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Fair Use By Design or By Law?
Stefan BechtoldStanford Law School / University of Tübingen, Germany
April 16, 2002
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Overview
I. Fair use by design or by lawII. Why fair use by design is
importantIII. Why fair use by design is
insufficientIV. Where fair use by design is
appropriate
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• DRM has been criticized for impeding fair use, free speech and innovation
• Different solutions to solve the tension between DRM technology and legal notions of fair use, free speech and innovation exist:– Address problems at the level of the legal framework
surrounding DRM (legislative amendments, influential court decisions)
– Address problems directly at the technological design level of DRM systems
• Attempt to bring DRM into accordance with fair use, not to demonize DRM
• Semantic web as a prime opportunity to code fair use into DRM technology
I. Fair Use By Design or By Law
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II. Why Fair Use By Design is Important
1. DRM is progressive, the law is conservative The nature of legal reasoning makes it hard to deal with
disruptive technologies which pose problems dissimilar to the existing technological environment
Examples: legal discussions about- affirmative "user rights"- using protected content on a platform not endorsed by the content
or DRM technology provider- whether fair use guarantees the "copying by the optimum method
or in the identical format of the original"
In the context of DRM design, the important question to ask is not how the current legal framework allocates rights of copyright holders, the public and individual users, but how a future DRM policy framework should organize fair use, free speech, and innovation
Address fair use issues not at the level of the legal DRM framework, but at the technological design level of DRM systems
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1. DRM is progressive, the law is conservative2. DRM evolves fast, the legal discussion does not
The major criticism of the anti-circumvention regulations (DMCA and European Copyright Directive) started after the regulations had been enacted
Very hard to change existing legal regulationsBy addressing fair use issues at the technological design
level, this problem could be circumvented
II. Why Fair Use By Design is Important
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1. DRM is progressive, the law is conservative2. DRM evolves fast, the legal discussion does not3. DRM is global, the legal discussion is not
DRM discussions are focussed on the U.S. Copyright law is relatively harmonized on an international
level similar problems in other countries Dialog between lawyers/scholars/activists in the U.S. and
Europe, e.g., has been limited. European Copyright Directive may pose similar threats to fair use as the DMCA
Important decisions about the future of digital content will not be made by the U.S. Congress, but by international organizations (WIPO, WTO)
By addressing fair use issues at the technological design level, a solution with an international reach could be provided
II. Why Fair Use By Design is Important
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III. Why Fair Use By Design is Insufficient
Protection by
Technology Contracts Technology Licenses
Technological Protection
Legal Circum-vention Protection
Legal Circum-vention Protection
Copyright Law
Copyright Law
1. DRM is more than technical protection
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Protection by
Technology Contracts Technology Licenses
Technological Protection
Legal Circum-vention Protection
Legal Circum-vention Protection
Copyright Law
Copyright Law
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1. DRM is more than technical protection2. DRM and the fuzziness of fair use
Limits the extent to which fair use can be coded
III. Why Fair Use By Design is Insufficient
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1. DRM is more than technical protection2. DRM and the fuzziness of fair use3. DRM and innovation
DRM to protect software/hardware platforms- Protection against platform competitors: Sony v. Bleem and
Connectix, Blizzard/Vivendi v. bnetd- Protection against competing applications running on the
platform: Sony v. Aibohack hard to solve such problems at the technological design
level (?) Hard to code under which conditions content can be
reused (?)
III. Why Fair Use By Design is Insufficient
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1. DRM is more than technical protection2. DRM and the fuzziness of fair use3. DRM and innovation4. DRM and incentive structures
DRM technology providers will not implement all aspects of fair use
Copyright holders will always object to some fair uses Legal Solutions:
- Mandate fair-use-friendly DRM design (AHRA, 17 U.S.C. § 1201 (k) (2), European Television Directive, even § 3 (c) of the CBDTPA/SSSCA)
- Right to hack (DMCA)- Key Escrow (European Copyright Directive)- "Anti-circumvention misuse" (Dan Burk)
III. Why Fair Use By Design is Insufficient
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1. DRM is more than technical protection2. DRM and the fuzziness of fair use3. DRM and innovation4. DRM and incentive structures
Fair use by design will not render fair use by law unnecessary
The goal is to shift as much fair uses as possible from law to design
III. Why Fair Use By Design is Insufficient
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1. "Private copying" Application of rights management languages not to
protect copyright holders, but to protect users, libraries etc. ( semantic web)
2. Privacy Use of privacy-enhancing technologies ( semantic web)
3. Cryptography research No security through obscurity
4. Innovation? Work has to be done in the area of rights management
languages and DRM in general ( semantic web):- How to define in a machine-readable format how content can
be reused- How to enable modular innovation ("clip-art phenomenon")
IV. Where Fair Use By Design Is Appropriate
