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Prominent copyright scholar, Jane Ginsburg from Columbia University, has released a new working paper on DMCA policies surrounding DRM. The Pros and Cons of Strengthening IP Protection: Technological Protection Measures and Section 1201 of the US Copyright Act (February 2007). Columbia Public Law Research Paper No. 07-137- Available at SSRN.
Ginsburg, who previously argued that the DMCA falls in-line with Congress’ historic copyright amendments, and helped us appreciate coherence behind standing DMCA §1201 case law, offers in her new paper considerations that should inform Congress, the courts and the Librarian of Congress as they shape DMCA policy on circumvention and fair use; especially if certain “untranspired” visions of DMCA critics develop.
Ginsburg is a very important copyright figure; it is not surprising to see her take a balanced approach by addressing arguments on both sides of the DMCA debate.
Ginsburg asserts that §1201 may appear to expand the reach of copyright policy, but that the primary question is whether §1201 has detrimentally "over-expanded" copyright's grasp by supporting "over protection, misuse and unintended consequences," or whether it has enabled copyright to adapt to the digital environment. Ginsburg writes of the challenges for those that affect DMCA policy: ...the statutory interpreter must avoid both the rocky shoals of literal readings that produce nonsensical results, and the whirlpool of judicial rewritings that deprive the statute of much of the effect that Congress did seek to achieve.
To date, “digital lock-up” persists in spectral guise, a grim, yet untranspired, anticipation...courts must remain vigilant that this ghost not take concrete form, they should also bear in mind the many new business models that protected [DRM] measures enable, lest insecurity dampen the prospects for these models’ development. While claiming that §1201 must be interpreted or amended with caution, Ginsburg argues that the reverse engineering exception, §1201(f), provides meaningful protection for interoperability against the DMCA anti-circumvention provisions.This provision [§1201(f)] appears to offer a significant safety valve, notably because it also permits both development of devices necessary to effect the permitted reverse engineering, and distribution of the fruits of the permitted reverse engineering. Of particular note in this paper is Ginsburg’s treatment of legislative history-intent behind the DMCA and its protection of DRM technologies. As some commentators have observed, enabling business models constitutes a major basis for the DMCA and DRM. This is supported by the DMCA's legislative history, which specifically sought to facillitate new ecommerce models which would provide the public with a greater diversity of offerings at scaled prices....Besek has explained, “providing copyright owners with the ability to preclude unlimited access was a goal of the DMCA, not just an unforeseen and unfortunate consequence.” This appears...true, even when some of the precluded access would not result in copyright infringement.
…Congress’ interest was in promoting [ecommerce] in copyrighted works, and Congress could legitimately seek to achieve this objective by making the distribution of circumvention devices unlawful... Thus, frequent criticisms of DRM, and its backing by the DMCA, that argue neither stops piracy while imposing inconvenience on consumers, are off mark in terms of how DRM-DMCA were intended to work together. DRM and the DMCA do aim, in part, to stop piracy, but they should be thought of first as business enabling mechanisms.
Ginsburg also discusses fair use, lending insight both into apparent threshhold issues with which courts have decided DMCA fair use cases, as well as parties that have sought protection under fair use. Some claims, as described by Ginsburg, have been “extravagant” in their position that §1201 “unconstitutionally ‘eliminates fair use.” The courts have observed that unprotected copies in non-digital media remained available for all the usual fair use purposes, including by means of analog copying. Although copying from protected media, such as DVDs, might be rendered more cumbersome, it was not completely foreclosed...
The courts emphasized that "[f]air use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original"...“Defendant ha[ve] cited no authority which guarantees a fair user the right to the most technologically convenient way to engage in fair use. The existing authorities have rejected that argument.” Such "abrupt treatment" of fair use issues, according to Ginsburg, reflects the contexts, in which fair use has been presented to the courts, as much as courts' perspective on the merits of the argument for "entitlement to maximally convenient fair use." In a series of passages that further suggest her support for courts' handling of fair use, Ginsburg writes:The cases have involved entrepreneurs and intermediaries who distributed circumvention devices that were perceived to facilitate piracy of DVDs and e-books. None of these intermediaries claimed to be themselves engaging in fair use... nor did they show that their customers in fact sought the devices primarily in order to engage in non-infringing uses of the playable copies of DVDs that the devices enabled. Fair use in these contexts seemed primarily pretextual...
Absent evidence that the expanded [IPRs] cannot coexist with free expression, courts should not introduce exceptions that eviscerate the statute, but recognition of the residual role of fair use in intellectual property law in general suggests that, in appropriate circumstances, courts may temper § 1201 with carefully-tailored fair use equivalent limitations. I am pleasantly surprised to see in this article that Ginsburg touts the emergence of new business models leveraged by Apple and other firms as evidence of the DMCA's beneficial impact on the digital media market. However, lets not forget that one of Ginsburg's primary concerns with copyright policy is the effect on small and independent producers:Nor are DRM protections the exclusive redoubt of the major “copyright industries." While many individual authors...artists and independent producers may disseminate their works with no technological restrictions on access or copying, new DRM-related payment methods are...taking shape...enabling creators directly to reap the benefits of digital exploitation...
In our solicitude for preserving user privileges in technologically-protected copyrighted works, we should also keep in sight the promise these measures may hold for authors and artists, and in the long run, for their public as well. Taken together, Ginsburg’s work, alongside recent copyright industry studies reported on IPcentral (HERE, HERE), gives pursuading argument that copyright is a valuable contributor to further development of digital technologies and creative production.
posted by Noel Le @ 9:30 AM | Academia, Access: Commons, Fair Use, Orphan Works, Public Domain, DMCA, DRM & Watermarks, etc.
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