August 30, 2003
Burk and Cohen
Posted 1-27-2003 at cmusings.blogspot.com
Protecting Fair Use by Reinventing Copyright (Part 1 in a series)
I will be producing a series of posts about protecting fair use. Most of the current copyfight focus is on what to do about the Hollings bill, DMCA, etc. Rather than simply criticizing these proposals, I want to look at alternatives to them. I want to evaluate other proposals that will protect fair use, but provide adequate protection to copyright holders.
To investiage this, I am going to look at a series of journal articles that I’ve been reading. I’ll throw links up to them, discuss what catches my eye, and evaluate the article’s policy if one is proposed.
Part 1 will focus on “Fair Use Infrastructure for Rights Management Systems” by Georgetown Professor Julie E. Cohen and University of Minnesota Professor Dan L. Burk, as published in the Harvard Journal of Law and Technology.
This article argues that we should condition copyright protection on the use of fair-use friendly DRM. To do so, we would first set a baseline standard for all DRM to protect typical noncommercial fair-uses. In addition, to have anti-circumvention provisions like the DMCA enforced, copyright holders would have to provide access keys to a third party. Consumers who want to exercise a fair use not coded into the baseline standard could apply to get the keys; at that point, there could be some sort of evaluation to determine whether the application merits fair use exemption. The bureaucracy of such a procedure would need to be minimized and there would need to be adequate privacy protection.
The article also discusses what fair use is in general, treaty constraints to such a system, and drawbacks to this system (some of which I discuss later).
Things I like about this proposal: it seems politically feasible. It’s only one step further than the Lofgren bill. Also, it doesn’t completely undue the DMCA, nor does it force anyone to adhere to the DRM baseline standard. If people want to use completely restrictive DRM, they can. But, if they reject the copyright bargain, then they do not deserve copyright protection. That seems pretty fair to me. If you need copyright to solve a public goods “problem” then you can deal with a DRM baseline to counter externalities created by limited fair use. Furthermore, this would satisfy some of the people who want no mandates and who simply want businesses to adapt to the digital environment. This model would allow for a diversity of business models, using different DRM (ones that don’t comply with the baseline, ones that do, ones that go further than it). Competition in the market would sort out what’s best. (More on this later when I discuss Tom Bell’s “Escape from Copyright”and “Fair Use v. Fared Use”).
Problems with this proposal: First, there are the privacy/anonymity problems with the key escrow that the authors discuss. Second, this proposal, while seemingly expanding fair use, limits it. Right now, fair use is spontaneous. You don’t need to ask anyone’s permission. Moreover, fair use is not one set of actions or norms. It’s always expanding and can never be completely delimited. The key escrow system would have to be so painless that it would not have a substantial negative effect on fair use. But, the only way to make it painless, imo, is to have hardly any evaluation of the use the consumer is applying for. That would probably lead to the authorization of actions that are not fair use. Third, there’s nothing to stop people from circumventing the DRM anyway. People could still circumvent the DRM on a DVD and distribute an MPEG of it on KaZaA – that happens already. So, this proposal really doesn’t solve that problem.
Question I have about this proposal: is DRM flexible enough to handle this? Could you make a baseline standard that allowed for personal copying without allowing illegal transmission over a P2P service or through an email attachment?
Also, should we let people exit copyright, buck the DRM baselines, and make whatever DRM they want. A few years ago, Professor Cohen wrote:
“If CMS [copyright management systems, aka DRM] provide a more reliable method of correcting market failure, who needs copyright? I hope that most readers will think this suggestion absurd-and will react that way because they recognize that the semi-permeable barrier of copyright promotes the public interest. But if the copyright system is necessary, then allowing unlimited numbers of copyright owners to opt out of the system as it suits them is bad law and bad policy. At the very least, a CMS regime should be subject to an analogous set of restrictions designed to balance the affected interests.”
I’m not quite sure why she changes her tune in this later article.
Next in this series: I realize that it’s taken me far too long to write this piece and it still hasn’t covered enough of the article. I will follow-up hopefully with some more about this article, and also some more about the Bell articles I mentioned.
Filed by Derek Slater at 4:38 am under
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