Mireles, Michael S.

Moffat, Viva R.

English

Mireles, Michael S., Jr.

Pacific McGeorge School of Law

Working Together in a Digital World: An Introduction

University of Denver

Denver Law Review Volume 84 Issue 1 Article 2 December 2020 Working Together in a Digital World: An Introduction Michael S. Mireles Viva R. Moffat Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Michael S. Mireles & Viva R. Moffat, Working Together in a Digital World: An Introduction, 84 Denv. U. L. Rev. 1 (2006). This Front Matter is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WORKING TOGETHER IN A DIGITAL WORLD:AN INTRODUCTIONMICHAEL S. MIRELEStVIVA R. MOFFATt tIn May of 2006, The University of Denver Sturm College of Lawand The Cable Center sponsored the Inaugural Summit on IntellectualProperty and Digital Media (Summit).1 The Summit brought togetheracademics and industry leaders in a search for common ground and prac-tical policy solutions concerning issues related to intellectual propertyand digital technology. Through a number of panels and roundtable ses-sions, academics and industry leaders outlined and addressed a variety ofissues concerning existing business models, digital technology, and intel-lectual property rights. The Summit highlighted the ways in whichscholars, representatives from various industries, public interest groups,and other organizations, despite their differences, are able to engage inproductive conversation about the digital future and the legal structureshaping that future. This symposium issue of the Denver University LawReview includes the papers authored for the Summit and is dedicated toexamining real world problems concerning the interaction between law,technology, innovation, and creativity. One of the strengths of intellec-tual property scholarship is its attention to the practical issues facingindustries, individual users, and regulators, and the papers included inthis volume reflect that strength.t Assistant Professor of Law, University of Denver Sturm College of Law.tt Assistant Professor of Law, University of Denver Sturm College of Law. The authorswould like to thank The Cable Center for organizing the Summit on Intellectual Property and DigitalMedia. Susan Greene had the initial vision for the conference and through sheer force of willbrought it into being. We also thank the Denver University Law Review for publishing this sympo-sium issue.1. For more information on the Summit, see The Cable Center, http://www.cablecenter.org/education/academic/digitalipsummit.cfm (last visited September 26, 2006). In addition to the par-ticipants who contributed papers, the speakers at the Summit included Sandra Aistars, AssociateGeneral Counsel for Intellectual Property, Time Warner, Inc.; Joseph Cantwell, Vice President ofMarketing, Advanced Services, Starz Entertainment Group; Peter M. Fannon, Vice President, Tech-nology Policy, Government & Regulation, Panasonic Corporation of North America; Edward Felten,Professor of Computer Science and Public Affairs, Princeton University; Richard Fickle, ExecutiveVice President of Strategic Development, Ascent Media Group; Eric Goldman, Assistant Professorof Law and Director of the High Tech Institute at Santa Clara University School of Law; VinceGroff, Director, Video Product Development, Cox Communications; Greg Harper, President, Cer-berus Corporation; Robert Kasunic, Principal Legal Advisor, Copyright Office, and Adjunct Associ-ate Professor of Law, American University's Washington College of Law; Ron Lamprecht, VicePresident, New Media, NBC Universal Cable; Maria Mandel, Partner, Executive Director of DigitalInnovation, Ogilvylnteractive Digital Innovation; Scott Teissler, Executive Vice President, ChiefInformation Officer and Chief Technology Officer, Turner Broadcasting System; and Bob Zitter,Executive Vice President and Chief Technology Officer, HBO.DENVER UNIVERSITY LA WREVIEWRalph Oman, the former Register of Copyrights, the Pravel, Hewitt,Kimball and Kreiger Professorial Lecturer in Intellectual Property andPatent Law at George Washington University Law School, and attorneywith Dechert LLP; and Peter Yu, Associate Professor of Law and Direc-tor of the Intellectual Property & Communications Law Program atMichigan State University College of Law, submitted papers and partici-pated in our Academic Roundtable Discussion entitled "Digital RightsManagement: Searching for Common Ground.",2 This panel providedthe academic viewpoint on how intellectual property principles may bechanging in a digital environment and how the digital environment mayultimately affect the legal infrastructure. In his essay, How DigitalRights Management Will Save Authorship in the Age of the Internet,Ralph Oman argues that the Digital Millennium Copyright Act (DMCA)and digital rights management (DRM) technologies have stabilized themarketplace and allowed parties to contract for content using legitimateservices. According to Mr. Oman, some of the problems--ease of copy-ing and distribution of quality copies of copyrighted works-and some ofthe benefits-widespread dissemination of copyrighted works-that digi-tal technology and the internet allow are not new and mirror some of theissues raised by older technologies, such as the printing press, radio, tele-vision, laser printers, VCRs and CD players. Mr. Oman asserts that"[t]he best copyright laws have always protected the power of creatorsagainst the power of the