Licensing as Digital Rights Management, from the Advent of the Web to the iPad

Beginning of article

ABSTRACT

This Article deals with the Digital Millennium Copyright Act's anti-circumvention provision, Section 1201, and its relationship to licensing. It argues that not all digital locks and contractual notices qualify for legal protection under Section 1201, and attributes the courts' indiscriminate protection of all Digital Rights Management (DRM) measures to the law's incoherent formulation. The Article proposes a pair of filters that would enable courts to distinguish between those DRM measures that qualify for protection under Section 1201, and those that do not. The filters are shown to align with legislative intent and copyright precedent, as well as the approaches recently adopted by the Fifth Circuit, in MGE v. GE, and the Librarian of Congress, in granting the ipad "jailbreaking" exemption. The Article contends that articulating a coherent standard for legitimate circumvention would serve rightsholders by clarifying the scope of their protections, as well as prospective inventive competitors and generative consumers.

TABLE OF CONTENTS

INTRODUCTION

  I. ADEQUATE PROTECTION
     A. Inventing, then Sharing, the Web
     B. Jefferson and the White Paper
     C. Brokering the DMCA
     D. The Anti-Circumvention Provision
     E. Defining DRM

 II. DMCA JURISPRUDENCE
     A. Sony, Innovation & Vigorous Commerce
     B. Early DMCA Jurisprudence
     C. Middle Period. Foreseeing Monopolies
     D Later Jurisprudence: Licenses Reign Supreme

III. LICENSING GENERATIVITY
     A. The Court's Historical Approach to IP Licensing
     B. ipad DRM
        1. iPad Licensing
        2. iPad Generativity
     C. Accommodating the Generative Consumer
        1. Recognizing Generativity
        2. Blips in the Night?

CONCLUSION

INTRODUCTION

After Adam ate from the tree of the knowledge of good and evil, God placed the world's first protection measures around it: cherubim and a "flaming sword which turned every way." (1) God waited until the horse was out of the barn, but Apple took corresponding measures preemptively when it set up the App Store, attributing the rapid creation of hundreds of thousands of applications by third-party developers to the strict controls it cultivates as a part of its "ecosystem." (2) Others use less wholesome metaphors: just two years after the App Store's inception, a dramatic "jailbreak" was staged by none other than the Librarian of Congress (LOG). (3)

What provoked this exigency measure? This Article traces the provocation to the Digital Millennium Copyright Act's (DMCA) anti-circumvention provision, Section 1201. (4) The DMCA was intended to enable copyright law to adapt to the Internet environment, maintaining a balance between creators and users. (5) Intended to protect only meritorious technical protection measures (TPMs), Section 1201's incoherent design has, over the past decade, led to absolute protection for digital locks such as the iPad's.

The Copyright Clause is the only Constitutional provision that addresses Congress's powers regarding copyrights through stipulations, (6) and it likely stems from the Framers' skepticism of monopolies. (7) Yet courts interpreting Section 1201 have failed to reconcile established copyright limitations with technological development under the DMCA. Over the past five years, TPMs been paired with expansive licensing regimes, thwarting legislative intent and traditional copyright principles.

Under the DMCA regime, digital advances have become a double-edged sword: though they have the potential to spur new forms of creating, modifying, and sharing works, their deployment with or as TPMs can obstruct interoperability and legitimate privileged uses. Courts that permit contractual notices to function as restrictive licenses sanction an "fiber" (8) or "mutant" (9) copyright ethos.

This phenomenon impedes the emergence of what I call the "generative consumer," whose non-copyright-infringing digital production should be encouraged, not hindered. The World Wide Web (Web) itself was invented to promote global interoperability, modification, and redistribution. (10) These values accord with market economy and fair use principles, and the Supreme Court has repeatedly affirmed that trade in items that can be used both lawfully and unlawfully must be permitted to facilitate "innovation and a vigorous commerce." (11) Yet courts have failed to apply this logic in the context of DMCA circumvention.

