Selected ReadingsCourt casesTwo court cases in particular may shed light on centralissues concerning the law of copyright as it generallyoperates in the United States today. In Dowling v.United States, 473 U.S. 207 (1985), the United StatesSupreme Court discusses the extent to which copyrightinterests are distinguishable from traditional propertyinterests. In Feist <strong>Public</strong>ations, Inc. v. Rural TelephoneService Co., 499 U.S. 340 (1991), the SupremeCourt discusses at length the scope of protection thatcopyright law provides to created works under theUnited States Constitution.Those interested in the relationship between the substantiveprovisions of the U.S. copyright laws and theDigital Millennium Copyright Act’s prohibition oftechnologies that “circumvent” <strong>DRM</strong> should read thememorandum decision in the federal district court caseUniversal City Studios, Inc. v. Reimerdes, 111 F.Supp. 2d 294 (S.D.N.Y. 2000). That case was affirmedby a federal appeals court in Universal City Studios,Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001)The leading case concerning individuals’ rights toengage in some degree of unlicensed copying of copyrightedmaterial is the U.S. Supreme Court’s decisionin Sony v. Universal Studios 464 U.S. 417, 104 S. Ct.774, 78 L. Ed. 2d 574 (1984). Sometimes known as“the Betamax case,” Sony adopted a district court’sfinding that “even the unauthorized home time-shiftingof [content owners’] programs is legitimate fair use,”and concluded that devices that enable such “commerciallysignificant noninfringing uses” are not violationsof the Copyright Act.36
<strong>What</strong> <strong>Every</strong> <strong>Citizen</strong> <strong>Should</strong> <strong>Know</strong> <strong>About</strong> <strong>DRM</strong>,a.k.a. “Digital Rights Management”Endnotes1 When I say we don’t “normally” make exceptions for unauthorizeduses of other people’s property, I am not sayingthere are no exceptions. The law allows us to make certainuses of other people’s property in some kinds of emergencies,for example, and it may allow a government to invokeits power of eminent domain to authorize a utility companyto tear up your front yard in service of some larger publicgood. Copyright law is nevertheless different because itallows for some routine and regular uses of others’ propertywithout their authorization.2 Sometimes such shared “property” is called a “commons,”based on the tradition that there may be property in atownship whose use and ownership is shared by everybodyin the town.3 The American copyright doctrine called “fair use” has no precisecounterpart in other countries, but there are some similarprotections in other countries for unauthorized copying— these protections derive from copyright doctrines relatingto “fair dealing” and “private copying.” This paperfocuses more on the American doctrine of fair use than onthese analogous doctrines in other countries, but its reasoningmay be applied without much modification in mostother countries that, like the United States, are signatoriesto the Berne Convention (an international copyright treaty).4 The term “intellectual property” is a newer term than youmay think — only a few decades old, according to law professorMark Lemley. See Lemley, “Romantic Authorshipand the Rhetoric of Property,” 75 Tex. L. Rev. 873 (1997)at footnote 123.5 Throughout this paper, the term “copy protection” is usedinterchangeably with “<strong>DRM</strong>.”6 A more complete discussion of the fact that analog contentcan be digitally copied appears in section II of this paper.7 Other artists and authors and publishers approach the problemdifferently, however, by suggesting that perhaps compensationof artists and authors should not focus so muchon the making of copies of the creative work. There areother models for compensating artists, which include butare not limited to compulsory licensing and levies on playbackor recording equipment. This paper does not advocateany of these alternatives; it assumes that the making andselling of copies of creative works will remain at the heartof the compensation system for some time to come.9 See, e.g., Hernandez, “DVD sales up 57% in 1st half of 2003,”Los Angeles Daily News, Aug. 4, 2003, republished in TheArizona Republic’s online edition at .10 NGSCB was formerly known as “Palladium,” its in-housecodename at Microsoft Corp.11 Advocates of “trusted computing” make a point of stressingthat trusted computing is not itself <strong>DRM</strong>, but merely maybe used as the basis of a <strong>DRM</strong> scheme. While this reservationis certainly true, the available public reports concerningtrusted computing suggest that content protection and control(by the content provider) were among the initial motivationsfor the development of this technology. It also seemslikely that content-protection schemes will be among thefirst and foremost uses of trusted-computing architectures.12 Ironically, however, the typical protection scheme offered formarked TV content that is broadcast “in the clear” is toencrypt it after it has been “demodulated” (that is, receivedby a TV receiver). In this scenario, marking the content isnot really an alternative to encryption-based protection; itsimply requires encryption at a different point in the transmissionchain from broadcaster to audience. Why policymakersmight consider this a better alternative than simpleend-to-end encryption, especially given that the content is“in the clear” and unprotected for most of the distance ittravels, is unclear.13 The most obvious way to digitize (or redigitize) analog contentis to point a digital movie camera at a movie or televisionscreen. A less obvious way, perhaps, is the use of apersonal video recorder, such as TiVo or ReplayTV, to captureanalog television content in digital form. Many digitaltelevision receivers have been produced with analog outputsso that they can be integrated into existing homeentertainmentsystems. This means such receivers can beused to “route” in-the-clear digital content through analoginterfaces, after which the content can be redigitized withoutany protections associated with it.14 Once one captures digital content, one can use a computer toremove, modify, or forge a label. While the content may beencrypted while in transition to display, it must ultimatelybe displayed “in the clear” (that is, decrypted) in order foran audience to use it. Obviously, cryptography alone cannotprevent the complete removal of a label of content that isdisplayed or otherwise made available in unencrypted form.8 This is the approach used by cable-television set-top boxes.Once the scrambling or decryption technology of a set-topbox is understood, the box itself can be “pirated” and duplicated,making it possible for the creation of an aftermarketin illegal, cloned cable descramblers. And in fact a numberof such descrambler-cloning enterprises exist, in spite oftheir illegality.37
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