[Infowarrior] - DRM Paper: Rethinking Anticircumvention's Interoperability Policy

[Richard Forno]

Rethinking Anticircumvention's Interoperability Policy

Aaron K. Perzanowski
University of California, Berkeley - School of Law; Berkeley Center  
for Law & Technology


http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1224742

UC Davis Law Review, Forthcoming

Abstract:

Interoperability is widely touted for its ability to spur incremental  
innovation, increase competition and consumer choice, and decrease  
barriers to accessibility. In light of these attributes, intellectual  
property law generally permits follow-on innovators to create products  
that interoperate with existing systems, even without permission. The  
anticircumvention provisions of the Digital Millennium Copyright Act  
(DMCA) represent a troubling departure from this policy, resulting in  
patent-like rights to exclude technologies that interoperate with  
protected platforms. Although the DMCA contains internal safeguards to  
preserve interoperability, judicial misinterpretation and a narrow  
textual focus on software-to-software interoperability render those  
safeguards largely ineffective.

Subjecting restrictions on interoperability to antitrust scrutiny, and  
the resulting mandatory disclosure of technical information, is one  
approach to holding anticircumvention law in check. But a number of  
considerations suggest antitrust is a poor tool for lessening the  
DMCA's impact on interoperability. Whether characterized as tying,  
denial of essential facilities, or refusal to deal, the use of  
anticircumvention law to impede interoperability is unlikely to  
consistently trigger antitrust enforcement. In part, the limits on the  
ability of antitrust to address the impact of the DMCA stem from its  
deference to the legislative process. Antitrust rarely interferes with  
the exercise of legitimately acquired IP rights.

Rather than relying on antitrust to limit the DMCA's restriction of  
interoperability, this Article proposes a solution that addresses that  
restriction at its source. Expanding the DMCA's existing  
interoperability exemption would create an environment more hospitable  
to interoperable technologies. But in order to preserve the  
protections the DMCA offers copyright holders, this expanded exemption  
must disaggregate restrictions on the use of interoperable software  
and devices from the restrictions on access and copying that Congress  
intended to enable. The former can be ignored only to the extent the  
latter are respected.

Keywords: interoperability, DRM, DMCA, anticircumvention
Accepted Paper Series
Date posted: September 06, 2008 ; Last revised: September 14, 2008

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1224742