I begin, in Part II, by reviewing Section 1201's legislative history, showing that it was meant to prevent media piracy while permitting a range of traditional uses. Congress's built-in exemptions have, however, been largely thwarted due to the law's incoherent design and its drafters' failure to anticipate interoperability-limiting behavior. Moreover, I show that members of the public generally do not understand what constitutes unauthorized circumvention, nor consider it immoral.

In Part III, I survey DMCA case law, showing that the courts' tendency to allow "licensing" agreements combined with TPMs to supersede traditional allowances is particularly problematic. I contend that pre-digital copyright principles capably addressed potentially infringing technology, and that they should be maintained. Part IV examines a century of copyright law precedent, highlighting a clear pattern of opposition to attempts to supersede federal copyright law allowances contractually--especially at the uneven seams where ownership meets license and copyright meets patent.

Most of the legal wrangling over circumvention pertains to DVDs, but I have chosen to focus on the ipad for two reasons. First, the iPad has proven extremely popular, overtaking DVD players' five-year sales numbers in its first quarter on the market. (12) Second, given that the device controls consumers' ability to access and use digital media in unprecedented ways, issues related to the differentiation of digital media which a consumer owns from that which she uses qua licensee are particularly salient in the ipad context.

I conclude by analyzing a pair of recent declarations, one by the Fifth Circuit and one by the LoC, that push back on current DRM practices by challenging the practice of labeling sales as licenses and the use of copyright law to limit interoperability. The philosophy implicit in these declarations endorses non-copyright-infringing circumvention, and is in harmony with both the DMCA's legislative intent and copyright precedent. I argue that continuing to interpret Section 1201 along these lines would benefit the public by empowering would-be competitors and generative consumers alike.

I. ADEQUATE PROTECTION

A. Inventing, then Sharing, the Web

Tim Berners-Lee, the computer scientist generally credited with inventing the Web along with Robert Cailiau at the European Organization for Nuclear Research (CERN), (13) envisioned it as an egalitarian international method for sharing information over the Internet. On the Web, he imagined, individuals around the world would use a browser to freely interact with hypertext documents. Working at CERN, he promoted the Web as a means to reduce the inefficiencies caused by incompatible tools within the organization, which "le[d] to waste[d] time, frustration and obsolete answers." (14)

When he formally proposed the project in March 1989, he argued that it would be useful not only to the organization, but globally. (15) The invention lived up to CERN's expectations and, in an extraordinary two-page statement, the organization magnanimously relinquished all intellectual property rights in its source code. Proclaiming its desire to "further compatibility [and] collaboration," it granted permission "for anyone to use, duplicate, modify and redistribute it," making the Web freely available on April 30, 1993. (16)

CERN's altruism was reciprocated when, in May 2010, it introduced the Large Hadron Collider--the world's largest machine, propelling protons at 99.99% of the speed of light--seeking to recreate Big Bang conditions and explain human existence. (17) For the project to succeed, unprecedented amounts of data must be stored and analyzed by thousands of scientists around the globe over a fifteen-year period. As a government-funded academic institution, the organization could scarcely afford sufficient computer storage, so it asked other research bodies and private citizens for help. Tens of thousands of computers were volunteered, and they are now jointly harnessed through a distributed network referred to as "the Grid." (18)

B. Jefferson and the White Paper

President Clinton wasted no time in seeking to fix rules of the road for the "Information Superhighway," (19) tasking a Working Group with updating the Copyright Act of 1976 (20) in February 1993. (21) Ironically, the Group invoked a Jeffersonian metaphor for its mandate (22): determining whether the coat worn in copyright law's boyhood still fits in digital adulthood. (23) Praising existent copyright law and its role, over the centuries, in bettering society, (24) the Group's White Paper, released in September 1995, purported to recommend just slight clarification. (25) In light of rapid technological advances and the need to maintain the existent balance of rights, it concluded that the "[t]he coat is getting a little tight. There is no need for a new one, but the old one needs a few alterations." (26)

