(AM) If a rightsholder (or
their automated software) determines that I have an unlicensed copy of
a work (or a portion of a work) on my computer, do they have a right to
delete it? If they have a right to delete a complete copy of a work, do
they also have a right to delete portions of a work? What becomes of
fair use?
(AM) If a rightsholder's
automated software believes a file on my computer was an infringing
copy of their work and deletes it, but the file was actually not
infringing and contained valuable data that wasn't backed up elsewhere,
do I have a claim against the rightsholder? What would the claim be?
Can rightsholders immunize themselves from such claims via contract
(i.e. putting a clause indemnifying them in a click-thru license that I
must agree to before accessing their works)?
(AM) [not really a DRM
issue, but very relevant] "Viacom did a general search on YouTube for
any term related to any of its shows, and then spammed YouTube with
100,000 DMCA take-down notices alleging that all of these clips
infringed its copyright and demanding that they be censored off the
Internet. YouTube made thousands of clips vanish, and sent warning
notices to the people who'd posted them, warning them that they were
now on a list of potential copyright infringers and telling them that
repeat offenses could lead to having their accounts terminated."
http://www.boingboing.net/2007/02/03/viacom_terrorizes_yo.html. Is this
illegal? Who is to blame (Viacom, its lawyers, or both)? What can be
done about it?
(AM) DRM puts
restrictions in place that prevents infringement before it occurs.
Current copyright laws only allow the valid copyright-holders to sue
for damages after infringement occurs. Is this prior restraint is a
violation of due process? (taken from
http://weblog.ceicher.com/archives/2006/01/a_response_to_kevin_marks_anti.html)
Today, many works protected via DRM are also available in unprotected
formats. But can we still resort to contract law principles (by which
either party can always choose to refuse to deal) when almost all
newly-created works are only available in DRM-protected formats?
(AM) Copyrights expire
because it is believed that authors should benefit only "for limited
times" (Constitution, Article 1, Section 8, Clause 8). DRM can force
consumers to keep paying for access long after the term of copyright
has expired. Should copyright law require all DRM systems to disable
themselves after a set time? If so, how should these systems deal with
the fact that the term of copyright has been retroactively extended
since the 1920s? Should rightsholders instead be required to deposit a
DRM-free version of their work with the library of Congress. But a
deposit requirement would violate the Berne convention. (See
http://digital-law-online.info/lpdi1.0/treatise4.html for more info).
What, if anything, should be done?
(AM) Should
rightsholders be required to inform consumers of any DRM placed on
works sold (especially physical goods like CDs)? Is "fine print" in a
click-through EULA (End-User License Agreement) sufficient, or should
labeling be required on the physical packaging? Should consumers be
able to return or get a refund for works that they are unable to access
because of problems with the DRM scheme. (See
http://en.wikipedia.org/wiki/DIVX for one example).
(AM) Proponents of DRM
say that fair use doesn't mean that consumers have a right to access a
work in its original form. They suggest that anyone can copy a clip
from a DVD by simply pointing a videocamera at a TV screen, and
consumers have no right to be able to copy the original files from the
DVD. But new DRM systems are attempting to close the "analog hole" that
makes such uses possible. One method for music is to put a "watermark"
in every song that can survive the analog transfer and still be
detected by recording devices. If the record device detects the
watermark, it will refuse to record the song. If such technology is
implemented in all new recording devices, then only antiquated
recording devices will allow fair use recordings. Should lawmakers do
something about this?
(AM) Many of the
downsides (from the consumer's perspective) of DRM can be solved by
legislative mandates. But are there problems with lawmakers getting
involved in the development of new technologies?
(DF) Suppose my software permits me to monitor your use of it in a way which would be a tortious invasion of privacy if done by a human being. Is it still tortious if the information never goes to a human, but simply feeds into a program which tells me whether you are violating your license but not what you are doing?
(AM) Adam Marcus
(DF) David Friedman
John Figueroa provides a detailed response
to my question immediately above. The original on
lined paper is available in MSWord.
Legal Research on digital watermarks from a previous year.
Legal
Research on copyright infringement of
MP3's by Donald Choi