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Tuesday, December 04, 2007

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Dennis D. McDonald

Thanks for such a useful review of this book, Bob. I'm going to get it. I note, unfortunately, that my interest in copyright in general has waned as I have realized that political and economic forces are using the law and the political process as a way to protect increasingly obsolete business models. This is a far cry from what copyright law was originally intended to do. Sadly, I've also had to add "corruption" to the list of tags I use when tagging some articles related to these topics, as in "corruption of the political process."

Maybe this all is just evidence that intellectual property in digital form is an increasingly important focus of economic activity. I also wonder if there is increasing convergence between the use of technology to monitor and control use of intellectual property (for DRM purposes) and the monitoring and control of communication by national governments for political and dictatorial purposes.

Tarleton Gillespie

Bob... many thanks for your kind words and thoughtful comments. I'm so glad that the book sparked your interest.

I can't agree enough that the discussion about DRM as a mechanism for regulating and commodifying the flow of information needs to incorporate patent rather than overlooking. As I was doing the research, patent concerns were only in my peripheral vision, and only as a parallel question about ownership in the digital age. But your point about DRM patents really does open up another dimension of the question. I do point out that many of the tech companies, who might once have been deeply ambivalent about pursuing the encryption systems the entertainment industry has been so eager to develop, may be growing more comfortable as they increasingly become providers of the DRM technology itself, and as such, more financially invested in the entire project. I suppose that is implicitly a point about the value of these patents, though its worth saying so more explicitly.

As for the point about fair use, I think your point about its standing as merely an affirmative defense is actually the heart of my point. Because it is not an established right, but only a possible defense against an infringement suit, you argue that it is unproblematic for a content provider to simply draft a contract that prohibits uses that might, in another context, enjoy that defense. It seems to me that this is exactly the concern. As drafted, the fair use defense is a defense, but the presumption is that its always available to someone who has been sued. And its availability does, as acknowledged by the courts, offer some breathing room for experimentation, both technical and cultural. But if that defense is rendered unavailable, either by contract or by design of a DRM system, then we have lost it as an option in those cases. Perhaps a different way to say it is that, when it was drafted in 1976, if the legislators had known that it could be sidestepped by clever content owners, maybe the would have offered it as a right instead of a defense. Instead we now have talk about certificates and exceptions, that might conceivably be voluntarily offered by content owners (though I don't see why they would, except out of some roundabout self-interest, unless obligated to by law), when at one point fair use offered a more robust (if never certain until tested) ground: not requiring permission, not requiring compensation, even to some extent against the economic interests of the owner. I believe these were important elements, and even as an affirmative defense, they were there in principle and thus articulated as valuable. Now they can be written or designed away, and that is of concern to me.

Thanks again for your insights.

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DRM Defined


  • Digital Rights Management is the association of rules governing use and use consequences with digital information of all kinds and the enforcement of those rules at a distance in time and space.

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