The Group's invocation of the Founder is, like much of its rationale, specious. The White Paper asserts,

Jefferson stated: "I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand and hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy..." (27)

In fact, Jefferson wrote:

"I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them and find practical means of correcting their iii effects. But I know also that laws and institutions must go hand in hand...." (28)

The inconsistency may be partially explained by the fact that the Group chose to quote the Jefferson Monument inscription rather than his actual letter. Closer scrutiny reveals further discrepancies. Jefferson did not express a willingness to readily change laws in light of technological advances. Rather, he wrote a particularly private, (29) bold, (30) and issue-specific response. (31) Recent scholarship has deemed it one of Jefferson's most "wildly misconstrued remarks," typically marshaled under the banner of legislative revision. (32)

While the Group praised copyright law's historical evolution, the regime it espoused threatened to replace the balance instead. The uncompromising anti-circumvention measures proposed were paired with little proof that such legal protections would provide a necessary and productive accompaniment for TPMs. The legislation enacted in its wake runs counter to core intellectual property principles. Jefferson's actual plea should inform DMCA analysis: recognizing the "moderate imperfections" in harmonizing the Internet's effects on copyright law, we should accommodate them by sanctioning legitimate circumvention.

C. Brokering the DMCA

Despite the Administration's vigorous efforts, Congress did not bite when the legislation was first floated, and the Group's bill failed to make it out of committee over multiple attempts in 1995 and 1996. (33) Opposition came from several quarters, with the most effective and well-funded resistance emanating from the technology industry. (34) It deemed the proposed law's anticircumvention provisions draconian and incompatible with age-old copyright principles. (35) The bill criminalized products and services by virtue of either their "primary purpose or effect," (36) and hard-and software developers strenuously demanded both a focus on designer intention and protection from liability for users' potentially criminal behavior. (37)

Moreover, the sector contended, innovation necessitates explicit allowances for constructive uses of protected works, such as security research and reverse engineering. (38) While such circumvention exceptions were accordingly incorporated into the legislated DMCA a few years later, they have been restricted by judicial interpretation.

Having suffered defeat on the Hill, the Administration changed tack, refashioning the White Paper as a draft treaty distributed to World Intellectual Property Organization (WIPO) members at their December 1996 conference in Geneva. WIPO's legislative process had, at that point, already taken years and "intense, breathtaking negotiations of Hollywood-style epic proportion." (39) National and industry players from academia and the content, technological, and telecommunications industries battled over the resolution finally embodied in the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. (40)

Here too, a critical mass objected to inflexible anti-circumvention provisions. As a result, signatory states were not obligated to implement specific laws domestically, only to ratify the law through individual national schemes, by providing: (i) "adequate protection" to intellectual property through technical measures, and (ii) "effective remedies" against those who circumvent, or facilitate the circumvention of, said measures. (41) The agreed-upon document was premised on the recognition that the balance between rightsholders and the public interest must be maintained. (42)

Once the international treaties were put in place, attention shifted once again to the United States, as the House Judiciary and Commerce Committees fought over the draft DMCA for months. (43) President Clinton's efforts were vindicated when he signed the bill into law five years after its conception, on October 28, 1998, making it the most significant amendment to the Copyright Act of 1976 in decades. Its primary benefit was publicized as providing authors with "global protection from piracy in the digital age," (44) in light" of the newfound ease by which "digital technology enables pirates to reproduce and distribute perfect copies or works." (45)

In this incarnation, the entertainment and software industries' support overwhelmed opposition by factions including scientists, librarians, and academics. (46) For better or worse, lobbying is rampant in intellectual property matters, and the copyright realm in particular. (47) Writing in 1996, William Patry, who had served in various Congressional capacities, related a disturbing quid pro quo: copyright interest groups regularly held fundraisers, wrote campaign songs, and provided tickets to sought-after shows, with the expectation that "not even the hands of congressional staff have touched the committee reports." (48)

