IP Academic Advisory Council Member Views DRM as Self-Help Remedy
WASHINGTON D.C. - The recent controversy over flawed digital rights management, or DRM, has led prominent commentators to condemn the technology, urging copyright holders not to use it. In "Defusing DRM," a new paper released today by the Progress & Freedom Foundation's Center for the Study of Intellectual Property (IPcentral.info), University of Chicago law professor Doug Lichtman urges calm. DRM, he writes, is not the enemy. Instead, DRM provides a private self-help remedy that is already established in many other kinds of case law. The author is a member of the Center's IP Academic Advisory Council.
Lichtman's basic argument proceeds in two steps. First, he argues that DRM might represent a powerful restriction, but that the constraint will never be Orwellian. Consumers, after all, will use their dollars to vote against encryption techniques that are too limiting, and, as experience teaches, consumers will also find ways to defeat DRM systems. Moreover, Lichtman points out that copyright holders themselves might not favor strong DRM even if it were feasible. Magazine publishers, for instance, do not struggle to discourage sharing, and indeed most magazine publishers actively encourage it on grounds that the extra eyeballs increase the value of the ads. Lastly, Lichtman notes that DRM suffers an Achilles heel: in every system designed to control content, at some point consumers must be able to read, hear, or otherwise experience the purchased information. Whenever that happens, the information is necessarily exposed.
Second, Lichtman argues that, if all this is true, then DRM simply makes copyright law look a lot like every other area of legal endeavor: there is a formal set of rules enforced by judges, administrative officials, and the like, and there is in addition a weak but effective overlapping capacity through which private actors can take matters into their own hands. This, Lichtman argues, is in practice how criminal law, trade secret protection, First Amendment jurisprudence, and indeed every other legal regime operates. In all of these settings, legal rules are implemented through a combination of powerful public mechanisms and less costly but weaker private ones. DRM simply brings copyright law into the fold.
Lichtman's paper, "Defusing DRM," is one in a series of intellectual property related papers released by the PFF's IP Academic Advisory Council. The Council was launched in November of 2005 by The Progress & Freedom Foundation's Center for the Study of Digital Property. Distinguished members of the academic community were selected to join the Council based on their study of intellectual property. Members of the Advisory Council will draw attention to issues surrounding intellectual property rights through academic papers, select events and continued involvement with the work of the Center and PFF.
The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.