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).
Theres nothing in copyright law (even pre-DMCA copyright law) that says that the author cant produce, and sell, a thing characterized as a DRM-enabled-CD. You cant license a book, but so far as I know, and aside from vague prohibitions on equitable servitudes in chattels, theres no clear rule holding that you cant 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 wont 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 cant 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? Id 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.
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 doesnt 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 cant 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.