What Happens When Law is Used to Protect the Technologies that Protect Copyright?


Ian Kerr and Jane Bailey


The proliferation in our ability to copy and disseminate information through electronic means has been driven by inexpensive and powerful personal computing equipment, coupled with widespread access to network technologies. As a result, it is possible to encode various kinds of information into digital form, duplicate the digital content without loss of fidelity, and transmit it to incredible numbers of recipients worldwide at negligible incremental cost. This new environment provides many opportunities for the rapid and inexpensive dissemination of digital content. It also poses special challenges for the enforcement of copyright in various kinds of digitized works. As a result, rights owners are increasingly turning to the use of technological protection measures to enforce and protect their rights in digital content. Digital Rights Management Systems (DRMs) are one kind of answer to the question of how to protect intellectual property in the digital age – namely, through technology rather than law or norms.

While some technologies can be used to protect intellectual property owners, other technologies can also be employed to circumvent them. Given the ease of copying and disseminating digital information upon circumvention, anti-circumvention laws are an increasingly important consideration. At the same time, it is important to remember that circumvention devices can be used to both ignoble and noble effect: they can be used to infringe copyright or, alternatively, to restore a work to the public domain. This complicates the question whether law ought to be used to protect the technologies that protect copyright.

Many countries have recognized the need to investigate the possible value of adopting legislation that addresses the appropriate use of technological protection measures, the consequences of illicit circumvention, and the parameters of protection afforded when circumvention is justified. Some States (including the US, the European Union, Japan, and Australia) have already enacted such legislation. The implementation of provisions regulating the use of DRMs in these jurisdictions has been the subject of much academic debate and criticism.

While much academic attention has been devoted to these issues from the perspective of copyright law, there has been a relative paucity of literature examining the broader social-implications of such legislation for other core ethical commitments.

For example, the technological means by which DRMs protect copyright also allow them to function as a powerful form of surveillance: authenticating personal identity, monitoring an individual’s activities and consumption habits, or collecting personal information that can be easily stored or disseminated to third parties. Are the current enforcement schemes for fair information practices sufficient to protect against such surveillance? Or do we need additional measures to ensure the enforcement of privacy protections in the digital milieu? Will an adoption of DRMs result in a diminished space for anonymous interactions? If so, will this have a controlling effect on the social participation of those who access and use works in a digital environment? What are the appropriate responses?

As it is often said that copyright is the engine of free expression, a fully informed digital copyright policy requires an understanding of how the values underlying freedom of expression might be compromised by DRMs. Would the adoption of DRMs enable the assertion of greater private control over expression? Ought our methods of constitutional analysis to include an investigation of the ways in which private action affect free expression (as opposed to traditional constitutional analysis, which tends to focus primarily on the effects of governmental action on individual expression)? When we use the word “free” in this context, what is it that we mean?

Using the legal perspective as our backdrop for addressing questions such as these, our aim in this paper is to examine the social implications of DRMs. In particular, we seek to determine whether fundamental commitments to privacy and freedom of expression are undermined by DRMs and the laws enacted to enable them.

Our analysis will address these issues from a broad social and ethical perspective.