Julie's paper raises numerous interesting and important issues, but let me focus on one that has yet to be discussed--how to think about and critique DRM in light of Julie's analysis.
The genius of analog fair use cases (Julie, sorry for belaboring this point), and the missing ingredient in most DRM approaches, is that it focuses on the particulars of the user at hand. In the DRM context, however, courts--such as the Second Circuit in the DeCSS case--struggle to identify some archetypical user and judge the importance of circumventing copy protection systems accordingly. In the DeCSS case, Lessig and Benkler made their First Amendment argument based on the case of a romantic user--a ten year old student using a snippet of Schindler's List in digital form to examine the horrors of the Holocaust. Hollywood countered with the worst form of an economic user--the digital pirate. In the end, the Court adopted only a temporary answer--that with the availability of analog fair use opportunities, romantic users still had an opportunity (albeit with an inferior technology) to do their thing and thus there was no constitutional harm to precluding digital copying of otherwise protected content.
For DRM solutions to begin to approximate the flexibility of analog fair use opportunities, they will need to recognize the implications of the situated user--distinguishing, for example, between the user who edits a movie to place herself in the title role for her friends and the person making that same movie available for widespread copying. As many have emphasized, stopping all copying would stiffle creativity and cultural discourse. Not to mention, it also, as Sony recently learned, pisses off customers of all kinds.
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