Although Netanel mentions in Chapter 4 of technical content protection mechanisms (or DRMs) that greatly extend the copyright holder’s rights beyond the rights given by the Copyright Act, I was slightly disappointed with his subsequent over-emphasis on DMCA because I believe that the technological developments that are being spearheaded by industry consortiums has a potential of imposing even greater burdens on free speech than the burdens noted in Chapter 6. Of course this point is not a new one and has been brought up by various commentators but I wish Netanel had spent a little more space in his book discussing this point and addressing this problem in his subsequent chapters. 

The problems of DRMs have been extensively discussed by other commentators and I don’t think I have much to contribute to that discussion.  Netanel does note the problem of DRMs by stating that “given those technological controls, it will not be possible to cut and past images and sounds from culturally salient expression to create artistic collage, video mix, machinima, political commentary, fan fiction, or even grade school research projects.” He, however, quickly proceed into discussing DMCA and his analysis goes as follows: (1) if there are technical restrictions, you could break the restrictions, (2) but DMCA prohibits even legitimate hacking for legitimate situations, (3) therefore “most people will be unable to obtain the tools they need to circumvent technological protection measures in order to engage in fair use or other noninfringing copying.”  My point is that, it is increasing likely that people will not be even able to progress beyond the first stage, i.e., the public will simply be unable to bypass the technical restrictions and consequently the public’s fair-use rights may be severely eroded by DRM systems. 

Some industry observers somewhat flippantly dismiss the this problem by claiming that the industry can not create a perfect DRM system and arguing that all technological restrictions will eventually be defeated.  It is true that historically hackers have been winning the battle against the industry. Most DRM systems have been broken, some almost immediately after the system had been introduced, and some almost with trivial effort by the hackers. I do not believe that this trend will continue on in the future.  First, companies have become far more sophisticated in designing DRMs and have learned from previous mistakes. (for example, DTCP/IP (Digital Transmission Content Protection over Internet Protocol) specification even has a provision on number of transmission “hops” that a media content may go through, which means if such specification is adopted, sharing content between computers or devices within a single home may be prohibited) Second, as consumer electronics gets more powerful technological, it will be easier to implement more sophisticated systems in them (for example, some of the televisions that are being sold right now probably have more computation power than personal computers that we used couple years ago).  Finally, there is much greater pressure exerted to the consumer electronics companies by the media industry to develop better DRM system.  Previously, media industry didn’t care too much about what consumer electronics companies did.  And for the most part, consumer electronics companies manufactured products that made it easy to copy content because that is what consumers wanted. This is not the case anymore. Media companies have become more active participants in industry consortiums and will kill any standards that they believe don’t provide that sufficient protection.  Also, consumer electronics companies are liable to large multi-million dollar fines if their device is found to have a defect that allows a hacker to bypass the DRM system, which gives tremendous incentive for the consumer electronics companies to lock down their products as much as possible. 

This problem is compounded by the emergence of industry consortiums.  The public will not be able to opt out of the system because the all consumer electronics will include (onerous) restrictions.  Therefore the market will fail to put any limitations on the restrictions.  For example, HDMI, which is rapidly becoming a dominant standard in interfacing digital media devices, was developed primarily to plug in the analog hole, where a person is able to duplicate a digital content by playing the content over an analog channel, by passing any DRM mechanism that may be present in the digital player. [Think of copying a DVD movie by connecting the DVD player to a VHS player, or connecting an iPod back to a recording device through a regular audio player.]  Other examples include Digital Flag in DTVs, BluRay/DVD, etc.  [Of course there are counter-examples in DRM-free music].  The problems noted by Netanel, such as barrier to entry, problems of vertical integration, becomes much more problematic.  I think in this light, Netanel’s antitrust analysis gets more bite.  Industry consortiums have been discussed by commentators and potential antitrust problem arising out of them.  Some commentators have focused on issue of patents arising out of consortium but I think the analysis from patents can be easily transferred to copyright. 

So what happens to Netanel’s argument for compulsory licensing?  I don’t think compulsory licensing will solve this problem is any way.  Even if I can license something from you, it will be meaningless unless I have the means of using that license.  I think a preferable way would be to create a clear statutory right to fair use and require that any digital system uphold those rights. 

I think a more interesting question is of the similarities and dissimilarities between copyright and patents.  While both are intellectual property there are substantial differences in the regulatory approaches.  At the same time, there are many areas where each could borrow from each other, such as maintenance fees (I think someone mentioned a similar idea in the previous class), compulsory licensing and reasonable royalties in the patent field.  I also find it interesting that the Supreme Court has somewhat moved away from strong property rights in patents in eBay while moving towards stronger property rights in copyright in Eldred (kind of, I know that the holding in both cases is not directly on point but I am talking more general treatment by the courts).