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Many consumers, content creators and digital service-device firms will agree that current deployment of DRM in the digital media industry is not perfect. Consumers can find themselves restricted in their use of digital content in ways that nobody thinks is optimal, creators may perceive their markets are narrowed by fragmentation of DRM schemes, entertainment firms may find themselves at a disadvantage in entering new markets. Nearly everyone has some interest in improving DRM. Where these groups diverge is on the question of what to do with imperfect deployment of DRM.
To address how DRM deployment can be improved, I'd like to point readers to a recent article by Victor Nicholas Knipe from Georgetown University Law Center. Private Copyright: Digital Rights Management Systems and the Consumer, ExpressO Preprint Series Working Paper 2024(February 2007). Knipe has several fundemental and important insights on the effects of consumer demand on DRM deployment, and reverse engineering under the DMCA, that make this article worth reading.
First, Knipe argues that market forces, shaped by consumer demand, will positively affect the deployment of DRM. This has long been the position of DRM supporters, who know that content creators, and digital media service-device firms, wage their existence on how well they cater to consumers. …the situation is not so dire so as to think DRM will spell the end of time shifting and space shifting. There is huge consumer demand for devices that facilitate this kind of use. It is irrational to assume the digital content market would be unable to find an agreeable solution in the face of such high demand… High consumer demand can promote solutions where both the interests of consumers and content holders are accounted for. Note how Knipe says that both the interests of consumers and producers can be resolved in the market with DRM. When consumers and producers are each given consideration, there is a market, and consequently, the possibility for a market oriented solution.
There is a trade-off any time consumers and producers meet. Producers have the more difficult role; they must look after the interests of consumers, as well as their own. Consumers need only consider their own interests. As a policy commentator, I see implications of this imbalance in popular discourse, and therefore I find it important to give voice for producers, those who bring society creative and inventive productions. Its not good for society and long term consumer welfare if producers do not have incentive to create, commercialize and improve on creations.
Second, Knipe argues that the DMCA's construction, which has been cited as so muddled as to not provide any real protection for reverse engineering, has been coherently applied by courts: "the language of the DMCA is not so draconian that courts apply a per se rule to circumvention of DRM technology." Thus, the DMCA is not a per se ban on reverse engineering, neither on its face or in its application. The reverse engineering exception does provide meaningful protection for interoperability. While this point may seem either obvious or banal, its one of the first lines of attack by DMCA critics whose ultimate goal is nothing more than the freedom to tinker.
Knipe makes a critical observations in his discussion of the DMCA case-law; that the “unauthroized copying” done in the course of reverse engineering is deemed permissible “intermediate copying” by courts in deciding reverse engineering cases. Knipe further points out that courts have limited the reach of the DMCA’s anti-circumvention provision, narrowing its application to only copyrighted works and not down-stream device markets. Knipe states: …content holders could not rely on the DMCA to enforce private protection measures for property rights not granted by the Copyright Act. This reasoning is supportive of permitting new entrants into a technology market platform. Knipe does raise one often overlooked and disturbing issue in "Blizzard v. BnetD;" that the court upheld Blizzard’s EULA prohibiting users from reverse engineering its technologies. I agree with Knipe that such use of contracts to essentially jettison the 1201(f) exceptions in the DMCA may prove harmful to competition, innovation and thereby consumers; yet I will point out that other legal commentators have found the situation less bleak. See Daniel Laster, The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering for Interoperability Purposes, ExpressO Preprint Series Working Paper 975 (February 2006).
Knipe makes several other arguments in the paper, including the possible benefit of tailoring the traditional aspect of copyright misuse to curb the DMCA's anticircumvention provision. Some readers may also be interested in Knipe's description of encryption DRM schemes and the intricate nature of DRM systems that facilitate business models.
posted by Noel Le @ 2:20 PM | Academia, DMCA, DRM & Watermarks, etc.
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