I’ve been meaning for some time to expand on my earlier brief remarks on Berkman Fellow Urs Gasser‘s new paper, Legal Frameworks and Technological Protection of Digital Content: Moving Forward Towards a Best Practice Model. Urs’s essay does a terrific job at cataloging the range of options open to policymakers who want to provide legal protections for digital rights management (DRM) schemes against circumvention.
There is a sizeable contingent of observers in the United States cyber/legal academic community (people like Lessig, Benkler, Felten, Cohen, Samuelson, Boyle, Litman, and many others) who believe that, when it comes to technological protections for copyrighted digital content, U.S. law has simply gone off the rails in some fairly fundamental and important ways. Normatively speaking, it’s difficult to imagine a what worthwhile social goals are advanced if we outlaw watching DVDs under Linux, making e-books interoperable, or performing academic research in the area of computer security; yet the Digital Millennium Copyright Act seems to do precisely that, along with limiting fair use and a host of other unlikely (and probably unintended) perverse effects. A few courts are beginning to rein in the worst excesses, instances where the DMCA seems to have been misused for purposes well beyond what Congress likely intended (see: Lexmark, Skylink, StorageTek). But the new cases are nibbling around the edges, and the DMCA, along with the bad early judicial interpretations of the statute, remains on the books.
The essential message of Urs’s new paper is: it doesn’t have to be this way. Other nations that, like the United States, are signatories to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), have implemented their treaty obligations to adopt anticircumvention legislation in ways quite different from the DMCA in the United States; ways that could well serve as models for further legislative action in this country and beyond.
Urs stands a quite different camp from the “we-must-repeal-the-DMCA” crowd that dominates the discussion forums on Slashdot, for example. Urs carefully avoids engaging on the merits of the debate over whether DRM and anticircumvention measures are good or bad ideas. Rather, his stance is: some form of anticircumvention protections are mandated by WCT and WPPT. The necessity to comply with those treaty obligations is an exogenous force whose influence on domestic law is assumed. The question Urs wants to answer is, what forms might such legal protections take? There are, it turns out, many ways of achieving such protection that don’t suffer from the well-publicized flaws of the DMCA. Urs’s paper catalogs many of them, at a level of detail I won’t attempt to recapture in this blog post. By way of illustration, though, I’ll take a quick look at what Urs’s paper reveals about one of my pet topics: the balance between anticircumvention rules and copyright’s fair use doctrine.
Suppose you are a consumer and you want to make a fair use of a lawfully purchased piece of digital content that is protected by a DRM scheme (perhaps excerpting a short snippet from George Harrison‘s song “My Sweet Lord” that you downloaded from iTunes for the purpose of teaching law students about the famous Bright Tunes case). The DRM mechanism is not programmed to recognize and authorize your fair use of the protected material. What can you do?
- If you live in the United States, your only options are to either (1) circumvent the DRM mechanism, wait to be sued for violating the DMCA, interpose as a defense that your use of the underlying copyrighted work was noninfringing, and hope that the court before which you are being tried inclines more towards the type of nuanced reading of the DMCA that was on display in the Lexmark case, rather than the risibly overheated rhetoric of earlier cases like Universal City Studios v. Reimerdes; or (2) abandon the use.
- In Greece, Lithuania, and Slovenia, Urs points out, you have an additional tool at your disposal: as a user, you may demand that the issue be submitted to mediation, where you will at least have the opportunity to persuade an adjudicator that you should be permitted to use the DRM-protected content in the fashion you are attempting.
- In the United Kingdom, there is an administrative avenue of relief, whereby individual users may initiate a complaint with a government agency, which may order the copyright holder to permit your use (either individually or as a class action).
- In Ireland, a similar process exists, but the application is instead directed to the High Court in the general nature of a declaratory judgment action.
The point here is that every single one of the European nations listed above has found a way to enact robust statutory protections for DRM technologies against circumvention in ways that don’t inherently chill the exercise of fair use rights in the same fashion that the DMCA inevitably does.
Urs concludes with a series of recommended “best practices” for nations that are still crafting implementing legislation to comply with the WCT and WPPT. These could well be adapted to United States law as well, and would substantially improve the DMCA. Urs rightly points out that many nations have done a very poor job at defining the terms employed in their anticircumvention statutes, to no one’s benefit. (Urs doesn’t say so, but the DMCA’s definition of “effectively controls access to a work” is the poster child for obfuscatory legislative drafting here; the statute defines “effectively controls access” using terminology that has nothing to do with the ordinary meanings of the words “effective,” “access,” or “control.”). Urs also recommends clarifying the relationship between anticircumvention rules and the ordinary exceptions to copyright holders’ exclusive rights. In the United States, this ambiguity has thus far mostly been resolved against parties who wish to engage in hitherto-thought-to-be-fair uses of copyrighted works, yielding a tangible contraction of the effective scope of the fair use doctrine.
I’m less sanguine about Urs’s recommendation for an ongoing process of administrative review to ensure that any anticircumvention restrictions are working as intended. In this country, at least, such a system already exists in the form of the periodic rulemaking by the Librarian of Congress to preauthorize specified exceptions to the statutory circumvention bar. Those rulemakings have so far not notably expanded the range of protected activities in which consumers can lawfully engage; activities that are lawful under the Copyright Act, but banned by the DMCA. Moreover, it is only because the DMCA’s definition limits the scope of the Librarian’s authority to considering exceptions to the general anticircumvention rule that the process has allowed any increase at all in the range of freedoms available for users of digital content. One might envision an administrative process of the type Urs recommends becoming “captured” by copyright industry representatives, and each year adopting further and further restrictions on end-user rights in the name of improving the anticircumvention regime. Perhaps not a substantial risk in the EU, but all too readily conceivable in the U.S.