Julie Samnadda started the session by presenting the European Commission's approach on DRM, including their take on private copying, levies, and collective rights management. Julie said one of the biggest issues she's run into is that DRM is not "defined" - she called it a "deeply irritating term" that means "all things to all people". The EU's approach right now is generally "wait and see". The next steps will be to draw up conclusions, discuss with member states, and recast the copyright directive.
June Besek, director of Columbia's Kernochan Center for Law, then talked about a study the center did on Anti-Circumvention laws. She outlined some of the main criticisms of the DMCA:
- Digital Lockup (that is, it inhibits fair use)
- Inhibits free speech - could theoretically limit access to public domain
- Restricts research
- DRM is generally a "futile endeavor"
It became clear that there were a number of factors that must be kept in mind.
June said that copyright has become highly polarized and as a result there is no real positive discourse. On one side, copyright holders are depicted as money-hungry companies; on the other, rightsholders portray themselves as "beset on all sides by pirates."
She also discussed the confusion about the defintion of "access". The view that Congress took in drafting this was access to "read, view, or perceive" - but there are other definitions which people try to use. This only adds to the polarization effect. June also is against a levy because it raises challenges of its own. For example, how do you divide the money properly?
The conclusion of the study was that the DMCA does not (yet) require reform. There is not really as much digital lockup as some make it seem, and courts will work hard to find reasonable results under the act. If this balance shifts in the future, then maybe reform is necessary. HR1201 (no mistake in the name) is also a new bill that promises major overhauls.
Alain Stewel talked about recent French and Belgium law governing private copying. He said it's not a question of "is it allowed or not", but rather the degree of copying. In terms of TPM, he also questions whether private copying, just because it was legal, should necessarily be easy. He talked about a consumer organization (the translation of the name is "What to choose", I didn't catch the French name) who sued Apple for it's use of FairPlay in the iTunes store. They alleged that Apple was "deceiving the user" because it is not interoperable with other things. In practice, Alain said most TPM allows a few private copies. FairPlay, for example, allows you to burn a few copies.
Ted Shapiro continued about the relationship between DRM and privacy. In the EU, they have to support offline usage due to privacy restrictions. The obvious problem with most DRM solutions right now is that they require an active license acquisition.
P. Bernt Hugenholtz emphasized that too often DRM has become synonymous with TPM. He offered the Creative Commons as perhaps the most successful example of a DRM implementation. It doesn't offer any technical protection, but the licenses are "digital tool for the management of copyright" - of course, Larry might shoot him because DRM is "evil".
Andrew Bridges wanted to remind everyone about the Audio Home Recording Act of 1992 (17 USC 1001) and the discussion in the Rio case. This makes copying from other people expressly immune due to the 3 cents per CD-R levy. He tells his kids not to download anything online - but instead bought them a big stack of CDs and told them to copy from their friends.
He also said that we can't say copyright law is technologically neutral when the statutes specifically mention recordable CDs. For example, the immunity discussed above only applies if you record to a CD-R that says "music" on it (this is why they are more expensive), but not a "data" CD-R.
Tillman Luder, the European Commission's acting head of Copyright, said the directive says that levies should apply to anything that "can be used" to copy. He thought the provision might be too broad to achieve the agenda. He also questioned whether such levies should also apply to software - for example, Grokster "can be used to copy" as much as a CD-R.
Jane Ginsburg asked about Creative Commons and whether it could be extended to collect payment. Prof. Hugenholtz said this was against the idealogy. Someone else from the audience said Creative Commons is a complete failure because you don't know who is using it and how it's being used. Hugenholtz said this was actually a benefit, not a problem, with the system. In fact, this is a common critique of DRM and may contribute to why it is not popular. He talked a bit about a "DRM Lite" system that incorporates micropayment. Someone from the audience added that the Copyright Clearance Center actually does have such a system in place today.
Other sessions:
- Copyright Exceptions and Defenses in the Digital Age
- Constitution and Copyright & Orphan Works
- Database Sui Generis Protection
- P2P Filesharing (coming soon)