DRM Conference Review

From James Grimmelmann in the indispensible LawMeme, a comprehensive report from the Berkeley Digital Rights Management conference:

something has gone missing here. One of the great strengths of the copyright critique these days is that it’s so comprehensive: the story of the copyright balance being tipped too far in favor of protection ties together a remarkably wide collection of issues. Fair use by itself doesn’t necessarily raise a call to arms; neither does the black-boxing of consumer technology, the cartelization of media publishers, the marginalization of the public domain, the criminalization of security research, or the end of universal garage door openers. Placed together, they tell a compelling story and cry out for an across-the-board response. I wish Creative Commons well, but I also hope that it doesn’t forget its roots.

….As I see things, the space between expression and enforcement provides a workable location for human intervention. This is, of course, a place where humans have been traditionally part of the loop: the enforcement mechanism for copyright has been (until the advent of DRM) the legal system. From the decision to file suit through the enormously messy discretion afforded judges ruling on fair use through the complexities of enforcing judgments, the legal system, despite all its pretentions at precision, leaves plenty of loopholes for context-specific human flexibility.

Even in the DRMiverse, where “enforcement” is a far more rigorous concept, separating out an expressive layer opens up the possibility for some judicious restraint. Even the most tyrannical of copyright owners don’t really want perfect control all the time; whatever you think of viral marketing, its power depends on the willingness to surrender a degree of control over a meme. A little breathing room also provides a way around the problem that we still don’t know how to write rights expressions that say everything we want them to say.

….everyone knew coming in what the hard questions were. Will DRM work? How can we keep DRM from being a dagger aimed at the hearts of consumers? Without DRM, what will we do about the dagger aimed at the hearts of copyright owners? Is fair use dead? Why can’t we code our way around this problem?

The conference, if it was about anything, was about restating these questions and systematically shooting down cheap attempts to weasel out of them. After three days and a lot of debate, perhaps all we know about DRM is how little we know about DRM. But that in itself is something