I’ll be leaving town tomorrow for this weekend’s AALS conference, but did not want to let too much time pass without highlighting Urs Gasser‘s new paper, Legal Frameworks and Technological Protection of Digital Content: Moving Forward Towards a Best Practice Model. I’m still reading Urs’s paper and will have more to say about it next week after the conference, but it’s well worth a look, particularly for people with an interest in the international aspects of the digital rights management debate.
A lot of the literature on DRM makes a fundamental analytical error: it points out flaws in this or that implementation of DRM technology and then generalizes to the much broader proposition that DRM per se is similarly flawed. The argument goes: DRM system “X” doesn’t allow me to engage in fair uses of works it protects, therefore DRM technology is inherently hostile to fair use. This inductive leap is so common that it has all but become an accepted piece of the conventional wisdom in contemporary discourse critical of DRM. It can be seen, for example, in the draft of the GPL Version 3, which seems expressly to forbid the inclusion of DRM technologies (irrespective of the particular capabilities, restrictions, or features of those technologies) in GPL-issued works. Stefan Bechtold, among others, has articulated a more nuanced view: DRM, like any tool, isn’t inherently good or bad; what matters is what it is designed to do and how it is used. If we have a problem with the functionality of a particular implementation of DRM, the solution might simply be to develop a better one, rather than to jettison DRM entirely. As I’ve argued elsewhere, for example, the tension between currently existing DRM implementations and the fair use doctrine under U.S. copyright law might be redressed by engineering DRM to protect fair uses. To be sure, such a system would not look very much like anything to which we’re currently accustomed to labeling “DRM,” but the basic point is that there is a lot more flexibility in the range of both the technological and legal responses to the protection of digital media works than is commonly assumed.
Urs’s new paper makes an important contribution to the literature here by illuminating the range of policy choices that are, or should be, on the table. He takes international law as a starting point: specifically, signatory nations are required under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty to adopt rules protecting DRM systems against circumvention. The range of rules that might be adopted to implement those requirements, however, is quite broad. The treaties raise, but don’t dictate, a host of social policy choices that different signatory nations have begun to resolve in different ways. I’ll say more next week about Urs’s discussion of the two most prominent national responses to the WIPO treaties (the Digital Millennium Copyright Act in the U.S., and the EU Copyright Directive in Europe). For now, however, I’ll simply say that the paper does a good job of demonstrating that international law provides ample room for flexibility in how individual nations implement anticircumvention protections, and suggests some approaches that ought to be considered “best practices” in this regard. Worth a careful read.