Digital Rights Management and the Process of Fair Use

Producers of digital media works increasingly employ technological protection measures, commonly referred to as digital rights management (or DRM ) technologies, that prevent the works from being accessed or used except upon conditions the producers themselves specify. These technologies have come under criticism for interfering with the rights users enjoy under copyright law, including the right to engage in fair uses of the DRM-protected works. Most DRM mechanisms are not engineered to include exceptions for fair use, and user circumvention of the DRM may violate the Digital Millennium Copyright Act even if the use for which the circumvention occurs is itself noninfringing. The academic literature on fair use in digital media has suggested several possible ways to resolve the tension between fair use on the one hand and DRM on the other. Among the more provocative possibilities is that DRM technologies themselves may evolve to incorporate greater built-in protections for end-user rights. This article examines several such proposals and finds that they are not likely to provide users with the same measure of protections for fair use of copyrighted works that exists in the offline world. The failure of these proposals, however, does not suggest that the broader goal of protecting fair use rights in digital media is unattainable. It is possible to advance much more closely towards that goal by altering the design philosophy of DRM technologies to focus more on the processes by which fair uses occur and less on attempting to replicate the substantive law of fair use in machine-administrable form. The article concludes by outlining one possible system engineered to protect the process of fair use

Two Comparative Perspectives on Copyright\u27s Past and Future in the Digital Age

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other. Baldwin\u27s The Copyright Wars argues that modern debates over the proper scope of copyright represent echoes of still-unresolved conflicts that arose early in the 18th century and have recurred in various forms ever since. The philosophical conflict between the author\u27s rights ideology that came to predominate in Continental Europe and the copyright ideology that prevailed (until very recently) in the English-speaking nations, Baldwin argues, underlies many modern debates about the respective interests of creators and users of expressive works. On Baldwin\u27s reading, the internet era raises no truly novel issues, but merely puts a contemporary gloss on copyright\u27s unending three-way struggle between authors, readers, and disseminators. Haggart\u27s Copyfight eschews Baldwin\u27s long view in favor of a close look at copyright\u27s very recent history, focusing on the implementation of the 1996 WIPO Internet treaties in the United States, Canada, and Mexico. Haggart\u27s thesis is that the conventional portrayal of the United States as a hegemonic power in copyright has been overstated, and that the differing ways that the North American nations have implemented the 1996 WIPO treaties shows that smaller nations can and do exercise substantial autonomy in setting copyright policy. That autonomy can be, and increasingly is, used by smaller nations to set copyright rules that contradict the preferences of larger nations, an oppositional phenomenon that Haggart suggests will only grow in importance in this century. Although both books are outstanding, their very different perspectives occasionally produce a form of tunnel vision. Baldwin\u27s book features impressive historical depth, but fails adequately to address the unique challenges of contemporary technology to the law and the historically unprecedented obstacles that contemporary law raises to certain forms of socially valuable innovation. Haggart\u27s book, in contrast, demonstrates a keen and nuanced appreciation of the contemporary copyright debate and the ways that international and domestic institutions have interacted to set policy during the past two decades, but fails to appreciate the ways in which the much lengthier course of historical development constrains future copyright policy-making. The review concludes by suggesting respects in which either book might serve as a guide to future copyright policy-making at the national and international level

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

Symbols, Systems, and Software as Intellectual Property: Time for CONTU, Part II?

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive copyright protection to functional software components than precedent suggested. The result of these developments has been a new period of uncertainty regarding the existence and scope of intellectual property protection for computer software. The root of the problem lies in Congress’s relative inattention to the question of what legal regime (if any) should govern the creation of computer software. Congress extended copyright protection to software largely without grappling with the consequences of applying a body of law designed to promote creative expression to functional, useful code. Meanwhile, Congress has spoken only obliquely to the question whether software warrants patent protection. The turmoil in the courts reflects a general lack of legislative guidance. This Article asks whether the time is ripe for remedial legislation and suggests some questions that ought to guide congressional inquiry

Chevron Deference and Agency Self-Interest

Judicial review of a federal administrative agency\u27s statutory or regulatory interpretation ordinarily proceeds under the highly deferential framework announced in the landmark case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Withholding an independent judicial interpretation of a statute or regulation in deference to an agency\u27s views, however, poses unique problems when the agency has a self-interested stake in its interpretation - as, for example, when the agency\u27s interpretation affects its regulatory jurisdiction or yields a financial benefit to the agency. A review of several cases in which courts have deferred, or refused to defer, to interpretations of law that implicated the self-interest of the issuing agency shows that the courts have not enunciated a consistent rationale to explain their divergent results. The article concludes that extending the Chevron deference principle to self-interested agency interpretations of law conflicts with settled norms of due process, and proposes an alternative analytical framework for judicial review of such interpretations

Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers. These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used open content licensing arrangements, such as the GNU General Public License ( GPL ) for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results. Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public - a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not

Chevron Deference and Agency Self-Interest

Judicial review of a federal administrative agency\u27s statutory or regulatory interpretation ordinarily proceeds under the highly deferential framework announced in the landmark case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Withholding an independent judicial interpretation of a statute or regulation in deference to an agency\u27s views, however, poses unique problems when the agency has a self-interested stake in its interpretation - as, for example, when the agency\u27s interpretation affects its regulatory jurisdiction or yields a financial benefit to the agency. A review of several cases in which courts have deferred, or refused to defer, to interpretations of law that implicated the self-interest of the issuing agency shows that the courts have not enunciated a consistent rationale to explain their divergent results. The article concludes that extending the Chevron deference principle to self-interested agency interpretations of law conflicts with settled norms of due process, and proposes an alternative analytical framework for judicial review of such interpretations

Two Comparative Perspectives on Copyright\u27s Past and Future in the Digital Age

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other. Baldwin\u27s The Copyright Wars argues that modern debates over the proper scope of copyright represent echoes of still-unresolved conflicts that arose early in the 18th century and have recurred in various forms ever since. The philosophical conflict between the author\u27s rights ideology that came to predominate in Continental Europe and the copyright ideology that prevailed (until very recently) in the English-speaking nations, Baldwin argues, underlies many modern debates about the respective interests of creators and users of expressive works. On Baldwin\u27s reading, the internet era raises no truly novel issues, but merely puts a contemporary gloss on copyright\u27s unending three-way struggle between authors, readers, and disseminators. Haggart\u27s Copyfight eschews Baldwin\u27s long view in favor of a close look at copyright\u27s very recent history, focusing on the implementation of the 1996 WIPO Internet treaties in the United States, Canada, and Mexico. Haggart\u27s thesis is that the conventional portrayal of the United States as a hegemonic power in copyright has been overstated, and that the differing ways that the North American nations have implemented the 1996 WIPO treaties shows that smaller nations can and do exercise substantial autonomy in setting copyright policy. That autonomy can be, and increasingly is, used by smaller nations to set copyright rules that contradict the preferences of larger nations, an oppositional phenomenon that Haggart suggests will only grow in importance in this century. Although both books are outstanding, their very different perspectives occasionally produce a form of tunnel vision. Baldwin\u27s book features impressive historical depth, but fails adequately to address the unique challenges of contemporary technology to the law and the historically unprecedented obstacles that contemporary law raises to certain forms of socially valuable innovation. Haggart\u27s book, in contrast, demonstrates a keen and nuanced appreciation of the contemporary copyright debate and the ways that international and domestic institutions have interacted to set policy during the past two decades, but fails to appreciate the ways in which the much lengthier course of historical development constrains future copyright policy-making. The review concludes by suggesting respects in which either book might serve as a guide to future copyright policy-making at the national and international level