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May 24, 2006


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Excellent post, professor. I've often wondered about a system where the "keys" to the DRM were turned over to a public repository (i.e., a library) so that once something was no longer copyrighted the content could be "freed". The carrot for turning over the keys could be something like increased penalties for those who crack before the time, cf. 17 USC 402, or an increased number of years before the copyright runs out. I guess the problem is that the bulk of copyrighted material is (relatively speaking) junk and will hardly be worth anything when the copyrights run out, and who wants to store all this junk.

I still bristle when imagine a world where I can't copy something over-the-air and keep for personal use. I'm confident copyright holders have increased incentives to create in such a world; but it's hard to weigh that against what I know would be an inconvenience (how else can I get free content onto my video ipod?). These copy-lefters may be bonkers but they get the benefit of being able to point to the tangible.


I think we should go back to the days before the twentieth century when the music artists made their money by actually performing live and on stage. They only used their recordings as advertisements for their performances and to generate a broader fan base. Copyright law back then didn't apply to performances and recordings on the phonograph, they only applied to written works.

Doug Lay

You're missing a couple of important things here.

First, there is a huge difference between the copying of today and the copying of the 1970s. The difference is the speed with which copies can be disseminated globally. Today, a single cracked or leaked copy, anywhere in the world, can be distributed around global P2P networks within hours. DRM, while it may constrain 1970's-style "schoolyard" copying to an extent, is powerless in the face of the Intrnet and P2P.

Second, while anger concerning the DMCA and DRM in general is partially due to the end-run it performs around fair use rights, there are many other concerns as well. Probably of greatest concern to the FSF is the incompatibility of most if not all DRM technologies with open-source software (or "free software" as the FSF would put it). The DMCA effectively banishes open-source software from wide swaths of the consumer entertainment space. You may consider this a regrettable but minor problem; to the FSF and others it is a major injustice indeed.

There are a number of other issues with the DMCA - you can read papers by the EFF and the Cato Institute for lots more information. Increasingly, the picture is clear...DRM cannot protect content in a highly networked world, and protecting this largely failed solution (DRM) via the DMCA incurs a great price paid by consumers and technologists alike. It is past time for this bad law to go.

Randy Picker

Thanks for the commments.


Help me understand this a little more. Are you against movies? TV? DVDs? Anything that involves a recorded performance?


What I am hearing from you is that DRM can't work. That doesn't seem to address what I understand to be the heart of defectivebydesign, namely, that it is illegitimate to attempt to control copying, because consumers have the right to make copies and copyright law shouldn't control that. Is that your view as well?

On the second point, I would find it interesting to read more. Do you have relevant links?

Doug Lay

My view on the legitimacy of DRM is pretty laissez-faire. If content distributors want to use DRM, fine, but it should not receive special protection within copyright law...especially given that DRM doesn't really succeed in controlling copying in today's globally networked environment.

I think you can probably use Google as well as me to find relevant links, but....


Note that the last link is from your own blog - one would hope this isn't all new to you.


Doug said, "The difference is the speed with which copies can be disseminated globally."

And this somehow justifies stronger copyright laws? Just FYI, I use the public library system almost every day. I have not downloaded one song from the internet (mostly because I can't rely on the quality). Instead, I check out the CD and just rip them into mp3s. Maybe the copyright laws should be changed to make libraries illegal?

Randy, I am not agianst recorded performances. What I said was that maybe artists should go back to the old model where they make money from their live performances and only use CDs for advertisements (this business model would be better form them and for us), because once the RIAA created their cartel, they stole (I mean, bought) all the copyrights to all the music, monopolized the distribution system, and ripped off both the artists and consumers. I equate the RIAA to the diamond cartel, de Beers. And I will make sure that I never buy one song from them, neither will I ever buy one diamond.

Tim Lee


This is a great post that I think nicely lays out the relevant issues. I share your dislike for the notion that fair use is a positive right of consumers that must be protected at all costs. Fair use is merely an affirmative defense to claims of copyright infringement, and I believe it can be waived by contract. So in that sense, the FSF critique misses the mark.

