DRM Is The Right To Make Up Your Own Copyright Laws

from the why-anticircumvention-laws-are-a-problem dept

We've written about the problems of DRM and anti-circumvention laws since basically when we started way back in 1997. Cory Doctorow has been writing about the same stuff for just about as long (or perhaps longer). And yet, just when you think everything that can be said about this stuff has been said, Doctorow comes along and writes what may be the best column describing why DRM, combined with anti-circumvention laws, is so incredibly nefarious. Read the whole thing. It's so well done, and so important, I'm actually going to write two posts about it, because there are two separate issues that deserve highlighting.

The first concerns just how the combination of DRM and anti-circumvention is effectively a way that the content industry (and many other industries since) have been able to void the limitations on copyright law. Here's the key paragraph, which follows a discussion of the Reimerdes case, which more or less said that breaking any DRM is illegal in itself, even if the circumvention is done for legal reasons. And, because of that, we've taken copyright out of the law, and put it into the DRM:

Ever since Reimerdes, it's been clear that DRM isn't the right to prevent piracy: it's the right to make up your own copyright laws. The right to invent things that people aren't allowed to do – even though the law permits it -- and to embed these prohibitions in code that is illegal to violate. Reimerdes also showed us that DRM is the right to suppress speech: the right to stop people from uttering code or keys or other expressions if there is some chance that these utterances will interfere with your made-up copyright laws.

This is an important point summarized so perfectly that it deserves to be repeated over and over again. Because any circumvention of DRM is considered illegal, even if the purpose of the circumvention itself is legal, it basically gives not just "the copyright industries" but pretty much any industry the road map to stop people from making, say, fair use of copyrighted works. Or, worse, preventing them from tinkering with products they own. It allows them to wipe out fair use and other important user rights -- by just writing into code that it's not allowed, and even though that code is easily breakable, making that code breaking itself a form of "infringement."

In short, DRM with anti-circumvention restrictions lets industries simply route around the aspects of copyright law that are designed to protect the user's rights.

And, because of that, Doctorow wonders if there's a chance go to back and revisit the Reimerdes case, and bring back freedom to the public. As we've noted in the past, fair use is not, as some would have you believe, a "limitation and exception" to copyright, but rather a definition of the public's rights, whereby copyright is a limitation on those rights. DRM with anti-circumvention actually blocks those rights. Cory further points to another milestone case involving software, Bernstein v. US, in which it was determined that software was a form of speech, and that restricting it was a First Amendment violation. Doctorow notes that Reimerdes goes against that ruling -- and he thinks that this, plus a decade plus showing the damages done to the public's rights because of the anti-circumvention provisions of the DMCA, open up a real opportunity to revisit the issue:

No court case is ever a sure thing, but I believe that there's a good chance that a judge in 2014 might answer the DMCA/free speech question very differently. In 14 years, the case for code as expressive speech has only strengthened, and the dangers of censoring code have only become more apparent.

If I was a canny entrepreneur with a high appetite for risk -- and a reasonable war-chest for litigation – I would be thinking very seriously about how to build a technology that adds legal features to a DRM-enfeebled system (say, Itunes/Netflix/Amazon video), features that all my competitors are too cowardly to contemplate. The potential market for devices that do legal things that people want to do is titanic, and a judgment that went the right way on this would eliminate a serious existential threat to computer security, which, these days, is a synonym for security itself.

We've seen entrepreneurs take on these kinds of high risk/high reward challenges before (Aereo comes to mind, though so do ones that ended up failing in court, such as ivi and Zediva), so this seems like a very real possibility. This would be an important ruling not just to free up innovation, but to bring back the rights of the public, and to stop an encroachment that began years ago, entirely at the behest of a legacy entertainment industry who was focused on using mechanisms of control to remove the freedoms of the public, solely to protect an obsolete business model.

Filed Under: anti-circumvention, bernstein, code, copyright, cory doctorow, drm, fair use, free speech, reimerdes