Partially as a result of lobbying, and partially due to the rapidly changing nature of copyright, interests tend to be gauged in present-day, rather than forward-looking, terms. (49) Legislative myopia is evident throughout the DMCA, even with key elements such as interoperability--a cornerstone of intellectual property and the related areas of antitrust and telecommunication regulation. (50) The anti-circumvention provision was intended to protect interoperability. (51) Content providers were, perhaps naively, expected to consult "product designers ... about the design and implementation of technological protection measures." (52) Congress failed to anticipate the interoperability-limiting behavior that actually emerged. (53)

D. The Anti-Circumvention Provision

The blanket prohibition against circumvention articulated in Section 1201 is accompanied by a convoluted set of exceptions and limitations on those exceptions. The law does not permit non-copyright-infringing circumvention, including having a right to access or use protected work by virtue of one's ownership or intended "fair" use. Instead, legislators sought to accommodate such rights by tailoring a series of flexible exceptions.

Subsection (a)(1)(A) prohibits circumventing any TPM "that effectively controls access to a work" protected by copyright. Critics have explained that this wording suggests that "not every" TPM warrants legal protection, by virtue of the effectiveness condition. (54) Congressional and European Parliamentary debate, the treaties' chief architect, and a recent comprehensive international survey have all recognized these limitations. (55)

Congress strove to integrate these limitations, explaining that the prohibition on circumvention "does not apply to the subsequent actions of a person once he or she has obtained authorized access to a copy of a work...even if such actions involve circumvention." (56) Legislators sought to downplay the scope of the prohibition, describing it as "very limited," while characterizing the scope of the exceptions as "very broad." (57) Still, courts have generally construed any act of circumvention as prima facie illicit. (58)

Subsections (B)-(E) detail the process by which the LoC may grant triennial Section 1201 exemptions. Users of specific classes of works may be exempted in light of the prohibition's adverse effects on their ability to make noninfringing use of the works in question* The rulemaking process was meant as a failsafe to protect those whose noninfringing uses are adversely affected. (59) Yet until the most recent batch of LoC exemptions-discussed below--it has proven neither forward-looking nor effective. Few exemptions have been granted, many have been fought off vigorously, (60) and a perennial problem remains: even where a form of circumvention is exempted, rightsholders may still sue for breach of contract, and the tools required for lawful circumvention remain prohibited under section 1201(a)(2). (61)

Section (c) states that nothing in Section 1201 shall "affect rights, remedies, limitations, or defenses to copyright infringement, including fair use." Indeed, fair use is statutorily protected under 17 U.S.C. [section] 107, and grounded in common law and equity. (62) The White Paper pledged not to diminish fair use privileges, (63) and the DMCA legislators sought to integrate it. (64) The drafters thought it would be as applicable in the digital environment as it was in the analog environment. (65) However, they failed to anticipate that courts would consider circumvention a tort separate from copyright infringement.

E. Defining DRM

Before turning to the specifics of the controls at issue, a word about definitions is in order. Anti-circumvention laws address breaches of TPM and DRM schemes. These terms are contentious on two levels. First, most people consider DRM an umbrella term subsuming TPM, (66) but others see it the other way around or as interchangeable. (67) Second, the rights at issue are contentious, so while most consider DRM an acronym for "Digital Rights Management," some contend that the "R" stands for "Restrictions." (68) Others simply forgo the term DRM, opting to use only the term TPM, deeming it less contentious. (69)

I will use "DRM" to refer to systems employing TPMs on their own, or in combination with licensing terms. The TPM-licensing nexus is apparent in later DMCA case law, but has yet to be properly studied. A large-scale recent international DRM survey, for instance, found that many problems did "not stem from DRM but from the fact that licenses may override copyright law," yet such problems were deemed beyond the study's scope. (70)

Its ability to endow rightsholders with control is "both the beauty of DRM (from the point of view of copyright owners) and its bane (from the point of view of many consumers and technology companies)". (71) DRM advocates assert that it is not information that …