Technological Protection

(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

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