Digital Rights Management and Consumer Acceptability: A Multi-Disciplinary Discussion of Consumer Concerns and Expectations

The INDICARE project – the Informed Dialogue about Consumer Acceptability of DRM Solutions in Europe – has been set up to raise awareness about consumer and user issues of Digital Rights Management (DRM) solutions. One of the main goals of the INDICARE project is to contribute to the consensus-building among multiple players with heterogeneous interests in the digital environment. To promote this process and to contribute to the creation of a common level of understanding is the aim of the present report. It provides an overview of consumer concerns and expectations regarding DRMs, and discusses the findings from a social, legal, technical and business perspective. A general overview of the existing EC initiatives shows that questions of consumer acceptability of DRM have only recently begun to draw wider attention. A review of the relevant statements, studies and reports confirms that awareness of consumer concerns is still at a low level. Five major categories of concerns have been distinguished so far: (1) fair conditions of use and access to digital content, (2) privacy, (3) interoperability, (4) transparency and (5) various aspects of consumer friendliness. From the legal point of view, many of the identified issues go beyond the scope of copyright law, i.e. the field of law where DRM was traditionally discussed. Often they are a matter of general or sector-specific consumer protection law. Furthermore, it is still unclear to what extent technology and an appropriate design of technical solutions can provide an answer to some of the concerns of consumers. One goal of the technical chapter was exactly to highlight some of these technical possibilities. Finally, it is shown that consumer acceptability of DRM is important for the economic success of different business models based on DRM. Fair and responsive DRM design can be a profitable strategy, however DRM-free alternatives do exist too.Digital Rights Management; consumers; Intellectual property; business models

Conceptualizing Copyright Enforcement and Management in the Digital Age Through Two Models: The Right-Holder-Centric Model and Cooperative Model

This dissertation focuses on the issues of copyright enforcement and management. Especially, the research looks into how the digital technology reshapes the general perceptions and landscape of the copyright system in terms of online enforcement and management. Stepping into the digital age, the interaction between copyright holders and other parties, including online users and the ISPs, establishes two coexisting models—the right-holder-centric model and the cooperative model. Therefore, the dissertation analyzes which model is more appropriate and efficient with respect to online copyright enforcement and management. As a matter of fact, the coexistences of two models provides copyright holders and other parties with multiple options in terms of copyright enforcement and management. Each model has distinctive features and mechanism, and builds upon different perceptions and foundations. The idea that one model can replace the other does not support the analysis in this dissertation because each model covers strengths and weaknesses. Consequently, each model should be the supplementary option to the other according to specific circumstances. To sum up, the two models should works as a general entity to promote the copyright enforcement and management

Fair Circumvention

Judicial decisions construing the key liability provisions of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. - 1201, cluster around two incompatible poles. One set of decisions construes the DMCA\u27s liability provisions broadly, emphasizing the need to prevent possible copyright infringement and limit the public availability of tools that may be used to infringe. Other cases construe the same language narrowly, stressing the avoidance of anticompetitive market distortions. Both sets of decisions insist that their interpretation is commanded by the literal text of the DMCA. A closer look, however, reveals that both sides have overstated the support they may plausibly draw from the literal text of the statute. The overreading of the statutory text ultimately limits the persuasive reach of both sets of decisions and inhibits the development of a rational body of doctrine under the DMCA. I argue that the courts\u27 disagreements over the meaning of the DMCA\u27s language obscures what should happen (and may, by some accounts, be happening already): to wit, the development of a set of judge-made exceptions to DMCA liability based upon the courts\u27 historically independent role in copyright policymaking. The same factors that have been thought to justify an expansive copyright policymaking role for the courts support a similarly prominent judicial role in under the DMCA - a role that the courts should not be so quick to relinquish by offering poorly supported statements about what the literal statutory text is perceived to command. The emerging fair circumvention doctrine can explain and justify the courts\u27 divergent decisions in a way that merely parsing the statutory text cannot, and can provide guidance for future courts and litigants. I conclude that the courts should continue to develop fair circumvention exceptions to the DMCA, but should do so (1) explicitly, and (2) based, at least initially, on criteria drawn from existing copyright principles of fair use

MAPPING THE INFORMATION ENVIRONMENT: LEGAL ASPECTS OF MODULARIZATION AND DIGITALIZATION

The Article highlights the language of the digital and the principle of modularization as the basic concepts which the further development of the information environment will have to pivot around, regardless of how conflicts between freedom and control are temporarily solved. Perceiving both the computer and the Internet as complex systems, the authors look at how modular design of these systems freed the functionality of applications from the physicality of infrastructures, describe the evolutionary gains adhering to modularity, and how to preserve them - elaborating on the issues of access to the cable platform for broadband Internet and to virtual networks for computer technology. Their second focus shows how digitalization of information makes possible the merger of content and its protection. Especially through the use of DRM systems, private actors can create right enforcement mechanisms independent of the State. The legal system therefore faces new and more complex relations between private will and public sovereignty. In such a merged system it is harder to maintain freedom - much like in the fusion of function and infrastructure

SOFTWARE INTEROPERABILITY: Issues at the Intersection between Intellectual Property and Competition Policy

