Wendy Gordon- response to Derek

Derek Slater's comment is very helpful, in emphasizing Fred's central thesis, and pointing back to the online world. But I wonder if the retail level is really irrelevant online, especially when evaluating the costs of the DMCA.

For example, I assume that encryption and other TPMs aren't used simply to make copying difficult. Sometimes, as I understand it, TPM devices also work to keep people from having online access until they pay money and agree to various contract terms.
 

So let's say that in some future world, paper copies are rare, and the only way to access Shakespeare and Cervantes is online. Bundle a copyrighted introduction with the complete public domain works of Shakespeare, or add a new translation to Cervantes' original Spanish, and these two classics could be locked behind a cryptolope that in turn is protected by the DMCA.
Now return to my non-Darknet user.  Put that user into the imagined world, and say that she wants to download a complete version of Hamlet, and it's only available bundled with a copyrighted introduction.  She has no use for the introductory material, but because it is bundled with the public domain material, and the whole is behind a cryptolope, the DMCA bars access to the whole. Without some kind of lawful decryption tool (whether available online or at a physical Staples store) and without a lawful liberty to decrypt, she must accept whatever contract terms are demanded. And given the current state of pre-emption and contract law, it's conceivable that the contract might lawfully require all sorts of restraints: that that she not stage the play with a man playing Ophelia, that she not ridicule Polonius too much, that she pay a royalty to the online provider every time she stages the play… 

Obviously, my hypothetical has flaws. For example, even without the DMCA, state laws might make it unlawful to bypass whatever 'gate' the online provider uses, so that the DMCA could become irrelevant. Or there could be a multitude of alternative sources for Hamlet, which would make the online provider's leverage negligible. But bear with me-- I'm just speculating what might happen if the most practical source for a copy has these restraints attached, and if the force of these restraints rested in part on a DMCA-protected TPM.

Without the DMCA, our Hamlet fan might be able to get lawful access to a decryption tool and with it to the public domain material, free of the onerous contract. With the DMCA, she has no such choice. And the result might be more than a restraint on mass copying (which was supposedly the DMCA's goal) -- such contracts can restrain the use of facts, public domain texts, and analog liberty, too.

As Derek would note, the example above is irrelevant to the main focus of Fred's paper, namely, the extent to which the DMCA fails to prevent unlawful copying. But both Fred's paper and this blog have been concerned with the next question to arise: once we assess the (in)efficacy of the DMCA in doing what it was supposed to do, what are the costs to be weighed against the alleged benefit? It's that question of costs that my example primarily addresses. 

To pull this all together: What we've been calling the "retail" level is really the level of the lawful user. As several posters have pointed out, the DMCA doesn't stop unlawful copying by those people-- they'd obey the law anyway. For them, what the DMCA does is stop fair uses, and impose extra costs (and contracts) on the use of material that might otherwise be lawfully and freely available. So the DMCA can be seen as a law that hurts the lawful users, to stop the unlawful ones. 

 In turn, that reminds us of why the question Fred raises is so important: for what purported benefit does the DMCA sacrifice the lawful use of information?

 

 

(Regarding the above, I'd particularly appreciate comments on whether I correctly understand the technology and its link to contract.)

Comments

[Clinton Blackmore]

Right now, I am able to buy books, DVDs, or video games, and lend them, re-sell them, or burn them. Yet if I buy an e-book, I can do none of the above (well, short of doing it to the physical object that houses the data.)

The question begs to be asked, what will become of libraries (or video-rental stores, or used-books stores)? I use the library all the time; there are tons of books -- hundreds or thousands of dollars worth -- that I read once (and some that I read repeatedly). I would be immeasurably poorer if I did not have access to that knowledge.

I understand and agree that the authors, actors, programmers, and even producers, distrubuters, and retailers deserve to be paid. But a balance needs to be maintained: How will our society advance if all its knowledge is locked up? If only rich people have access to information, how will we ever break the poverty cycle?

It seems to me that far from "keeping honest people honest," DMCA-style legislation either forces honest people to become dishonest, or re-lables that which they have always been doing as dishonest.

Has there been any benefit from the DMCA? Or, perhaps more accurately, has there been a net benefit to the common man?

[Bruce]

What we've been calling the "retail" level is really the level of the lawful user. As several posters have pointed out, the DMCA doesn't stop unlawful copying by those people-- they'd obey the law anyway.

I'm not sure this is accurate. A lock on a gate signifies something, in addition to being a physical barrier to access. It signifies that the property owner is serious about not allowing unauthorized access; and that, in conjunction with our ordinary norms surrounding property rights, "keeps honest people honest" in a different way than a mere sign saying "Park closed after 9pm" does. I think the lack of any encryption is part of the reason so many ordinary consumers find it counterintuitive that there are any restrictions on what they can do with the music on the CDs that they have purchased. Ideally there would be perfect knowledge of the law by all those inclined to follow it, but in the real world, Section 1201 may allow us to replace the norm "copying music is wrong, except when you have permission, or it's fair use, which has a 4-factor test, or it's public domain, which is not as straightforward as it seems..." with "don't use illegal decryption tools" -- assuming TPMs someday become widespread enough that most content that the owner is serious about protecting is protected by a TPM.

Put that user into the imagined world, and say that she wants to download a complete version of Hamlet, and it's only available bundled with a copyrighted introduction.

I think it's relevant to your hypothetical to consider the conditions under which such a situation would occur, and particularly when a technologically protected work would be accompanied by all sorts of restrictive contractual terms an ordinary consumer might find burdensome. It seems exceedingly unlikely that the only versions of Hamlet that one could find would be bundled with introductions, because there is currently very little cost in obtaining a copy, and thus nothing to stop free copies from being distributed in the future. Even if someone managed to be one of the first to digitize a public domain text, placing all sorts of restrictions on use would simply make it more likely that some other person would put the effort into making an unrestricted version available, and nothing in the DMCA or copyright law would prevent that. And if it's not a public domain work we're talking about, I think that decreases the power of your hypothetical, since the user's ability to make a legitimate copy would be constrained by the copyright owner's rights.

Even for copyrighted works, in competitive markets at least, there will be a check on how restrictive TPMs and their associated licensing terms will get (on average -- there are always flukes), which is the profits made by competing media creators and distributors. Assuming a competitive market (and I think a lot of the concerns expressed here have been assuming exactly the opposite), I think we should expect that the most restrictive terms and technologies will accompany the most recent, highly sought after material, and that conditions will decrease as time passes -- which is somewhat analogous to what we see today in at least the motion picture industry with its distribution "windows," or even book publishing with hardcover and softcover editions. Why should consumers be forced to either wait months or buy a durable cover that they do not think they'll need? The answer is that no one forces consumers to buy hardcover editions, or buy books at all as opposed to waiting until they appear in libraries. But if you want to read a book at midnight on the day it's released, you have to buy the hardcover edition. The answer to why consumers should have to bear whatever costs there are to TPMs (e.g., no copying under any circumstances) may be that if you want the hot new content, that's the condition on which you'll be granted early access. Legal protection of TPMs makes early-window releases in digital form to the home market (such as DVDs) more financially feasible, and thus hopefully more likely to occur, in greater variety.