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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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« California's Anti-Violent Videogame Bill Stalls | Main | Supreme Court Rejects Lexmark's DMCA Appeal »

June 06, 2005

More on "Restricted Use" vs. "License"

Posted by Ernest Miller

Earlier, I responded to Prof. Michael Madison's conjecture about the distinction between a "licensed" work and one with built-in DRM. Basically, I didn't get the distinction (DRM: Add On or Integral Part?). Madison has replied, trying to clarify his point (Tom Waits and Creative Commons).

There’s nothing in copyright law (even pre-DMCA copyright law) that says that the author can’t produce, and sell, a thing characterized as a “DRM-enabled-CD.” You can’t “license” a “book,” but so far as I know, and aside from vague prohibitions on equitable servitudes in chattels, there’s no clear rule holding that you can’t sell a “restricted use book.”
I still don't get it. What is the difference between a "restricted use book" and a licensed book as far as copyright is concerned? You can embed technical protections in a book, for example, using red print in order to thwart photocopiers. Does this, should this, change our copyright analysis if someone does photocopy a portion of the book? I would say, no, we're still looking at some sort of implied contract, covenant, negative easement, what have you and I don't think that flies with copyright, which should essentially exhaust all implied contracts regarding copyright.
Suppose the digital download service characterizes the product that you buy (not license) as a DRM-enabled-CD. Suppose further that the point of the DRM is to limit playback to you and you alone. You can move the file from device to device, but it will play only on your devices (say, your iPod) – set aside the technical reality that this won’t actually work. Now, run the DRM-enabled-CD through the Section 106 rights, with the Section 107, etc. limitations, and ask: What happens when you loan your iPod to a friend? Are you liable for copyright infringement?
What if the characterization (not license) for the DRM-enabled-CD is that the point of the DRM is to prevent quotation. You can do anything, except quote from the CD. Has this effectively vitiated fair use rights? What if the seller sold the one with the DRM for $1, characterizing it as the anti-fair-use-rights version and the one without the DRM for $10. Should this make a difference in the analysis if someone does manage to quote from the DRM-enabled-version? I don't think it should or how one could successfully make the legal argument for a distinction, absent a contract.
And before this sounds too fanciful and metaphysical, consider the Creative Commons license. No one assents to CC licenses – the “legal code” versions of the CC “deed” purport to constitute a sort of CC-wrap, but that language is so far removed from ordinary CC license notices that it really stretches the shrinkwrap fiction beyond the breaking point. I can’t imagine a court enforcing a CC license on a contract theory. So, suppose a user of a CC-licensed work violates the license. Does the author of the work have a remedy? I’d like to think so. But I suspect, also, that the only legitimate way to get there may be to argue that the user accessed a “CC-licensed work,” no assent to terms involved, rather than a “work.”
The question of Creative Commons license enforcement is a very involved one that I don't want to address right now. However, there is a distinction. Creative Commons licenses purport to give people rights above and beyond existing copyright law. For example, normally, reproduction and distribution would be infringement, but Creative Commons licenses frequently allow people to do this. On the contrary, DRM-enabled-CDs purport to take away rights that copyright law reserves to the public.

UPDATE 1000PT

Madison responds (More on CC and Things). With regard to Creative Commons:

[T]hat depends on the relevant CC license and the relevant term. CC licenses give authors some rights that copyright doesn’t – most importantly, attribution/non-attribution rights. (Also, the commercial/non-commercial distinction maps only imperfectly to the “commercial” dimension of fair use.)
CC doesn't give authors any rights that copyright does not. If you want to make fair use of my works, there is nothing that CC can say on the matter. However, if you wish to infringe copyright, then CC provides the terms under which one may do so.

There seems to have been a misunderstanding on some of the other disagreements:

More generally, Ernie argues (I infer) that copyright law means that you can’t design information goods in ways that defeat statutory rights, so my “DRM-limited-CD” is no different, really, than a book wrapped with a “no fair use” label (my simplifying example, not his).
That's not what I'm arguing at all. It should be perfectly legal to sell DRM-encumbered books, CDs, what have you. However, it should be just as perfectly legal to circumvent these restrictions. There might be exceptions, antitrust is one possibility, copyright misuse another, but in general, I have nothing against DRM-encumbered items. I oppose legally enforcing that DRM.

Comments (2) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Digital Rights Management


COMMENTS

1. Bill Herman on June 6, 2005 05:07 PM writes...

Props on clarifying how CC licenses work.

The parts of this post about circumvention of technical protection measures, however, are misleading.

In principle, it should not matter if I hack into use-control technologies to make noninfringing uses of a product I've legally obtained. Unfortunately, virtually every meaningful use-control technology is really a dual-purpose technology that also (in some sense) controls access. CSS (which encrypts DVDs) is a great example; hacking around CSS to make a backup of your DVD collection is illegal, even though you have the legal right of access. Because it's ALSO an access control technology, CSS is protected entirely from any legal tampering. In fact, most use-control technologies are dual-purpose (thanks to this catch, expect them all to be quite soon), which renders useless the legal right to circumvent use-control measures for non-infringing purposes (e.g., criticism).

So it really does make a difference "if someone does manage to quote from the DRM-enabled-version" as opposed to one that is merely shrinkwrap-licensed, so long as one circumvents an access control technology in order to make said quote. ([DON'T] Try this: Hack a DVD, extract a perfect digitally copied clip of 10 seconds, include it in a 2 hour documentary. Watch the studio's lawyer explode about 1201 in court. Watch the judge agree, setting 107 aside.)

The only source for exemptions is the triennial rulemaking conducted by the Register of Copyrights. Thanks to a very narrow reading of the statute, however (which, in the Register's partial defense, was prompted by committee reports), these exemptions are and will forever be impossibly narrow. For instance, you can circumvent the access control measures of a censorware program to determine the list of websites that the program is blocking, but you cannot do the same with a spam filter or firewall. See full details at http://www.copyright.gov/1201/index.html.

In an effort at further clarification, I hope and assume you mean the last paragraph prescriptively rather than descriptively. If so, I agree wholeheartedly and would add the following: the Sony standard of substantial noninfringing uses should also apply to the design and distribution of technologies that circumvent access or use control measures. The legal exceptions to copyright law should not be reserved to the tech-savvy.

Bill

P.S. The phrase "DRM," short for "Digital Rights Management," begs the question as to whether a media producer is managing something that they legally enjoy as a "right"--as opposed to, say, destroying the principle of first-sale. In my writing, I prefer the term "Technological Protection Measures," or "TPM," and I think "DRM" is still used in such a small population of geeks & wonks that we could turn the tide before it's as common as "PDA" or "GPS".

Permalink to Comment

2. Ernest Miller on June 6, 2005 09:00 PM writes...

Thanks for the clarification, but I would like to point out that I am well aware of the distinctions between 1201(a) (access control) and 1201(b) (copy control) devices. I've written extensively on the subject, including in comments to the Copyright Office as part of the triennial review. For one example of my writing on the distinction, please see here: Misleading DMCA Article

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