companies that build the machines that exploitthe creators' work." He believes that DMCA and the DRM technologiesprotected by DMCA will enable authors to use the internet and digitaltechnology as strong allies in the creative process.Professor Yu provides a very different perspective on the role of theDMCA and DRM technologies in the digital environment. ProfessorYu's article, Anticircumvention and Anti-anticircumvention, examinesthe DRM debate, the anticircumvention regime, and makes four observa-tions. Professor Yu asserts that DMCA has resulted in many negativeunintended consequences and likely has not created benefits for copy-right holders. He then extends his analysis to the international level andlaments the extension of statutory schemes similar to DMCA to othercountries through multilateral, bilateral, and plurilateral treaties. Impor-tantly, his article concludes by offering four suggestions to provide guid-ance for the creation of the next wave of DRM systems and the legalscheme that supports those systems. His observations for policy makersinclude: awareness of how difficult it can be to change an entrenchedlaw, the distinction between DRM and technological protection meas-ures, understanding the difference between machine-interpretable nonin-2. Phil Weiser, Associate Professor and Executive Director, Silicon Flatirons Telecommuni-cations Program, University of Colorado School of Law, also participated in this roundtable ondigital rights management.[Vol. 84:1INTRODUCTIONfringing uses and machine-uninterpretable noninfringing uses, and theaccommodation of consumer interests.In response to a call for papers concerning DRM and the adaptationof the business sector to the shrinkage of the distribution change betweencreator and consumer in the digital world, many scholars submittedthought-provoking papers. The Summit committee selected five of thesepapers for presentation and publication.3 Megan LaBelle's article, The"Rootkit Debacle": The Latest Chapter in the Story of the RecordingIndustry and the War on Music Piracy, focuses on Sony's decision toinstall invasive DRM on its music CDs sold in late 2005. As the titleindicates, the attempt at curbing unlawful copying was a debacle forSony, causing a public relations fiasco and ultimately forcing Sony torecall the CDs and to agree not use that form of DRM in the future. Ms.LaBelle uses the Sony story as a focal point for discussing the problemsposed by the ease of digital copying in general. The article sets forth thebackground against which Sony's decision to install the rootkit on itsCDs arose and evaluates the legal questions presented by the rootkit de-bacle. Finally and most importantly, the article proposes "a solution thatattempts to strike a balance between the recording industry's right toprotect its intellectual property and a consumer's right to enjoy pur-chased music." Concluding that DRM is the only reasonable way for therecording industry to protect itself against unauthorized copying ofCDs-as there are no indirect infringers to pursue and tracking the copy-ing of CDs is virtually impossible-Ms. LaBelle makes a number of con-crete proposals for addressing the concerns of a variety of interestedgroups. She suggests that the Copyright Office "adopt a narrowly-tailored Security Research Exemption" for the purposes of protecting thework of academics, scientists and other researchers. She also proposesthat the record companies take a different approach to copy-protectingCDs. In general, they should be mindful of security and privacy risks toindividual consumers and, more specifically, have all DRM softwareindependently analyzed and tested. In addition, Ms. LaBelle recom-mends that all copy-protected CDs carry "sufficient notice" of any anti-piracy technology they contain. Finally, the record companies ought tobe more sensitive to consumer preferences in developing copy-protectionor other DRM technology.3. Two other scholars presented papers at the Summit, but those papers do not appear in thisvolume. Roberta Rosenthal Kwall, the Raymond P. Niro Professor of Law and founding director ofthe Center for Intellectual Property Law & Information Technology Law at DePaul UniversitySchool of Law, discussed her work on section 108 of the Copyright Act. Professor Kwall's com-mentary is published in the Columbia Journal of Law & the Arts. See Roberta Rosenthal Kwall,Commentary: Library Reproduction Rights for Preservation and Replacement in the Digital Era: AnAuthor's Perspective on § 108, 29 COLUM. J.L. & ARTS 343 (2006). In addition, Tal Zarsky pre-sented his paper, Reassessing Alternative Compensation Models for Copyright in the Digital Age,which will appear in issue 84:2 of the Denver University Law Review.2006]DENVER UNIVERSITY LA W REVIEWChristine Galbraith's essay, Remembering the Public Domain,traces the ways in which public domain materials are increasingly beingrestricted with technological, contractual, and legislative measures.These measures have generally been supported and upheld by courtssuch that much information that "constitute[s] the building blocks ofknowledge" is made proprietary. Professor Galbraith argues that thelegal support for these measures is the result of a "myopic view of prop-erty rights" that treats virtual space as equivalent to real property andthus tends to grant the "ability to exclude whomever and whatever theychoose." Professor Galbraith concludes with the