for immediate and deferred decisions. Again, not perfect, but better than just software – better than our worst fears about DRM. This balance is reflected in and expected by Professors Burk and Cohen’s proposal, Fair Use Infrastructure for Rights Management Systems (which I originally discussed here). They condition copyright protection on allowing a baseline of fair uses and condition DMCA protection on escrowing circumvention keys for potential fair use requests and arbitration.
Using this dual system, Burk and Cohen have brought together two sides of fair use proposals, which actually fit into a larger legal debate about rules versus standards. Groups like Digital Consumer push for specific fair use rights that cover many consumer expectations. These rules would remove much of the uncertainty in the currently fragmented, broad, and thus somewhat meaningless doctrine. No longer would fair use mean merely that you have the right to hire a lawyer. At the same time, having broad fair use standards allows for the spontaneity that the doctrine requires; fair use is always evolving and cannot be pinned down to a particular set of uses. Indeed, by legislating a specific set of rights, standards-supporters say we risk making it seem like those rights are the only fair uses (I’ve always found this a silly criticism, since most legislation of this sort specifically states that it is not a comprehensive list).
Like many aspects of copyright, the proper solution is probably a “some.” Both strategies have upsides that we should try to capture. Rights can be enumerated, and that list can be updated over time. Standards can be improved to specify the underlying principles of the fair use test (public interest balancing? market failure? a clearer mix?).
In the DRM context, the escrow key system can also help fill in some gaps. Ultimately, I’m not sure if such a key escrow system is feasible. I’m also not too optimistic that such a thing could ever be legislated.
If we are not moving to more compulsory licensing (which would diminish the need for DRM), enumerating some fair uses with a right to hack is superior to letting the market work itself out. That would simply perpetuate the idea that fair use is about market failure, not about protecting public interests.
With that in place, Burstein and Mulligan’s proposal could help in other ways. Of course, without a legislative mandate, its effect is contingent on copyright holders using it to allow fair uses. Still, by allowing such systems to develop privately, without a single center, key escrow and better DRM is a possibility. And, if it isn’t, then we can sort that out after it’s been tried. At the very least, better DRM gives us some chance to move past DRM as the spectre of pure “all.” If there is truly going to be a competitive market in digital music services and thus DRM, then it will have to involve these flexible proposals.
Update, 9/1, to not give anyone the wrong impression: I’m not writing this to advocate DRM. As I’ve said before, I am incredibly suspicious of DRM/”trusted” systems and the often oligarchical market they are being born into. DRM will never be able to fully preserve the ambiguity that allows new fair uses to develop alongside technology. But, if we are to allow DRM to exist, then flexible DRM is better than what we’ve got now. Hopefully, the competitive process will make it less and less restrictive, making digital media as – if not more – capable of fair use than analog media. Flexible DRM might play an intermediate step between our ideal DRM-less digital media and today’s DRM.
For more on this thread, see this debate from last summer about Lessig’s “better DRM” article. Ernest Miller is still right that DRM, flexible or not, is restrictive, and that the market conditions are not ideal. At the time, I agreed with him completely. Now, as I see competition in digital music services beginning, I am more hopeful that he is wrong.
Filed by Derek Slater at 11:53 pm under General news