However, I have a few disagreements:

First, if DRM is like a contract, then it should be enforced via contract law. Among other things, that would mean that the publisher would need to inform the consumer of the terms of the contract before the sale is made, the publisher wouldn't have the power to unilaterally change the terms of the contract, and the consumer would have the right to contest alleged violations of the contract in court.

Secondly, on the "defective by design" point: the problem isn't simply that consumers are denied a specific list of traditional fair use privileges. The problem is that it creates a presumption that consumers are barred from doing anything with their copyrighted content that they haven't been specifically authorized to do. That means a great many innocuous uses of copyrighted content become presumptively illegal which would otherwise have been perfectly legal. Case in point: 10 years ago, when the first MP3 players hit the market, people could "rip" their CDs in order to listen to them on their MP3 players. Today, as the first portable video devices are released, doing the same thing with DVDs is against the law.

That means that anyone who dreams up a new type of digital media device must get the permission of Hollywood or the labels before they can use any mainstream content with the device. That creates a high barrier to entry for anyone wanting to invent a new digital media device on a shoestring budget. DRM also locks open source software out of access to DRMed content, cutting off a major source of potential innovation.

Doug already plugged my Cato paper, but let me shamelessly second his suggestion. I go into all of these issues in some detail:


Tim Lee

By the way, on the question of whether DRM and open source are compatible, I've got a couple of posts at the Technology Liberation Front that expand on the argument in greater detail than I do in my paper:


Randy Picker


I read your paper in the last week—in response to Doug Lay’s comment— and was going to email comments, but let me do this here instead.

I think systems competition is much more complicated than you make it out to be. So part of your paper focuses on the Lexmark DMCA case. You seem to suggest that we should want maximal competition over each component. Does that overstate your view? I certainly don’t think that that is right generally or right in the case of printers in particular. If we are plugging papers, I discuss this in great detail in my paper Copyright and the DMCA: Market Locks and Technological Contracts (online version at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=690901 ).

The contracts point is critical. You are obviously a freedom of contract sort, clear in your paper and in this comment. But you seem to think that contracts should be enforced exclusively through the court system? Yes? No? I don’t get that at all. If scientists in gov’t labs came up with a way to enforce contracts for 10% of the cost of the court system, I would hope that the government would set up this mechanism and kick contracts cases out of the taxpayer-subsidized and expensive court system. So I don’t get your strong preference for courts.

As that suggests, I think that the government is in the business of providing enforcement mechanisms for contracts and in corresponding fashion should be willing to regulate devices that have little purpose (sole purpose?) other than for breaking contracts or breaking the law. I think that that is a tad more complicated than I have just made out: we have to grapple with to what extent we want specific enforcement of contracts or 100% implementation of the law (a subject I wrestle with a bit in my post More Driving: Do We Like Automated Tickets?) And we need to figure out how much flexibility we should create and how to do it (with the automated ticket, I am stuck with ticket unless I can go to court and get the judge to overturn it). Maybe the DMCA does exactly that in creating a serious of defenses (reverse engineering, research, etc).

On your comment here, two other points. So you raise the question of giving notice to consumers. What would suffice in your view? Look at what Sony BMG did. Was that enough? (I describe this in some detail in another paper Mistrust-Based Digital Rights Management (available here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=899155 )). And, as just a matter of contract, I am not sure why consumers shouldn’t be able to agree to have terms changed within some scope. Under the Uniform Commercial Code, we don’t insist that contracts be fully specified for a contract to be formed, and subsequent changes in terms aren’t that different.

The second point to make relates to the first, namely, the absence or presence of market power will matter here. So in a competitive market we should expect terms of contracts and DRM to gravitate towards those that jointly-maximize the interests of the parties. Which might those be? You start your paper (p.2) with a description of iTunes. If iTunes was able to use DRM to separate out uses—allowing some personal copying but not p2p sharing—that might very well be jointly maximizing. Yes? No?

