Digital Rights Management and the Process of Fair Use

TABLE OF CONTENTS I. INTRODUCTION: LEGAL AND TECHNOLOGICAL PROTECTIONS FOR FAIR USE OF COPYRIGHTED WORKS II. COPYRIGHT LAW AND/OR DIGITAL RIGHTS MANAGEMENT A. Traditional Copyright: The Normative Baseline B. Contemporary Copyright: DRM as a "Speedbump" to Slow Mass Infringement 1. Digital Rights Management 2. Anti-Circumvention Restrictions 3. Fair Use and the DMCA III. TECHNOLOGICAL ACCOMMODATION FOR FAIR USE IN MODERN DRM SYSTEMS A. Local Authorization 1. Rights Management Architecture 2. Protections for Fair Use B. Remote Authorization 1. Rights Management Architecture 2. Protections for Fair Use C. A Hybrid Approach 1. Rights Management Architecture 2. Protections for Fair Use D. Lingering Problems 1. The Requirement of Permission 2. Permission and Privacy IV. STRENGTHENING PROTECTIONS FOR FAIR USE RIGHTS IN DRM A. Design Principles 1. Allowing Users to "Challenge the Code" 2. Revising XML-Based Rights Expression Languages 3. LicenseScript B. Designing DRM to Protect Fair Use 1. Asserting User Rights and Audit Logging 2. Identity Escrow 3. Summary V. CHALLENGES FOR IMPLEMENTATION: HARNESSING THE MODALITIES OF REGULATORY CHANGE A. Social Norms B. Markets C. Code D. Law VI. CONCLUSION I. INTRODUCTION: LEGAL AND TECHNOLOGICAL PROTECTIONS FOR FAIR USE OF COPYRIGHTED WORKS United States copyright law nominally grants consumers the right to make "fair use" of copyrighted works. (1) When the copyrighted work is distributed in digital form, however, technological impediments may, as a practical matter, prevent some uses of the work that the law would recognize as fair. Distributors of copyrighted digital works may deploy "digital rights management" ("DRM") mechanisms that allow only certain types of access to, or uses of, the underlying copyrighted work and forbid all others. (2) Although technologically sophisticated users may be able to bypass a DRM mechanism and obtain greater access to the work than the DRM mechanism is intended to permit, (3) such circumvention may violate the Digital Millennium Copyright Act of 1998 ("DMCA"). (4) DRM technology and the DMCA have been controversial in academic and technological circles: copyright holders may deploy DRM mechanisms that do not allow fair uses of the copyrighted work and the DMCA may protect such mechanisms against circumvention, resulting in a curtailment of consumers' ability to engage in lawful fair uses of digital copyrighted works. (5) As more and more copyrighted content is released in digital form, the risk of a shrinking domain for fair use has inspired some observers to ask whether DRM technology may evolve to preserve end user freedoms. On this view, DRM technology need not be inherently restrictive of fair use rights. Rather, limiting fair use via DRM is simply one choice among many alternative design decisions that DRM architects might adopt. (6) Protecting fair use of digital content would simply involve tweaking, rather than circumventing, the DRM mechanisms employed to protect the underlying copyrighted work. By fostering instead of preventing fair use, future DRM technologies might reduce the present disunion between what the law permits and what technology enables. (7) The conventional wisdom is justifiably skeptical of the notion that copyright's fair use doctrine, which legally depends upon balancing a number of highly malleable contextual factors, (8) might ever be reduced to something that can be administered by machine. The balancing test established in the fair use statute does not specify the substance of the factors that must be considered or the relative weights that should be given to each, and the very nature of some of the factors is such that they cannot readily be reduced to binary logic. For these reasons, some computer scientists argue that a computer cannot be programmed to accurately reproduce the decisions that a human judge would render in an individual case, and therefore cannot effectively substitute for human decisionmaking in administering the fair use doctrine. …