January 17, 2005 | By Donna Wentworth

Felten on Rathergate, DRM, and Fair Use

Not long ago, we were bemoaning the malign use Apple and Real Networks are making of digital rights management (DRM) -- in short, abusing legitimate customers in the service of marking territory. Unfortunately, that's far from the worst of it. As we point out in "Unintended Consequences: Five Years Under the DMCA," others are using DRM backed indiscriminately by copyright law to crush competition, block innovation, and silence critics.

Ed Felten cites a prime example that's sure to make it into the next iteration of "Unintended Consequences": CBS using DRM presumably to stop critics from copying and pasting portions of its report on the "Rathergate" scandal:

This is yet another use of DRM that has nothing to do with copyright infringement. Nobody who wanted to copy the report as a whole would do so by copying and pasting -- the report is enormous and the whole thing is available for free online anyway. The only plausible use of copy-and-paste is to quote from the report in order to comment, which is almost certainly fair use. ...

This sort of thing should not be a public policy problem; but the DMCA makes it one. If the law were neutral about DRM, we could just let the technology take its course. Unfortunately, U.S. law favors the publishers of DRMed material over would-be users of that material. For example, circumventing the DRM on the CBS report, in order to engage in fair-use commentary, may well violate the DMCA. (The DMCA has no fair-use exception, and courts have ruled that a DMCA violation can occur even if there is no copyright infringement.)

We have a good start for protecting people engaged in perfectly legitimate speech (see the ruling in OPG v. Diebold), but we need more. Check out our Action Center for details on the Digital Media Consumers' Rights Act (H.R. 107, DMCRA), which would make it so that if there is no infringement claim, there's no stick for abusers to threaten us with.

Update (7:40 p.m.): The New York Times has a piece on the flap: CBS News Draws Ire of Bloggers. "The handling of documents appears to have tripped up CBS News again, and once more bloggers have provided instant -- and biting -- critiques of the incident."


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