The dissertation project proceeds through three papers, analyzing issues related to software interoperability and respectively pertaining to one of the three following interdependent levels of analysis. The first level addresses the legal status of software interoperability information under current intellectual property law (focusing on copyright law, which is the main legal tool for the protection of these pieces of code), trying to clarify if, how and to what extent theses pieces of code (and the associated pieces of information) are protected erga omnes by the law. The second level complements the first one, analyzing legal and economic issues related to the technical possibility of actually accessing this interoperability information through reverse engineering (and software decompilation in particular). Once a de facto standard gains the favor of the market, reverse engineering is the main self-help tool available to competitors in order to achieve interoperability and compete “inside this standard”. The third step consists in recognizing that – in a limited number of cases, but which are potentially of great economic relevance – market failures could arise, despite any care taken in devising checks and balances in the legal setting concerning both the legal status of interoperability information and the legal rules governing software reverse engineering. When this is the case, some undertakings may stably gain a dominant position in software markets, and possibly abuse it. Hence, at this level of analysis, competition policy intervention is taken into account. The first paper of the present dissertation shows that interoperability specifications are not protected by copyright. In the paper, I argue that existing doubts and uncertainty are typically related to a poor understanding of the technical nature of software interfaces. To remedy such misunderstanding, the paper focuses on the distinction between interface specifications and implementations and stresses the difference between the steps needed to access to the ideas and principle constituting an interfaces specification and the re-implementation of a functionally equivalent interface through new software code. At the normative level, the paper shows that no major modifications to the existing model of legal protection of software (and software interfaces) are needed; however, it suggests that policymakers could reduce the Fear of legal actions, other forms of legal Uncertainty and several residual Doubts (FUD) by explicitly stating that interface specifications are unprotectable and freely appropriable. In the second paper, I offer a critique of legal restraints on software reverse engineering, focusing in particular on Europe, but considering also similar restraints in the US, in particular in the context of the Digital Millennium Copyright Act. Through an analysis of entry conditions for late comers and of the comparative costs of developing programs in the first place or reverse engineering them, the paper shows that limitations on decompilation imposed by article 6 of the Software Directive were mostly superfluous and basically non-binding at the time of drafting. What is more, the paper shows that nowadays new – and largely unanticipated – developments in software development models (e.g. open source) make these restraints an obstacle to competition against dominant incumbent controlling software platforms. In fact, limitations on the freedom to decompile obstacle major reverse engineering projects performed in a decentralized way, as in the context of an open source community. Hence, since open source projects are the most credible tools to recreate some competitive pressure in a number of crucial software markets, the paper recommends creating a simpler and clear-cut safe harbor for software reverse engineering. The third paper claims that, in software markets, refusal-to-deal (or “information-withholding”) strategies are normally complementary with tying (or “predatory-innovation”) strategies, and that this complementarity is so relevant that dominant platform controllers need to couple both in order to create significant anti- competitive effects. Hence, the paper argues that mandatory unbundling (i.e. mandating a certain degree of modularity in software development) could be an appropriate – and frequently preferable – alternative to mandatory disclosure of interoperability information. However, considering the critiques moved from part of the literature to the Commission’s Decision in the recent European Microsoft antitrust case, an objection to the previous argument could be that – also in the case of mandatory unbundling – one should still determine the minimum price for the unbundled product. The last part of the paper applies some intuitions coming from the literature concerning complementary oligopoly to demonstrate that this objection is not well grounded and that – in software markets – mandatory unbundling (modularity) may be a useful policy even if the only constraint on the price of the unbundled good is the one of non-negativity

Digital Attribution: Copyright and the Right to Credit

In a 1951 article in Science magazine, librarian Ralph Shaw argued that copyright law paid insufficient attention to the attribution interests of authors. Shaw observed that the straightforward pecuniary interests of publishers diverged from the more complex reputation-based interests of authors. He noted how authors and publishers might have differing views regarding the benefits of providing thousands of copies of a work for “free distribution.” Of course, since Shaw had pointed out that no sensible publisher would be interested in giving away such free works, the example he used was fanciful at the time. Today times have changed. The World Wide Web delivers a hyperlinked high-speed information environment that Shaw could not have imagined. Most importantly, just as Shaw predicted, authors are now giving away thousands—even millions—of free “reprints” and realizing what Shaw described as “a great additional profit… in terms of professional credit.” Copyright law, for various reasons, has largely ignored this fact. Shaw\u27s “right to credit” is still as much a fantasy as the World Wide Web was half a century ago. This article takes up Ralph Shaw\u27s call for a right to credit in a new era of networked information systems. Copyright law should be adjusted to take into account the growing importance of open access forms of copyright creation and reputation economies. Prioritizing the legal importance of attribution in copyright is a change that is long overdue. The contemporary digital environment provides an opportunity and an important additional reason to revisit Shaw\u27s salient distinction between the motivations of authors and publishers

Study on the Implementation and Effect in Member States\u27 Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society: Final Report

This study, commissioned by the European Commission, examines the application of Directive 2001/29/EC in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is \u27to assess the role that the Directive has played in fostering the digital market for goods and services in the four years since its adoption\u27. The impact of the Directive on the development of digital (chiefly online) business models, therefore, will be the focal point of our enquiry throughout this study

The Theoretical Case Against Criminalized Copyright Infringement in Canada

Criminalized copyright infringement has existed in Canada for close to a century. It has continued to expand in scope and severity since its first appeared in the Copyright Act, 1921. As Canada approaches 2017’s scheduled review of the Copyright Act, the time has come to ask whether the criminalization of copyright and its enforcement is theoretically justifiable. Yet, Canadian scholarship on criminalized copyright infringement is particularly scarce; there is a noteworthy gap in the existing literature wherein no one has systematically argued against criminalized copyright infringement from a theoretical perspective. This thesis aims to fill that gap, setting out a systematic legal and theoretical argument that criminalized copyright infringement, whether for personal use or financial gain, cannot be theoretically justified. In the absence of theoretical justification, the Government should move to decriminalize copyright enforcement