Tim Lee


Thanks for the thoughtful comments.

On the contracts point, I think it's important to distinguish two separate notions. One is that DRM is a useful means of enforcing a contract. The other is that DRM is itself a contract. If you're position is the former, I don't really have any quarrel with that--I think the utility of DRM is often overstated, but that's for the market to decide, not me.

But the argument for the DMCA, as I understand it, is that we should consider the act of circumventing DRM to be a breach of contract, regardless of the purpose of such circumvention (with the exception of the rather narrow exemptions found in the DMCA's text).

For example, if I buy a DVD, it's a violation of the DMCA for me to "rip" the DVD to play on my iPod. It's also a violation of the DMCA for me to play the DVD on most desktop Linux computers. Last time I looked, there are no contractual terms anywhere on a DVD package informing me of these limitations. Hence, the DMCA isn't enforcing an existing contract, it's treating the existence of DRM as a de facto contract, without notifying the users of that limitation.

One of the problems this creates is an information asymmetry: the consumer doesn't think to ask about possible restrictions on her use of the product until after she purchases it and discover the incompatibility. Even then, the consumer is unlikely to be aware that the incompatibility is due to a deliberate choice on the part of the publisher (backed up by the legal power of the DMCA) rather than a mere technical glitch. So the user curses the complexity of technology and doesn't think to seek out other products that might be less limiting.

More to the point, it's simply not true that most circumvention devices "have little purpose (sole purpose?) other than for breaking contracts or breaking the law," unless you're defining DRM to be a contract. A Linux DVD player, or a conversion tool to allow people to play their iTunes songs on non-Apple MP3 players are not piracy tools by any stretch of the imagination. Neither are homebrew personal video players, which are going to be effectively illegal once DRMed broadcast formats like CableCards become ubiquitous.

You ask "If iTunes was able to use DRM to separate out uses—allowing some personal copying but not p2p sharing—that might very well be jointly maximizing. Yes? No?"

My answer is that it might be, but that in practice the effect of DRM is just the opposite: it places all sorts of restrictions on innocuous uses of their content, while doing little or nothing to impede p2p sharing. (Yes, I'm the darknet sort) Indeed, many of the uses that DRM restricts are not uses the publisher could hope to charge for. Rather, they're uses that the publisher probably would be willing to grant permission for, but that because of the nature of DRM, there's no technologically feasible way to do so. For example, it's unlikely that Hollywood wanted to prevent its customers from playing DVDs on their Linux computers. Rather, the lack of legal DVD players for mainstream Linux operating systems is a result of the fact that the proprietary nature of DRM requires locking out open source projects.

As for your paper on market locks, and the economics of tying more general, I've read it, and I'm hoping to write up something more formal on the subject in the not-too-distant future, as it's a complex issue I haven't fully thought through yet. Here's where I am at the moment: the law shouldn't make it too easy to tie products together, especially in a rapidly changing marketplace in which new innovations are often introduced by small startups. And in any event, I think copyright law is the wrong tool for the job.

Tim Armstrong

Thanks very much for the heads-up and pointer to this post! It's a very interesting and articulate statement, even if not one with which I'm able to agree entirely. One factual quibble: I don't think the statement "No such general right ["to make private copies"] exists under U.S. law" can be made quite so categorically as you suggest. Perhaps it can fairly be said that there is no such *affirmative* right (in a Hohfeldian sense), but neither is there a clear affirmative history of noncommercial private copying being a basis for liability (for the simple practical reason that most such noncommercial private copying occurs "under the radar" without the copyright owner's knowledge). Indeed, as Jessica Litman has pointed out, we have at least the authority of Justice Stevens for the proposition that Congress did not intend the 1976 Act to reach noncommercial private copying; he said as much in the first draft of his opinion in the Betamax case. That language did not ultimately survive to command a majority of the Court, but it suffices in my view to show that the issue isn't quite as clear-cut as you have portrayed it.


Great blog,
Would like to learn more...


If anyone is looking for good links to subject of Copyright law and DRM I suggest these sources:

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