admonition that courtsand legislators must acknowledge the importance of the public domain,something that is essential "for an enlightened citizenry."Jeremy deBeer's article, Locks & Levies, provides a valuable com-parative perspective on the digital piracy and DRM war raging in theUnited States. Professor deBeer compares the U.S. approach of strength-ening the legal support for technological protection measures to Can-ada's broad levy system. Rather than adopting specific anti-circumvention legislation, Canada has adopted a levy on manufacturersof goods and service providers to address the issue of private digitalcopying. Professor deBeer compares the two approaches from a varietyof perspectives: those of creators, technology firms, and consumers. Thetwo approaches are not exclusive, however, and Professor deBeer ex-plores "a worldwide trend toward the simultaneous presence of bothlocks and levies in digital entertainment markets." The paper discussesthe consequences of "lock" systems, "levy" systems, and hybrid sys-tems. Professor deBeer concludes that hybrid systems, which may be themost likely result of compromise between the various interests, may alsopresent the worst possible scenario, placing consumers between a rockand a hard place: "consumers risk being caught in the middle of a regimethat prohibits the circumvention of DRM systems in order to access orcopy digital content, but at the same time mandates levy payments tocompensate for copying that either cannot occur, is already licensed, orconstitutes fair use/dealing." Professor deBeer's article thus provides avery real world understanding of both consumer behaviors and prefer-ences and the likely results of political compromises over the issue ofdigital copying. In conveying this perspective, Professor deBeer empha-sizes the practical problems that may result if the legislative and techno-logical approaches to the issue are not coordinated and well thought out.In his article, Beyond Copyright: Managing Information Rights withDRM, Viktor Mayer-Schbnberger also takes a broad perspective onDRM, arguing that it might be useful "beyond the narrow confines ofcopyright" for managing "rights over information more generally." Pro-fessor Mayer-Schdnberger describes the ways in which DRM systemsare able to define specific usage rights of the information they accom-pany, arguing that these systems can be used for more than just copyright[Vol. 84:1INTRODUCTIONprotection. Professor Mayer-Sch6nberger then sets forth the ways inwhich privacy claims might be managed through DRM systems, con-cluding that such an approach has some specific advantages, includingincreased privacy protections for individuals, an improved ability tomanage and control the information that does exist, and, potentially, amore nationally and internationally harmonious approach to privacy andinformation management issues. There are, of course, challenges posedby using DRM systems to manage informational privacy. ProfessorMayer-Sch6nberger identifies and labels three challenges in particular:technical, foundational, and conceptual. He then proposes some methodsof addressing these three broad challenges in order to make an informa-tional-privacy DRM system successful.Finally, there are two pieces included in this symposium issue con-cerning patent law. First, we have an article by Amy Landers, a profes-sor at the University of the Pacific, McGeorge School of Law, and sec-ond, a comment by Thomas Walsh, a student at the University of Den-ver, Sturm College of Law. Professor Landers' article is titled LiquidPatents. She argues that a trend has emerged in the patent systemwherein patent holders have developed systemized and strategic plans toleverage value from asserting patent rights. She labels this practice "liq-uidizing patents," and asserts that this practice is in contravention of thegoals of the patent system. To address the problem of liquidizing pat-ents, she proposes a modification of the remedies provisions of the PatentAct and an elimination of the antitrust protections for patent holders. Inhis comment, Walsh reviews and analyzes the United States SupremeCourt's recent decision in Illinois Tool Works Inc. v. Independent Ink,concerning whether the existence of a patent on a tying product raises apresumption that the patent holder has market power in an unlawful tyingclaim. Walsh argues that the decision by the Supreme Court to eliminatethe presumption that a patented product confers market power was thecorrect decision for three reasons. Those reasons include the lowercourt's erroneous interpretation of a prior Supreme Court decision, thefact that presumptions are traditionally disfavored by the Supreme Courtin antitrust law, and the unfairness that results when an alleged tie is sub-ject to an irrebutable presumption that a patent creates market power.Walsh argues that the adversarial system is well-equipped to determinethe question of the market power of a particular product; that both partieswill be able to muster evidence concerning the questions; and that, there-fore, an irrebuttable presumption is inappropriate.Thank you to all of the participants, presenters, and contributors tothe Summit and to this symposium issue of the Denver University LawReview.2006]

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Working Together in a Digital World: An Introduction

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