[Infowarrior] - Seltzer: Anticircumvention Versus Open Innovation

[Richard Forno]

The Imperfect is the Enemy of the Good: Anticircumvention Versus Open  
Innovation
Wendy Seltzer
Harvard University - Berkman Center for Internet & Society; University  
of Colorado Law School

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1496058

Berkeley Technology Law Journal, Vol. 25, 2010

Abstract:

Digital Rights Management, law-backed technological control of usage  
of copyrighted works, is clearly imperfect: It often fails to stop  
piracy and frequently blocks non-infringing uses. Yet the drive to  
correct these imperfections masks a deeper conflict, between the DRM  
system of anticircumvention and open development in the entire  
surrounding media environment. This conflict, at the heart of the DRM  
schema, will only deepen, even if other aspects of DRM can be  
improved. This paper takes a systemic look at the legal, technical,  
and business environment of DRM to highlight this openness conflict  
and its effects.

Scholars have described DRM’s failures to protect copyright  
exceptions, its failures to stop unauthorized copying, and its impact  
on complementary innovation. This paper takes those debates as  
background to focus on the foreclosure of an entire mode of  
development and its opportunities for user innovation.

Under an anticircumvention regime, the producers of media content can  
authorize or deny authorization to technologies for playing their  
works. Open source technologies and their developers cannot logically  
be authorized. “Open-source DRM” is a contradiction in terms, for open  
source encourages user modification (and copyleft requires its  
availability), while DRM compels “robustness” against those same user  
modifications. Since DRM aims to control use of content while  
permitting the user to see or hear it, it can be implemented only in  
software or hardware that is able to override its user’s wishes—and  
can’t be hacked to do otherwise. For a DRM implementation to make any  
sense, therefore, its barriers against user modification of the rights  
management must be at least as strong as those against user access to  
its protected content.

I characterize a “DRM imperative” and explore the technical  
incompatibilities between regulation by code and exploration of code.  
We see DRM centralizing development and forcing the black-boxing of  
complementary media technology, in a widening zone as it mandates that  
protected media be played only on compliant devices, that those may  
output media content only to other compliant devices, etc. The home  
media network is thus progressively closed to open-source development.

Foreclosing open development costs us technically, economically, and  
socially. We lose predicted technological improvements, those of user- 
innovators (von Hippel) or disruptive technologies (Christensen) from  
outside the incumbent-authorized set, that could offer new options for  
content creators and audiences (such as better playback, library,  
mixing, and commerce options). We lose social and cultural  
opportunities for commons-based peer production.

In the full cost-benefit analysis of anticircumvention, the loss to  
open innovation would outweigh the gains from this imperfect mechanism  
of copyright enforcement. Treating code literally as law leaves the  
law with too many harmful side effects.

Keywords: copyright, anticircumvention, digital copyright, DRM,  
digital rights management, user innovation, free software, open  
innovation

Accepted Paper Series

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1496058