Intellectual Property
Jun. 26, 2002
Life After Copyright: It's Spelled DRM
SAN FRANCISCO - Yet another legal scholar is heralding the demise of copyright law as we know it. And if there's anything to this most recent grim prognosis for the future of America's 200-year-old body of law, copyright lawyers may well be advised to switch practices.
In a paper presented in May at the monthly legal seminar hosted by Tomlinson Zisko & Morosoli in Palo Alto, Stefan Bechtold, a 27-year-old German lawyer who is a Fulbright Fellow at Stanford Law School, argues that existing copyright law will soon be obsolete.
Unlike earlier the-sky-is-falling predictions, which painted gruesome scenarios of unfettered looting of music and movies via the Internet, Bechtold offers an optimistic view of the future for intellectual propertyholders.
His prediction is that in place of copyright protection, content owners will rely on a combination of sophisticated copy-protection technology, anti-circumvention regulations and consumer contracts to secure their property rights and ensure they get paid. In high-tech circles, the system is referred to as digital rights management, or DRM.
The author of a book published in German on DRM and its implications for copyright law, Bechtold has studied the trend toward adopting encryption technology to secure digital content. He said the content industry has invested millions of dollars toward a technological fix to the digital piracy problem.
Sophisticated copy- and access-control technologies already are embedded in some CDs, DVDs and digital recording and playback devices on the market. For example, Microsoft Corp. uses DRM to prevent customers from installing its new operating system, Windows XP, on more than two computers. To install the software on multiple computers, the consumer has to pay Microsoft for an additional license.
Bechtold contends that with DRM, copyright owners will have the power to expand or narrow their property rights depending on how they secure their content and how much or little control they give to those who buy their products.
Some software makers, for instance, no longer sell computer programs. Instead they sell limited rights to use their products, charging consumers "access fees" to connect to a central network. Record labels have released copy-protected CDs that cannot be played on more than one device. Electronic book publishers sell e-book versions of novels that cannot be copied electronically or printed on paper.
"Both the U.S. and European copyright laws are basically perceived as protecting the economic, moral and personal interests of authors in their work and the distribution of their work," Bechtold said in a recent interview.
"Since the use of DRM essentially allows authors to do all these on their own, it could potentially supplant copyright law," he said.
Would the death of copyright law also portend the end of fair-use rights, such as allowing the public to make copies of a copyright work for personal use? Critics long have demonized DRM as a scourge on consumer rights and the public good, but Bechtold believes it has the potential to do more good than harm.
"There is a real danger here of over-protection on the part of content owners," he said. "But if market forces do not curb the content providers' tendency to over-protect, then we will see consumer rights laws that are designed to limit DRM."
The courts have yet to enunciate a clear doctrine of fair use regarding digital works, he said, leaving the public's rights to such copyrighted material open to interpretation. An affirmative declaration by lawmakers of what those rights should be would certainly be welcome, he said.
"We will finally get some clarity on this issue," he said.
Bechtold added that although DRM can impede fair use and free speech, the technology is easier to tweak than statutes or case law, and any changes would be effective globally.
So where will all this leave the copyright bar? Bechtold isn't sure.
"The only thing I know is that traditional copyright lawyers do not really like my idea," he said grinning. "I guess you would not really be happy to hear your field will soon be extinct."
Xenia Kobylarz
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